98-004070 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Fidel Deleon Status: Closed Recommended Order on Monday, February 22, 1999.

Summary: Proof was clear and convincing that Respondent committed attempted sexual battery while in uniform and that he failed to have good moral character. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-4070

)

FIDEL DeLEON, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative

Hearings, before Daniel M. Kilbride, Administrative Law Judge,

in Orlando, Florida, on January 21, 1999. The following

appearances were entered:

APPEARANCES

For Petitioner: Karen Simmons

Assistant General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Fidel DeLeon

381 Lake Park Trail

Oviedo, Florida 32765

STATEMENT OF THE ISSUE

Whether on or about January 22, 1996, Respondent, Fidel

DeLeon, did unlawfully attempt to commit a sexual battery upon

Diane Smalley, a person twelve years of age or older, without the

consent of Diane Smalley, by attempting to penetrate her vagina

with his penis or by attempting to place his penis in union with

the vagina and/or mouth of Diane Smalley, and in the process

thereof used physical force and violence not likely to cause

serious personal injury.

Whether Respondent violated the provisions of Section

943.1395(6) and/or (7), Florida Statutes, and Rule

11B-27.0011(4)(a), Florida Administrative Code, in that the

Respondent failed to maintain the qualifications established by

Section 943.13(7), Florida Statutes, which require that law

enforcement officers in the State of Florida have good moral

character.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint dated

August 27, 1997, charging Respondent with various violations of

Florida law. Respondent filed an Election of Rights form

disputing the allegations set forth in the Administrative

Complaint and requested a formal hearing. The case was referred

to Division of Administrative Hearings, which noticed and

conducted a formal hearing pursuant to Section 120.57(1), Florida

Statutes.

At the formal hearing, Petitioner presented the testimony of

four witnesses: Dianne Smalley, David Watson, Denis Volkerson,

and Jeff Tramonte. Petitioner offered ten exhibits into

evidence. Exhibits 1-9 were admitted. The contents of

Petitioner's Exhibit No. 5 is admissible pursuant to Rule

28-106.213(3), Florida Administrative Code. The contents of

Petitioner's Exhibit No. 6 is admissible pursuant to Sections

90.803(18) and 90.804(2)(c), Florida Statutes. The contents of

Petitioner's Exhibit No. 7 is admissible pursuant to Section

90.803(18) and 90.804(2)(c), Florida Statutes. The contents of

Petitioner's Exhibit No. 8 is admissible pursuant to Sections

90.803(18) and 90.804(2)(c), Florida Statutes. The contents of

Petitioner's Exhibit No. 9 is admissible pursuant to Sections

90.803(18) and 90.804(2)(c), Florida Statutes. Respondent

presented the testimony of two witnesses: Kim Kirkland and Dan

Champion. Respondent did not offer any exhibits into evidence.

At the conclusion of formal hearing, the parties were given

ten days for the filing of Proposed Recommended Orders from the

date of filing of the transcript. A transcript of the

proceedings was filed on February 2, 1998. Petitioner filed its

Proposed Recommended Order on February 10, 1999. Respondent

filed his proposals on February 9, 1999. Both proposals have

been given careful consideration in the preparation of this

order.

FINDINGS OF FACT

1. Respondent was certified as a law enforcement officer in

Florida by the Criminal Justice Standards and Training Commission

on December 7, 1990, and was issued certificate No. 113130.

2. Respondent was employed with the Orange Count y Sheriff's

Office on May 9, 1994.

3. Respondent served as a road deputy during the relevant

time-period, working the midnight shift.

4. Dianne Smalley was born on January 7, 1953, and is a

person twelve years of age or older.

5. Smalley was employed by the Maitland Police Department

as a dispatcher in January 1996, and worked the midnight shift.

6. Smalley met and became acquainted with Respondent

approximately a month prior to January 22, 1996.

7. On January 21, 1996, Respondent and Smalley made plans

to get together socially after Respondent got off duty.

8. On January 22, 1996, at about two o'clock in the

morning, Respondent went to the residence of Smalley and was

invited in.

9. When Respondent arrived at Smalley's residence, he was

wearing his police uniform, which included a holstered gun.

10. Respondent and Smalley socialized for about 30 minutes

while in the residence.

11. During the course of their conversation, Respondent

told Smalley that he was married.

12. After telling Small ey he was married, Respondent was

asked to leave by Smalley.

13. Respondent did not leave Smalley's residence at that

point, but instead Respondent moved closer to Smalley who was

sitting on the couch.

14. Respondent pushed Smalley back on the couch, however,

Respondent moved forward and kissed her on her neck. Respondent

also rubbed his hands all over the body of Smalley.

