RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on, November 16, 2009, in Fort Myers, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Lisa M. Raleigh, Esquire
Jennifer Yencarelli, Esquire
Office of the Attorney General
The Capitol, Plaza Level- 01
Tallahassee, Florida 32399-1050
For Respondent: Mickey Rosado,pro se
2121 Southeast 18th Place
Cape Coral, Florida 33990
STATEMENT OF THE ISSUE
The issues in this case are whether Mickey Rosado violated Subsection 112.313(8), Florida Statutes (2005),1 and, if so, what recommendation should be made for discipline.
PRELIMINARY STATEMENT
On April 29, 2009, the Florida Commission on Ethics (Commission) entered an Order Finding Probable Cause to believe that Respondent, Mickey Rosado (Mr. Rosado), violated Subsection 112.313(8), Florida Statutes. The case was forwarded to the Division of Administrative Hearings on September 23, 2009, for assignment of an Administrative Law Judge.
The Advocate and Mr. Rosado entered into a Joint Prehearing Stipulation, in which certain facts were admitted in Section E of the Joint Prehearing Stipulation. Those facts have been incorporated into this Recommended Order to the extent relevant.
At the final hearing, the Advocate called Mr. Rosado as a witness. Advocate’s Exhibits 1 through 10 were admitted in evidence. Mr. Rosado testified in his own behalf and called the following witnesses: Guillermo Duque; Ricardo McCormack; Doris Rosado; Muriel Rosco; Angel Ramos, Jr.; Jorge Nunez; and Michael Villalobos. Respondent’s Exhibits 1 through 5, 8, and 9 were admitted in evidence. Respondent’s Exhibits 6 and 7 were offered in evidence, but were not admitted.
The one-volume Transcript of the final hearing was filed on December 3, 2009. The parties filed their proposed recommended orders on December 14, 2009. The parties’ proposed recommended orders have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
1. Mr. Rosado served as member of the Cape Coral City Council (City Council) from April 2003 until he was suspended from office in January 2007. In addition to being on the City Council, Mr. Rosado owned a marketing business named Mickey Rosado Management, LLC. He and his wife also operated a small café and catering business.
2. During the latter part of 2005, the City of Cape Coral (City) was involved in looking for property to expand the City’s office space. On December 5, 2005, the City Council met, and one of the items on the consent agenda was the request for authorization to offer $2,000,000 and negotiate a contract for the purchase of property located at 924 Del Prado Boulevard, Cape Coral, Florida. For purposes of this Recommended Order, this property will be referred to as the Motor City Property.
Mr. Rosado voted against authorizing the negotiation of the purchase of the Motor City Property. In the discussion at the City Council meeting, Mr. Rosado stated that he felt the location had traffic problems. The motion to negotiate a contract for the Motor City Property passed on a seven-to-one vote.
3. After the City Council meeting concluded, Mr. Rosado asked Terry Stewart (Mr. Stewart), who was the city manager, to look into purchasing some other property for the needed office space. The property was owned by Steve Westphal’s Used Car Factory, Inc., which is a car dealership owned by Steven L. Westphal (Mr. Westphal) and his children. The property to which Mr. Rosado was referring (Westphal Property) was located on Del Prado Boulevard, in Cape Coral, Florida. Mr. Stewart told Mr. Rosado that he would look into the Westphal Property.
4. There are two versions of how Mr. Rosado came to know that Mr. Westphal would be willing to sell the Westphal Property to the City. According to Mr. Westphal, while visiting in Tennessee, he was watching the December 5, 2005, City Council meeting on television and listened to the discussion concerning the purchase of the Motor City Property. Mr. Westphal stated that he called Mr. Rosado to talk to Mr. Rosado in his capacity as a member of the City Council and advised Mr. Rosado that he would be willing to consider selling the Westphal Property to the City. Mr. Westphal stated that he also called A.J. Boyd, who was a member of the City Council, and told him of the possibility of selling the Westphal Property to the City.
5. Mr. Rosado’s version is contained in a letter to the Ethics Commission staff dated February 12, 2009,2 in which Mr. Rosado responded to the question of how he learned about the availability of the Westphal Property as follows:
Mr. Malone’s question was: "How did I find out about the property?" I replied that through a conversation with Mr. Westphal, when I called him about a property located in Cape Coral, called Motor City. I asked him about the property in question and he replied that the property didn’t deserve to be a location for a customer service center for the City of Cape Coral. I told him your property would be much better since it was located by City property,3 and he agreed. Furthermore, he said, tell Mr. Stuart [sic] I will sell the city the Del Prado property, and I did so immediately after the meeting that evening.
