BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

 

 

In re   PAUL MUNIZ,      )

     Respondent.         )                                         Complaint No.  91-48

                         )                                         DOAH Case No. 93-5806EC

                         )                                         Final Order No. COE ____

_________________________)

 

 

 

FINAL ORDER AND PUBLIC REPORT

 

 

   This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on October 31, 1994 by the Division of Administrative Hearings' Hearing Officer (a copy of which is attached and incorporated herein by reference).  The Hearing Officer recommends that the Commission issue its public report and final order finding that Respondent violated Section 112.3143(2)(b), Florida Statutes (1989), both by participating in two disciplinary cases before the City of Cape Coral Contractors' Regulatory Board against David Tracey and Tracey Construction, with whom Respondent's air conditioning company had several area contracts, without disclosing his relationship with David Tracey and Tracey Construction prior participating in the cases and by failing to file a memorandum disclosing the nature of his conflict within 15 days of the meeting at which his participation occurred, and violated Section 112.3143(3), Florida Statutes (1989), by failing to abstain from voting on the two disciplinary cases involving Tracey Construction.  She also recommends the imposition of a civil penalty of $750 for each violation (a total of $1500), and the issuance of a public censure and reprimand.  The Respondent filed his exceptions on November 18, 1994.  The Commission Advocate filed his Response to Respondent's Exceptions on December 22, 1994.

 

     Having reviewed the Recommended Order, the Respondent's Exceptions, the Commission Advocate's Response, and the record of the public hearing of this complaint, and having heard arguments of counsel for the Respondent and the Commission Advocate, the Commission makes the following findings, conclusions, and recommendations:

 

STANDARDS FOR REVIEW

     Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order.  However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.  See, e.g., Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).  Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached."  DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).

     The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer.  Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).  Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.

 

Rulings on Respondent's Exceptions To

Findings of Fact

 

     1.   Without providing any supporting argument, Respondent excepts to the Hearing Officer's rejection of his Proposed Findings of Fact 2a through 2f.  Because we find that the Hearing Officer properly rejected Respondent's proposed findings as a recitation of the testimony of his witnesses rather than them being facts based upon competent substantial evidence supported by the greater weight of the evidence,  Respondent's exception is rejected.  It is not our function to reweigh the evidence or to rewrite the Hearing Officer's findings as long as there is competent substantial evidence to support the findings, as there is here.

     Additionally, we find that, inasmuch as the Hearing Officer correctly concluded that for purposes of the voting conflicts law it was sufficient that the Board had the ability to suspend or revoke the license or permit pulling ability of a contractor in such as way that it could interfere with the business relationship between a contractor and his subcontractor, Respondent's proposed findings were properly rejected for the following reasons:

 

2a(1)--irrelevant.

2a(2)--accepted in the Hearing Officer's Finding of Fact No. 1.

2a(3)--irrelevant.

2a(4)--irrelevant.  Advocate's Exhibit 4 also indicates   that     the Board had the authority to revoke, suspend or deny the issuance or renewal of a registered   contractor's license.

2a(5)--irrelevant and not supported by the greater weight     of the evidence since the Board had the authority to    revoke or suspend the issuance of a license.  The    ordinance does not limit the Board's disciplinary    authority to only future contracts or permits of a    contractor.

2a(6)--irrelevant.

 

 

2b(1)--irrelevant.

2b(2)--irrelevant.

2b(3)--irrelevant.

2b(4)--irrelevant.

2b(5)--irrelevant.

2b(6)--irrelevant.

2b(7)--irrelevant.

2b(8)--irrelevant.

2b(9)--Relevant only to possible mitigation of the   recommended penalty.

2b(10)--irrelevant.

2b(11)--irrelevant.

2b(12)--irrelevant.

2b(13)--irrelevant and not supported by competent    substantial evidence of record.

2b(14)--irrelevant.

2b(15)--irrelevant.

2b(16)--Relevant only to possible mitigation of the recommended penalty.

2b(17)--irrelevant.

2b(18)--irrelevant.

 

 

2c(1)--irrelevant.

2c(2)--irrelevant.

2c(3)--irrelevant.

2c(4)--accepted in substance in the Hearing Officer's      Recommended Finding of Fact No. 12.

 

2d(1)--accepted in substance in the Hearing Officer's      Recommended Finding of Fact No. 7.

