STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re BERNARD HART, )

)

Respondent, ) CASE NO. 91-1890EC

) COMPLAINT NO. 90-31

)

)

________________________)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 4, 1991, in Fort Lauderdale, Florida.

APPEARANCES

The Advocate: Virlindia Doss

Craig B. Willis

Assistant Attorneys General

Department of Legal Affairs

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondent: Harry Boreth, Esquire

Lloyd Glasser, Esquire

GLASSER & BORETH

8751 West Broward Boulevard

Plantation, Florida 33324

STATEMENT OF THE ISSUES

1. Whether the Respondent, Bernard Hart, violated Section 112.313(4), Florida Statutes, by accepting free cable television service from a company holding a franchise with the City of Tamarac, Florida?

2. Whether the Respondent violated Section 112.313(6), Florida Statutes, by using his official position to obtain such free cable television services?

3. Whether the Respondent violated Section 111.011, Florida Statutes (1987), by failing to disclose such free cable television service?

PRELIMINARY STATEMENT

On or about February 20, 1990, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint contained allegations of misconduct by Bernard Hart, the Respondent in this case. Based upon a review of the Complaint against the Respondent, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on April 20, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether the Respondent violated Sections 111.011, 112.313(4) and 112.313(6), Florida Statutes.

Following the Commission's investigation of the Respondent, a Report of Investigation was issued on August 1, 1990. Based upon the Complaint and the Report of Investigation, an Advocate for the Commission issued an Advocate's Recommendation on September 17, 1990. The Advocate determined that there was probable cause to believe the Respondent violated Sections 111.011, 112.313(4) and 112.313(6), Florida Statutes.

Based upon the Report of Investigation and the recommendation of the Advocate, the Commission issued an Order Finding Probable Cause on October 24, 1990. The Commission ordered that a public hearing be conducted.

By letter dated March 22, 1991, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, requested that the public hearing on the Complaint against the Respondent be conducted by the Division of Administrative Hearings.

The formal hearing of this case was scheduled for June 4, 1991, in the City of Tamarac, Broward County, Florida. Prior to the formal hearing the Respondent filed a Motion to Change Venue. That Motion was granted and the location of the hearing was changed to Fort Lauderdale, Broward County, Florida, on April 25, 1991.

On May 24, 1991, the Respondent filed a Motion for Summary Judgment. The Motion for Summary Judgment was denied by Order entered May 31, 1991.

At the formal hearing the Advocate presented the testimony of Robert Steinert, Daniel J. Olmetti, Sydney M. Stein and Walter W. Falck. The Advocate also offered six exhibits. The exhibits were marked as "Advocate's" exhibits and were accepted into evidence. The Advocate's exhibits included the deposition testimony of the Respondent and Daniel J. Olmetti. Pursuant to an agreement of the Respondent and the Advocate, the Advocate filed the deposition testimony of Helen Massaro subsequent to the conclusion of the formal hearing. Ms. Massaro's deposition has been marked as Advocate's exhibit 7 and is accepted into evidence.

The Respondent testified and presented the testimony of Mitchell Ceasar. The Respondent also offered one exhibit, consisting of six cassette tapes. The Respondent's exhibit was marked as "Respondent's" exhibit one and was accepted into evidence.

At the conclusion of the formal hearing the parties were told that they could file proposed recommended orders in this case before the undersigned entered a recommended order. The parties were told that proposed orders were to be filed on the later of July 8, 1991, or ten (10) days after the filing of a transcript of the formal hearing, if one was ordered. The parties were also told that the filing, on or before July 8, 1991, of an appropriate notice that the Respondent had filed an action in federal or state court to require that one of the Advocate's witnesses, Robert Steinert, answer two questions he refused to answer during the formal hearing would act to automatically toll the time for filing proposed recommended orders.

Subsequent to the conclusion of the formal hearing the parties decided to order and file a transcript of the formal hearing. A copy of the transcript was received by the Respondent on July 16, 1991. The transcript was filed on July 19, 1991. No action to force Mr. Steinert to answer the questions he had refused to answer was taken by the Respondent prior to July 8, 1991. Therefore, pursuant to the instructions to the parties at the conclusion of the formal hearing, proposed recommended orders were due on or before July 29, 1991.

On July 22, 1991, the Respondent filed a Notice of Intention to File a Complaint for Declaratory Judgment in Federal District Court, Motion for Clarification of Time Deadlines Pursuant to Rulings of Hearing Officer at Hearing On June 4, 1991, and Motion for Extension of Time to File Complaint for Declaratory Judgment. A motion hearing was conducted by telephone on July 26, 1991, to consider the motions.