15. Smalley pushed away Respondent and told him that

nothing was going to happen. She got up and walked toward the

front door, expecting Respondent to leave.

16. As Smalley moved from the dining room toward the front

door, Respondent came up behind her and pushed Smalley back into

the living room to where her body was bent forward over the arm

of the couch.

17. Respondent stood behind Smalley and, as she was bent

over the couch, Respondent held her down by holding her arms and

with the weight of his body.

18. Respondent then tried to pull her pants down and pull

up her shirt.

19. Respondent unzipped his pants and pulled ou t his penis.

20. Respondent rubbed his genitals against Smalley's

posterior and placed his penis between her legs.

21. Respondent simulated intercourse with Smalley.

22. Respondent tried to put Smalley's hand on his penis but

she resisted.

23. Respondent asked Smalley to perform oral sex on him but

she refused.

24. Respondent tried to push Smalley's body down to perform

oral sex on him, but was unable to because she locked her knees.

25. Respondent then masturbated himself in Smalley's living

room and ejaculated on the carpet in the living room.

26. Respondent then let Smalley go and left the residence.

27. During the course of the day, Smalley reported the

incident to her roommate.

28. Later that day, Respondent called Smalley on the

telephone and apologized for what had happened.

29. Smalley called the Orange County Sheriff's Office after

viewing a news broadcast where a rape suspect, who looked similar

to Respondent, had gained access to the victim's home by using a

police ID. Smalley did not identify herself fully to Detective

Volkerson, but identified Fidel DeLeon as a possible suspect

because of what he had done to her.

30. Through Respondent's telephone records, detectives were

able to identify Smalley as the caller. An investigation was

initiated and Smalley cooperated with law enforcement.

31. During the investigation, Respondent gave investigators

false and misleading statements.

32. Following the internal investigation, Respondent was

terminated from the Orange County Sheriff's Office on August 29,

1996.

33. During the course of the investigation of this matter

from January through August 1996, there was insufficient evidence

of misconduct by law enforcement which would negate the integrity

of the investigation into this matter.

34. Smalley's testimony at the formal hearing was credible.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

36. Petitioner is charged with the administration of

criminal justice standards and training for all law enforcement

officers throughout the state, pursuant to Section 943.085-

943.255, Florida Statutes (1997), and is authorized to discipline

those licensed thereunder who violate the law.

37. Revocation of license proceedings are penal in nature;

State ex rel Vining v. Florida Real Estate Commission , 281 So. 2d

487 (Fla. 1973) and must be construed strictly in favor of the

one against whom the penalty would be imposed. Munch v.

Department of Professional Regulation, Division of Real Estate ,

592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of

Professional Regulation , 441 So. 2d 1121 (Fla. 3d DCA 1983). The

standard of proof required in this matter is that relevant and

material findings of fact must be supported by clear and

convincing evidence of record. Hal Heifetz d/b/a Key Wester Inn

v. Department of Business Regulation, Division of Alcoholic

Beverages and Tobacco , 475 So. 2d 1277 (Fla. 1st DCA 1985);

Department of Banking and Finance v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996). Petitioner has the burden of proving by

clear and convincing evidence each of the allegations in the

Administrative Complaint. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

38. Section 943.13, Florida Statutes, establishes the

minimum qualifications for law enforcement officers in Florida,

including at Subsection (7):

Have a good moral character as determined by

a background investigation under procedures

established by the Commission.

39. In Zemour, Inc. v. Division of Beverage , 347 So. 2d

1102 (Fla. 1st DCA 1977), an application for a beverage license

was denied after an administrative finding that the owner was not

of good moral character. Although the facts leading to this

conclusion are entirely dissimilar to the instant case, the

court's definition of moral character is significant.

Moral character as used in this statute means

not only the ability to distinguish between

right and wrong, but the character to observe

the difference; the observance of the rules

of right conduct; and conduct which indicates

and establishes the qualifies generally

acceptable to the populace for positions of

trust and confidence.

Such definition should be used in the case before this tribunal.

40. Rule 11B-27.0011(4), Florida Administrative Code, in

effect at the time of the alleged offense, defines "good moral

character" for purposes of the implementation of disciplinary

action upon Florida law enforcement officers. The rule states in

relevant portion:

(4) For the purposes of the Commission's

implementation of any of the penalties

enumerated in Section 943.1395(6) or (7), a

certified officer's failure to maintain a

good moral character, as required by Section

943.13(7), is defined as:

(a) The perpetration by the officer of an

act which would constitute any felony

offense, whether criminally prosecuted or

not. . . . Section 794.011(5): sexual

battery.

