STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

 

 

IN RE:  DENNIS WARDLOW,           )

                                  )                      Case No. 97-3777EC

     Respondent.                  )

__________________________________)

RECOMMENDED ORDER

 

Pursuant to notice, a formal hearing was held in this case on April 23, 1998, at Tallahassee, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

Advocate:        Eric S. Scott, Esquire

                 Office of the Attorney General

                 Florida Commission on Ethics

                 The Capitol, Plaza 01

                 Tallahassee, Florida  32399-1050

 

For Respondent:  Michael Halpern, Esquire

                 Michael Halpern, P.A.

                 209 Duval Street

                 Key West, Florida  33040

 

                 Mel Black, Esquire

                 2937 Southwest 27th Avenue

                 Miami, Florida  33133

 

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 112.313(2), (4), (6) and (7)(a), 112.3143(3), and 112.3145, Florida Statutes, and if so, what penalty should be recommended.

PRELIMINARY STATEMENT


On July 22, 1997, the Florida Commission on Ethics entered an Order Finding Probable Cause to believe that Respondent, Dennis Wardlow, as mayor of the City of Key West, violated Sections 112.313(2), (4), (6) and (7)(a), 112.3143(3), and 112.3145, Florida Statutes.  On August 12, 1997, the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.  The final hearing was scheduled for December 3 and 4, 1997.  On November 5, 1997, Respondent filed a Motion for Continuance, which was granted, and the final hearing was rescheduled for April 23 and 24, 1998.

The parties entered into a prehearing stipulation, agreeing to the facts contained in paragraphs 1-22 of Section E of the Joint Prehearing Stipulation.

At the final hearing, the Advocate called Lisa Ann Macy as his witness, and the Respondent testified in his own behalf.  Joint Exhibits 1-32 and 34-40 were admitted in evidence.  Respondent's Exhibits 1-6 were admitted in evidence.

The parties agreed to file proposed recommended orders within twenty days of the date of the filing of the transcript.  The transcript was filed on April 30, 1998.  The parties timely filed their proposed recommended orders.

FINDINGS OF FACT


1.  Respondent, Dennis Wardlow (Wardlow), served as mayor of the City of Key West from 1991 until 1997.  In that public position, Wardlow was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for public officers and employees.

2.  In March 1991 Lisa Macy began operating a business at Smathers Beach in Key West.  The business was known as Jammin' Jim's Wave Runners.  John Bigler (Bigler), a lawyer in Key West and boyfriend of Ms. Macy, went into the jet ski rental business with Ms. Macy during the early fall of 1992.  The new business was named Warren Watersports, Inc., d/b/a Ridley Turtle Watersports.

3.  In addition to being a lawyer, Bigler was a retired Navy Captain and JAG officer.  He was involved in a partnership that owned a mini-warehouse in the Keys and was in the business of leasing an airplane to law firms under the name of Legal Eagles.

4.  On or about October 13, 1992, Wardlow entered into a letter of agreement with Bigler to provide consulting services to Warren Watersports.  The written agreement stated that Wardlow was being retained as a public relations consultant under the following terms:

1.  You will be provided a weekly expense account of $100.00 per week commencing Friday, October 16, 1992, for a minimum period of six (6) months from the date hereof.

 


2.  You will be paid a success fee of $5,000 each, payable at the rate of $100.00 per week upon the award of an exclusive wave runner concession for a period of not less than three (3) years by the Hyatt Hotel at Key West, by the Holiday Inn Beachside, and/or the Galleon Marina, or any of them.

 

3.  You will not compete with and/or divulge any trade secrets and/or plans of the company for a period of six (6) months should this relationship be terminated for any reason.

 

5.  According to Wardlow, he was supposed to solicit the hotels and the marina for a concession for Warren Watersports.  After signing the agreement and thinking about it, he decided that, as mayor, it would be a conflict for him to solicit the hotels because it might be considered that he was trying to use his official position as mayor to influence the businesses to grant a concession to Warren Watersports.  However, Wardlow did not terminate his contract with Bigler nor did he amend the written agreement.

6.  As a result of his association with Bigler and Warren Watersports, Wardlow was paid $100 per week from October 1992 until April 22, 1994.  The total amount received from Bigler and Warren Watersports was $7,900. 