On August 5, 1991, an Order was entered memorializing rulings on the pleadings filed by the Respondent on July 22, 1991: the Motion for Clarification was granted; the Motion for Extension of Time was denied; and the time to file proposed recommended orders was extended from July 29, 1991, to August 5, 1991.

The parties did file proposed recommended orders on August 5, 1991. The proposed recommended orders contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

A. General.

1. The Respondent, Bernard Hart, was elected Mayor of the City of Tamarac (hereinafter referred to as "Tamarac"), Broward County, Florida, in March, 1986. The Respondent was the Mayor of Tamarac at all times pertinent to the Complaint at issue in this proceeding.

2. The Respondent was sworn in as Mayor of Tamarac on April 26, 1986.

3. Prior to holding office as Mayor of Tamarac, the Respondent had never held any public elective office.

4. The Respondent served as Mayor of Tamarac for approximately two years until March, 1988.

5. When the Respondent served as Mayor of Tamarac, the position was a part-time position and the Respondent was paid $90.00 a week.

6. The Respondent is approximately 80 years of age.

7. The Respondent does not now hold public office.

B. Cable Television Services in The City of Tamarac.

8. During the term of the Respondent's office as Mayor of Tamarac cable television services in Tamarac were provided pursuant to a franchise granted from Tamarac.

9. From June, 1983, until February, 1988, the franchise for the cable television system in Tamarac was held by American Cable Systems of Florida, Ltd. (hereinafter referred to as "American Cable").

10. In approximately February, 1988, Continental Cablevision, Inc. (hereinafter referred to as "Continental"), acquired control of American Cable and took over the management of cable television services in Tamarac.

C. American Cable's and Continental's Free Cable Television Services.

11. During all times relevant to this proceeding, it was the policy of American Cable and Continental (hereinafter jointly referred to as the "Cable Companies"), to provide free cable service to public officials in the areas the Cable Companies served, including Tamarac.

12. Free cable television services were provided to public officials by the Cable Companies only if requested by the public official.

13. During the time that the Respondent served as Mayor of Tamarac, public officials other than the Respondent, including some in Broward County, received free cable television services from the Cable Companies.

14. Any public official that requested free cable television service from the Cable Companies was requested to "monitor" the service he or she received. The request to monitor, however, was not the real reason why the free cable service was provided to the public official.

15. The Cable Companies did not expect any public official to report to the Cable Companies or expect that the Cable Companies would gain any useful information from any report. The request to monitor, when made, was made to make the public official feel more comfortable about getting a free service.

16. Monitoring cable television services would not provide a great deal of useful information to the Cable Companies because the picture quality received at one location would not necessarily reflect the quality of the picture received at other locations.

17. The reason that the Cable Companies provided free cable television services to public officials was described as "good will." It was assumed that providing free cable television services to public officials "couldn't hurt".

18. Although the weight of the evidence failed to prove that any public official, including the Respondent, agreed to vote on any matter favorably to the Cable Companies or otherwise use their official position (or the Respondent's position) to benefit the Cable Companies, the free cable television services were provided by the Cable Companies in the hope that public officials, including the Respondent, would be favorably inclined to the Cable Companies. Free cable television services were provided to public officials to influence them to look favorably on the Cable Companies.

19. The free cable television services provided by the Cable Companies to public officials were generally not available to persons, who were not public officials. Free cable television services were, however, provided to officials of some condominium associations and employees of the Cable Companies.

20. As a general rule, the Cable Companies did not solicit, offer, or invite public officials to take free cable television services. The free cable services were only provided if the public official requested the services.

21. American Cable did offer free services to some public officials in the "western part of Broward County in 1986". Tamarac is in the western part of Broward County. The weight of the evidence, however, failed to prove if the Respondent or any other official of Tamarac was approached by the Cable Companies and offered free cable television services.

22. The Cable Companies have also provided free cable television services in municipal buildings, such as police departments, fire stations and city halls.

23. When the Respondent took office as Mayor in 1986, free cable television services were being provided by American Cable to the Mayor's office in the Tamarac City Hall.

24. Walter Falck, the Mayor of Tamarac from March, 1976, though March, 1984, had the cable outlet moved into the Mayor's office in the Tamarac City Hall.

25. Mayor Falck did not, however, review cable services when he received a complaint about the service from a constituent. The Mayor referred all complaints to the Tamarac City Manager to handle.

