STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re:
PAUL MUNIZ, )
) CASE NO. 93-5806EC
Respondent. )
_____________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly
designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this
case on March 31, 1994, in Fort Myers, Florida.
APPEARANCES
For Advocate: Stuart F. Wilson-Patton
Assistant Attorney General
Department of Legal Affairs
The Capitol, PL-01
Tallahassee, Florida 32399-1050
For Respondent: John Charles
Coleman, Esquire
Coleman & Coleman
Post Office Box 2089
Fort Myers, Florida 33902-2089
STATEMENT OF THE ISSUES
Whether Respondent violated Sections 112.3143(2)(b) and 112.3143(3),
Florida Statutes (1989), and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On April 29, 1992, the Florida Commission on Ethics (Commission) issued
an Order Finding Probable Cause to believe that Respondent, Paul Muniz (Muniz),
as a member of the City of Cape Coral Contractors' Regulatory Board (Board),
violated Section 112.3143(2)(b), Florida Statutes (1989), by failing to file a
written conflict of interest form and by failing to abstain from voting on two
cases coming before the Board on February 28, 1990, involving a locally
licensed contractor with whom Muniz had active work contracts and that Muniz
violated Section 112.3143(3), Florida Statutes (1989). The case was forwarded to the Division of
Administrative Hearings on October 18, 1993, for assignment to a hearing
officer. The case was scheduled for
final hearing on December 22, 1993. The
parties filed a Joint Motion to Reschedule Hearing and the hearing was
rescheduled for March 31, 1994.
At the final hearing the Advocate called the following witnesses: Rita Connelly, Marilyn W. Miller, Barbara
Muniz, Patricia Barz, and David G. Tracey.
Advocate Exhibits 1-7 and 9-11 were admitted in evidence. Muniz testified in his own behalf and called
the following witnesses: Clark Berry,
Charles Fletcher, Richard Durling, Jim Schivinski, and Frank Ventimiglia. Respondent Exhibit 3 was admitted in evidence.
At the final hearing the parties agreed to file proposed recommended
orders within 30 days from the date the transcript was filed. The transcript was filed on April 29,
1994. Both the Advocate and Muniz filed
motions for extensions of time in which to file proposed recommended
orders. The time for filing proposed
recommended orders was extended to June 10, 1994. Muniz filed his proposed recommended order on June 10, 1994 and
the Advocate filed his proposed recommended order on June 13, 1994. The parties' proposed findings of fact are
addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
1. In February, 1990, Respondent
Paul Muniz (Muniz), was a duly appointed member of the City of Cape Coral
Contractors' Regulatory Board (Board).
He was appointed to the Board in 1986.
2. As a member of the Board,
Muniz was subject to the provisions of Chapter 112, Part III, Florida Statutes.
3. A scheduled meeting of the
Board took place on February 28, 1990, at which time two cases were heard
concerning allegedly inappropriate actions by general contractor David Tracey
doing business as Tracey Construction, Inc. (Tracey Construction).
4. On February 28, 1990, the
Board had authority to hold hearings on alleged violations of the City of Cape
Coral's (City) Building Codes, authority to suspend, deny or revoke a
contractor's license to operate within the City for violations of the City's
Building Codes, and authority to impose fines up to $2,500.00, to issue
reprimands, and to order restitution for violations of the City's Building
Codes.
5. On February 28, 1990, Muniz
and his wife were the sole stockholders, officers, and directors of Delta T Air
Conditioning Inc. (Delta T). Muniz
owned 75 percent of Delta T's stock.
Delta T does heating, ventilating, and heating construction work and
services and some refrigeration work.
6. Muniz oversees the work of
Delta T, does the estimating and acts as general manager of the company. Muniz usually knows where Delta T's job
sites are and who the general contractor is on each job.
7. Tracey Construction is a
residential construction company owned by David G. Tracey.
8. Delta T has subcontracted
with Tracey Construction to do air conditioning work on a number of occasions
prior to February 28, 1990. Delta T had
routinely subcontracted with Tracey Construction for several years before
February, 1990. Over a number of years
prior to February 28, 1990, Delta T had subcontracted with Tracey Construction
on more than 200 jobs.
9. Delta T was a subcontractor
for Tracey Construction on about 50 jobs from 1989 through 1990. Tracey Construction paid Delta T more than
$50,000 for air conditioning subcontractor work in 1989. In 1990, Tracey Construction paid Delta T at
least $30,295.60 for air conditioning work.
10. In the course of dealings
between Delta T and Tracey Construction, Muniz depended on David Tracey to
notify him of potential jobs and invite his company to bid on that job. Delta T competes with other air condition
companies for Tracey Construction's business.
11. At the February 28, 1990
Board meeting, two cases came before the Board concerning David Tracey and
Tracey Construction: Contractor Board Case Nos. 90-01 and 90-02. Muniz recommended to the Board that they
table Case No. 90-01. In Case No. 90-02,
Muniz seconded a motion to find David Tracey and Tracey Construction not guilty
of the alleged violation of the building code.
Muniz voted in both cases to acquit Mr. David Tracey and Tracey
Construction of all charges.
