STATE OF FLORIDA
COMMISSION ON ETHICS
In re JOHN LAND, ) Complaint No. 88-145
RECOMMENDED PUBLIC REPORT OF HEARING OFFICER
This matter was initiated by the filing of a complaint by the Complainant, Dave Brigman, who alleged that the Respondent, John Land, misused his public position as Mayor of the City of Apopka in violation of Section 112.313(6), Florida Statutes. Following a preliminary investigation, the Commission on Ethics found probable cause and ordered a public hearing on the following issue: whether the Respondent, as Mayor of Apopka, violated Section 112.313(6), Florida Statutes, by threatening to use his position as Mayor to put a store owner out of business because the store owner displayed campaign signs of the Mayor's opponent.
After the case was set for a public hearing before the undersigned member of the Commission on Ethics, serving as Hearing Officer for the Commission, the Respondent and the Commission Advocate stipulated to a written record upon which the decision would be based. That record consists of the depositions of Mr. Jerry Shores, Mr. James Strange, and the Respondent, as well as copies of City Code requirements relating to pawnbrokers' licenses (Joint Exhibit 1) and copies of City records relating to the pawnbroker's license issued to the Park Avenue Gun and Pawn Shop (Joint Exhibit 2). References in this order to the depositions will be made by the deponent's name, followed by the page number(s) of the deposition; references to the the joint exhibits will bemade as "Exh. 1" or "Exh. 2." Neither party has submitted a proposed order to be considered by the Hearing Officer.
From the evidence presented, the undersigned Hearing Officer finds as follows:
1. At all times relevant to this proceeding, the Respondent, John Land, served as Mayor of the City of Apopka. Land, 33-36; Exhibit 2.
2. Under the Apopka City Charter, the Mayor is elected to his position as Mayor, but votes and serves as one of the five members of the City Council. As there is no city manager, the Mayor serves as the chief executive officer of the City and supervises all department heads in City government. Land, 34-37.
3. Since June of 1988, Jerry D. Shores has owned and operated a gun and pawn shop in Apopka, the Park Avenue Gun and Pawn Shop. Shores, 11; Exh. 2. In order to obtain an occupational license for a pawn shop, the City Code requires that the owner apply for a license and undergo a background check by the Police Department. Exh. 1; Exh. 2. The occupational license must be authorized by the City Council, which considers the recommendation of City staff. Exh. 1; Exh. 2.
4. As City staff had no objection to Shores' being licensed to operate a pawnshop, the City Council unanimously approved his license, subject to Fire Department and Building Department inspection approval. Land, 28-34; Shores, 13-15; Exh. 2. Shortly after that approval was granted, Shores opened his business. Shores, 15-16.
5. In November and December of 1988 the Respondent was running for re-election as Mayor. His opponent was Dave Brigman, the Complainant, who has opposed the Respondent in seven elections. The election was held in early December of that year. Shores, 9, 17-18; Land, 14, 67.
6. Shores, who had known Brigman previously, allowed Brigman to place three campaign signs in the windows and on the door of his pawn shop. Shores, 7-9, 18.
7. On the morning of November 30, 1988, Shores was in the pawn shop with James Strange, a knife company salesman who was trying to sell him some knives. No one else was present. Shores, 19-20. The Respondent entered the pawn shop, waited briefly before Shores acknowledged his presence, and then interrupted the conversation between Shores and Strange. Shores, 20-22; Strange, 7; Land, 7-8. The Respondent introduced himself as Mayor and handed Shores a campaign business card. Shores, 21-22; Land, 8. Strange, the salesman, backed away from the conversation but remained within hearing range. Shores, 21, 30; Strange, 7-8; Land, 18-20.
8. Shores testified that the following conversation took place. The Respondent told him that he saw that Shores had made up his mind for whom he was voting as Mayor. In response, Shores stated that he didn't live in the City and couldn't vote in the election. Shores, 22-23, 60-61. The Respondent then stated that he was the one who got Shores into his place of business, over the opposition of other businesses which didn't want a pawn shop there. Shores, 23-25, 61. The Respondent said that he had a lot of friends who were hunters and sportsmen and that they could start doing business with Shores in purchasing guns and ammunition. Shores, 28-29. Shores then mentioned problems he had previously with the City Zoning Department regarding on-premise and off-premise signs advertising the pawn shop and with a Fire Department inspector regarding a steel gate over the front door. Shores, 30-31, 34-36, 62-63. In response, the Respondent advised Shores that if he felt he had been wronged, he should bring the matter to the City Commission. Shores, 36-37. Shores indicated that everything had been resolved. 37.
