BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re AURELIO R. LINERO, )

) Complaint No. 96-236

Respondent. ) DOAH No. 98-2371EC

) Final Order No. 99-14

)

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FINAL ORDER AND PUBLIC REPORT

This matter came before the State of Florida Commission on Ethics, meeting in public session on September 2, 1999, pursuant to the Recommended Order of the Division of Administrative Hearings’ Administrative Law Judge (ALJ) rendered in this matter on June 4, 1999 (a copy of which is attached and incorporated by reference). The ALJ recommends that the Commission enter a final order and public report finding that the Respondent, Aurelio R. Linero, did not violate Section 112.313(6), Florida Statutes, and recommends that the Commission deny the Respondent’s request for attorney fees and costs against the Complainant.

STANDARDS FOR REVIEW

Under Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the ALJ unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or demonstrates that the proceedings on which the findings were based did not comply with essential requirements of law. See, e.g., Freeze v. Dept. Of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990) and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached.” DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).

The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters solely within the province of the ALJ. Heifetz v. Dept. Of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the ALJ, the Commission is bound by that finding.

Under Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the conclusions of law over which it has substantive jurisdiction and the interpretations of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusions of law or interpretations of administrative rules, the agency must state with particularity its reasons for rejecting or modifying such a conclusion or interpretation and must make a finding that its substituted conclusion or interpretation is as or more reasonable than that which was rejected or modified.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Neither the Respondent nor the Commission’s Advocate filed exceptions to the Recommended Order. Also, the complete record of this matter under Section 120.57(1)(f), Florida Statutes, was not placed before the Commission. Therefore, after considering the Recommended Order in public session pursuant to notice to the Advocate and the Respondent, the Commission adopts the Recommended Order in full.

Accordingly, the Commission on Ethics finds that the Respondent, Aurelio R. Linero, as director of the public works department of the City of Coral Gables, did not violate Section 112.313(6), Florida Statutes, as alleged in the complaint, and denies the Respondent’s request for attorney fees and costs.

ORDERED by the State of Florida Commission on Ethics meeting in public session on September 2, 1999.

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Date Rendered

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Peter M. Dunbar

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. Ronald J. Cohen, Attorney for Respondent

Mr. Eric S. Scott, Commission Advocate

Mr. Asdrubal J. Rey, Complainant