D. Free Cable Television Services Provided to the Respondent.

26. On April 12, 1986, cable television was installed by American Cable in the Respondent's home.

27. From April 12, 1986, until January 30, 1990, the Respondent received basic cable television service, pay channels other than an adult channel, and remote control from the Cable Companies.

28. The cable television services received by the Respondent from the Cable Companies during and after his term as Mayor of Tamarac were received without any charge to, or the payment by, the Respondent.

29. The Respondent did not request that the free cable television services be disconnected or that he be charged for the services at any time while he was Mayor of Tamarac or when he left office in March, 1988.

30. During late 1989, or early 1990, an employee of Continental was reviewing a list of persons who were receiving free cable television services. The employee noticed the Respondent's name on the list. The employee knew that the Respondent was no longer a public official. Therefore, the Respondent was informed that he would have to begin paying for the cable television services he was receiving in order to continue receiving the services. The Respondent requested that the service be disconnected.

31. The free cable television services the Respondent received from the Cable Companies were terminated on January 30, 1990, after he indicated he did not want to pay for the services and requested that they be disconnected.

32. In light of the policy of the Cable Companies that free cable television services were provided only upon a request of a public official, it is concluded that the Respondent requested, directly or indirectly, that the free cable television services be provided to him.

E. Pending Cable Television Service Rate Increase.

33. Prior to the Respondent's election as Mayor of Tamarac, American Cable had requested that Tamarac approve a rate increase.

34. Because of the number of complaints about the services provided by American Cable, the requested rate increase was tabled for six months.

35. American Cable's rate increase request was still pending when the Respondent took office as Mayor of Tamarac and when the Respondent was first provided with free cable television services by American Cable.

36. Subsequent to the Respondent becoming Mayor of Tamarac, the American Cable rate increase request was approved. On May 14, 1986, on first reading the rate increase request was approved unanimously. On second reading the rate increase request was approved 4-1.

37. Both readings of the American Cable rate increase request occurred after the Respondent began receiving free cable television services from American Cable. The Respondent voted in favor of the American Cable rate increase request on both readings. The Respondent's vote was the last vote cast.

38. The American Cable increase in rate was contingent upon certain outstanding problems being corrected by July 1, 1986.

39. The rate increase raised the rates charged in Tamarac to the middle of the rates charged by America Cable.

40. The weight of the evidence failed to prove that the Respondent voted in favor of the American Cable rate increase in 1986, in exchange for the free cable television services provided to him by American Cable.

41. In January, 1987, Tamarac lost the right to regulate the rates that Cable Companies charged. Municipalities, however, still had the right to grant franchises to operate cable television systems within their jurisdiction after January, 1987.

F. The Respondent's Reason for Accepting Free Cable Television Services.

42. Mr. Falck, the former Mayor of Tamarac, had received numerous complaints from residents of Tamarac about the quality of cable television services in the area.

43. When the Respondent became Mayor in 1986, the Respondent also received complaints from his constituents about cable television services in Tamarac. The Respondent received complaints prior to the approval of American Cable's rate increase.

44. After becoming Mayor, the Respondent had the cable television service in the Mayor's office in City Hall removed.

45. The Respondent was in the Mayor's office until approximately noon each day. The Respondent removed the cable television hookup from the Mayor's office because he did not want to spend the time he spent in the Mayor's office monitoring cable television.

46. The Respondent reported complaints that he received while serving as Mayor of Tamarac to the City Manager. He did not call the Cable Companies directly and report any complaints or problems with the cable television service he was aware of.

47. Other Tamarac officials, including former Mayor Falck, Helen Massaro, who served on the Tamarac City Council in 1972, and from 1974 to 1988, and Sydney Stein, who served on the Tamarac City Council from 1984 until 1988, reported complaints they received about cable television services to the City Manager to handle.

48. The Respondent testified during the formal hearing that he accepted the free cable television services while he was Mayor of Tamarac because he "considered it a function that [he] was doing on behalf of the citizens of the city." Transcript of June 4, 1991, Formal Hearing, page 115, lines 13-14. The Respondent indicated that he accepted the free services so that he could "monitor" the service when he received constituent complaints. The Respondent's testimony is rejected because of the following facts:

a. The Respondent was aware that reception varied from location to location;

b. The Respondent never contacted the Cable Companies directly to report any results of his purported monitoring;

c. The Respondent removed the cable hookup from the Mayor's office. Therefore, the Respondent was not able to perform his "monitoring" service during the part of each day that he was in the Mayor's office;

d. The Respondent continued to receive the free cable television services after he was no longer the Mayor of Tamarac and his need to "monitor" the services ended.

