STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ROBERT HILDRETH )

) CASE NO. 93-3908EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on March 10, 1994, in Miami, Florida.

APPEARANCES

Advocate: Virlindia Doss, Esquire Department of Legal Affairs The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Raoul G. Cantero, Esquire

2601 South Bayshore Drive, Suite 1600

Miami, Florida 33133 STATEMENT OF THE ISSUES

Whether Respondent violated Sections 112.313(4) and 112.3148(2), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 28, 1993, the State of Florida Commission on Ethics (Commission) issued an Order Finding Probable Cause against Respondent, Robert Hildreth (Hildreth), for violation of Section 112.313(4), Florida Statutes, for accepting a complimentary membership in the Country Club of Coral Gables (Country Club) when he knew or should have known it was given to influence his vote or official actions and for violations of Section 112.3148(2), Florida Statutes, for failing to report a complimentary membership to the Country Club on his financial disclosure filing for the years 1989 and 1990. Hildreth requested a public hearing, and the case was forwarded to the Division of Administrative Hearings on July 14, 1993 for assignment to a hearing officer. The case was originally assigned to Hearing Officer David Maloney but was transferred to Hearing Officer Susan B. Kirkland. The case was scheduled for hearing on November 16, 1993, and on November 10, 1993, the Advocate filed a Motion for Continuance. The motion was granted, and the hearing was rescheduled for March 9, 1994.

The parties stipulated to the facts contained in Section "D" of the parties' Prehearing Stipulations filed on March 4, 1994. At the final hearing, the Advocate called no witnesses. Advocate's Exhibits 1-16 were admitted into evidence. Advocate's Exhibits 1-12 were also admitted into evidence in In Re: Robert Zahner, DOAH Case No. 93-3909EC and in In Re: James Barker, DOAH Case No. 93-3911EC. Respondent testified on his own behalf and presented Robert

Zahner and Edwin Brownell as witnesses. The testimony of Mr. Zahner and Mr. Brownell were also accepted as testimony presented in Zahner and Barker, supra. Respondent's Exhibits 1-3 were admitted into evidence.

The parties agreed to file the proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on April 7, 1994.

The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Robert Hildreth (Hildreth), was a city commissioner for the City of Coral Gables (City) from 1983 through 1993.

   
   

2. The Country Club of Coral Gables (Country Club) was established by City founder George Merrick, prior to the City's incorporation. Since 1929, the City which owns the land and buildings from which the Club operates, has leased the property to private entities.

   
   

3. Since 1935, the lessee of the property has been the Country Club, a non-profit corporation run by a board of directors elected by the Country Club membership.

   
   

4. Between 1935 and 1958, the lease underwent various modifications and extensions. In 1958, the City Commission voted to extend the lease to July 31, 1990. Under the terms of the lease, the Country Club paid three percent of its gross annual income, but in no case less than $5,000 per year, to the City as rent.

   
   

5. In 1977, the Country Club again came before the City Commission requesting a lease extension, this time to the year 2002. There was no change in the rent amount. The request for extension was to allow the Country Club to borrow money for construction, and the request was approved.

   
   

6. In 1978 the Country Club asked the City Commission for rezoning so that it could expand its tennis courts. This request was approved.

   
   

7. In May, 1980, the Country Club asked the City Commission for a $23,000 loan to repair its roof. The City Attorney advised that the City could not lawfully make such a loan, and no further action was taken on the matter.

   
   

8. In 1981 the Country Club asked to expand its tennis club facilities, and this request was approved.

   
   

9. In 1983 a significant portion of the Country Club burned down.

   
   

10. A request by the Country Club to support its efforts to raise funds from citizens for the Country Club, was on the July 26, 1983, City Commission agenda, but was not taken up. A discussion of the status of the building was held on that date, but no action was taken.

    
    

11. Instead of rebuilding the burned section with the insurance money, the Country Club decided to construct an already planned new section. On November 22, 1983, representatives of the Country Club presented a plan for restoration to the City Commission, which on motion of Commissioner Kerdyk, approved the plan.