41. Section 794.011(5), Florida Statutes, Sexual Battery is

defined, as follows:

A Person who commits sexual battery upon a

person 12 years of age or older, without that

person's consent, and in the process thereof

does not use physical force and violence

likely to cause serious personal injury

commits a felony of the second degree. . . .

42. Section 794.011(1), Florida Statutes. As used in this

chapter:

(a) "Consent" means intelligent, knowing,

and voluntary consent and does not include

coerced submission. "Consent" shall not be

deemed or construed to mean the failure by

the alleged victim to offer physical

resistance to the offender.

(g) "Serious personal injury" means great

bodily harm or pain, permanent disability, or

permanent disfigurement.

(h) "Sexual battery" means oral, anal, or

vaginal penetration by, or union with, the

sexual organ of another or the anal or

vaginal penetration of another by any other

object; however, sexual battery does not

include an act done for a bona fide medical

purpose.

43. Section 777.04, Florida Statutes. Attempt- -

(1) A person who attempts to commit an

offense prohibited by law and in such attempt

does any act toward the commission of such

offense, but fails in the perpetration or is

intercepted or prevented in the execution

thereof, commits the offense of criminal

attempt, ranked for purposes of sentencing as

provided in subsection (4).

(4)(d) Except as otherwise provided in s.

828.125(2) or s. 849.25(4), if the offense

attempted, solicited, or conspired to is a:

1. Felony of the second degree the offense

of criminal attempt is a felony of the third

degree.

44. Section 943.1395(6), Florida Statutes, requires:

The Commission shall revoke the certification

of any officer who is not in compliance with

the provisions of Section 943.13(4) or (7).

45. Section 943.1395(7), Florida Statutes, provides:

"Upon a finding by the commission that a

certified officer has not maintained good

moral character . . . the commission may

enter an order imposing . . . penalties"

which include revocation, suspension,

probation and/or reprimand

46. Section 943.1395(8), Florida Statutes, provides:

(a) The commission shall, by rule, adopt

disciplinary guidelines and procedures to

administer the penalties provided in

subsections (6) and (7). The commission may,

by rule, prescribe penalties for certain

offenses. The commission shall, by rule, set

forth aggravating and mitigating

circumstances to be considered when imposing

the penalties provided in subsection (7).

* * *

(d) A Administrative Law Judge assigned to

conduct a hearing under ss 120.569 and

120.57(1) regarding allegations that an

officer is not in compliance with, or has

failed to maintain compliance with, s.

943.13(4) or (7) must, in his or her

recommended order:

1. Adhere to the disciplinary guidelines and

penalties set forth in subsections (6) and

(7) and the rules adopted by the commission

for the type of offense committed.

2. Specify, in writing, any aggravating or

mitigating circumstances that he considered

in determining the recommended penalty.

Any deviation from the disciplinary

guidelines or prescribed penalty must be

based upon circumstances or factors that

reasonably justify the aggravation or

mitigation of the penalty. Any deviation

from the disciplinary guidelines or

prescribed penalty must be explained, in

writing, by the Administrative Law Judge.

47. Rule 11B-27.005, Florida Administrative Code, provides,

in pertinent part:

(4) The commission sets forth below a range

of disciplinary guidelines from which

disciplinary penalties will be imposed upon

certified officers who have been found by the

Commission to have violated section

943.13(7), F.S. The purpose of the

disciplinary guidelines is to give notice to

certified officers of the range of penalties

or prescribed penalties which will be imposed

for particular violations of section

943.13(7), F.S. absent aggravating or

mitigating circumstances, as provided in

paragraph (4), herein. The disciplinary

guidelines are based upon a "single count

violation" of each provision listed.

Multiple counts of violations of section

9443.13(7), F.S., will be grounds for

enhancement of penalties. All penalties at

the upper range of the sanctions set forth in

the guidelines, (i.e., suspension or

revocation), include lesser penalties, (i.e.,

reprimand, remedial training, or probation),

which may be included in the final penalty at

the Commission's discretion.

(5) When the Commission finds that a

certified officer has committed an act which

violates section 943.13(7), F.S., it shall

issue a final order imposing penalties within

the ranges recommended in the following

disciplinary guidelines:

(a) for the perpetration by the officer of

an act which would constitute any felony

offense, as described in Rule 11B-

27.0011(4)(a), F.A.C., . . . the action of

the Commission shall be to impose a penalty

ranging from suspension of certification to

revocation.

48. Section 120.57(1)(c), Florida Statutes, provides:

Hearsay evidence may be used for the purpose

of supplementing or explaining other

evidence, but it shall not be sufficient in

itself to support a finding unless it would

be admissible over objection in civil

actions.

49. Section 90.802, Florida Statutes, provides:

Hersay rule.--Except as provided by statute,

hearsay evidence is inadmissible.

