FINAL ORDER

This matter comes before the Commission on Ethics, meeting in public session on April 16, 2010, pursuant to the Recommended Order of the Division of Administrative Hearings' Administrative Law Judge rendered in this matter on January 15, 2010.  The Recommended Order (a copy of which is attached and incorporated herein by reference), recommends that the Commission enter a final order finding that the Mickey Rosado violated Section 112.313(8), Florida Statutes, and recommending that a public censure and reprimand, and civil penalty of $7,500 be imposed .

BACKGROUND

            This matter began with the filing of an ethics complaint in 2007 alleging that the Respondent, Mickey Rosado, as a member of the Cape Coral City Council, violated Section 112.313(6), Florida Statutes, by using his position to request a delay in an annexation process for a parcel of property for the benefit of third parties with whom the Respondent had a business relationship and by advocating for the City's purchase of a particular parcel of property over another parcel, either for his own benefit or for the benefit of the owner, with whom the Respondent had a business relationship, and also violated Section 112.313(8), Florida Statutes, by obtaining information in his official capacity about the availability for purchase of certain real property and then using the information for his personal benefit or the benefit of a business entity.  The allegations were found to be legally sufficient and Commission staff undertook a preliminary investigation to aid in the determination of probable cause.  On April 29, 2009, the Commission issued an Order finding probable cause to believe that the Respondent violated Section 112.313(8), Florida Statutes, by obtaining information in his official capacity about the availability for purchase of certain real property and then using the information for his personal benefit or the benefit of a business entity .

            The matter was then forwarded to the Division of Administrative Hearings (DOAH) for assignment of an Administrative Law Judge (ALJ) to conduct the formal hearing and prepare a recommended order.  The parties filed a Joint Prehearing Stipulation, and a formal evidentiary hearing was held before the ALJ on November 16 and 17, 2009.  A transcript was filed with the ALJ and the parties timely filed Proposed Recommended Orders.  The ALJ's Recommended Order was transmitted to the Commission, the Respondent, and the Advocate on January 15, 2010, and the parties were notified of their right to file exceptions to the Recommended Order.  No Exceptions were filed.

            Having reviewed the Recommended Order and the record of the proceedings, the Commission makes the following findings, conclusions, rulings and determinations :

STANDARDS FOR REVIEW

            Under Section 120.57(1)(l),an 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 that the proceedings on which the findings were based did not comply with the 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 within the sole 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 interpretation 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 conclusions of law or interpretations of administrative rules and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.  An 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 therefore in the order, by citing to the record in justifying the action .     

FINDING OF FACT

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

CONCLUSIONS OF LAW

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

            2. Based upon our review of the complete record, there is competent substantial evidence to support the ALJ's findings of fact and her ultimate finding that the Respondent violated Section 112.313(8), Florida Statutes.

           3.  Accordingly, the Commission on Ethics finds that the Respondent, as a member of the Cape Coral City Council, violated Section 112.313(8), Florida Statutes, by obtaining information in his official capacity about the availability for purchase of certain real property and then using the information for his personal benefit or the benefit of a business entity.

RECOMMENDED PENALTY

            The ALJ's recommendation of a public censure and reprimand and a civil penalty in the amount of $7,500 for the Respondent's violation of Sections 112.313(8), Florida Statutes, is accepted.

           In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor issue a public censure and reprimand and impose a civil penalty of $7,500 upon the Respondent MICKEY ROSADO.

DONE and ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, April 16, 2010.

                                                                        _______________________________

                                                                        Date Rendered

                                                                        _______________________________

                                                                       Roy Rogers

                                                                        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, 3600 MACLAY BOULEVARD SOUTH, SUITE 201, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; 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. Mickey Rosado, Respondent
           Ms. Lisa Raleigh, Commission Advocate
           Ms. Dolores Menendez, Complainant
           The Honorable Susan B. Harrell, Administrative Law Judge
                        Division of Administrative Hearings