12. On March 27, 1984, the City Commission authorized the City Manager to sign an affidavit needed by the Country Club to obtain a building permit.

    
    

13. In April 1984, the Country Club requested extension of its lease to the year 2020. On motion of Commissioner Kerdyk, the City Commission agreed to the extension.

    
    

14. In September 1984, the Country Club asked that the lease be reworded in order to satisfy the lending institutions from which the Country Club was borrowing money for renovations. The request was approved.

    
    

15. When the Country Club initially undertook its restoration and remodeling plan, the Country Club leadership believed that there would be sufficient funds to accomplish both the rebuilding and the new construction. Cost overruns, diminishing membership, and other factors combined, however, to leave the Country Club with a new section, an old, burned-out section, and a significant debt. In 1987, the Country Club asked the City Commission to assist it, by contributing funds or otherwise, in overcoming that debt.

    
    

16. On November 24, 1987, the City Commission met and discussed the problem. The only action taken was to invite the Country Club leadership to an up coming City Commission meeting to discuss proposed improvements.

    
    

17. On January 26, 1988, the City Commission met with the Board of Directors of the Country Club to discuss the Country Club's request. The City Commissioners were informed that the Country Club's rent payments had been generating approximately $40,458.64 per year in income to the City. The Country Club vice-president proposed that the City rebuild the outside shell of the building, at a cost of $1,000,362 and the Country Club finance the remainder of the construction, about $1,900,000. The City Attorney advised that the City could not loan funds to the Country Club, because it was a private club. However, he opined that the City could participate in the rebuilding because it was the owner of the property. Action was postponed until the next meeting.

    
    

18. On February 3, 1988, the Country Club made an offer to the City to increase its rent payment from three percent to six percent, if the City would rebuild the shell.

    
    

19. The matter was raised at the February 9, 1988, meeting of the City Commission. Mayor Corrigan proposed that the City finance the rebuilding, but made no motion. Commissioner Wolff proposed that the City obtain funds from the Sunshine State Governmental Financing Commission and lend that money to the Country Club. The motion was seconded by Commissioner Kerdyk, and ultimately the City Commission resolved to refer the matter to the acting city manager to "work out financing without using taxpayer dollars."

    
    

20. At the February 9 meeting, discussion was had on the issue of whether the City Commissioners had conflicts of interest, since they all had complimentary memberships to the Country Club. Mr. Zahner, the City Attorney, advised that they had no conflict. The issue of conflict of interest was again raised in subsequent meetings.

    
    

21. Alternative proposals identified by the City Manager for funding the Country Club's rebuilding were discussed at the City Commission's March 8, 1988 meeting, but no action was taken.

22. On June 30, 1988, the Country Club proposed that the City forgive lease payments until the year 2000.

    
    

23. On August 30, 1988, the City Commission voted to suspend the lease payments, with the funds going instead to the maintenance and reconstruction of the facility.

    
    

24. Membership in the Country Club is open to any person, provided they can pay the initiation fee and membership dues.

    
    

25. At all times pertinent to this proceeding, the initiation fee was

    $1,000, although it sometimes was reduced to $500 during membership drives. The annual fee was $750.

    
    

26. Membership entitles the member and his or her family to use the swimming pool, health club, tennis courts, and bar and restaurant. Members must pay for their meals.

    
    

27. For more than twenty years the Country Club has awarded memberships to city officials and various other persons. The Country Club bylaws provide for such memberships. The bylaws provide for honorary memberships and complimentary memberships. There is only one honorary member of the Country Club, a founding member who was also at one time mayor of the City. The difference between what the Country Club calls a complimentary membership and an honorary membership is the difference in the duration of the membership. A complimentary membership is given on a year-to-year basis and ends when the person no longer holds the position which entitled him to have the free membership.

    
    

28. Complimentary memberships run from year to year. Persons awarded complimentary memberships include the City Commissioners, Mayor, City Manager, Assistant City Managers, the City Clerk, City Attorney, Director of Public Works, Finance Director, City Architect, Fire and Police Chief, the University of Miami President, Football Coach, and Assistant Athletic Director, the Golf Pro at the City golf course, and the editor of the local social magazine. The complimentary memberships are reviewed each year and are not renewed after the recipient leaves his or her office.