50. Section 90.803, Florida Statutes, provides:

Hearsay exceptions; availability of declarant

immaterial.--The provision of s. 90.802 to

the contrary notwithstanding, the following

are not inadmissible as evidence, even though

the declarant is available as a witness:

(18) ADMISSIONS.--A statement that is

offered against a party and is:

(a) The party's own statement in either an

individual or a representative capacity;

(b) A statement of which the party has

manifested an adoption or belief in its

truth;

(22) FORMER TESTIMONY.--Former testimony

given by the declarant which testimony was

given as a witness at another hearing of the

same or a different proceeding, or in a

deposition taken in compliance with law in

the course of the same or another proceeding,

if the party against whom the testimony is

now offered, or, in a civil action or

proceeding, a predecessor in interest, or a

person with a similar interest, had an

opportunity and similar motive to develop the

testimony by direct, cross or redirect

examination; provided, however, the court

finds that the testimony is not inadmissible

pursuant to s. 90.402 or s. 90.403.

51. Section 90.804, Florida Statutes, provides:

Hearsay exceptions; declarant unavailable.--

(2) HEARSAY EXCEPTIONS.--The following are

not excluded under s. 90.802, provided that

the declarant is unavailable as a witness:

(a) Former testimony.--Testimony given as a

witness at another hearing of the same or a

different proceeding, or in a deposition

taken in compliance with law in the course of

the same or another proceeding, if the party

against whom the testimony is now offered,

or, in a civil action or proceeding, a

predecessor in interest, had an opportunity

and similar motive to develop the testimony

by direct, cross, or redirect examination.

(c) Statement against interest.--A statement

which, at the time of its making, was so far

contrary to the declarant's pecuniary or

proprietary interest or tended to subject the

declarant to liability or to render invalid a

claim by the declarant against another, so

that a person in the declarant's position

would not have made the statement unless he

or she believed it to be true. A statement

tending to expose the declarant to criminal

liability and offered to exculpate the

accused is inadmissible, unless corroborating

circumstances show the trustworthiness of the

statement.

52. On or about January 22, 1996, Respondent, Fidel DeLeon,

did unlawfully attempt to commit a sexual battery upon Smalley, a

person twelve years of age or older, without the consent of

Smalley, by attempting to penetrate her vagina with his penis or

by attempting to place his penis in union with the vagina and/or

mouth of Smalley, and in the process thereof used physical force

and violence not likely to cause serious personal injury.

53. Respondent went over to Smalley's house intent on

having sex. He was asked to leave once Smalley found out he was

married. She kept rebuffing his advances and telling him no.

When he could not have his way, the Respondent tried to force

himself on her. He tried to pull her pants off. When that

didn't work, he tried to push her head down for oral sex.

Luckily, her resistance, as well as his need to relieve himself,

prevented the Respondent from completing the actual crime of

sexual battery.

54. Clear and convincing evidence was presented to

establish that the Respondent committed the act alleged in the

Administrative Complaint, to wit: Attempted Sexual Battery,

which is a third-degree felony.

55. Based on the behavior of Respondent on January 22,

1996, Petitioner showed by clear and convincing evidence that

Respondent failed to maintain good moral character within the

meaning of Section 943.13(7), Florida Statutes, and Rule 11B-

27.0011(4)(a), Florida Administrative Code.

56. Smalley's testi mony as to the events of January 22,

1996, is credible.

57. The Respondent's defense to the charges is not

credible.

58. The Criminal Justice Standards and Training Commission

disciplinary guidelines provide for a penalty guideline range of

suspension to revocation for the charged offense. Clearly, the

nature of this offense is one where revocation of certification

to be a law enforcement officer is the appropriate penalty.

59. The position of law enforcement officer is one of great

public trust. There can be no more basic public expectation than

that those who enforce the law must themselves obey the law.

City of Palm Bay v. Bauman , 475 So. 2d 1322 (Fla. 5th DCA 1989).

The seriousness of the Respondent's misconduct clearly merits

revocation of his law enforcement officer certification.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Commission enter a final order which

finds:

(1) Respondent guilty of committing attempted sexual

battery on January 22, 1996;

(2) that Respondent failed to maintain the qualifications

established by Section 943.13(7), Florida Statutes, which require

that law enforcement officers have good moral character; and

(3) revoke the certification of Respondent to be a law

enforcement officer in the State of Florida.

DONE AND ENTERED this 22nd day of February, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of February, 1999.

COPIES FURNISHED:

Karen Simmons, Assistant General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Fidel DeLeon

381 Lake Park Trail

Oviedo, Florida 32765

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

A. Leon Lowry, II, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.