BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re JOHN LAND, ) Complaint No. 88-145
)
Respondent. )
)
)
______________________________)
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