49. The Respondent also testified that Sydney Stein, a member of the Tamarac City Council when the Respondent became Mayor, suggested that he accept the free cable television service so that the Respondent would be able to determine whether the complaints were valid. The Respondent indicated that Mr. Stein offered to make the necessary arrangements with American Cable for the free service to be provided to the Respondent. Based upon the weight of the evidence, it is concluded that Mr. Stein did not make the arrangements with American Cable for the Respondent's free cable services. Even if the evidence had proved that Mr. Stein requested that American Cable provide the Respondent with free cable television services, he would have done so on behalf of, and as agent for, the Respondent.

50. Based upon the fact that the Cable Companies provided free cable television services to public officials to influence them to look favorably on the Cable Companies, it is concluded that the Respondent was provided free cable television services by the Cable Companies during his term as Mayor of Tamarac to influence him in his official capacity.

51. The weight of the evidence also proved that the Respondent should have known why he was being provided free cable television services. The Respondent had not received free cable television services prior to being elected Mayor of Tamarac. The Respondent should have been aware, therefore, that cable television services were not generally available to members of the public without charge. Immediately after his election he was provided the free cable service. He should have realized that the free service was being provided to him because he had become the Mayor of Tamarac. Shortly thereafter the Respondent was required to vote on a rate increase request from American Cable, the company that first provided him with the free cable service. The Respondent should have had no doubt at that time why he was being provided free cable television services.

G. Value of the Free Cable Television Services.

52. The retail value of the free cable television services that the Respondent received between April 12, 1986, and March of 1988, was $1,649.43.

53. The retail value of the free cable television services that the Respondent received for the entire period of time that free services were provided to the Respondent was $3,416.46.

54. Although the Respondent received part of the $3,416.46 worth of free cable television services after his term as Mayor of Tamarac expired, all of the free services were received as a direct result of his position as Mayor of Tamarac.

55. The cost to the Cable Companies for the free services provided to the Respondent was relatively insignificant.

H. Failure to Report.

56. The Respondent did not report the value of the free cable television services he received while Mayor of Tamarac pursuant to Chapter 111, Florida Statutes (1987).

CONCLUSIONS OF LAW

A. Jurisdiction, Applicable Statutes and Burden of Proof.

1. Jurisdiction and Applicable Statutes.

57. The Division of Administrative Hearings has jurisdiction, except as discussed, infra, of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

58. The Respondent has been charged with violating Sections 111.011, 112.313(4) and 112.313(6), Florida Statutes. The appropriate statutes to be applied in this case are found in Florida Statutes 1985 (applicable to 1986), and 1987 (applicable to 1987 and 1988). What constitutes a violation pursuant to the substantive provisions of the statutory law at issue in this proceeding has not changed in any material manner, however, since 1986. Section 111.011, Florida Statutes (1987), has been renumbered as Section 112.3148, Florida Statutes (1989).

59. Although the substantive violation that the Respondent has been charged with under Section 111.011, Florida Statutes, has not changed, the authority to enforce, and the penalty for violating, Section 111.011, Florida Statutes, has changed since the Respondent's alleged violation of this provision. Section 111.011, Florida Statutes (1985 and 1987), provided the following with regard to the manner of enforcing Section 111.011, Florida Statutes, and the appropriate penalties under that Section:

(3) Any person who voted in the election

at which the elected public officer was last

elected may bring a civil action to enforce

the provisions of this section. As a

condition precedent, the person shall give 30

days' notice to such officer of his intention

to file suit. Unless such officer complies

with the provisions of this section within

such 30-day period, a cause of action shall

be deemed to have accrued. The court costs,

expenses, and reasonable attorney fees of any

person having reasonable cause to bring such

civil action shall be allowed as costs against

the public officer.

(4)(a) If any elected public officer

knowingly or willfully fails to comply with

this section, he is guilty of a second degree

misdemeanor in office, punishable as provided

in ss. 775.082 and 775.083.

(b) The failure of any public officer to

comply with this section is a ground for

removal from office, impeachment, or expulsion

from the Senate or House of Representatives,

as the case may be.

. . . .

60. There was no authority under Chapter 111, Florida Statutes, for the Commission to enforce the requirements of that chapter or for the Commission to impose any penalty for a violation of Section 111.011, Florida Statutes.

