STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: ROBERT ZAHNER, )
) CASE NO. 93-3909EC
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 9, 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 Section 112.313(4), 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 Zahner (Zahner), for violations of Section 112.313(4), Florida Statutes, for accepting a complimentary membership in the Country Club of Coral Gables (Country Club) and in the Coral Gables Executive Club (Executive Club), when he knew or should have known it was given to influence his vote or official actions. Zahner 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 one witness, Albert Sakolsky. Advocate's Exhibits 1-18 were admitted into evidence. Advocate's Exhibits 1-12 were also admitted into evidence in In Re: James Barker, DOAH Case No. 93-3911EC and in In Re: Robert Hildreth, DOAH Case No. 93-3908EC. Respondent testified on his own behalf and presented the testimony of Edwin Brownell, which was taken in Hildreth, supra.
Respondent's Exhibits 1-4 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
Respondent, Robert Zahner (Zahner), has been the city attorney for the City of Coral Gables (City) since 1967.
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.
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.
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.
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.
In 1978 the Country Club asked the City Commission for rezoning so that it could expand its tennis courts. This request was approved.
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.
In 1981 the Country Club asked to expand its tennis club facilities, and this request was approved.
In 1983 a significant portion of the Country Club burned down.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
On June 30, 1988, the Country Club proposed that the City forgive lease payments until the year 2000.
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.
Membership in the Country Club is open to any person, provided they can pay the initiation fee and membership dues.
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.
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.
For more than twenty years the Country Club traditionally 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. Only one honorary membership has been given. The only difference between what the Country Club calls a complimentary membership and an honorary membership is the duration of the membership.
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.
The Coral Gables Executive Club (Executive Club) is located in an office building at 550 Biltmore Way. The building and the Executive Club are owned by Albert Sakolsky, a local real estate developer.
The Executive Club, which opened in the late 1980's, consists of a dining room and health club. Membership costs $700.00 initiation, and $50.00 per month dues.
Mr. Sakolsky hired a public relations firm to promote the Executive Club. The firm recommended that complimentary memberships be given to community leaders and developed a list of persons who would receive the memberships. Over a hundred free memberships were granted.
In February, 1989, Mr. Sakolsky wrote to Coral Gables City Manager Jack Eads, presenting the City with a "permanent corporate membership." Although the letter appeared to infer that the use of the health facilities would be free to those applying through the City's corporate membership, the
practice was to charge holders of complimentary memberships such as Zahner $30 a month for the use of the health facilities if they desired to use them.
With his letter, Mr. Sakolsky included membership applications for all the City Commissioners, as well as the Mayor the City Attorney, and Mr. Eads.
Mr. Sakolsky and the City had had numerous disputes over the years on various issues. His presentation of the free corporate membership was an effort to, in his words, "bury the hatchet."
A complimentary membership entitled the member to use the dining facilities. Soon after its inception, the Executive Club was opened to the public. The only privilege members received over non-members was a discount on their meals. A non-member could be given a complimentary membership after his first visit, thereby entitling him to receive a discount on subsequent visits.
In September, 1989, the City Commission voted to lease space in the
550 Building. The rental rate was $20 per square foot. When the lease expired, the owner of the builder proposed a higher rate, which the City did not accept. The City vacated the building and rented space elsewhere.
Zahner has been a member of the Country Club for more than 35 years and served as city attorney for the City for 26 years.
Subsequent to his appointment as city attorney, Mr. Zahner's membership was changed by the Country Club to a complimentary membership.
Under the terms of the complimentary membership, Zahner 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.
Zahner paid for his initiation fees to the Country Club, and paid his own dues until he became city attorney.
Zahner used the Country Club for meetings of the Tenth Holder's Club, which is a golf social club. In order to belong to the Tenth Holder's Club, a person must also belong to the Country Club. About once a month, he went to dinner at the Country Club.
Zahner had always considered the complimentary Country Club memberships honorary. As City Attorney, he advised several City Commissioners that receiving the Country Club membership created no conflict and that the membership did have to be reported on the financial disclosure forms.
Zahner has no vote on the City Commission.
No vote concerning the Country Club was pending before the City Commission when Zahner received his complimentary membership.