2d(2)--accepted in substance in the Hearing officer's      Recommended Finding of Fact No. 8.

2d(3)--irrelevant.

2d(4)--irrelevant.

2d(5)--irrelevant.

2d(6)--irrelevant.

2d(7)--irrelevant.

2d(8)--subsumed within the Hearing Officer's Finding of   Fact No. 10.

2d(9)--irrelevant.

 

 

2e(1)--irrelevant.

2e(2)--irrelevant.

2e(3)--irrelevant.

2e(4)--irrelevant.

2e(5)--irrelevant.  Merely knowing a contractor who appeared on a matter before the Board would not   create a prohibited voting conflict of interest for     the Board member who knew the contractor. 

2e(6)--this is a conclusion of law, rather than a finding     of fact. 

2e(7)--irrelevant.

2e(8)--irrelevant.

2e(9)--irrelevant.

2e(10)--irrelevant.

 

 

2f(1)--accepted in part in the Hearing Officer's Finding of Fact No. 9.  The remainder is irrelevant.

2f(2)--accepted in part in the hearing Officer's Finding of Fact No. 9.  The remainder is irrelevant.

2f(3)--irrelevant.

2f(4)--irrelevant.

2f(5)--irrelevant.

2f(6)--not supported by competent substantial evidence of      record and irrelevant.

2f(7)--this is a conclusion of law rather than a finding of fact.  It also conflicts with the Hearing Officer's Conclusion of Law paragraph No. 22.

2f(8)--irrelevant.

2f(9)--irrelevant.

2f(10)--irrelevant.  Knowledge is not required for a      violation to exist.

2f(11)--Respondent's consideration of what Tracey would   or would not do is irrelevant.

2f(12)--irrelevant.

2f(13)--irrelevant.

2f(14)--irrelevant.

2f(15)--irrelevant.  Advocate's exhibit 4 indicates that the Board had the authority to suspend a contractor's license.

2f(16)--no competent substantial evidence of record exists establishing that the Board had a specific policy concerning contractors working on jobs for   which permits had been issued.

2f(17)--irrelevant.

2f(18)--not supported by competent substantial evidence   of record.

2f(19)--irrelevant.

2f(20)--irrelevant.

2f(21)--irrelevant.

 

 

     2.   Without argument to support his exception and without stating why some of Respondent's Proposed Findings of Fact were rejected, Respondent also appears to except to the Hearing Officer's failure to specifically incorporate another 17 of Respondent's Proposed Findings of Fact in her Recommended Order. Respondent's Proposed Findings were dealt with by the Hearing Officer as follows:

3a--incorporated in the Hearing Officer's Finding of Fact      No. 10.

3b--incorporated in the Hearing Officer's Finding of Fact      No. 10.

3c--Accepted in substance by the Hearing Officer in Findings of Fact Nos. 8, 9, and 10.  The Hearing Officer did not find that Respondent personally had    a contractual relationship with Tracey.

3d--rejected as immaterial.

3e--rejected as immaterial.

3f--rejected as immaterial because the Board had the      authority to suspend Tracy's license.

3g--rejected as immaterial because the Board had the      authority to revoke Tracey's license.

3h--rejected as immaterial.

3i--rejected as immaterial because the Board had the      authority to affect Tracey's ability to conclude a   job in progress.

3j--rejected as not supported by the greater weight of      evidence.

3k--rejected as argument.

3l--rejected as constituting a conclusion of law, rather than a finding of fact.

3m--rejected as not supported by the greater weight of    the evidence.

3n--rejected as not supported by the greater weight of    the evidence.

3o--rejected as not supported by the greater weight of    the evidence.

3p--rejected as not supported by the greater weight of    the evidence.

3q--rejected as not supported by the greater weight of    the evidence.

 

 

     As stated by the court in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):

 

   It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence.  State Beverage Department v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959).  If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.

 

   It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's findings as there is here.  Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of the witnesses, and drawing permissible inferences from the evidence, we are not free to supplement her findings and we decline to do so.  As the Court also stated in Manasota 88, Inc. v. Tremor, 545 So. 2d 439 (Fla. 2d DCA 1989):

 Agency fact-finding independent of and supplementary to D.O.A.H. proceedings has been specifically disapproved.  See e.g. Friends of Children v. Department of Health and Rehabilitative Services, 504 So. 2d 1345 (Fla. 1st DCA 1987).

