FINAL ORDER AND PUBLIC REPORT

On July 27, 1998, an Administrative Law Judge (“ALJ”) for the Division of Administrative Hearings submitted her Recommended Order to the Commission on Ethics and the parties to the proceeding, Respondent Kenneth Sattler and the Commission’s Advocate. A copy of the Recommended Order is incorporated herein by reference.

The Respondent timely filed Exceptions to the Recommended Order, and no response to was submitted by the Commission’s Advocate. The matter is now before the Commission for final agency action.

I. STANDARD OF REVIEW

Section 120.57(1)(j), Florida Statutes (1997), furnishes the standard of review that governs the Commission’s final action on the Recommended Order. It states:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.

We are also reminded of what the First District Court of Appeal said in Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985), when it wrote:

It is the hearing officer’s (now Administrative Law Judge’s) function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence. State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla. 3d DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer’s role to decide the issue one way or the other. The agency may not reject the hearing officer’s finding unless there is no competent substantial evidence from which the finding could not be reasonably inferred. The agency is not authorized to weigh the evidence presented, judge the credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.

Heifetz, at 1281.

II. RULINGS ON EXCEPTIONS

1. Respondent’s first four numbered paragraphs appear to be directed to Finding of Fact 10. Neither the Respondent nor the Commission’s Advocate ordered a transcript of the formal hearing before the Administrative Law Judge. It has been held that the burden of furnishing a transcript is on the party seeking review and, if the party elects not to provide a transcript, exceptions to findings of fact can be dismissed solely on that basis. See, e.g., Rabren v. Department of Professional Regulation, 568 So.2d 1283 (Fla. 1st DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); and Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982). The Commission has also maintained this position in its final orders. See, e.g., In re George Costage, 15 FALR 1201 (1982); and In re Emil Danciu, 17 FALR 2747 (1995). Accordingly, Respondent’s exceptions to Finding of Fact 10 are denied.

2. In his Paragraph 5, Respondent excepts to Conclusion of Law 39, where the ALJ concluded that the Respondent had a contractual relationship with CAA through his purchase of stock as the donee of a durable power of attorney granted to him by his ex-mother-in-law. The fact-findings contained in Findings of Fact 14, 15, and 16 support the ALJ’s Conclusion of Law 39 and are unreviewable due to the absence of a transcript. Notwithstanding, as the agent and fiduciary of Margaret Mansfield, Respondent had a contractual relationship with both Margaret Mansfield and with CAA, and we find no error in the ALJ’s legal conclusion to that effect. Accordingly, Respondent’s exception to Conclusion of Law 39 is denied.

3. In his final exception, Respondent excepts to Conclusion of Law 40, where he asserts that the promissory note he had with CAA was not a valid, enforceable contract. Respondent argues that since the contract was undated and was not made payable to the Respondent, the ALJ erred in concluding that the promissory note constituted clear and convincing evidence of a contractual relationship. We reject Respondent’s exception. Clearly, the note was evidence of an agreement between the parties which created an obligation. Therefore, the ALJ correctly concluded that the Respondent had a contractual relationship with CAA for purposes of Section 112.313(7)(a), Florida Statutes, and Respondent’s exception to Conclusion of Law 40 is denied.

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

2. Accordingly, the Commission on Ethics finds that the Respondent, as a member of the St. Lucie County Board of County Commissioners and the St. Lucie County Port and Airport Authority, violated Section 112.313(7)(a), Florida Statutes.

RECOMMENDED PENALTY

The ALJ’s penalty recommendation is appropriate and we accept it. In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon Respondent Kenneth Sattler in the amount of $4,100 and that he receive a public censure and reprimand.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1998, in Tallahassee, Florida.

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Date

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Charles A. Stampelos

Chair

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at 2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

cc: Mr. Robert Watson, Attorney for Respondent

Mr. Eric S. Scott, Commission Advocate

Mr. Maurice E. Warren, Complainant

Mr. Richard E. McIlwain, Esquire, Complainant

Division of Administrative Hearings