12. At the time of the February 28, 1990, Board meeting, Delta T had
contracts with Tracey Construction for at least seven jobs. On each of these jobs, either the air
conditioning work had been begun but not yet completed, or the work had been
completed and final payment had not yet been made by Tracey Construction. Muniz was aware that his company had active
contracts with Tracey Construction.
13. Muniz did not file a written
conflict of interest form until 28 days after the February 28, 1990 Board
meeting.
14. Muniz did not disclose his
company's business relationship with Tracey Construction prior to participating
in the discussion of and voting on Case Nos. 90-01 and 90-02.
15. Muniz is the same Paul Muniz
as is mentioned in Commission on Ethics Opinion No. 91-3.
CONCLUSIONS OF LAW
16. The Division of
Administrative Hearings has jurisdiction over the parties to and the subject
matter of this proceeding. Section
120.57(1), Florida Statutes. Section
112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code,
authorize the Commission to conduct investigations and to make public reports
on complaints concerning violations of Part III, Chapter 112, Florida Statutes
(the "Code of Ethics for Public Officers and Employees").
17. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the
affirmative of the issue in the proceeding.
Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla.
1st DC 1981) and Balino v. Department of Health and Rehabilitative Services,
348 So.2d 249 (Fla. 1st DCA 1977). In
this proceeding it is the Commission through the Advocate that is asserting the
affirmative: that Muniz violated
Sections 112.3143(2)(b) and 112.3143(3), Florida Statutes (1989). Therefore, the burden of establishing the elements of Muniz's alleged violations
is on the Commission.
18. Section 112.3143(2)(b),
Florida Statutes (1989), provides as follows:
No appointed public officer shall participate
in any matter which inures to his special private
gain or the special gain of any principal by whom
he is retained, without first disclosing the nature
of his interest in the matter. Such disclosure,
indicating the nature of the conflict, shall be
made in a written memorandum filed with the person
responsible for recording the minutes of the meeting
and shall be incorporated in the minutes; if the
disclosure is initially made orally at a meeting
attended by the officer, the written memorandum
disclosing the nature of the conflict shall be
filed within 15
days with the person responsible
for recording the minutes of the meeting and shall be
incorporated in the minutes. A copy of such
memorandum, which shall become a public record upon
filing, shall immediately be provided to the other
members of the agency and shall be read publicly at
the meeting prior to the consideration of the
matter.
For purposes of this paragraph, the term
"participate"
means any attempt to influence the decision by oral
or written communication whether made by the officer
or at his direction.
19. In order to establish that
Muniz violated Section 112.3143(2)(b), Florida Statutes (1989), the following
elements must be established:
1. Muniz must
be an appointed public officer
serving on either
an advisory or non-advisory
collegial body.
2. Muniz must
have:
a.
Participated in a matter which inured
to his special private gain, or the special gain
of any principal by whom he is retained, without
first publicly disclosing the nature of his interest
in the matter orally at the meeting; and /or
b. Failed
to disclose the nature of his
interest in the matter described in a. above, as
public record in a written memorandum filed within
15 days of the meeting at which the participation
occurred with the person
responsible for recording
the minutes of the meeting.
20. The Advocate has established
that Muniz violated Section 112.3143(2)(b), Florida Statutes.
21. The Advocate established
that Muniz was an appointed public officer of a non-advisory collegial
body. He was an appointed member of the
City of Cape Coral Contractors' Regulatory Board.
22. The Advocate established
that Muniz participated in two disciplinary cases before the Board against
David Tracey and Tracey Construction for whom Muniz's air conditioning company
had several active subcontracts. He
recommended to the Board that it table one of the cases and seconded a motion
to acquit in the other case. The Board
had the authority to revoke or suspend David Tracey and Tracey Construction's
license to operate within the City.
Thus, the action of the Board could have affected the ongoing contracts
that Muniz had with Tracey Construction and any future contracts that Muniz may
have had with Tracey Construction.
Although Muniz argues that it was the policy of the Board to allow
contractors whose licenses had been suspended or revoked to continue with their
ongoing contracts, the Board still had the authority to curtail the activities
of the contractors on their current contracts.
The record is clear that Muniz and Tracey Construction had a more than a
sporadic business relationship prior to February, 1990. If the license for Tracey Construction was
suspended or revoked, Muniz would lose what future business he may have had
with Tracey Construction. It is
undisputed that Muniz did not disclose his relationship with David Tracey and
Tracey Construction prior to participating in the cases and that he did not
file a memorandum disclosing the nature of his conflict within 15 days of the
meeting at which his participation occurred.
23. Section 112.3143(3), Florida
Statutes, (1989) provides as follows:
No county, municipal, or other local public
officer shall vote in his official capacity upon
any measure which inures to his special private
gain or shall knowingly vote in his official
capacity upon any measure
which inures to the
special gain of any principal, other than an
agency as defined in s. 112.312(2), by whom he
is retained. 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 is abstaining from voting and, within
15 days after the vote occurs, disclose the nature
of his 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. . . .
24. In order to establish that
Muniz violated Section 112.3143(3), Florida Statutes (1989), the following
elements must be proved:
1. Muniz must
be a county, municipal or local
public officer serving on either an advisory or
non-advisory collegial body.