    
    

29. Hildreth has been a member of the Country Club since October 1, 1982, and was a member when he was elected to the City Commission in 1983.

    
    

30. Subsequent to his election, Hildreth's membership was changed by the Country Club to a complimentary membership.

    
    

31. Under the terms of the complimentary membership, Hildreth was not allowed to vote in Country Club elections or hold an office in the Country Club, but continued to retain all the other benefits he had been entitled to as a paying Country Club member.

    
    

32. Hildreth understood that the complimentary memberships were a tradition in the City.

    
    

33. Hildreth did not report the Country Club membership as a gift on his 1989 or 1990 financial disclosure statements. He was told by the City Attorney, Robert Zahner, that the membership was not a gift and was not required to be reported. Hildreth relied on that advice in deciding not to report the membership on his financial disclosure form.

34. Hildreth used the Country Club for meetings of the Tenth Holer's Club, which is golf social club. In order to belong to the Tenth Holer's Club, a person must also belong to the Country Club. Hildreth also used the Country club eight times in ten years for dining purposes. He did not use the swimming pool, the workout room, the tennis courts, or the cardroom.

    
    

35. Hildreth paid his own initiation fees.

    
    

36. The County Court has dismissed criminal charges against Hildreth and two other members of the City Commission as well as City Attorney, Robert Zahner, concerning alleged violations of Section 2-11.1(e) of the Dade County Code. That section mirrors the provisions of Section 112.3148, Florida Statutes. Those cases are currently on appeal. The County Court refused to dismiss an identical charge against City Police Chief, Charles Skalaski.

    
    

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

38. Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Florida Commission on Ethics (Commission) to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the Code of Ethics for Public Officers and Employees).

    
    

39. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that Hildreth violated Sections 112.313(4) and 112.3148(2), Florida Statutes. Therefore the burden of establishing by a preponderance of the evidence the elements of Hildreth's alleged violations is on the Commission.

    
    

40. Section 112.313(4), Florida Statutes, provides:

    
    

    No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.

    
    

41. In order to conclude that Hildreth violated Section 112.313(4), Florida Statutes, the Advocate must have proved the following elements:

    
    

    1. The Respondent must have been a public officer or employee of an agency; and

    2. The Respondent (or his spouse or minor child) must have accepted compensation, payment, or something of value which was:

       1. Accepted by the Respondent with actual knowledge that the compensation, payment or thing of value was given to influence a vote or other action in which Respondent was expected to participate in his official capacity; or

       2. Accepted by the Respondent when he should have known (with the exercise of due diligence) that the compensation, payment or thing of value was given to influence a vote or other action in which Respondent was

          expected to participate in his official capacity.

          
          

42. The parties have stipulated that Hildreth was a public officer or employee and therefore subject to the Code of Ethics for Public Officers and Employees.

    
    

43. Hildreth received a "thing of value" from the Country Club. The annual fee for a membership in the Country Club is $750. Hildreth used the country club facilities for dining and used his membership at the Country Club to qualify for membership in the Tenth Holer's Club.

    
    

44. The Country Club membership was given with the intent to influence official action in which Hildreth was expected to participate in his capacity as City Commissioner. The evidence clearly shows that issues concerning the Country Club came before the City Commission many times. The Country Club membership was given to Hildreth because of his position as City Commissioner. The membership was given to Hildreth on a year-to-year basis as long as he held the position of City Commissioner. When Hildreth's position as City Commissioner ended so did his free membership to the Country Club.

    
    

45. The evidence shows that Hildreth should have known that the free membership to the Country Club was given in an effort to influence him in his official actions. The issue of conflict of interest had been raised at City Commission meetings concerning the fact that City Commissioners who were voting on issues concerning the Country Club were receiving free memberships to the Country Club. Hildreth should have known that there is "no free lunch." No reasonable person could believe that the free Country Club membership was given to Hildreth for any reason except to influence him.

