FINAL ORDER AND PUBLIC REPORT

On November 13, 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 Earnie Neal 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 the Advocate timely filed a Response to Respondent’s Exceptions. The matter is now before the Commission for final agency action.

I. STANDARD OF REVIEW

Section 120.57(1)(j), Florida Statutes (1997), sets forth 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.

II. RULINGS ON EXCEPTIONS

1. Respondent’s first two exceptions are directed to the finding of fact contained in Paragraph 58, where the ALJ found that Respondent asked Ms. Otero for an “intimate kiss.” Respondent asserts that this finding, together with the conclusion that Respondent violated Section 112.313(6), Florida Statutes, was not established by clear and convincing evidence. As noted in Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985), “It is the hearing officer’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 on competent, substantial evidence.” Because Respondent’s exception fails to state any lawful reason for rejecting the Administrative Law Judge’s finding of fact, especially in light of there being competent substantial evidence to support the finding (T.352-355), and because the ALJ correctly applied the facts to the law, Respondent’s exceptions are denied.

2. In Respondent’s next exception, he excepts to that portion of finding of fact Paragraph 76 which indicates that he asked job applicant Tonia Sanders to “ride with him.” As pointed out by the Advocate in her response, there is competent substantial evidence to support the ALJ’s finding of fact. (T.169,173). There being no basis to reject that finding, the Respondent’s exception to finding of fact 76 is denied.

3. The remainder of Respondent’s exceptions are directed to finding of fact Paragraph 77 concerning Respondent’s directions to Ms. Sanders to make a hotel reservation and that he would meet her there. Respondent asserts that this finding of fact is inconsistent with other findings of fact as well as Ms. Ford’s own testimony. There is competent substantial evidence to support this finding (T.156-158). As for any conflicts in the testimony, the ALJ ably resolved those conflicts when she made the finding. Heifetz, supra. Accordingly, Respondent’s exception to finding of fact Paragraph 77 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 concludes that the Respondent, as City Manager for the City of Opa-Locka, violated Section 112.313(6), Florida Statutes.

RECOMMENDED PENALTY

The ALJ’s penalty recommendation is accepted by the Commission. 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 Earnie Neal in the amount of $6,000 and that he receive a public censure and reprimand.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 28, 1999, 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. David Nevel, Attorney for Respondent

Ms. Virlindia Doss, Commission Advocate

Mr. Joseph Centorino, Esquire, Complainant

Division of Administrative Hearings