7.  Ms. Macy was upset when she learned that Bigler had agreed to pay Wardlow $100 a week.  She felt that it was an unnecessary expense for the business.

8.  Bigler personally delivered the checks to Wardlow each week.


9.  Ms. Robin Downing worked as a bookkeeper for Bigler from April 1993 to September 1994.  She handled the books for Bigler's businesses, including Warren Watersports.  Over the period of time that Ms. Downey worked for Bigler, the business at Warren Watersports declined, and there were times when Warren Watersports had difficulty making payroll.  However, it was Bigler's policy that payment to Wardlow would be made first.  At times when Warren Watersports could not make payroll, Wardlow was the only person who received a check.

10.  Ms. Downing did not know what Wardlow did as a consultant for Warren Watersports.

11.  Ms. Judy McGill worked full time as a legal secretary for Bigler from July 1992 to September 1994.  In April 1993,   Ms. McGill became signatory on Bigler's office accounts, including Warren Watersports.  She signed only three checks to Wardlow during her employment and refused to sign the other checks to Wardlow even though she was aware that it was Bigler's desire that Wardlow's check go out each week without fail.

12.  Ms. McGill did not know what work Wardlow did for Warren Watersports.  In approximately March or April of 1994,  Ms. McGill spoke with Wardlow on the telephone concerning the weekly checks, and Wardlow stated that he "wished that John would quit doing this."


13.  Dan Bosco, the manager for Warren Watersports, never saw Wardlow at any of the places where Warren Watersports was operating.  Mr. Bosco was not aware of anything that Wardlow did for the business except make a short speech at the company's Christmas party.

14.  Soon after Wardlow began working for Warren Watersports, Wardlow was approached by Bigler who said that he had been cited by Code Enforcement for a violation and he wanted Wardlow to get it "straightened out."  Wardlow contacted Gene Favors, a Key West Enforcement Officer, and helped resolve the problem.

15.  On several occasions Bigler approached Felix Cooper, the Key West City Manager, to discuss Bigler's desire to have a franchise from the City of Key West for a sales booth for his jet ski rental business on the beach at Smathers Beach and to erect a sign on the beach with the name of the jet ski business on the sign. 


16.  Mr. Cooper had not taken action on the discussions, hoping that Bigler would go away and drop the subject.  However, Mr. Cooper received a letter dated October 6, 1992, from Bigler, stating Warren Watersports wanted to be a franchisee or concessionaire of the City of Key West at the eastern end of Smathers Beach.  In exchange for allowing Warren Watersports to operate its jet ski rental business on Smathers Beach, to erect a sign on the beach, and to store wetsuits on the beach, Warren Watersports was willing to erect and maintain a buoy system at Smathers Beach and name the city as an additional insured on Warren Watersports' liability insurance policy.  The letter was copied to Wardlow and to the Director of Parks and Recreation for the City. 

17.  Mr. Cooper asked Ron Herron, Assistant City Manager for Key West, to review the letter and to make a recommendation concerning the request.  Mr. Herron's responsibilities included leases, franchises and rentals of city property.

18.  Mr. Herron responded to Mr. Cooper's assignment with a memorandum dated October 14, 1992.  Basically, the memorandum recommended against a franchise to Warren Watersports, stating that the city had been trying to remove the wave runner business operation from Smathers Beach since 1991, that the City Commission had previously indicated that it did not want further commercialization of Smathers Beach, and that the City would need to seek approval from the Department of Natural Resources before allowing further commercial use of the beach.

19.  Some time after October 14, 1992, Wardlow called     Ron Herron to his office regarding Bigler's request to place a sign on Smathers Beach.  Wardlow wanted to know the reasons why Mr. Herron had turned down the request from Warren Watersports.  Wardlow's tone seemed a little hostile and a little aggressive to Mr. Herron.  After Mr. Herron explained his reasoning for recommending that the request be denied, Wardlow asked Mr. Herron to contact the Department of Natural Resources to see if Warren Watersports' request could be approved. 