    
    

46. Sections 112.3148(1)(c) and (2)(a), Florida Statutes (1989), provide as follows:

    
    

    (1) When used in this section:

    (c) "Contribution" means any gift, donation or payment of money the value of which is in excess of $100 to any public officer or to any other person on the public officer's behalf. Any payment in excess of $100 to a dinner, barbecue, fish fry, or other such event shall likewise be deemed a "contribution." However, a gift representing an expression of sympathy and having no material benefit or a bona fide gift to the officeholder by a relative with the third

    degree of consanguinity for the personal use of the office holder shall not be deemed a

    "contribution." This section does not apply to complimentary parking privileges bestowed upon any legislator by an airport authority, or to honorary memberships in social, service, or fraternal organizations presented to an elected public officer merely as a courtesy by such organization.

    * * *

    (2)(a) Each elected public officer and each appointed public officer who is required by law, pursuant to s. 8, Art. II of the State Constitution, to file a full and public disclosure of his financial interests shall file a statement containing a list of all contributions received by him or on his behalf, if any, and expenditures from, or dispositions made of, such contributions by such officer which are not otherwise required to be reported by chapter 106, with the names and addresses of persons making such contributions or receiving such payment or distribution from such contributions and the dates thereof. The statement shall be sworn to by the elected public officer as being a true, accurate, and total listing of all such contributions and expenditures.

    
    

47. Hildreth's free membership to the Country Club was not an honorary membership and therefore was required to be reported on his financial disclosure statement. The Country Club bylaws make a distinction between a complimentary membership and an honorary membership. A complimentary membership is on a year-to-year basis and is based on a person's position. If the recipient no longer holds the position for which the membership was given the person is not entitled to a complimentary membership. The Country Club has only one honorary member. This person was a founding member of the Country Club and at one time had been Mayor of Coral Gables. It should be noted that although the former mayor is no longer serving as Mayor, he still is considered to have an honorary membership in the Country Club.

    
    

48. In CEO 89-40, the Ethics Commission opined that a membership to a social/dining club for which the initiation fees had been waived for a county property appraiser was not an honorary membership and should be disclosed pursuant to Section 112.3148, Florida Statutes.

    
    

49. Hildreth argues that the Advocate is collaterally estopped from contending that the Country Club membership is not an honorary membership because of the ruling in the County Court criminal action concerning a disclosure violation of the County Code. Such argument is without merit. See Florida Bar v. Musleh, 453 So.2d 794 (Fla. 1984), Walley v. Fla. Game and Fresh Water Fish Com'n, 501 So.2d 671 (Fla. 1st DCA 1987) and Todd v. Carroll, 347 So.2d 618 (Fla. 4th DCA 1977).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a final order and public

report finding that Robert Hildreth violated Section 112.313(4), Florida Statutes, for accepting a free membership in the Coral Gables Country Club and Section 112.3148, Florida Statutes for failing to disclose the free membership in 1989 and 1990 on his financial disclosure statement. I recommend a civil penalty of $750 and restitution of $750 for violation of Section 112.313(4), and a civil penalty of $1.00 for each of the failure to report violations, for a total penalty of $1502. The civil penalty is mitigated for the Section 112.313(4) violation because of the advice which Hildreth received from the City Attorney concerning a conflict of interest. The civil penalties for each of the disclosure violations is mitigated by Hildreth's seeking advice from the City Attorney on whether the membership had to be disclosed and relying on the City Attorney's advice that the membership was honorary and did not have to be disclosed.

DONE AND ENTERED this 23rd day of May, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23th day of May, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3908EC

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Advocate's Proposed Findings of Fact.

1. Paragraphs 1 18: Accepted.

2. Paragraph 19: The first sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance.

3. Paragraph 20: The first sentence is accepted. The second sentence is accepted in substance.

4. Paragraph 21: Accepted.

5. Paragraph 22: The first sentence is accepted. The second sentence is accepted in substance.

6. Paragraphs 23-26: Accepted.

7. Paragraph 27: Accepted in substance.

8. Paragraphs 28-33: Accepted.

9. Paragraphs 34-35: Rejected as unnecessary.

10. Paragraph 36: The first sentence is accepted. The remainder of the paragraph is accepted in substance.

11. Paragraph 37: Rejected as unnecessary.

12. Paragraphs 38-39: Accepted.

13. Paragraph 40: The first sentence is accepted. The remainder of the paragraph is rejected as constituting argument.

14. Paragraphs 41-42: Rejected as constituting argument.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-4: Accepted.