Zahner was not involved in negotiating or drafting the lease with the Country Club, or any of the amendments to the lease; however, he did approve the amendments.
Zahner understood that the complimentary memberships were a tradition in the City. He thought that the Country Club wanted more members from the city. No one from the Country Club ever asked him for any favors.
No vote regarding the Executive Club was pending before the Commission at the time he was given the membership. Zahner believed that the complimentary membership was given to him to generate business for the Executive Club. No one connected with the Executive Club or the 550 Biltmore Building has ever asked Zahner for any favors.
Zahner was not involved in negotiating the lease with the 550 Biltmore Building; however, he did approve the final draft.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
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).
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 Zahner violated Section 112.313(4), Florida Statutes. Therefore the burden of establishing by a preponderance of the evidence the elements of Zahner's alleged violations is on the Commission.
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.
In order to conclude that Zahner violated Section 112.313(4), Florida Statutes, the Advocate must have proved the following elements:
The Respondent must have been a public officer or employee of an agency; and
The Respondent (or his minor child) must have accepted compensation, payment, or something of value which was:
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
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.
The parties have stipulated that Zahner was a public officer or employee subject to the Code of Ethic for Public Officers and Employees.
Zahner received a "thing of value" from the Country Club and from the Executive Club. The annual fee for a membership in the Country Club is $750. The initiation fee for the Executive Club was $700, and the monthly dues were
$50.00.
The Country Club membership was given with the intent to influence official action in which Zahner was expected to participate in his capacity as City Attorney. It was Zahner's job to provide legal advice to the City Commission concerning issues that came before the City Commission. The evidence clearly shows that issues concerning the Country Club came before the City Commission several times. Zahner had the responsibility to approve the leases which the City Commission entered, including the amendments to the Country Club lease. The Country Club membership was given to Zahner because of his position as City Attorney. The membership was given to Zahner on a year-to-year basis as long as he held the position of City Attorney. When Zahner's position as City Attorney ended so would his free membership to the Country Club.
The Executive Club corporate membership was given to the City as a means of trying to "bury the hatchet." In other words the owner of the Executive Club, who was also the owner of the 550 Building, was trying to generate favorable feelings on the part of City officials. As City Attorney, it was Zahner's responsibility to provide legal advice to the City and to approve leases entered into by the City, including the lease for space in the 550 Building.
The evidence shows that Zahner 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 free memberships being given to the City officials and the fact that the Country Club was appearing before the City Commission for help. As City Attorney Zahner should have been aware of the applicable Ethics Commission Opinions concerning the acceptance of such gifts. No reasonable person could believe that the free Country Club membership was given to Zahner for any reason except to influence him.
The parties have stipulated that the City's corporate membership to the Executive Club was an attempt by Mr. Sakolsky to "bury the hatchet." The membership was not for all city employees but only those designated, which were the City Commissioners, the Mayor, the City Attorney, and the City Manager. In other words, the memberships were for persons who would be in a position to help Mr. Sakolsky. As City Attorney, Zahner should have been aware of the applicable Ethics Commission Opinions concerning the acceptance of gifts. No reasonable person could believe that the free membership was given to Zahner for any reason except to influence him.
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 Zahner violated Section 112.313(4), Florida Statutes, by accepting a free membership to the Coral Gables Country Club and by accepting a free membership to the Executive Club. I therefore recommend a civil penalty of $1,000 and restitution of $750 for the violation involving the Coral Gables Country Club and a civil penalty of $1,000 and restitution of $600 for the violation involving the Executive Club for a total penalty of $3,350. The restitution in both cases is the amount a member of the general public would have had to pay for one year's dues.
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 23rd day of May, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3911EC
To comply with the requirements of Section 120.59(2), Florida Statutes, (1993), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact
Paragraphs 1-18: Accepted.
Paragraph 19: The first sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance.
Paragraph 20: The first sentence is accepted. The second sentence is accepted in substance.
Paragraph 21: Accepted.
Paragraph 22: The first sentence is accepted. The second sentence is accepted in substance.
Paragraphs 23-26: Accepted.
Paragraph 27: Accepted in substance.
