STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS & ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8109

)

ROBERT J. MORUZZI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 24, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Sharon D. Larson, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 33172

For Respondent: Robert J. Moruzzi, pro se

20811 San Simeon Way # 202

North Miami Beach, Florida 33179 STATEMENT OF THE ISSUE

Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint on March 8, 1990, seeking to revoke the law enforcement officer certification that had been previously issued to Respondent, Robert J. Moruzzi. Paragraph 2(a) of the Administrative Complaint alleges the following:

2 (a) On or about January 14, 1989, Respondent, Robert J. Moruzzi, did then unlawfully actually and intentionally touch or strike Haroon Nabee against the will of said victim.

Paragraph 2(b) of the Administrative Complaint contained additional factual allegations of wrongdoing by Respondent, but those allegations were abandoned by Petitioner at the beginning of the formal hearing.

Paragraph 3 of the Administrative Complaint alleges as follows:

3. The actions of the Respondent did violate the provisions of Section 943.1395(5),(6), Florida Statutes and Rule 11B-27.011(4)(b), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character.

By his Election of Rights form, Respondent denied that he failed to maintain good moral character and timely requested a formal hearing of the Administrative Complaint. This proceeding followed.

At the final hearing, Petitioner presented the testimony of two witnesses and introduced four documentary exhibits, each of which was accepted into evidence. Respondent testified on his own behalf, but presented no other testimony and no exhibit.

A transcript of the proceeding has been filed. At the request of the parties, the deadline for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code.

Neither party filed a post-hearing submittal.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was certified by the State of Florida, acting through Petitioner, as a law enforcement officer in the State of Florida. Respondent was issued certificate number 02-7330 on March 30, 1973. There was no evidence that Respondent's certification had been the subject of any other disciplinary proceeding.

   
   

2. At the times pertinent to this proceeding, Respondent was employed as a police officer by the City of Bal Harbour, which is a municipality located in Dade County, Florida.

   
   

3. The following events occurred in Bal Harbour, Florida, on January 14, 1989, while Respondent was on duty as a police officer:

   
   

   1. A few minutes past 7:00 a.m., Respondent encountered a 1975 Plymouth that had broken down on Collins Avenue near its intersection with 102 Street.

      
      

   2. Respondent observed a young male (who he later learned was 17 year old Haroon Nabee) pushing this disabled car by himself trying to get the car off the street and into an adjacent parking lot. Mr. Nabee was pushing the car with one hand and steering it with his other. Respondent assisted Mr. Nabee by pushing the disabled car from the rear with his patrol car.

   3. After the disabled car and Respondent's patrol car were in the parking lot, Respondent asked Mr. Nabee his name and asked to see his registration and his drivers license. Mr. Nabee identified himself as Nevin Maharaj and showed Respondent a registration certificate that reflected that the car was registered in the name of Mr. and Mrs. Stein. Respondent later learned that Mrs. Stein was Mr. Nabee's sister.

      
      

   4. While Mr. Nabee looked through his wallet for his drivers license, Respondent observed two credit cards in the name of John J. Mendoza. When asked about the credit cards, Mr. Nabee reported that he had found them.

      
      

   5. Respondent became suspicious and requested a backup. In response to that request Officer Pamela Robinson Adlet (at the formal hearing, Officer Adlet had reverted to the use of Robinson as her last name) appeared on the scene at 7:20 a.m. After Officer Adlet arrived on the scene, Respondent placed Mr. Nabee under arrest, handcuffed his hands behind his back, searched him, and placed him in the back seat of Respondent's caged patrol car.

      
      

   6. Respondent then called for a tow truck and requested that Officer Adlet assist him in conducting an inventory of the automobile. The officers inventoried the interior of the automobile, but they could not gain access to the trunk. Because the rear seat was loose, Officer Adlet could observe objects in the trunk, but she was unable to inventory those objects because of her limited access.

      
      

   7. While waiting for the tow truck, Respondent returned to his patrol car, which was parked immediately behind the disabled vehicle, and began making out the arrest form using the false name Mr. Nabee had given him. Respondent had partially completed the arrest form when the tow truck arrived. Because his patrol car was blocking the tow truck's access to the disabled vehicle, Respondent drove the patrol car to a spot approximately thirty feet from the disabled vehicle.

      
      

   8. Respondent then walked from his patrol car towards the tow truck and he and Officer Adlet engaged in a brief conversation with the tow truck driver. Officer Adlet told the driver that she and Respondent wanted to get into the trunk of the disabled vehicle and asked if he had a screwdriver they could use for that purpose. 1/

      
      

   9. Respondent decided to look into the glove box of the disabled vehicle for the second time because his earlier search of the vehicle had been interrupted by his efforts to help Officer Adlet gain access to the trunk. Respondent found in the glove box a passport which reflected Mr. Nabee's true name and which contained Mr. Nabee's photograph. Respondent showed the passport to Officer Adlet, who confirmed that the passport photograph appeared to be of Mr. Nabee.