2. Paragraphs 5: Rejected as subordinate to the facts actually found.

3. Paragraph 6: Rejected as unnecessary.

4. Paragraphs 7-8: Accepted.

5. Paragraph 9: The first three sentences are accepted. The last sentence is rejected as unnecessary.

6. Paragraph 10-13: Accepted.

7. Paragraph 14: The first and third sentences are accepted in substance. The last sentence is rejected as constituting a conclusion of law. The remainder of the paragraph is rejected as not supported by the greater weight of the evidence.

8. Paragraph 15: Accepted in substance.

9. Paragraphs 16-17: Rejected as unnecessary.

10. Paragraph 18: Accepted.

11. Paragraph 19: The first two sentences are accepted. The last sentence is accepted in substance.

12. Paragraphs 20-23: Accepted in substance.

13. Paragraph 24: Accepted.

    
    

    COPIES FURNISHED:

    
    

    Raoul G. Cantero, Esquire Suite 1600

    2601 South Bayshore Drive Miami, Florida 33133

    
    

    Virlindia Doss, Esquire Department of Legal Affairs The Capitol, PL-01

    Tallahassee, Florida 32399-1050

    
    

    Bonnie Williams Executive Director

    Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

    
    

    Phil Claypool, Esquire General Counsel

    Ethics Commission

    2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

    Tallahasee, Florida 32317-5709

    
    

    NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

    
    

    All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

    
    

    =================================================================

    AGENCY FINAL ORDER

    =================================================================

    
    

    BEFORE THE STATE OF FLORIDA

    COMMISSION ON ETHICS

    
    

    In re ROBERT HILDRETH )

    ) DOAH Case No. 93-3908EC

    Respondent. ) Complaint No. 91-146

    ) Final Order No. COE 94-31

    )

    
    

    FINAL ORDER AND PUBLIC REPORT

    
    

    This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on May 23, 1994 by the Division of Administrative Hearings (DOAH) [a copy of which is attached and incorporated by reference].

    The Hearing Officer, recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.313(4), Florida Statutes, by accepting a free membership in the Coral Gables Country Club, and finding that the Respondent violated Section 112.3148, Florida Statutes (1989), by failing to disclose the same on his financial disclosure statements for the years 1989 and 1990. In addition, the Hearing Officer recommends a total penalty of $1,502.

    
    

    The Respondent filed exceptions to the Recommended Order and the Advocate filed a response to the Respondent's exceptions.

    
    

    The Respondent takes exception to various portions of the Recommended Order. Each of the exceptions will be dealt with individually below.

    
    

    Under Section 12O.57(1)(b)10, 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 Hearing Officer 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 hearing officer. 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 Hearing Officer, the Commission is bound by that finding.

    
    

    Having reviewed the Recommended Order, the Respondent's exceptions, the Advocate's response to the Respondent's exceptions, and the record of the public hearing of this matter that has been placed before the Commission, and having considered the arguments of the Respondent and the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:

    
    

    Rulings on Respondent's Exceptions

    
    

    1. The Respondent takes exception to the Hearing Officer's treatment of his proposed finding of fact 5, apparently arguing that such a finding should have been made on the basis of unrebutted testimony and that such a finding would have shown that the Respondent received nothing of value by virtue of his complimentary Country Club membership because he already received the privileges of membership from the City itself because he was a City official entitled, under the City's lease agreement regarding the Country Club, to enter the Club and dine at its restaurant. The Respondent's proposed finding 5 reads: "The lease provided for City officials to inspect the Country Club premises. In the opinion of at least one Country Club director, this right allowed City officials, including commissioners, to enter the Country Club and, if they desired, buy a meal at the restaurant. "In the appendix to the Recommended Order, the Hearing Officer rejected this proposed finding as "subordinate to the facts actually found."