6. Whether Mr. Westphal’s version or Mr. Rosado’s version is correct, the undisputed fact remains that Mr. Westphal advised Mr. Rosado, in Mr. Rosado’s capacity as a member of the City Council, that he was willing to sell the Westphal Property to the City and that Mr. Westphal wanted Mr. Rosado to convey to the City that the property was for sale.
7. The evidence does not support a finding that Mr. Westphal was advising Mr. Rosado in Mr. Rosado’s private capacity that he was in the market to sell the Westphal Property to anyone other than the City. As Mr. Westphal put it, I’m not going to call a guy that delivers sandwiches to my dealership about selling a large piece of property. It is clear that Mr. Westphal was talking to Mr. Rosado in Mr. Rosado’s capacity as a member of the City Council.
8. It is also clear that the information that Mr. Westphal was willing to sell his property to the City was not information that was available to the general public. The evidence establishes that, before Mr. Westphal and Mr. Rosado talked in December 2005 about selling the Westphal Property to the City, Mr. Westphal had not had the Westphal Property on the market.
9. As requested by Mr. Rosado, Mr. Stewart began looking into the Westphal Property to determine whether the property would be appropriate for the City’s needs. Mr. Stewart contacted Mr. Westphal and was given permission to visit the Westphal Property along with two other pieces of property owned by Steve Westphal’s Used Car Factory, Inc.
10. Sometime between December 5, 2005, and December 12, 2005, Mr. Rosado contacted an employee of Top Two Development, Inc., and advised that the Westphal Property was available for sale. Mr. Rosado, in turn, advised Mr. Westphal that Top Two Development, Inc., was interested in purchasing the Westphal Property. A meeting was arranged at which Mr. Rosado introduced Mrs. Giraldo to Mr. Westphal to discuss the purchase of the Westphal Property and other properties owned by Steve Westphal’s Used Car Factory, Inc., as well as the car dealership.
11. Mrs. Giraldo spoke Spanish but not English, and Mr. Westphal spoke English but not Spanish. Mr. Rosado and Mrs. Giraldo’s daughter, who was also at the meeting, were bi-lingual and translated for Mr. Westphal and Mrs. Giraldo. Mr. Westphal, as representative of Steve Westphal’s Used Car Factory, Inc., and Mrs. Giraldo, as representative of Top Two Development, Inc., came to an understanding to negotiate for the purchase of the properties and the stock of the dealership. Mr. Rosado drafted the Letter of Interest/Understanding for Negotiation Purposes which Mrs. Giraldo and Mr. Westphal signed on December 12, 2005.
12. After the meeting, Mr. Rosado approached Mr. Westphal and wanted to know if there would be anything in the deal for him. Mr. Westphal agreed to pay Mr. Rosado a finder’s fee of $261,000 if the sale of the stock of the dealership between Mr. Westphal and Mrs. Giraldo was completed. Mr. Rosado also asked Mr. Westphal if he would include a new car for Mr. Rosado’s wife, but Mr. Westphal balked at that suggestion.
13. A couple of weeks after the December 5, 2005, City Council meeting, Mr. Stewart advised Mr. Rosado of his efforts regarding the Westphal Property, and Mr. Rosado told Mr. Stewart that the property was under contract. Mr. Rosado did not divulge his participation in the introduction of Mrs. Giraldo and Mr. Westphal.
14. By Invoice 50313, dated January 12, 2006, Mickey Rosado Management, LLC, billed Top Two Development, Inc., $10,000 for the following services:
Consulting services for Business opportunity with Steve Westphal’s Properties and Business Purchase.
Developed Letter of Intent for business agreement, deliver negotiations agreement and notarized terms of agreement.
When the transaction is final Top Two Development will also as part of the agreement with MRM will provide a vihicle [sic] of choice.
15. By check dated January 16, 2006, Top Two Development, Inc., paid Mickey Rosado Management, LLC, $10,000 for the services invoiced on January 12, 2006.
16. On March 12, 2006, Mickey Rosado Management, LLC, invoiced Top Two Development, Inc., $10,000 for the following services:
Provide interpreting services, at all meetings pertaining Steve Westphal’s stock purchase agreement. In person, phone conferences, meetings, and all pertaining needed area’s [sic] requested January, February, March 2006.