61. The Commission's authority, under the law in effect at the time that the Respondent is alleged to have violated Section 111.011, Florida Statutes, was provided by Section 112.320, Florida Statutes (1987):

There is created a Commission on Ethics,

the purpose of which is to serve as guardian

of the standards of conduct for the officers

and employees of the state, and of a county,

city, or other political subdivision of the

state, as defined in this part.

62. The Commission's duties and powers were provided under Section 112.322, Florida Statutes (1987). Under Sections 112.320 and 112.322, Florida Statutes, the Commission was assigned the responsibility for enforcing Chapter 112, Florida Statutes. The Commission was not given any authority to enforce the provisions of Section 111.011, Florida Statutes.

63. In 1989, the Florida Legislature enacted Chapter 89-380, Laws of Florida. Pursuant to Section 3 of Chapter 89-380, Section 111.011, Florida Statutes (1987), was repealed. Pursuant to Section 2 of Chapter 89-380, Section 111.011 was enacted as Section 112.3148, Florida Statutes (1989). These changes were effective during 1989 when Chapter 89-380, Laws of Florida, became effective, which was after the offense the Respondent is alleged to have committed took place. It was not until 1989 that the Commission gained jurisdiction over alleged violations of Section 112.3148, Florida Statutes, which incorporates the prohibition of former Section 111.011, Florida Statutes.

64. It is a well established principle that statutes are to operate prospectively absent an expression of the Legislature to the contrary. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla. 1977); and Hector v. Department of Professional Regulation, 504 So.2d 469 (Fla. 1st DCA 1987). The Legislature did not give the Commission authority to enforce the provisions of Section 112.3148, Florida Statutes, until 1989. Therefore, it is concluded that the Commission, and consequently, the undersigned, do not have jurisdiction over alleged violations of Section 111.011, Florida Statutes. Consequently, the Commission and the undersigned do not have jurisdiction to prosecute the Respondent's alleged violation of Section 111.011, Florida Statutes.

2. Burden of Proof.

65. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that the Respondent violated the Code of Ethics for Public Officers and Employees. Therefore, the burden of proving the elements of the Respondent's alleged violation was on the Commission.

B. The Respondent's Violation of Section 112.313(4), Florida Statutes.

66. Section 112.313(4), Florida Statutes, provides:

(4) UNAUTHORIZED COMPENSATION.--No public

officer or employee of an agency or his spouse

or minor child shall, at any time, accept any

compensation, payment, or thing of value when

such public officer or employee 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 or

employee was expected to participate in his

official capacity.

In order to conclude that the Respondent violated Section 112.313(4), Florida Statutes, the Advocate must have proved the following elements of the alleged violation:

a. The Respondent must have been a public

officer or employee of an agency; and

b. The Respondent (or his spouse or minor

child) must have accepted compensation,

payment or some thing of value which was:

(1) Accepted by the Respondent with

actual knowledge that the compensation,

payment or thing of value was given to

influence a vote or other action in which the

Respondent was expected to participate in his

official capacity; or

(2) Accepted by the Respondent when he

should have known (with the exercise of due

diligence) that the compensation, payment or

thing of value was given to influence a vote

or other action in which the Respondent was

expected to participate in his official

capacity.

1. The First Element: Public Officer or Public Employee.

67. Section 112.313(1), Florida Statutes, defines the terms "public officer" to include "any person elected . . . to hold office in any agency . . . ." An "agency" is defined in Section 112.312(2), Florida Statutes, to include "any state, regional, county, local, or municipal government entity of this state . . . ."

68. The evidence proved that the Respondent was elected to, and did, hold the office of Mayor of Tamarac, a municipal government in the State of Florida. The Respondent was, therefore, a "public officer" as those terms are defined in Section 112.313(1), Florida Statutes, from March, 1986, to March, 1988.

2. The Second Element: Acceptance of Compensation, Payment, or Thing of Value.

69. The second element of a violation of Section 112.313(4), Florida Statutes, requires proof of several facts. First, it must be proved that the Respondent (or his spouse or minor children) received "compensation, payment, or thing of value". The weight of the evidence proved this part of the second element. The Respondent received a "thing of value" when he received free cable television services during his term as Mayor of Tamarac.

70. Secondly, it must be proved that the thing of value was provided to the Respondent to influence his vote or other action in which the Respondent was expected to participate in his official capacity as Mayor of Tamarac. The weight of the evidence proved that the Respondent was required to vote on a proposed rate increase for American Cable immediately after he was first provided with the free cable television service by American Cable. The Respondent was to vote, and did vote, in his official capacity as a public officer. The evidence also proved that the Respondent, in his capacity as a public officer, retained the responsibility to participate in rate changes or decisions concerning the franchising of cable companies by Tamarac during the period of time he received free cable television services and while he was Mayor of Tamarac.

