STATE OF FLORIDA
COMMISSION ON ETHICS
In re BARRY ADRIANCE, )
) DOAH Case No. 93-1259EC
Respondent. ) Complaint No. V92-01
) COE Final Order No. 94-__
On March 3, 1994, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to the parties and the Commission her Recommended Order, a copy of which is attached hereto. Neither the Commission's Advocate nor the Respondent filed exceptions to the Recommended Order. The matter thereafter came before the Commission on Ethics for final agency action.
This case was submitted to the Commission on Ethics by Gerald Lewis, Comptroller of the State of Florida, pursuant to Section 287.175, Florida Statutes. The Comptroller's report alleged that the Respondent, the former Chief Pilot for the Florida Highway Patrol, either invited or otherwise permitted persons not travelling on official State business to fly as passengers on a State aircraft that he piloted. The report from the Comptroller was determined to be legally sufficient to allege possible violations of Section 287.17(1) and 112.313(6), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On September 10, 1992, the Commission on Ethics issued an order finding probable cause, and thereafter forwarded this matter to the Division of Administrative Hearings for conduct of a formal hearing and entry of a recommended order. Thereafter, a formal, evidentiary hearing was held before the Hearing Officer, a transcript of the hearing was filed, and the parties then filed proposed recommended orders with the Hearing Officer. The Recommended Order was transmitted to the Commission and the parties on March 3, 1994, and the parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 34-5.022(2), Florida Administrative Code. Neither the Respondent nor the Commission's Advocate filed exceptions.
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.
Findings of Fact
The findings of fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
2. Accordingly, the Commission on Ethics finds that the Respondent did not violate Sections 287.17(1) and 112.313(6), Florida Statutes, and hereby dismisses this proceeding.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, April 21, 1994.
Joel K. Gustafson
YOU ARE NOTIFIED THAT YOU ARE ENTITLED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc: Mr. Gene "Hal" Johnson, Attorney for Respondent
Ms. Virlindia Doss, Commission's Advocate
The Honorable Gerald Lewis, Comptroller
Division of Administrative Hearings