20.  As a result of that meeting, Mr. Herron drafted a letter for Wardlow's signature to the Florida Department of Natural Resources.  Wardlow signed the letter, dated December 7, 1992, and sent it to the Department of Natural Resources.  The letter specifically referred to the signs that Warren Watersports wanted erected and included photographs of the signs.

21.  Mr. Herron was not aware of any other businesses for which Wardlow, as mayor, wrote a letter to the Department of Natural Resources seeking approval for a sign to be erected on the beach.

22.  At the time that he signed the letter, Wardlow was a paid consultant of Warren Watersports and John Bigler. 

23.  Wardlow did not discuss the request from Bigler concerning the franchise and the sign with the City Manager.

24.  Section 3.04 of the City of Key West Charter discusses the duties of the City Commission regarding administrative officers and employees of the city and provides:

(b)  Except for the purpose of inquiries and investigations, the commission or its members shall deal with the city manager and employees who are subject to the direction and supervision of the city manager solely through the manager, and neither the commission nor its members shall give orders to any such officer or employee, either publicly or privately.

 


25.  In Key West the watersports business is very competitive.  Warren Watersports operated from a barge 300 feet off the shoreline of Smathers Beach, a tourist area in Key West. Other watersports businesses operated out of a public boat ramp, while another competitor, Steve Kocis, pulled his barge up to the seawall.  By Kocis' business being up against the seawall,     Mr. Kocis' customers were able to step directly onto his barge without wading into the water.  The customers of Warren Watersports had to wade 300 feet into the water in order to rent a jet ski.  Mr. Kocis' operation had a serious negative effect on Warren Watersports' business.

26.  Bigler, as well as other Key West residents, were upset that Mr. Kocis was operating his jet ski business next to the seawall.  The City received numerous complaints about the operation of jet skis at Smathers Beach.

27.  On April 5, 1994, Wardlow voted in favor of an ordinance restricting the operation of jet ski rental companies to an area at least 600 feet beyond the Key West shoreline.

28.  On April 19, 1994, Wardlow sponsored and voted for an amended ordinance that restricted the operation of jet ski rental companies to an area at least 300 feet beyond the Key West shoreline.  The amendment to the ordinance passed by a four to three vote of the City Commission.


29.  Between April 5 and 19, 1994, Bigler called Wardlow to discuss the 600-feet restriction.  Lisa Macy placed at least two telephone calls to Wardlow for Bigler on Bigler's car telephone after the April 5 meeting.  One of the conversations was on speaker telephone, and Wardlow said that he had spoken to several people on the commission about the 600-feet restriction and that they were going to have to go back and make some changes.

30.  Prior to the April 19, 1994, vote, three Warren Watersports employees, including Bigler, addressed the Key West City Commission and requested the Commission to reduce the restriction for operation of jet ski rentals from 600 to 300 feet beyond the shoreline, stating that the 600 feet restriction would be detrimental to Warren Watersports' business. 

31.  Wardlow never publicly announced at the City Commission meetings on April 5, 1994, and April 19, 1994, that he had financial ties to Warren Watersports and Bigler.

32.  Sara Sally Lewis, Charles Percy Curry, Jimmy Weekly, Harry Bethel, and Joseph Pais were Key West City Commissioners at the time of the April 5 and April 19 votes on the watersports ordinances.  At no time prior to the votes did Wardlow disclose to them that he was being paid $100 per week by Warren Watersports.

33.  At the time Wardlow voted to amend the proposed ordinance to a 300-feet restriction, there were approximately twenty jet ski operators in Key West.

34.  The total amount Wardlow received from Bigler and Warren Watersports in 1992 was $1,000.


35.  Wardlow earned $8,717.17 as Mayor of Key West for 1992.  He also received $5,009.00 in taxable interest and had a capital gain of $441.00.  On his income tax return, he reported gross income from Aqua Clean Pool and Spa Service as $4,739.00, which included $700.00 for consulting.  His total gross income for 1992 was $18,906.17.

36.  The total amount Wardlow received from Bigler and Warren Watersports in 1993 was $5,300.

37.  The parties stipulated that Wardlow earned $16,347.00 in total income from his public employment.  Wardlow's income tax return filed for 1993, indicated that he received $16,047.63 from his public employment in 1993.  The 1993 income tax return also stated that Wardlow received $4,071.00 as taxable interest.  Wardlow's income tax return listed $5,200.00 as consulting income associated with Aqua Clean Pool and Spa Service.  His total gross income for 1993 was $25,318.63.