      
      

   10. Respondent returned to his patrol car and began addressing Mr. Nabee in loud, profane language and accused Mr. Nabee of lying to him. Respondent opened the rear door of the patrol car on the driver's side and, while holding the passport in his clenched right hand, made three punching motions with his right hand in the direction of Mr. Nabee. With the first of these three blows the back of Respondent's right hand made contact with the right side of Mr. Nabee's face. (The right side of Mr. Nabee's face was struck because Mr. Nabee had turned towards Respondent when Respondent opened the door of the patrol

       car.) In reaction to that blow, Mr. Nabee stretched out on the back seat of the patrol car, and, consequently, the other two blows did not make contact with Mr. Nabee.

       
       

   11. Thereafter, Respondent transported Mr. Nabee to the Bal Harbour police station where Mr. Nabee complained to another officer about Respondent's acts.

   
   

4. Mr. Nabee was not injured by Respondent. There was no evidence that he suffered any cut or bruise as a result of the contact with Respondent.

   
   

5. Respondent was angry with Mr. Nabee because he had lied about his name, which caused Respondent to have to redraft his arrest form.

   
   

6. Respondent contends that the contact was accidental and was a result of his gesticulating in an angry fashion after learning that Mr. Nabee had lied to him. This contention is rejected. Petitioner has established by clear and convincing evidence that Respondent was angry with Mr. Nabee and that Respondent intentionally struck Mr. Nabee in retaliation for Mr. Nabee's lying to him.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

8. Section 943.13(7), Florida Statutes, requires that a law enforcement officer possess good moral character.

   
   

9. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

   
   

   That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the

   evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

10. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102, 1105, (Fla. 1st DCA 1977), the court discussed the meaning of moral character as follows:

    
    

    Moral character ... 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 qualities generally acceptable to the populace for positions of trust and confidence.

    
    

11. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458, (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

12. Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of disciplinary proceedings involving Florida law enforcement officers. The rule states, in pertinent part, as follows:

    
    

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(5)or(6), a certified officer's failure to maintain good moral character, as required by Section 943.13(7), is defined as:

    * * *

    (b) The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections ... 784.03,...F.S. ...

    
    

13. Section 784.03, Florida Statutes, is as follows:

    
    

    1. A person commits battery if he:

       1. Actually and intentionally touches or strikes another person against the will of the other; or

       2. Intentionally causes bodily harm to an individual.

    2. Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082,

       s. 775.083, or s. 755.084.

14. Section 943.1395(5),(6), Florida Statutes, provide, in pertinent part, as follows:

    
    

    1. The commission shall revoke the certification of an officer who fails to comply with s. 943.13(1)-(10) ...

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by

    s. 943.13(7), the commission may enter an order imposing one or more of the following penalties in lieu of revocation of certification:

    1. Suspension of certification for a period not to exceed 2 years.

    2. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions,

       the commission may revoke certification or impose additional penalties as enumerated in this subsection.

    3. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    4. Issuance of a reprimand.

    
    

15. Rule 11B-27.005(3), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. When the Commission finds that a certified officer has committed an act which violates Subsection 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       * * *

       (b) For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses as described in Rule 11B-27.0011(4)(b), ... the action of the Commission shall be to impose a penalty ranging from probation to revocation.

16. Rule 11B-27.005(4), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of mitigating circumstances

    by evidence presented to the Commission prior to the imposition of a final penalty. The Commission may base a deviation from the disciplinary guidelines upon a finding of one or more of the following mitigating circumstances:

    * * *

    (j) The length of time the officer has been certified;

    
    

17. Petitioner has established by clear and convincing evidence that Respondent committed a battery against the person of Haroon Nabee on January 14, 1989, and that such conduct establishes, pursuant to Rule 11B-27.0011(4)(b), Florida Administrative Code, that Respondent failed to maintain good moral character.

    
    

18. The recommendation that follows takes into consideration that Respondent has been certified as a law enforcement officer since 1973, that there was no evidence that he had been the subject of prior disciplinary action, and that he could have severely injured Mr. Nabee had that been his intent. The recommendation that follows also takes into consideration that Mr. Nabee was a seventeen year old and under lawful arrest with his hands handcuffed behind his back when Respondent committed the battery against his person.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Respondent committed a battery upon the person of Haroon Nabee on January 14, 1989, which determines, pursuant to Rule 11B-27.0011(4)(b), Florida Administrative Code, that Respondent failed to maintain good moral character, and which suspends his certification as a law enforcement for a period of one year.

RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of July, 1991.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1991.

ENDNOTES

1/ The driver of the tow truck used a large screw driver to remove the locking mechanism of the trunk of the disabled vehicle and damaged the disabled vehicle in doing so. Respondent did not become aware of the driver's action in time to prevent the damage to the vehicle.

COPIES FURNISHED:

Sharon D. Larson, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 33172

Robert J. Moruzzi

20811 San Simeon Way #202

North Miami Beach, Florida 33179

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Post Office Box 1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-008109

Orders for Case No: 90-008109