These services include all dates, hours, minutes, phone calls, meetings, arrangements, appointments, travel, transportation, etc.
This invoice is an extension agreement of January Invoice 50313 as agreed by Mrs. Giraldo, payment is due 3/1/06 to continue services.
17. By check dated March 21, 2006, Top Two Development, Inc., paid Mickey Rosado $10,000 for services rendered.
18. In 2007, Mr. Rosado was arrested for his involvement in the attempted sale of the Westphal Property for operating as a broker without a license in violation of Subsection 475.42(1)(a), Florida Statutes.
19. On January 30, 2007, Governor Charlie Crist entered an executive order suspending Mr. Rosado from his position as a member of the City Council.
20. Mr. Rosado was not re-elected to the City Council in September 2007.
21. On July 27, 2008, Mr. Rosado entered a guilty plea to one count of brokering without a license and one count of misuse of confidential information. The plea agreement provided that Mr. Rosado was to make restitution of $10,000.
CONCLUSIONS OF LAW
22. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).
23. Section 112.322, Florida Statutes, and Florida Administrative Code Rule 34-5.0015, 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 Florida Public Officers and Employees).
24. The Advocate has the burden to establish the allegations in the Order Finding Probable Cause by clear and convincing evidence. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).
25. The Order Finding Probable Cause alleges that Mr. Rosado violated Subsection 112.313(8), Florida Statutes, which provides:
(8) DISCLOSURE OR USE OF CERTAIN INFORMATION.--A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.
26. In order to establish a violation of Subsection 112.313(8), Florida Statutes, the following elements must be proven:
1. Mr. Rosado must have been a public officer or employee.
2. Mr. Rosado must have disclosed or used information which was: (a) not available to members of the general public, and (b) gained by reason of his official position.
3. Such information must have been disclosed or used with an intent to secure personal gain or benefit for Mr. Rosado or another person or business entity.
27. While a member of the City Council, Mr. Rosado was a "public officer" as that term is defined in Subsection 112.313(1), Florida Statutes, and used in Subsection 112.313(8), Florida Statutes. Subsection 112.313(1), Florida Statutes, defines a "public officer" to include "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." Subsection 112.313(2), Florida Statutes, defines agency to include any local government entity. Mr. Rosado was an elected member of the City Council.
28. Mr. Westphal requested Mr. Rosado in Mr. Rosado’s capacity as a member of the City Council to advise the City that the Westphal Property could be sold to the City. This information was not available to the general public and was told to Mr. Rosado only because Mr. Rosado was a member of the City Council.
29. Mr. Rosado disclosed the information to Top Two Development, Inc., and introduced Mrs. Giraldo to Mr. Westphal in order to facilitate the sale of the Westphal Property to Top Two Development, Inc. Mr. Rosado had an agreement with Mr. Westphal for the payment of a finder’s fee if the deal was concluded. Mr. Rosado was also contracting with Top Two Development, Inc., for services relating to the negotiation of the sale of the Westphal Property. Thus, Mr. Rosado disclosed and used the information with an intent to financially benefit himself or his company.
30. The Advocate has established by clear and convincing evidence that Mr. Rosado violated Subsection 112.313(8), Florida Statutes.
31. Mr. Rosado is no longer a member of the City Council. Section 112.317, Florida Statutes, provides that the Commission may recommend penalties of public reprimand and censure and a civil penalty not to exceed $10,000.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Mr. Rosado guilty of violating Subsection 112.313(8), Florida Statutes, and recommending the imposition of a public reprimand and censure and a civil penalty of $7,500.
DONE AND ENTERED this 15th day of January, 20010, in Tallahassee, Leon County, Florida.
S
SUSAN B. HARRELL
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 15th of January, 2010.
ENDNOTES
[1] Unless otherwise indicated, all references to the Florida Statutes are to the 2005 version.
[2] Respondent's Exhibit 1.
[3] The Westphal Property was located adjacent to the City's public works department.
COPIES FURNISHED:
Kay Starling, Agency Clerk
Florida Commission on Ethics
3600 Macclay Boulevard, South
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phillip C. Claypool, Executive Director
and General Counsel
Florida Commission on Ethics
3600 Macclay Boulevard, South
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Lisa M. Raleigh, Esquire
Jennifer Yencarelli,Esquire
Office of the Attorney General
The Capitol, Plaza Level- 01
Tallahassee, Florida 32399-1050
Mickey Rosado
2121 Southest 18th Place
Cape Coral, Florida 33990
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.