38.  Wardlow sold his business, Aqua Clean Pool and Spa Service, in November 1991.  The consulting fees listed on Wardlow's income tax return attributed to Aqua Clean Pool and Spa Service were apparently those received from Bigler.  However, the contract was between Warren Watersports and Wardlow and not between Warren Watersports and Aqua Clean Pool and Spa Services


39.  Wardlow did not disclose Warren Watersports or Bigler as a source of income on his 1992 Form 1 Statement of Financial Interests.

40.  Wardlow did not disclose Warren Watersports or Bigler as a source of income on his 1993 Form 1 Statement of Financial Interests.

41.  The total amount that Wardlow received from Bigler and Warren Watersports in 1994 was $1,600.

42.  Wardlow did not file a Form 1 Statement of Financial Interests for 1994.

CONCLUSIONS OF LAW

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

44.  Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission on Ethics to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes.


45.  The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceedings.  Department of Transportation v. J.W.C., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).  In this proceeding, it is the Advocate that is asserting that Wardlow violated certain provisions of    Chapter 112, Florida Statutes.  Therefore, the burden is on the Advocate to establish the elements of the alleged violations by clear and convincing evidence.  Latham v. Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

46.  Wardlow is alleged to have violated Sections 112.313(2), (4), (6), and (7)(a), Florida Statutes, which provide:

(2)  Solicitation or Acceptance of Gifts.  No public officer, employee of an agency, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby.

 

*  *  *

 

(4)  Unauthorized Compensation.  No public officer, employee of an agency, or local government attorney or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney knows or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer, employee, or local government attorney was expected to participate in his official capacity.

 

*  *  *

 


(6)  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.

 

(7)  Conflicting Employment or Contractual Relationship.

(a)  No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

 

47.  Wardlow is alleged to have violated              Section 112.3143(3), Florida Statutes, which provides:


No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss, which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer.  Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

 

48.  Wardlow is alleged to have violated Section 112.3145(2)(b), Florida Statutes, which provides:

Each state or local officer and each specified state employee shall file a statement of financial interest no later than July 1 of each year.  Each state or local officer who is appointed and each specified employee who is employed shall file a statement of financial interests within 30 days of appointment or, in the case of a specified employee, from the date on which the employment begins, except that any person whose appointment is subject to confirmation by the Senate shall file prior to confirmation hearings or within 30 days from the date of appointment, which ever comes first.

 

49.  Wardlow is alleged to have violated Section 112.313(2), Florida Statutes, by accepting cash payments of $100 per week from a jet ski rental business based on an understanding that his votes, official actions, or judgment would be influenced thereby.  In order to find a violation of Section 112.313(2), Florida Statutes, the following elements must be established:

A.  Wardlow must have either been a public officer, a public employee or a candidate for nomination or election.

B.  Wardlow must have solicited or accepted something of value to him or her, including a gift, loan, reward, promise of future employment, favor or service.


C.  Such solicitation or acceptance must have been based upon an understanding that Wardlow's vote, official action, or judgment would be influenced thereby.

 

50.  The parties have stipulated that Wardlow, as former Mayor of Key West, was subject to the requirements of Part III, Chapter 112, Florida Statutes.  Wardlow did accept $100 a week from Bigler and Warren Watersports from October 1992 through April 22, 1994.  When Wardlow signed the agreement with Bigler, he may have thought that he was going to do public relations work by soliciting the hotels for a concession for Warren Watersports; however, he decided that as mayor he had a conflict with soliciting the hotels and declined to perform those requirements of the contract.  It appears that initially Wardlow may have believed he was being paid as a consultant; however, as the relationship between Bigler and Wardlow continued, Wardlow became aware that the weekly payments were for the purpose of influencing his actions as the Mayor of Key West.  Wardlow contends that he was giving business advice to Bigler concerning Warren Watersports.  Bigler was an attorney, a retired JAG officer, and owed businesses other than Warren Watersports.  It is not logical that Bigler would pay Wardlow a $100 a week for nineteen months for business advice except for the fact that Wardlow was the Mayor of Key West.