 

 

Therefore, Respondent's exceptions are rejected.

 

 

Ruling on Respondent's Exceptions to

Conclusions of Law

 

     3.   Respondent excepts to what he describes as the Hearing Officer's failure to recognize and give due credence to the statement of legislative intent and declaration of policy set forth in Sections 112.311(a)2, (4), and (5), and the definition of "conflict" or "conflict of interest" set forth in Section 112.312(6), Florida Statutes (1989).  Because the legislative intent, as expressed in Section 112.311(a)(2), (4), and (5), does not control over the specific standard of conduct established in Section 112.3143, because Section 112.3143 does not require Respondent to choose between serving on the Board and maintaining his private occupation, and because we find that the Hearing Officer's interpretation of Section 112.3143 was correct, Respondent's exception is rejected.

     Although Respondent also refers to Section 112.312(6), Florida Statutes (1989) (the definition of "conflict" or "conflict of interest"), this section is irrelevant because it does not relate to any issue within the operative language of Section 112.3143.  Therefore, we find that the Hearing Officer appropriately did not mention it in her Recommended Order.

 

     4.   Paragraphs 2 through 7 of Respondent's exceptions are holdings or findings relative to Section 112.3143 that Respondent believes that he has gleaned from our prior opinions.  For example, in paragraph 2, Respondent writes that in order for a voting conflict to be created, the matter up for a vote must relate to the personal, private, or professional interest of the voting official and must inure to the [special] private gain of either the official or a principal who retains the official.  Essentially, Respondent has provided a recitation of the language of Section 112.3143 prior to its amendment by the Legislature in 1984.  In Chapter 84-357, Laws of Florida, the Legislature, among other changes that it enacted, deleted the phrase "in which he has a personal, private, or professional interest and."  Since the amendment took effect, we have consistently written that, among other things, Section 112.3143 prohibits a local public officer from voting on a measure which inures to his special private gain and from knowingly voting on any measure which inures to the special gain of a principal by whom he is retained.  See CEO 85-65.  However, because these  "holdings" do not specifically relate to the Hearing Officer's Conclusions of Law, there is no need for us to respond to them here.

 

     5.   In paragraph 8, Respondent claims the CEO 91-3, which was issued at the request of the City Attorney on behalf of the City Council, is not controlling because of a number of false assumptions contained in the opinion which were made by the Commission and because of the erroneous conclusions reached by the Commission.  Although we disagree with Respondent's assertions, there is no need for us to address them individually because no where in the Hearing Officer's Recommended Order does she refer to CEO 91-3 as the basis for her conclusions.  Respondent's exception therefore is rejected.

 

     6.   Respondent specifically excepts to the Hearing Officer's Conclusions of Law Nos. 20, 22, 25, and 27.  In Conclusions of Law nos. 20 and 22, the Hearing Officer concluded that Respondent violated Section 112.3143(2)(b), Florida Statutes (1989), by participating in two disciplinary cases before the Board against David Tracey and Tracey Construction with whom Respondent's air conditioning company had several area contracts without disclosing his relationship with David Tracey and Tracey Construction prior to participating in the cases and by failing to file a memorandum disclosing the nature of his conflict within 15 days of the meeting at which his participation occurred.  In Conclusions of Law nos. 25 and 27, the Hearing Officer concluded that the Respondent had violated Section 112.3143(3) by failing to abstain from voting on the two disciplinary cases involving Tracey Construction.

     Respondent argues that the Hearing Officer chose to accept the "hypothetical" rather than 'believe reality" and ignored the well-established history of the Board's practice in dealing with contractors who were subject to discipline.  He claims that the Hearing Officer focused on the authority that the Board could have exercised, but never did exercise.  He writes that while the Hearing Officer chose to view the instant case in a vacuum, this Commission must "descend from the ivory tower and deal with the realities of the situation."

     In opining that the Hearing Officer's conclusions are correct, we wish to assure the Respondent that the nine members of this Commission, all of whom are appointed from around the State, do not review the matters before it from an "ivory tower" perspective.