Paragraphs 28-33: Accepted.
Paragraph 34: The first sentence is rejected as constituting a conclusion of law. The second sentence is accepted. The third sentence is rejected as constituting argument. The fourth sentence is accepted in substance.
Paragraphs 35-36: Rejected as constituting argument.
Paragraphs 37-40: Accepted.
Paragraph 41: The first and second sentences are accepted in substance. The third sentence is accepted in substance to the extent that the city officials who were receiving complimentary memberships through the City's corporate membership could use the health facilities for an additional fee of $30 per month but rejected to the extent that it implies that the city officials could use the health facilities at no cost.
Paragraphs 42-44: Accepted.
Paragraph 45: The first sentence is rejected as constituting a conclusion of law. The second sentence is accepted. The third sentence is rejected as constituting argument.
Paragraphs 46-47: Rejected as constituting argument.
Respondent's Proposed Findings of Fact
Paragraphs 1-4: Accepted.
Paragraph 5: Rejected as subordinate to the facts actually found.
Paragraph 6: Rejected as unnecessary.
Paragraph 7: Accepted.
Paragraph 8: The last sentence is rejected as unnecessary. The remainder of the paragraph is accepted.
Paragraphs 9-12: Accepted.
Paragraph 13: The last sentence is rejected as constituting a conclusion of law. The remainder of the paragraph is accepted in substance.
Paragraph 14: Accepted in substance.
Paragraphs 15-16: Accepted.
Paragraphs 17-19: Accepted in substance.
Paragraphs 20-21: Accepted.
Paragraphs 22-29: Accepted in substance.
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.
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AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA
COMMISSION ON ETHICS
In re ROBERT ZAHNER, DOAH Case No. 93-3909EC
Complaint No. 91-143
Respondent. Final Order No. COE9429
/
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 to the Coral Gables Country Club and by accepting a free membership to the Executive Club. The Hearing Officer recommends further that a total penalty of $3,350 be entered against the Respondent.
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 120.57(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 Deoartment 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
The Respondent takes exception to the second sentence of paragraph 42 of the Recommended Order, arguing that the reference in that sentence to "did" rather than "did not" is a typographical error. Upon examination of the record in this matter, it appears that the sentence in question should read: "As City Attorney, he [the Respondent, Robert Zahner] advised several City Commissioners that receiving the Country Club membership created no conflict and that the membership did not have to be reported on the financial disclosure forms."
Therefore, this exception is accepted.
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 is 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.
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 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.
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. Other than the last sentence of proposed finding 13, the Recommended Order accepted these proposed findings in substance. The last sentence of proposed finding 13 was rejected as constituting a conclusion of law [rather than a finding of fact].
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 13 is included in paragraphs 27 and 28 of the Recommended Order; proposed finding 17 is included in paragraphs 42 and 46 of the Recommended Order; proposed finding 22 is included in paragraph 31 of the Recommended Order; proposed finding 23 is included in paragraph 31 of the Recommended Order; and proposed finding 29 is included in paragraphs 46 and 47 of the Recommended Order.
Assuming that the last sentence of proposed finding 13 is a proposed finding of fact rather than a proposed conclusion of law, its rejection is within the province of the Hearing Officer; there is competent, substantial evidence of record to support the Hearing Officer's determination that the Country Club memberships were given in order to influence official action.
Therefore, these exceptions are rejected.
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. This exception is rejected. The Commission on
Ethics has held that the preponderance of the evidence standard applies. Moreover, this matter did 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).
The Respondent takes exception to paragraph 56 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 legal conclusion 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 factually distinguishable 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.
The Respondent takes exception to paragraph 57 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent was given the Executive Club membership to influence his official actions because, as the Respondent argues, a public relations firm hired by the Club to promote the Club recommended that the Club issue complimentary memberships to VIPs in the City and therefore "[n]o one at the Executive Club had anything to do with whom would be offered such memberships, "and because "[n]inety percent of the free memberships were given to private individuals and groups."
Regardless of whether the public relations firm recommended the issuance of the free memberships, the Executive Club was the entity that issued them.