51.  Wardlow testified that he included the consulting fees on his income tax returns and that he was not trying to hide the fees.  The tax returns for 1992 and 1993 show that Wardlow was claiming the consulting fees as income to a business which he had sold in 1991, and Wardlow was deducting business expenses from the pool cleaning business from the income he received from Bigler.  Wardlow was attempting to hide the source of his income because he knew that he should not have been receiving the money.

Wardlow violated Section 112.313(2), Florida Statutes.

52.  Wardlow is alleged to have violated Section 112.313(4), Florida Statutes, by accepting cash payments of $100 per week from a jet ski rental business when he knew or should have known the payments were given to influence his official actions.  In order to find a violation of Section 112.313(4), Florida Statutes, the following elements must be established:

A.  Wardlow must have been a public officer or employee.

B.  Wardlow or Wardlow's spouse or minor child must have accepted some compensation, payment, or thing of value.

C.  When such compensation , payment, or thing of value was accepted:

     (1)  Wardlow knew that it was given to influence a vote or other action in which Wardlow was expected to participate in an official capacity or

     (2)  Wardlow, with the exercise of reasonable care, should have known that it was given to influence a vote or other action in which Wardlow was expected to participate in his official capacity.

 


53.  The parties have stipulated that Wardlow, as former Mayor of Key West, was subject to the requirements of Part III, Chapter 112, Florida Statutes.  Wardlow accepted $100 a week from Bigler and Warren Watersports from October 1992 through April 22, 1994.  Wardlow should have known that the payments were given to influence his actions in his official capacity.  Shortly after Bigler began making weekly payments to Wardlow, Bigler asked Wardlow how Warren Watersports could get a sign erected on the beach.  Another time, Bigler asked Wardlow to help him get a Code Enforcement violation straightened out.  A reasonable person would have become suspicious that Bigler was expecting more for his $100 a week than public relations consulting, which Wardlow was not providing.  Wardlow knew that the payments were to influence him in his official duties.  Based on Wardlow's comments to Ms. McGill that he wished Bigler would quit sending him a check each week, it is clear that, Wardlow was aware that he was being given the money to influence his actions as mayor.  Wardlow violated Section 112.313(4), Florida Statutes.

54.  Wardlow is alleged to have violated Section 112.313(6), Florida Statutes, by corruptly using his official position to help a jet ski rental business avoid the implementation of certain laws intended to restrict jet ski operations.  In order to find a violation of Section 112.313(6), Florida Statutes, the following elements must be established:

1.  Wardlow must have been a public officer or employee.

 

2.  Wardlow must have

    a.  used or attempted to use his official position or any property or resources within his trust,

 


 or

 

    b.  performed his official duties.

 

3.  Wardlow's actions must have been taken to secure a special privilege, benefit or exemption for himself or others.

 

4.  Wardlow must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission which was inconsistent with the proper performance of his public duties.

 

55.  The parties have stipulated that Wardlow, as former Mayor of Key West, was subject to the requirements of Part III, Chapter 112, Florida Statutes.  Wardlow voted on an amendment to a proposed ordinance in order to secure a special benefit for Warren Watersports.  Wardlow was receiving money from Warren Watersports to help the business, which was inconsistent with the performance of his duties as mayor.  Wardlow violated Section 112.313(6), Florida Statutes.

56.  Wardlow is alleged to have violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with Warren Watersports which impeded the full and faithful discharge of his public duties.  In order to find a violation of Section 112.313(7)(a), Florida Statutes, the following elements must be established:

A.  Wardlow must have been a public officer or employee.

B.  Wardlow must have been employed by or have a contractual relationship with a business entity or an agency.


C.  Such business entity or state agency must have been subject to the regulation of, or doing business with, the agency of which Wardlow was an officer or employee.

 

or

 

A.  Wardlow must have been a public officer or employee.

B.  Wardlow must have held employment or contractual relationship that would:

    (1)  Create a continuing or frequently recurring conflict between Wardlow's private interests and the performance of his public duties;

 

or

 

     (2)  Impede the full and faithful discharge of Wardlow's public duties.