71. Finally, it must be proved that the Respondent either had actual knowledge of why the free cable television services were given to him or should have known why the free cable television services were given to him. The evidence proved that, although the Respondent may not have had actual knowledge, the Respondent should have known that he was being provided free cable television services to influence his vote on the pending rate increase and future rate or franchise decisions in which the Respondent was expected to participate in his official capacity as Mayor of Tamarac.

72. The Respondent has argued that the evidence in this case did not prove the second element because the evidence failed to establish that

"(1) there was any exchange of a vote for

complimentary cable services, or (2) that the

Respondent ever intended that the

complimentary cable service would influence a

vote. Moreover, it affirmatively appears that

the understanding was that the Respondent

would monitor cable quality, and that, at

most, the complimentary cable was a gesture

of goodwill.

The Respondent's assertion that the evidence failed to prove that there was any specific agreement that he was being providing free cable television services or that the Respondent intended to receive the service to influence a vote is correct. Section 112.313(4), Florida Statutes, does not require, however, that there be an actual agreement, that the intended purpose of the gift (to influence) be achieved or that the Respondent "intended" that the gift was to influence his vote. What is required is that the donor of the free service, the Cable Companies, had the requisite intent of influencing the Respondent when the Cable Companies gave him the free cable television services and that the Respondent either knew that was why the free service was being provided or should have known. The evidence proved that the Cable Companies did have the requisite intent. The evidence also proved that the Respondent should have been aware of that intent.

73. The Respondent has also argued that the evidence failed to prove that he should have known that the free cable television services were being provided to influence his vote on the pending rate increase and future rate or franchise decisions in which the Respondent was expected to participate in his official capacity as Mayor of Tamarac. In support of this argument the Respondent has cited 15 alleged facts on pages 12-14 of the Respondent's proposed recommended order. Essentially, those alleged facts suggest that the Respondent was requested to take, and accepted, the free service so that he could monitor complaints. The weight of the evidence failed to support such a conclusion.

74. Finally, the Respondent has cited four opinions of the Commission in support of his position. The essential facts involved in those opinions are distinguishable from the facts in this case.

C. The Respondent's Violation of Section 112.313(6), Florida Statutes.

75. Section 112.313(6), Florida Statutes, provides:

(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.

A violation of Section 112.313(6), Florida Statutes, requires proof of the following elements:

a. The Respondent must be either a public

officer or a public employee.

b. The Respondent must have used or

attempted to use his official position or

property or resources within his trust, or

performed his official duties:

(1) Corruptly; and

(2) With an intent to secure a special

privilege, benefit or exemption for himself

or others.

1. The First Element: Public Officer or Public Employee.

76. As discussed, supra, the Respondent was a public officer. Therefore, the first element of a violation of Section 112.313(6), Florida Statutes, has been proved.

2. The Second Element: Use of Official Position or Property or Resources.

77. The second element of a violation of Section 112.313(6), Florida Statutes, has also been proved. The evidence proved that the Respondent used his official position with the intent of securing a special privilege, benefit or exemption for himself or others: the Respondent, in his position as Mayor of Tamarac, requested and received free cable television services from the Cable Companies.

78. The weight of the evidence also proved that the Respondent used his official position "corruptly." The term "corruptly" is defined in Section 112.312(7), Florida Statutes, as follows:

(7) "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.

79. The evidence in this case proved that the Respondent's request to be provided free cable television service was made with a wrongful intent and for the purpose of obtaining a benefit (free cable television service) resulting from some act or omission of the Respondent (favorable consideration of issues coming before the Respondent concerning the Cable Companies) which is inconsistent with the proper performance of his public duties.

80. The Respondent has argued that the evidence in this case failed to prove that the Respondent solicited the free cable television services he received. In support of this position, the Respondent has argued that no witness specifically testified that the Respondent requested the service. Although the Respondent is correct about the testimony presented in the formal hearing, the weight of the evidence supported a finding that the Respondent did solicit, directly or indirectly, the free service.

81. The Respondent has also suggested that the evidence proved that the Respondent was requested to accept the service so that the Respondent could monitor the service. This suggestion is based in part upon the testimony of Daniel James Olmetti that some officials in the western part of Broward County were asked to take free cable television service. Mr. Olmetti's testimony does not, however, support a finding that the Respondent was one of the public officials who was requested to take the free service. There simply was no such testimony. Mr. Olmetti did not even testify that the City of Tamarac was one of the areas within western Broward County where public officials were requested to take free cable television services.