Further, just because a person or business utilizes professionals or firms to facilitate its courses of action does not mean that the person or business is not in fact pursuing a particular course. Regarding the assertion that ninety percent of the free memberships were given to private recipients, see our response to the preceding exception.
Therefore, this exception is rejected.
The Respondent takes exception to paragraph 58 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 an 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 of potentially competing interests is not present in the instant matter. In CEO 89-40, the social club offering thefree 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, and there was not a landlord/tenant relationship as in the instant matter wherein issues involving potentially competing interests were actually addressed and subject to influence.
The Respondent takes exception to paragraph 59 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent should have known that the Executive Club membership was given to influence his official action because "[t]he undisputed evidence, which the hearing officer accepted as a finding of fact, showed that Respondent did not believe the complimentary membership in the Executive Club was given to influence him, and thought he received it because the Executive Club needed business." The Respondent's subjective thoughts and beliefs are not controlling here; the statute also addresses the constructive knowledge that the Respondent should have been aware of under the circumstances of this case--circumstances indicating that the membership was given to influence official action. The objective facts showing the relationship between the City and the Executive Club and the Respondent's role and responsibility regarding City/Club affairs on behalf of the City are sufficient to prove the constructive knowledge element of this charge.
Therefore, this exception is rejected.
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 and in regard to the Executive 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, as modified by our accepting Respondent's first exception.
CONCLUSIONS OF LAW
The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
The Commission finds that the Respondent, Robert Zahner, violated Section 112.313(4), Florida Statutes, by accepting a free membership to the Coral Gables Country Club and by accepting a free membership to the Executive Club.
RECOMMENDED PENALTY
Therefore, the Commission on Ethics hereby recommends that a civil penalty of $500.00 (five 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 restitution of $700.00 (seven hundred dollars) be imposed upon the Respondent for the violation of Section 112.313(4), Florida Statutes, involving the Executive Club, for a total of $1,950.00 (one thousand nine hundred fifty dollars). The civil penalties recommended by the Hearing Officer are mitigated because the Respondent's acceptance of membership was part of a longstanding practice involving City officials and the Country Club and because the value of the Executive Club membership may have become minimal. The restitution involving the Executive Club is changed from $600 to $700 ($700 being the amount of the Executive Club's initiation costs, see paragraph 30 of the Recommended Order).
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
NOTICE OF RIGHT TO JUDICIAL REVIEW
PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc: Mr. Raoul G. Cantero, III, Attorney for Respondent Ms. Virlindia Doss, Commission Advocate
Mr. Joseph M. Centorino, Complainant Division of Administrative Hearings
| Issue Date | Proceedings |
|---|---|
| Jul. 21, 1994 | Final Order and Public Report filed. |
| May 23, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 03/09/94. |
| Apr. 18, 1994 | Notice of Filing; The Advocates Proposed Recommended Order filed. |
| Apr. 15, 1994 | Respondent`s Notice of Filing Proposed Findings of Fact and Conclusions of Law; Hearing Officer`s Findings of fact, Conclusion of Law, and Recommended Order filed. |
| Apr. 07, 1994 | Transcript filed. |
| Mar. 09, 1994 | CASE STATUS: Hearing Held. |
| Mar. 04, 1994 | Prehearing Stipulations; & Cover Letter to SBK from R. Cantero filed. |
| Nov. 12, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 3/9/94; 12:30pm) |
| Nov. 12, 1993 | Notice to Hearing Officer filed. (From Virlindia Doss) |
| Nov. 10, 1993 | Motion to Continue filed. (From Virlindia Doss) |
| Aug. 03, 1993 | Notice of Hearing sent out. (hearing set for 11/16/93; 3:30pm; Miami) |
| Jul. 29, 1993 | Joint Response to Initial Order filed. |
| Jul. 19, 1993 | Initial Order issued. |
| Jul. 14, 1993 | Agency referral letter; Complaint; Determination of Investigative Jurisdiction and Order to Investigate; Report of Investigation; Advocate`s Recommendation; Order Finding Probable Cause filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 20, 1994 | Agency Final Order | |
| May 23, 1994 | Recommended Order | Free membership in country club and executive club violated Section 112.313(4). |