2. Muniz must have:
(a) Voted
on a measure which inured to
his special private gain, or knowingly voted on
a measure which inured to the special gain of a
principal (other than an "agency" as defined in
Section 112.312(2), Florida Statutes,) by whom his
is retained; and/or
(b) Failed
to publicly state to the assembly
prior to the vote being taken the nature of his
interest in the measure described in (a), above; and/or
(c) Failed
to disclose the nature of his
interest in the measure described in (a) above, as a
public record in a memorandum filed with the person
responsible for recording the minutes of the meeting
at which the vote occurred.
25. The Advocate has established
that Muniz violated Section 112.3143(3), Florida Statutes.
26. The Advocate established
that as a member of the City of Cape Coral Contractors' Regulatory Board, Muniz
was a municipal or other local public officer serving on a non-advisory
collegial body.
27. The Advocate established
that Muniz failed to abstain from voting on the two disciplinary cases
involving Tracey Construction. For the
reasons stated in the discussion above of the Section 112.3143(2)(b) violation,
the disciplinary cases would constitute measures that would inure to the
special benefit of Muniz as the owner and operator of Delta T Contracting, the
company with whom Tracey Construction had active subcontacts. Muniz did not publicly state the nature of his interest in David
Tracey and Tracey Construction prior to the votes taken on the matters and he
did not file a memorandum within 15 days after the voting occurred.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a Final Order and Public Report be entered finding that
Paul Muniz violated Sections 112.3143(2)(b), and (3), Florida Statutes;
imposing a civil penalty of $750 for each violation (a total of $1500); and
issuing a public censure and reprimand.
DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Leon
County, Florida.
___________________________________
SUSAN B. KIRKLAND
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 31st day of October, 1994.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 93-5806EC
To comply with the requirements of Section 120.59(2), Florida Statutes
(1993), the following rulings are made on the parties' proposed findings of
fact:
Advocate's Proposed Findings of Fact.
1.
Paragraphs 1-19: Accepted.
2.
Paragraphs 20-23: Accepted in
substance.
3.
Paragraph 24: Rejected as
unnecessary detail.
4.
Paragraph 25: Rejected as
irrelevant since the facts
established that Muniz did not file a conflict of
interest form within the time frames established in
Sections 112.3143(2)(b) and (3).
5.
Paragraph 26: Rejected as
unnecessary.
6.
Paragraph 27: The first sentence
is rejected as
constituting argument. The remainder is rejected as
subordinate to the facts actually found.
7.
Paragraph 28: Rejected as
constituting argument.
8.
Paragraph 29: Rejected as
subordinate to the facts
actually found.
9.
Paragraphs 30: The first
sentence is accepted in
substance. The second sentence
is rejected as
constituting argument.
10.
Paragraph 31: Accepted.
11.
Paragraph 32: The last sentence
is rejected as
subordinate to the facts found.
The remainder is
accepted in substance.
12.
Paragraph 33: Rejected as
subordinate to the facts found.
Respondent's Proposed Findings of
Fact.
1.
Paragraphs 1a-1q: Accepted.
2.
Paragraphs 2a-2f: Rejected as
recitation of testimony.
3.
Paragraph 3a: Accepted in
substance.
4.
Paragraph 3b: Accepted in
substance to the extent that
there was no evidence presented which established that
Delta T and Tracey Construction had entered into a
formal continuing contract; however the evidence did
establish that Delta T and Tracey Construction had
routinely done business together prior to February 28, 1990.
5.
Paragraph 3c: Accepted in
substance to the extent that
there was no evidence presented that Paul Muniz had a
contract with Tracey Construction; however the evidence
did establish that the company, of which Paul Muniz
owned 75 percent, did have a contractual relationship
with Tracey Construction.
6.
Paragraph 3d: Rejected as
immaterial.
7.
Paragraph 3e: Rejected to the
extent that there would
have been no affect on Delta T's business and rejected
that there would have been little impact on Delta T's
business as immaterial.
8.
Paragraphs 3f-3g: Rejected as
immaterial since the
Board did have the authority to do so.
9.
Paragraph 3h: Rejected as
immaterial because the Board
had the authority to suspend or revoke the license.
10.
Paragraph 3i: Rejected as immaterial
because the
Board had the authority to do so.
11.
Paragraph 3j: Rejected as not
supported by the greater
weight of the evidence. See 3i
above.
12.
Paragraph 3k: Rejected as
constituting argument.
13.
Paragraph 3l: Rejected as constituting
a conclusion of law.
14.
Paragraph 3m-3q: Rejected as not
supported by the
greater weight of the evidence.
COPIES FURNISHED:
Stuart F. Wilson-Patton
Assistant Attorney General
Advocate for the Florida
Commission on Ethics
Office of the Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
John Charles Coleman, Esquire
2300 McGregor Boulevard
Post Office Box 2089
Fort Myers, Florida 33902-2089
Bonnie Williams
Executive Director
Florida Commission On Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, Esquire
General Counsel
Ethics Commission
2822 Remington Green Circle, Suite
101
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
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 ten 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.