82. Finally, the Respondent has argued that the Respondent's action was not corrupt because he did not solicit the free cable television service and because the service was provided so that he could monitor the service as part of his duties as Mayor of Tamarac. The evidence proved otherwise. The suggestion that the Respondent was monitoring cable television service in his capacity as Mayor is simply not supported by the evidence in this case.

83. Even if the evidence supported a finding that the Respondent did not request that the Cable Companies provide him with free cable television services, the evidence would support a conclusion that the Respondent's action in accepting the free cable television services constituted a corrupt action.

D. Conclusion.

84. Based upon the foregoing, it is concluded that the Respondent violated Sections 112.313(4), and 112.313(6) Florida Statutes.

E. Penalty.

85. Section 112.317, Florida Statutes, provides, in pertinent part, the following:

(1) Violation of any provision of this

part . . . shall, pursuant to applicable

constitutional and statutory procedures,

constitute grounds for, and may be punished

by, one or more of the following:

(a) In the case of a public officer:

. . . .

4. Public censure and reprimand.

. . . .

6. A civil penalty not to exceed $5,000.

7. Restitution of any pecuniary benefits

received because of the violation committed.

. . . .

86. The Advocate has requested that a fine of $15,000.00 be imposed on the Respondent. Evidently the Advocate's recommendation is based upon a conclusion that the Respondent should be required to pay the maximum civil penalty of $5,000.00 for each section of Florida law the Respondent was charged with violating.

87. The first problem with the Advocate's recommendation is that the Commission does not have jurisdiction over violations of Section 111.011, Florida Statutes, as concluded, supra, which occurred before the provisions of Chapter 111, Florida Statutes, were moved to Chapter 112, Florida Statutes. Even if the Commission had jurisdiction over such a violation, there was no provision in Chapter 111, Florida Statutes, which authorized the imposition of a civil penalty for a violation of Section 111.011, Florida Statutes. The only action which could be taken for a violation of Section 111.011, Florida Statutes, when the alleged violation took place was an action by a constituent to require compliance with Section 111.011, Florida Statutes, punishment for a second degree misdemeanor or removal from office. None of those actions are appropriate in this case.

88. Section 112.317, Florida Statutes (1989), does provide for the imposition of a civil penalty for violations under Section 112.3148, Florida Statutes, the provision to which Section 111.011, Florida Statutes, was transferred. Section 112.317, Florida Statutes, however, did not apply during the period of time that the Respondent's alleged violation of Section 111.011, Florida Statutes, occurred. The current law was not effective until 1989. Absent clear legislative intent to the contrary, such a change in the type of penalty which may be imposed for a violation of Florida Statutes, which is made after the violation has occurred may not be applied. See AAA Guaranteed Mortgage, Inc. v. Department of Banking and Finance, 517 So.2d 761 (Fla. 2d DCA 1987). Consequently, it would not be appropriate to impose a civil penalty in this case for an alleged violation of Section 111.011, Florida Statutes.

89. Based upon the foregoing, and assuming that the Advocate's recommended $15,000.00 civil penalty is based upon a $5,000.00 penalty for each statutory violation charged against the Respondent, the Advocate's recommended penalty should be reduced by at least $5,000.00 to a total of $10,000.00, $5,000.00 for each of the two statutory violations the Commission has jurisdiction over.

90. Although a civil penalty is an appropriate penalty for the Respondent's violation of Sections 112.313(4) and 112.313(6), Florida Statutes, the imposition of the maximum penalty for each statutory violation is too severe under the facts in this case. Imposing the maximum penalty for each statutory violation fails to recognize that the two violations arose out of one act of the Respondent: accepting free cable television service. Additionally, the following facts mitigate against imposing the maximum civil penalty for the Respondent's two statutory violations:

1. The Respondent was holding office for the first time when he accepted the free cable television services;

2. The Respondent no longer holds public office; and

3. The Respondent is approximately 80 years of age.

91. In addition to considering the mitigating factors in this case, however, the following factors should be considered:

1. The Respondent received benefits as a direct result of his actions while he was Mayor of Tamarac which would have costs him $3,416.46; and

2. The fact that the Respondent accepted a free service immediately before, during and after voting on a matter which directly benefited the donor of the service.