       
       

       Under Section 120.57(1)(b)10, Florida Statutes, it was within the province of the Hearing Officer to reject or accept the testimony underlying a proposed finding of fact. Further, the Hearing Officer was free to weigh various and conflicting evidence presented in the matter and was free to draw from that evidence her factual view of the controversy, and the Hearing Officer's factual findings cannot be disturbed by our review unless they are not based upon competent, substantial evidence. The Hearing Officer cannot be faulted for believing that the membership bestowed value upon the members and for rejecting the proposed finding (and in effect the testimony upon which the proposed finding was based) that the City's lease rights rendered the membership valueless to the Respondent. There is competent, substantial record evidence to support the Hearing Officer's determination that the membership privileges bestowed upon the Respondent by a private entity were a thing of value to the Respondent.

       
       

       Therefore, this exception is rejected.

    2. The Respondent takes exception to the Hearing Officer's treatment of his proposed finding of fact 6, arguing that the proposed finding shows that the Respondent received nothing from the complimentary membership that the City did not already receive under the lease as the Country Club's landlord. The Hearing Officer rejected this proposed finding as "unnecessary." This proposed finding reads: "The lease also required that the Country Club allow the City access to the Country Club, and allow the City to use the Country Club upon reasonable notice."

       
       

       Even had this proposed finding been accepted, it would not conclusively establish that City use of Club property, premises, or facilities amounted to the Respondent's right to use the same, free of charge, in the same manner in which he was entitled to use them as a complimentary member of the Club.

       Therefore, for this reason and for the reasons set forth above in response to the previous exception, this exception is rejected.

       
       

    3. The Respondent takes exception to the Hearing Officer's treatment of his proposed finding 14 which reads: "Ed Brownell, a member of the Country Club for 27 years and a member of the board of directors for several years, testified at the hearing about the history of the Country Club's policy of granting complimentary memberships. His testimony was unrebutted. The policy began when City founder George Merrick founded the Country Club. From the beginning, honorary memberships were given to City officials, and later on to others as well. They were given to City leaders. The honorary memberships in the Country Club were given simply as a gesture of goodwill. The policy was not designed to influence anyone's official actions. "The Hearing Officer accepted the substance of the first and third sentences of this proposed finding, rejected the last sentence as constituting a conclusion of law, and rejected the remainder of the proposed finding as not being supported by the greater weight of the evidence. Assuming that the last sentence of proposed finding 14 is a proposed finding of fact rather than a proposed conclusion of law, its rejection is within the province of the Hearing Officer and there is competent, substantial evidence of record to support the Hearing Officer's contrary determination that the Country Club memberships were given in order to influence official action. As to the portion of proposed finding 14 which was rejected by the Hearing Officer via a weighing of the evidence, we are unable under Section 120.57(1)(b)10 to

       disturb her factual determination; any differences in the Hearing Officer's ostensibly contrary rulings in the Zahner and Barker complaints cannot change the standard of review under Section 120.57(1)(b)10. Further, even had the proposal that Ed Brownell testified in a certain way regarding the reason for the bestowal of the free Country Club memberships been accepted, its acceptance would not negate the other findings of the Hearing Officer supporting her determination that violations occurred.

       
       

       Therefore, this exception is rejected.

       
       

    4. The Respondent takes exception to the Hearing Officer's rejection of his proposed findings 16 and 17, arguing that characterizing a proposed factual finding as "unnecessary" is no reason to reject it if the evidence supports it and arguing that proposed findings 16 and 17 demonstrate that the Respondent received no value from his complimentary membership because, prior to his election as Commissioner, his private employer paid his dues and that therefore the employer and not the Respondent received a benefit from the complimentary membership.