9. At that time, according to Shores, Strange spoke up about Shores' sign problems, mentioning First Amendment rights and sign problems in his town, and saying that if Shores felt as though something was done wrong, "just sue the bastards." Shores, 39-40, 42. The Respondent then approached Strange and asked whether Strange was calling him a bastard. Shores, 41, 43. Strange replied, "No," and stated that he was tired of seeing the small towns manipulate businessmen. Shores, 41, 43-44. After a little more argument between the Respondent and Strange, the Respondent began walking toward the door and said, "I don't appreciate being called a bastard by a son of a bitch." Shores, 41, 45-46, 66-67. The Respondent then left. Shores, 46. According to Shores, the entire conversation took about ten minutes. Shores, 47.
10. Strange's recollection of the events was as follows. After he stepped back from the conversation between the Respondent and Shores, they did "quite a bit of talking." Strange, 7. However, he recalled only that something was said about placards in the window and that there was a discussion about the neon sign in the window with the name of the pawn shop. Strange, 8. Then something was said by the Respondent to which Strange took offense, and Strange in response said something derogatory. Strange 9-10. At that time, the Respondent lifted his fist and said something about what he was going to do to Strange. Strange, 10. Strange assumed that the Respondent was going to hit him, so he backed off with his hands in the air and said, "I will not fight you, sir." Strange 10-11. After further discussion which Strange did not remember, the Respondent left. Strange, 11.
11. Strange thought that he made a statement about problems in his home town with a similar sign ordinance being violative of the First Amendment. Strange, 12. Strange did not recall hearing the Respondent threaten Shores about signs, make a statement to the effect that the Respondent could close Shores' business, or make any threat toward Shores' pawn shop. Strange, 13, 24-25. Strange did recall the Respondent talking about laws that Strange felt were in violation of the First Amendment, did recall telling Shores to "sue the bastards," and did remember the Respondent calling him a "son of a bitch" or a "SOB." Strange, 18-21.
12. The Respondent's recollection of the events was as follows. The Respondent handed Shores his campaign business card, stated that he was running for Mayor, and, referring to the Brigman campaign signs in the window, asked whether Shores had made up his mind whom he was going to support. Land, 9-10. Shores said that someone else had put the signs there and that he didn't live or vote in the City. Land, 10-11. Shores then mentioned some complaints he had with the City and its staff about the sign ordinance. Land, 11-12, 17-18, 25-26. In reply, the Respondent tried to explain that staff was just following the City Code. Land, 21-22. He made no statement to the effect that he had gotten Shores in business there or that he supported his business being there. Land, 28.
13. According to the Respondent, at that time Strange got into the conversation, telling Shores that the sign ordinance was in violation of his First Amendment rights and was illegal. Land, 22, 27. The Respondent asked Strange what city he was from and Strange told him that he was from Lake Wales. Land, 22-23. After some more remarks, Strange told Shores that if he were Shores, he "would sue the bastards." Land 43-44. After Strange repeated that statement for the third time, the Respondent said, "Who are you calling bastards?" Land, 44. Strange indicated that he meant the people at City Hall, and the Respondent asked him, "Are you calling me a bastard?" Land, 44-45. After hesitating a moment, Strange said, "Well, I guess so." Land, 45. The Respondent then left, saying, "I don't appreciate being called a bastard by a son of a bitch." Land, 45-46.
14. After the Respondent left, Shores and Strange completed their business deal. Shores, 49-50. Then Shores' father came by and suggested that Shores and Strange write down what had happened. Shores, 51-52, 71. Shores wrote his account because he was afraid that his one-year occupational license might not be renewed. Shores, 52. Strange put his impressions on paper because he "felt his life was in jeopardy and somebody should have a report of it." Strange, 17. Shores had no problem later in renewing his occupational license, simply paying the fee and being automatically renewed. Shores, 52-55.
15. One-half hour to two hours after leaving the pawn shop, the Respondent returned. Shores, 97; Land, 39. Strange had gone and Shores was alone in the shop. Shores, 97. Shores and the Respondent resumed their conversation about the sign ordinance and City staff; the Respondent left on good terms with Shores. Shores, 97-102; Land, 57. There was no discussion during the second meeting about the election. Shores, 103. According to the Respondent, during the second conversation he mentioned to Shores that the City had received a complaint about the pawn shop and could not treat Shores' signs any differently than anybody else's. Land, 53. Shores then asked whether his business looked like a pawn shop, and the Respondent replied that he was a hunter and that the place looked more like a sporting goods store. Land, 53-54.
16. The Respondent did not ask Shores for permission to put his campaign signs up or ask Shores to remove his opponent's signs. Shores, 29-30, 120. The Respondent did not make any statement explicitly threatening Shores or his business. Shores, 124-25. Rather, Shores interpreted the Respondent's statements about his getting Shores in business as implying that he could take official action to get Shores out of business. Shores, 26-27.