 


57.  The parties have stipulated that Wardlow, as former Mayor of Key West, was subject to the requirements of Part III,  Chapter 112, Florida Statutes.  He did have a contractual relationship with Warren Watersports in which he received $100 a week.  The relationship did create a frequent conflict with his public duties and did impede the full and faithful discharge of his public duties as evidenced by Wardlow's intervention on behalf of Warren Watersports in an attempt to get permission from the Department of Natural Resources for the erection of a sign advertising Warren Watersports on Smathers Beach.  The letter to the Department was not a generic request for the approval of signs that would be eventually let out for bid but for a particular sign that would be advantageous to Warren Watersports.  Additionally, Wardlow, in intervening on behalf of Warren Watersports, gave direction to Ron Herron to draft the letter, contrary to Section 3.04 of the City of Key West Charter, which requires the mayor to deal with the city manager.

58.  In CEO 96-14, the Commission on Ethics, citing Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA) stated: 

[T]his prohibition establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate, distinct, or whether they coincide to create a situation which 'tempts dishonor.'

 

59.  There had been numerous complaints concerning jet ski operations at Smathers Beach, and the City had been trying to stop the jet ski operations at Smathers Beach since at least 1991.  Wardlow knew or should have known that he would have to address issues relating to watersports at Smathers Beach as part of his official duties.  Wardlow's contractual relationship with Bigler did create a situation that would tempt dishonor.  Wardlow violated Section 112.313(7)(a), Florida Statutes.

60.  Wardlow is alleged to have violated              Section 112.3143(3), Florida Statutes, by voting on a matter which inured to his special private gain or to the special private gain of a principal by whom he was retained.  In order to find a violation of Section 112.3143(3), Florida Statutes, the following elements must be established:


A.  Wardlow must have been a county, municipal or other local public officer serving on a collegial body.

B.  Wardlow must have done one of the following:

     (1)  Voted in his official capacity on a measure which would have inured to Wardlow's special private gain or loss.

     (2)  Voted in his official capacity on a measure which Wardlow knew would have inured to the special private gain or loss of a principal by whom Wardlow was retained or to the parent organization or subsidiary of a corporate principal by which Wardlow was retained.

     (3)  Voted in his official capacity on a measure which Wardlow knew would have inured to the special private gain or loss of a relative or business associate of Wardlow.

 


61.  The parties have stipulated that Wardlow, as former Mayor of Key West, was subject to the requirements of Part III, Chapter 112, Florida Statutes.  As mayor, he served on the City Commission, a collegial body.  On April 19, 1994, Wardlow, while being retained by Warren Watersports, sponsored and voted for an amendment to a proposed ordinance which restricted the operation of jet ski rental companies to an area at least 300 feet beyond the Key West shoreline, cutting the restricted area in half from 600 feet to 300 feet.  Prior to the April 19 vote, Bigler and two other representatives of Warren Watersports appeared before the City Commission and requested that the restriction be reduced from 600 feet to 300 feet, stating that the 600 feet restriction would effectively put Warren Watersports out of business.  Additionally, in response to a call from Bigler concerning the 600 feet restriction, Wardlow told Bigler that he was going to get the restriction changed.  The amendment to the ordinance passed on a four to three vote.

62.  Wardlow argues that because other jet ski operations would be affected by the ordinance that the vote did not inure to the special private gain or loss of Warren Watersports.  In CEO 90-71, the Commission on Ethics discussed the issue of special private gain and opined as follows:

The issue here is whether the project will inure to your special private gain.  In CEO 77-129 we advised that the determination of whether a measure inures to the special gain of an official turns in part on the size of the class of persons who stand to benefit from the measure.  Where a class is large a special gain will result only if there are circumstances unique to the official which would enable him to gain more than the other members of the class.  However, where the class of persons benefiting is extremely small, the possibility of special gain is much greater.

 

In CEO 90-64 we found that a city commissioner was prohibited from voting on a renovation project which would benefit property in which he owned an interest, where he owned a 50% interest in one of 55 parcels which would be affected by an assessment and where the parcels were owned by more than 40 persons or entities.