       Under Section 120.57(1)(b)10, the Hearing Officer is the judge of the evidence, the witnesses, and the facts. It is up to the Hearing Officer to weigh the evidence, draw any inferences from the evidence, and find the facts. Merely because the Respondent proposed inferences or facts exonerative of himself, in which the Hearing Officer as judge of the facts did not concur, does not mean that the factual findings contained in the Recommended Order are not supported by competent, substantial evidence. Further, even had proposed findings 16 and 17 been accepted by the Hearing Officer, the same do not conclusively show that the Respondent's employer would have paid his Club membership for the time he received it as a public official merely because the employer paid in 1982. However, this exception is accepted to the extent that the Commission on Ethics finds that the Respondent's employer paid his initiation and dues for one year in 1982.

       
       

       Therefore, this exception is rejected in part and accepted in part.

       
       

    5. The Respondent takes exception to what he refers to as the Hearing Officer's failure to include certain of his proposed findings in the Recommended Order. However, much, if not all, of the substance of these proposed findings is included in the body of the Recommended Order, although the phraseology may not be exactly the same as that proposed by the Respondent. Respondent's proposed finding 15 is included in paragraphs 20 and 33 of the Recommended Order; proposed finding 20 is included in paragraphs 32 and 33 of the Recommended Order; and proposed finding 22 is included in paragraphs 17 and 20 of the Recommended Order.

       
       

       Therefore, these exceptions are rejected.

       
       

    6. The Respondent takes exception to the Hearing Officer's use of the preponderance of the evidence standard in this matter rather than the clear and convincing evidence standard. The Commission on Ethics has held that the preponderance of the evidence standard applies. Moreover, this matter does not involve revocation of a professional license (the loss of someone's livelihood) and therefore is not the type of administrative case in which the more stringent standard has been applied. See, e.g., In re MICHAEL E. LANGTON, 14 F.A.L.R. 4175 (Fla. Comm. on Ethics 1992).

       
       

    7. The Respondent takes exception to paragraph 43 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent received a "thing of value" from the Country Club because at the time the Respondent received the Country Club membership his private employer was paying his membership to the Country Club.

       
       

       This exception is rejected. The Country Club membership entitled the Respondent, not his private employer, to certain privileges, and no determination was made by the Hearing Officer, nor evidence admitted, that the private employer would have paid the membership for the Respondent for the years he held it by virtue of his official status.

       
       

    8. The Respondent takes exception to paragraph 44 of the Recommended Order, arguing that the Hearing Officer should not have concluded that the Country Club membership was given to influence the Respondent's official actions because "[t]he undisputed evidence showed that it has been a tradition since the founding of the Country Club to offer complimentary memberships to community leaders." In support of this argument, the Respondent cites In re JAMES RESNICK, 14 F.A.L.R. 1002 (Fla. Comm. on Ethics 1991). In addition, the Respondent argues that this determination was in error because "[w]hile [the

       leaders receiving free memberships] included City officials, several persons not City officials also received complimentary memberships," and "because of the landlord/tenant relationship between the City and the Country Club, a unity of interests existed between them such that complimentary memberships in the Country Club were not intended to influence official action."

       
       

       Resnick is distinguishable on its facts from the instant matter. Moreover, a gratuitous practice having a history is not a defense to a charge involving Section 112.313(4), Florida Statutes. See In re WINSTON W. "BUD" GARDNER, 15

       F.A.L.R. 2595, 2612 (Fla. Comm. on Ethics 1993). Further, the fact that the Club may have also been seeking to influence other community leaders who were not public officials does not mean that public official community leaders, including the Respondent, were not sought to be influenced. In addition, since it is obvious that the interests of a landlord and its tenant are not always the same, a tenant may very well seek to influence those with the power to make or influence decisions on behalf of the landlord, and the record in this matter shows that there were instances involving the City and the Country Club in which action or conduct by the City would have been of consequence to the Club.

       
       

       Therefore, this exception is rejected.

       
       

    9. The Respondent takes exception to paragraph 45 of the Recommended Order, arguing that the Hearing Officer erred in concluding that the Respondent should have known that the Country Club membership was given to influence his official action because since such memberships were traditional the Respondent merely assumed he was receiving a traditional honorary membership. In support of this argument the Respondent cites CEO 75-180 and CEO 89-40.