17. The record contains evidence which could be used to question the accuracy of each witness's recollection. Shores stated that after the first meeting he was "shaking like a leaf," and that he was extremely confused, nervous, and concerned when he wrote his statement immediately after the confrontation. Shores, 47, 70. Strange stated, "When you go through an episode like that where your life is at stake, it makes it very hard to remember exactly." Strange, 21. The Respondent's testimony, naturally, is subject to the claim that it is prejudiced by the fact that he is the subject of the proceedings.
18. However, it is not necessary to rule upon the credibility of the witnesses in this case. Assuming the events took place just as Shores related them, there is not sufficient evidence to conclude by a preponderance of the evidence that the Respondent used or attempted to use his official position to secure a special privilege, benefit, or exemption for himself.
19. No one testified that the Respondent asked or demanded to put his campaign signs up in Shores' pawn shop or that he asked or demanded that his opponent's signs be removed. Nor did the Respondent make any explicit threat against Shores or his business. Lacking such direct evidence that the Respondent used or attempted to use his official position to benefit himself, a use or attempted use of position would have to be shown through circumstantial evidence indicating an implied threat to use his official position to harm Shores unless Shores allowed the Respondent to put up his campaign signs or removed his opponent's signs.
20. Regarding proof by circumstantial evidence, the Florida Supreme Court has stated:
The sum of all of these opinions is that in a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence. The limitation on the rule simply is that if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.
The well-known criminal rule permits proof of guilt by circumstantial evidence provided the circumstantial evidence points to guilt to the exclusion of every reasonable hypothesis of innocence. Subject to the above limitation the rule in civil cases is that a fact may be proved by circumstantial evidence if the inference of the fact preponderates over other inferences. [Nielsen v. City of Sarasota, 117 So.2d 731, at 733 (Fla. 1960).]
21. Here, according to Shores, the Respondent stated that he was the one who got Shores into his place of business, over the opposition of other businesses which didn't want a pawn shop there. (The Respondent's other statement, about having friends who were hunters and could patronize the shop, contains no possible implication about the use of the Respondent's official position or about the performance of his public duties.) One may conclude, as Shores did, that the Respondent meant to imply that what can be done, can be undone. However, it is equally reasonable to conclude that the Respondent meant to imply that he had supported Shores earlier, so why wasn't Shores supporting the Respondent now? In other words, the implication may have been something to the effect of, "What did I ever do against you?"
22. The record contains no further evidence which would lead to the conclusion that the Respondent meant to threaten Shores. There was no evidence that the Respondent later took any actions against Shores' business; Shores' occupational license was renewed routinely. Even the hypothesis that the Respondent intended to force Shores to remove his opponent's campaign signs or to put up his own signs, but was side-tracked by Strange's intervention, is rebutted by subsequent events. When the Respondent returned, Shores stated, there was no mention of the election or of campaign signs.
23. The testimony of all witnesses who have relevant information has been taken. Under the evidence presented, at the very least, it is as plausible that Shores misunderstood the Respondent as it is that the Respondent impliedly threatened Shores' business. Therefore, it has not been proven by a preponderance of the evidence either that the Respondent used or attempted to use his official position or that he acted to benefit himself.
Section 112.313(6), Florida Statutes, provides:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.
For purposes of this statute, the term "corruptly" is defined by Section 112.312(7), Florida Statutes, as follows:
'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.
Based on the foregoing findings of fact, the undersigned Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:
1. The Respondent, John Land, in his capacity as Mayor of the City of Apopka, is subject to the provisions of the Code of Ethics for Public Officers and Employees contained in Part III of Chapter 112, Florida Statutes, and is subject to the jurisdiction of the State of Florida Commission on Ethics.
2. With respect to an alleged violation of Section 112.313(6), Florida Statutes, the Advocate must establish by a preponderance of the evidence that:
a. The Respondent was either a public officer or a public employee;
b. The Respondent used or attempted to use his official position or property or resources within his trust, or performed his official duties.
c. The Respondent's actions were done with an intent to secure a special privilege, benefit, or exemption for himself or others; and
d. The Respondent's actions were done "corruptly," that is,
(1) done with a wrongful intent, and
(2) done for the purpose of benefiting from some act or omission which was inconsistent with the proper performance of public duties.
3. The evidence presented, as explained in the findings of fact above, fails to establish by a preponderance that the Respondent used or attempted to use his official position to secure a special privilege, benefit, or exemption for himself. Therefore, the Respondent has not violated Section 112.313(6), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Hearing Officer recommends that the Commission on Ethics enter a public report which finds that the Respondent, John Land, did not violate Section 112.313(6), Florida Statutes, as alleged in this complaint, and dismiss the complaint.
ENTERED and respectfully submitted this ____ day of February, 1990.
Karen M. Margulies
Hearing Officer and Member
Commission on Ethics
Copies furnished to:
Mr. William M. Rowland, Jr., Attorney for Respondent
Mr. Craig B. Willis, Commission Advocate