92. Based upon the foregoing, it is concluded that the Respondent should be required to pay a civil penalty in the amount of $7,000.00. This amount is approximately double the amount of the benefit which the Respondent received by accepting free cable television services. By requiring that the Respondent pay a civil penalty of $7,000.00, he will in effect be required to pay $3,416.46 for the benefit he saved and the amount that he saved, plus a penalty of just over $3,500.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report: (1) finding that the Respondent, violated Sections 112,313(4) and 112.313(6), Florida Statutes, as alleged in Complaint No. 90-31; (2) concluding that the Commission has no jurisdiction over the Respondent's alleged violation of Section 111.011, Florida Statutes, and, therefore, that portion of Complaint No. 90-31 is dismissed; and (3) imposing a civil penalty of $7,000.00 on the Respondent.

DONE and ENTERED this 21st day of August, 1991, in Tallahassee, Florida.

___________________________________

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 1991.

APPENDIX TO RECOMMENDED ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Advocate's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 1 and 4.

2 26 and 31. The weight of the evidence proved that the services was installed on April 12, 1986.

3 27.

4 28.

5-6 35 and 37.

7-8 See 29 and 41.

9 29.

10 Not supported by the weight of the evidence. The Respondent's testimony on this point was not credible.

11 30.

12 56.

13 52.

14 53.

15 Not supported by the weight of the evidence. See 55.

16 23.

17 24.

18 25.

19 47.

20 Not relevant and cumulative.

21-22 47.

23 45.

24 11.

25 19.

26 12 and 20. But see 21.

27 18 and 32.

28 49.

29 18.

30 14-15.

31 15-16.

32 Hereby accepted.

33 16.

34-35 48.

36 49.

37 50.

38 35, 37 and 51.

39*48-51.

* Appears as a second proposed finding of fact 38.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2.

3 3.

4 4.

5 8-9.

6-7 10.

8-12 Hereby accepted.

13 23-24.

14 24 and 42.

15 Not supported by the weight of the evidence.

16 33-34.

17 43.

18 13.

19 Not supported by the weight of the evidence. Mr. Olmetti admitted that his testimony on this point was "total speculation."

20 See 22.

21 Although true, what is currently being provided is not relevant.

22 13 and 22. See 14-18.

23-27 Although these proposed findings of fact are generally true, they are not relevant to this proceeding.

28 See 12 and 20-21.

29 21. Official recognition that Tamarac is in western Broward County is taken.

30 18.

31 See 21.

32 Not supported by the weight of the evidence.

33 Hereby accepted.

34 See 32 and 49.

35 See 50-51.

36 See 18 and 50-51.

37 55.

38 Not supported by the weight of the evidence.

39 Not supported by the weight of the evidence. See 18 and 49.

40 Not supported by the weight of the evidence.

41 Hereby accepted.

42 44-45.

43 45.

44 5.

45 Not supported by the weight of the evidence. The Respondent's testimony on this point was not credible.

46 Although true, not relevant to this proceeding. The evidence also proved that the Respondent was well aware that Mr. Stein did not dictate what the Respondent should or should not do.

47 47.

48 Hereby accepted.

49 Not supported by the weight of the evidence. Mr. Stein merely testified that it was possible that made such a statement to the Respondent but that he did not known whether he actually did.

50-53 Not supported by the weight of the evidence. See 49.

54 Not supported by the weight of the evidence. Mr. Stein did not answer the question about whether he would release his records because an objection to the question was sustained as not being relevant.

55 43.

56 Hereby accepted.

57 45.

58 36.

59 See 37. The rate increase was not approved until all votes were cast.

60 38.

61 56. Why the Respondent failed to report the free cable service is not supported by the weight of the evidence.

62 Not supported by the weight of the evidence. See 48.

63-64 Not relevant.

65 25 and 46-47.

66 Although generally true, this proposed finding of fact is not relevant.

67 36.

68 39.

69 Not supported by the weight of the evidence. The improvements were made before the rate increase was finally approved.

70 Although generally true, not relevant.

71-72 41.

73-74 Although generally true, not relevant.

75 Not supported by the weight of the evidence. The witnesses who testified on this matter indicated that his testimony about what discounts the Respondent might have been entitled to was merely speculation.

76-77 Although generally true, not relevant.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

Harry Boreth, Esquire

Lloyd Glasser, Esquire

GLASSER & BORETH

8751 West Broward Boulevard

Plantation, Florida 33324

Bonnie J. Williams

Executive Director

Commission on Ethics

The Capitol, Room 2105

Post Office Box 6

Tallahassee, Florida 32302-0006

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.