CEO 74-52 -- November 7, 1974

AGENCY

INTERPRETATION OF "AGENCY" AS IT IS USED IN THE CODE OF ETHICS, CH. 112, F. S., AS AMENDED BY CH. 74-177, LAWS OF FLORIDA

To: Forrest D. Akins, Division of Land Sales, Department of Business Regulation, Tallahassee

Prepared by: Patricia Butler

SUMMARY:

Section 112.313(1), F. S., as amended by Ch. 74-177, Laws of Florida, specifically lists several governmental bodies to be considered "agencies" within part III, Ch. 112, F. S. The intent of such enumeration is apparently to indicate that each body (department, bureau, etc.) shall be a separate and autonomous agency in applying Code of Ethics provisions. Thus, the Division of Land Sales and the Division of Beverage are separate agencies despite their parent Department of Business Regulation. Mr. Akins, as an employee of the Division of Land Sales, may lawfully secure a business license for the business entity of which he is a partner from the Division of Beverage. Issuance of said license to Mr. Akins does not constitute violation of s. 112.313(2), supra, or s. 112.313(5), supra, since Mr. Akins is not doing business with his own agency nor is he employed by a business entity subject to the regulation of his own agency.

QUESTION:

May an employee of one division of the Department of Business Regulation hold a license issued by another division of the same department without violating the conflicts of interest provision of s. 112.313, F. S., as amended by Ch. 74-177, Laws of Florida?

Your question is answered in the affirmative.

The Department of Business Regulation includes among its several divisions a Division of Land Sales and a Division of Beverage. The Beverage Division issues licenses for the sale of alcoholic beverages and also enforces the alcoholic beverage laws of the state.

We have been advised that you are an employee of the Division of Land Sales and concurrently hold a 50 percent partnership interest with your wife in a convenience grocery store. In addition, we understand that you and your wife applied for a license which will enable you to sell beer in your establishment and that you were subsequently denied the license by the Division of Beverage on the basis that "co-applicant's (F. D. Akins') position with the Department of Business Regulation creates a conflict of interest under the Code of Ethics," citing Ch. 74-177, Laws of Florida, and Ch. 112, F. S. You are not paid a salary or wage for the hours worked at the business; the only income you derive from this enterprise is from the profits of the business.

Your question is whether the issuance of a beer license to you and your wife will violate the conflict of interest section of the Code of Ethics, part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida. Of specific concern to you and to the Department of Beverage are the prohibitory provisions of the Code of Ethics, s. 112.313(2) and (5). These sections exclude owning "a material interest in any business entity doing business with the agency" of which you are an employee, s. 112.313(2), F. S.; or accepting "other employment with any business entity subject to the regulation of, or doing business with an agency of which you are an employee," s. 112.313(5), F. S.

The term "agency" is defined in the act to mean:

. . . any state, county, local or municipal governmental entity, whether executive, judicial, or legislative, and therein any department, division, bureau, commission, authority, or special taxing district with authority to exercise the sovereign power of the state. [Section 112.313(1), F. S.]

The fact that the Legislature enumerated the specific governmental bodies which are to be considered agencies is significant. By doing this, they have indicated that each named body (a department, division, bureau, etc.) shall constitute a separate and autonomous agency in applying the provisions of the Code of Ethics. Based upon this interpretation, there is no conflict of interest in your situation. Since the Division of Beverage and the Division of Land Sales are separate agencies under the Code of Ethics, neither s. 112.313(2) nor s. 112.313(5) is applicable to you.

We therefore conclude that the issuance of a beverage license to you and your wife by the Division of Beverage does not create a conflicting interest under the provisions of part III, Ch. 112, supra.