     Respondent claims that the realty that should have been considered by the Hearing Officer is that the Board has never suspended or revoked a contractor's license and prevented the contractor from completing his performance on jobs already permitted prior to the imposition of disciplinary action by the Board because to do so would result in penalizing an owner whose project is under construction.  He also claims that even if a contractor was prohibited from completing his performance on a contract, a scenario which has never occurred, there is little likelihood that the subcontractors would be prevented from completing their performance because of financial losses which would be sustained.  Therefore, he reasons, he did not stand to gain or lose as a direct or indirect result of the Board's decision in the cases.  He urges that any possible benefit that he might have obtained from his vote was too remote, tenuous or speculative.

     Respondent's first two arguments are not supported by the evidence of record and therefore are rejected.  His argument about the remoteness, tenuousness, and speculative nature of the benefit also is rejected.  In previous opinions, we have found no "special" gain to exist when the circumstances were such that any gain or loss to the public official, or one by whom he was retained, was too remote or speculative.  See, for example, CEO 87-47, in which we found that a State Representative who owned a corporation that built and financed portable classroom buildings did not have a voting conflict of interest in voting on appropriations to agencies which might use those funds to purchase portable classrooms; CEO 85-77 in which we found no special gain to exist for a school board member who owned a business near a location which was proposed for a school district administrative complex; and CEO 85-87 in which we found no special gain to the principal of a city council member who would be voting on the redevelopment of property located next to the bank which employed him.  We also have found no special private gain to exist in situations where there was uncertainty at the time of the vote as to whether there would be any gain or loss to the officer.  However, here, the Hearing Officer was correct in concluding that the action of the Board could have affected the ongoing contracts that Respondent had with Tracey Construction and any future contracts that Respondent may have had with Tracey Construction.  As long as the Board had the authority to suspend or revoke the license or permit pulling ability of Tracey or Tracey Construction, then the potential affects of Respondent's vote on the cases, that is, possible loss of business, was not so remote, tenuous, or speculative that it could not be said to inure to Respondent's special private gain or to that of his company, Delta. Therefore, respondent's exception is rejected.

      Finally, Respondent's claims that he did not consider his private interests when he participated in the cases, that his business with Tracey amounted to only 5.75% of his gross sales in 1989 and decreased slightly the following years, that he considered only the merits of the complaints, and that he was not alone in determining that the complaints against Tracey were of no merit, is of no significance as they relate to whether a violation of the voting conflicts law occurred.  What is significant is that clearly the potential gain to Respondent could have been as a direct result of his vote, whether his Board previously exercised all of its disciplinary authority or not.  Because we conclude that the Hearing Officer's application of Sections 112.3143(2)(b) and (3) to the facts found by the Hearing Officer is correct, Respondent's exception is rejected.

 

Findings of Fact

     Upon review of the record before us, we conclude that the findings of the Hearing Officer are based upon competent substantial evidence and that the D.O.A.H proceedings complied with the essential requirements of law.  Therefore, the Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

 

Conclusions of Law

 

     The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

 

     Accordingly, the Commission on Ethics finds that the Respondent violated Sections 112.3143(2)(b) and 112.3143(3), Florida Statutes (1989).

 

Recommended Penalty

 

The Hearing Officer recommended that Respondent be required to pay a civil penalty of $750.00 for each violation, for a total of $1500.00, and that he be publicly censured and reprimanded.  Because we find that the Hearing Officer's recommendation regarding the amount of the civil penalty that should be imposed is out line with civil penalties recommended in similar cases, that Respondent's business with Tracey Construction declined after the voting occurred, and that in CEO 91-3 we noted that we had not "previously rendered an opinion that directly addresses this issue . . .," to do justice in this case we decline to recommend that any civil penalty be imposed.  We do, however, believe that the recommendation that Respondent be publicly censured and reprimanded is appropriate.

 

Pursuant to Sections 112.317(1) and 112.324(4), Florida Statutes, it is the recommendation of the Commission on Ethics that the Respondent be publicly censured and reprimanded.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, January 26, 1995.

 

                             ____________________________

                             Date Rendered

 

 

 

                             _______________________________

                             R. Terry Rigsby

                             Chairman


 

 

 

 

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110 FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at 2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

 

 

 

cc:  Mr. Bruce R. Conroy, Attorney for Complainant

     Mr. John Charles Coleman, Attorney for Respondent

     Mr. Stuart F. Wilson-Patton, Commission Advocate

     Honorable Susan B. Kirkland, Hearing Officer

     Division of Administrative Hearings