       
       

       As stated in our rejection of the previous exception above, the fact that a gratuitous practice has a history or is "traditional" is not a defense to a charge under Section 112.313(4), Florida Statutes. See Gardner, supra. CEO 75-

       180 is distinguishable from the instant matter because in that opinion there was no relationship between the country club providing the membership and the State University System, of which the recipient was a public official. The lack of a relationship or lack of potentially competing interests is not present in the instant matter. In CEO 89-40, the social club offering the free or reduced fee membership and the club member nominating the public official (a county property appraiser) for membership were merely property owners within the county, as were many, many other persons and entities, there was not present the particular landlord/tenant relationship as in the instant matter wherein issues involving potentially competing interests were actually addressed and subject to influence. Further, the Respondent's harboring of a subjective question in his mind as to whether his acceptance of the Country Club membership was an ethical conflict is not determinative of the objective, constructive knowledge element of an offense under Section 112.313(4).

       
       

       Therefore, this exception is rejected.

       
       

    10. The Respondent takes exception to paragraphs 47 and 48 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the membership was not "honorary" and therefore that it had to be reported, arguing that the membership was part of a tradition bestowed on both private and public leaders, and arguing that CEO 89-40 finds that complimentary memberships do not have to be disclosed.

        This exception is rejected. Such complimentary memberships do have to be disclosed and CEO 89-40 so held; such memberships have real and tangible benefits and thus are not "honorary." Mere history or tradition of a practice is not a defense to ethical charges. See Gardner, supra.

        
        

    11. The Respondent takes exception to paragraph 49 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Dade County Court's order involving the Respondent precludes a determination that the membership was not "honorary" requiring no disclosure. The ethics action on the lack of disclosure charges under Section 112.3148, Florida Statutes (1989), is not barred or controlled by the Dade County Court's ruling in the criminal prosecution. See Florida Bar v. Musleh, 453 So.2d 794 (Fla. 1984), Walley v. Fla. Game and Fresh Water Fish Com'n, 501 So.2d 671 (Fla. 1st DCA 1987), and Todd v. Carroll, 347 So.2d 618 (Fla. 4th DCA 1977).

        
        

        Therefore, this exception is rejected.

        
        

    12. The Respondent takes exception to the Hearing Officer's recommendation that the Commission find that the Respondent violated Section 112.313(4) in regard to the Coral Gables Country Club. Further, the Respondent argues that if a penalty is recommended by the Commission it should be reduced from that recommended by the Hearing Officer due to several mitigating factors.

The exceptions to the penalty recommendations of the Hearing Officer are accepted as specified below.

FINDINGS OF FACT

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

CONCLUSIONS OF LAW

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

   
   

2. The Commission finds that the Respondent, James Barker, violated Section 112.313(4), Florida Statutes, by accepting a free membership to the Coral Gables Country Club, and that he violated Section 112.3148, Florida Statutes (1989), by failing to disclose the same on his financial disclosure filings for the years 1989 and 1990.

RECOMMENDED PENALTY

Therefore, the Commission on Ethics hereby recommends that a civil penalty of

$200.00 (two hundred dollars) and restitution of $750.00 (seven hundred fifty dollars) be imposed upon the Respondent for the violation of Section 112.313(4), Florida Statutes, involving the Coral Gables Country Club and that a civil penalty of $1.00 (one dollar) be imposed upon the Respondent for each of the violations of Section 112.3148, Florida Statutes (1989), for a total of $952.00 (nine hundred fifty-two dollars). The civil penalty recommended by the Hearing Officer is mitigated because the Respondent sought and obtained legal advice from the City Attorney regarding the complimentary Country Club membership.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, July 14, 1994.

July 20, 1994

Date Rendered

N. David Flagg Acting Chairman

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, 2822 REMINGTON GREEN CIRCLE, SUITE 101, TALLAHASSEE, FLORIDA 32308; OR

P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF 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. Raoul G. Cantero, III, Attorney for Respondent Ms. Virlindia Doss, Commission Advocate

Mr. Joseph M. Centorino, Complaint Division of Administrative Hearings

Docket for Case No: 93-003908EC

Orders for Case No: 93-003908EC