 


We have concluded that no voting conflict was presented in other situations where the interests of the public official involved one percent or less of the class.  See CEO 78-96 (38 out of 5,000 acres involved); CEO 84-80 (1 out of 500 persons whose property would be downzoned); CEO 85-5 (90% out of 250 residents of 250 residents affected); CEO 87-18 (300 out of 29,000 acres); CEO 87-27 (involving rezoning of a town having a population of 210); and CEO 87-95 (1 out of 650 property owners affected.) . . .

 

63.  Given that there were twenty watersports operators in Key West, Warren Watersports constituted at least five percent of the class of affected entities.  Warren Watersports would have been effectively put out of business if the restriction had remained at 600 feet.  Additionally, if the restriction was made 300 feet from the shoreline, competitors who were operating from the seawall would have to move out 300 feet, thereby taking an advantage from Warren Watersports' competitors, who were operating at the seawall.  There was a special private gain that inured to Warren Watersports by Wardlow's vote.  Wardlow violated Section 112.3143(3), Florida Statutes.

64.  Wardlow is alleged to have violated Section 112.3145, Florida Statutes, by failing to disclose the consulting fees that he received from Warren Watersports, Ridley Turtle or John Bigler on his CE Form 1-Statement of Financial Interests for 1992 and 1993.

65.  Section 112.3145(3)(a), Florida Statutes, requires that the following information shall be included on the statements of financial interests for state officers:


(a)  All sources of income in excess of 5 percent of the gross income received during the disclosure period by the person in his or her own name or by any other person for his or her use or benefit, excluding public salary.  However, this shall not be construed to require disclosure of a business partner's sources of income.  The person reporting shall list such sources in descending order of value with the largest source first.

 

66.  Wardlow's gross income reported to the Internal Revenue Service for 1992 was $14,167.17.  The amount received from Bigler in 1992 was $1,000.00, which exceeded five percent of his gross income for 1992.  Wardlow failed to include the income from Warren Watersports or Bigler on his CE Form 1-Statement of Financial Interests for 1992.  Wardlow violated Section 112.3145, Florida Statutes.

67.  In 1993, Wardlow's gross income was $25,318.63.  The amount received from Bigler in 1993 was $5,300.00, which exceeded five percent of his gross income.  Wardlow failed to include the income from Warren Watersports or Bigler on his CE Form 1-Statement of Financial Interests for 1993.  Wardlow violated Section 112.3145, Florida Statutes.

68.  Wardlow is alleged to have violated Section 112.3145, Florida Statutes, by failing to file his CE Form 1-Statement of Financial Interests, for 1994.  Wardlow did not file his CE Form 1-Statement of Financial Interests for 1994 and is guilty of violating Section 112.3145, Florida Statutes.

RECOMMENDATION


Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dennis Wardlow did violate Sections 112.313(2),(4), (6), and (7)(a), 112.3143(3) and 112.3145, Florida Statutes; imposing a civil penalty of $5,000; issuing a public censure and reprimand; and ordering restitution to the State of Florida of the $7,900 that Dennis Wardlow received from Warren Watersports and John Bigler.

DONE AND ENTERED this 26th day of June, 1998, in Tallahassee, Leon County, Florida.

 

                              ___________________________________

                              SUSAN B. KIRKLAND

                              Administrative Law Judge

                              Division of Administrative Hearings

                              The DeSoto Building

                              1230 Apalachee Parkway

                              Tallahassee, Florida  32399-3060

                              (850) 488-9675   SUNCOM 278-9675

                              Fax Filing (850) 921-6847

 

                              Filed with the Clerk of the

                              Division of Administrative Hearings

                              this 26th day of June, 1998.

 

 

COPIES FURNISHED:

 

Eric S. Scott, Advocate

Florida Commission on Ethics

Office of the Attorney General

The Capitol, Plaza 01

Tallahassee, Florida  32399-1050

 

Michael Halpern, Esquire

Michael Halpern, P.A.

209 Duval Street

Key West, Florida  33040

 

Mel Black, Esquire

2937 Southwest 27th Avenue

Miami, Florida  33133


Bonnie Williams, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida  32317-5709

 

Phil Claypool, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida  32317-5709

 

Kerrie J. Stillman

Complaint Coordinator

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida  32317-5709

 

 

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.