STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: PAUL MUNIZ, )

) CASE NO. 93-5806EC

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 31, 1994, in Fort Myers, Florida.

APPEARANCES

For Advocate: Stuart F. Wilson-Patton

Assistant Attorney General Department of Legal Affairs The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: John Charles Coleman, Esquire

Coleman & Coleman Post Office Box 2089

Fort Myers, Florida 33902-2089 STATEMENT OF THE ISSUES

Whether Respondent violated Sections 112.3143(2)(b) and 112.3143(3), Florida Statutes (1989), and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 29, 1992, the Florida Commission on Ethics (Commission) issued an Order Finding Probable Cause to believe that Respondent, Paul Muniz (Muniz), as a member of the City of Cape Coral Contractors' Regulatory Board (Board), violated Section 112.3143(2)(b), Florida Statutes (1989), by failing to file a written conflict of interest form and by failing to abstain from voting on two cases coming before the Board on February 28, 1990, involving a locally licensed contractor with whom Muniz had active work contracts and that Muniz violated Section 112.3143(3), Florida Statutes (1989). The case was forwarded to the Division of Administrative Hearings on October 18, 1993, for assignment to a hearing officer. The case was scheduled for final hearing on December 22, 1993. The parties filed a Joint Motion to Reschedule Hearing and the hearing was rescheduled for March 31, 1994.

At the final hearing the Advocate called the following witnesses: Rita Connelly, Marilyn W. Miller, Barbara Muniz, Patricia Barz, and David G. Tracey. Advocate Exhibits 1-7 and 9-11 were admitted in evidence. Muniz testified in his own behalf and called the following witnesses: Clark Berry, Charles Fletcher, Richard Durling, Jim Schivinski, and Frank Ventimiglia. Respondent Exhibit 3 was admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within 30 days from the date the transcript was filed. The transcript was filed on April 29, 1994. Both the Advocate and Muniz filed motions for extensions of time in which to file proposed recommended orders. The time for filing proposed recommended orders was extended to June 10, 1994. Muniz filed his proposed recommended order on June 10, 1994 and the Advocate filed his proposed recommended order on June 13, 1994. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In February, 1990, Respondent Paul Muniz (Muniz), was a duly appointed member of the City of Cape Coral Contractors' Regulatory Board (Board). He was appointed to the Board in 1986.

   
   

2. As a member of the Board, Muniz was subject to the provisions of Chapter 112, Part III, Florida Statutes.

   
   

3. A scheduled meeting of the Board took place on February 28, 1990, at which time two cases were heard concerning allegedly inappropriate actions by general contractor David Tracey doing business as Tracey Construction, Inc. (Tracey Construction).

   
   

4. On February 28, 1990, the Board had authority to hold hearings on alleged violations of the City of Cape Coral's (City) Building Codes, authority to suspend, deny or revoke a contractor's license to operate within the City for violations of the City's Building Codes, and authority to impose fines up to

   $2,500.00, to issue reprimands, and to order restitution for violations of the City's Building Codes.

   
   

5. On February 28, 1990, Muniz and his wife were the sole stockholders, officers, and directors of Delta T Air Conditioning Inc. (Delta T). Muniz owned

   75 percent of Delta T's stock. Delta T does heating, ventilating, and heating construction work and services and some refrigeration work.

   
   

6. Muniz oversees the work of Delta T, does the estimating and acts as general manager of the company. Muniz usually knows where Delta T's job sites are and who the general contractor is on each job.

   
   

7. Tracey Construction is a residential construction company owned by David G. Tracey.

   
   

8. Delta T has subcontracted with Tracey Construction to do air conditioning work on a number of occasions prior to February 28, 1990. Delta T had routinely subcontracted with Tracey Construction for several years before February, 1990. Over a number of years prior to February 28, 1990, Delta T had subcontracted with Tracey Construction on more than 200 jobs.

   
   

9. Delta T was a subcontractor for Tracey Construction on about 50 jobs from 1989 through 1990. Tracey Construction paid Delta T more than $50,000 for air conditioning subcontractor work in 1989. In 1990, Tracey Construction paid Delta T at least $30,295.60 for air conditioning work.

   
   

10. In the course of dealings between Delta T and Tracey Construction, Muniz depended on David Tracey to notify him of potential jobs and invite his company to bid on that job. Delta T competes with other air condition companies for Tracey Construction's business.

11. At the February 28, 1990 Board meeting, two cases came before the Board concerning David Tracey and Tracey Construction: Contractor Board Case Nos. 90-01 and 90-02. Muniz recommended to the Board that they table Case No. 90-01. In Case No. 90-02, Muniz seconded a motion to find David Tracey and Tracey Construction not guilty of the alleged violation of the building code. Muniz voted in both cases to acquit Mr. David Tracey and Tracey Construction of all charges.

    
    

12. At the time of the February 28, 1990, Board meeting, Delta T had contracts with Tracey Construction for at least seven jobs. On each of these jobs, either the air conditioning work had been begun but not yet completed, or the work had been completed and final payment had not yet been made by Tracey Construction. Muniz was aware that his company had active contracts with Tracey Construction.

    
    

13. Muniz did not file a written conflict of interest form until 28 days after the February 28, 1990 Board meeting.

    
    

14. Muniz did not disclose his company's business relationship with Tracey Construction prior to participating in the discussion of and voting on Case Nos. 90-01 and 90-02.

    
    

15. Muniz is the same Paul Muniz as is mentioned in Commission on Ethics Opinion No. 91-3.

    
    

    CONCLUSIONS OF LAW

    
    

16. 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 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 Public Officers and Employees").

    
    

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

    249 (Fla. 1st DCA 1977). In this proceeding it is the Commission through the Advocate that is asserting the affirmative: that Muniz violated Sections 112.3143(2)(b) and 112.3143(3), Florida Statutes (1989). Therefore, the burden of establishing the elements of Muniz's alleged violations is on the Commission.

    
    

18. Section 112.3143(2)(b), Florida Statutes (1989), provides as follows:

    
    

    No appointed public officer shall participate

    in any matter which inures to his special private gain or the special gain of any principal by whom he is retained, without first disclosing the nature of his interest in the matter. Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person

    responsible for recording the minutes of the meeting and shall be incorporated in the minutes; if the disclosure is initially made orally at a meeting

    attended by the officer, the written memorandum disclosing the nature of the conflict shall be filed within 15 days with the person responsible

    for recording the minutes of the meeting and shall be incorporated in the minutes. A copy of such memorandum, which shall become a public record upon filing, shall immediately be provided to the other members of the agency and shall be read publicly at the meeting prior to the consideration of the matter. For purposes of this paragraph, the term "participate" means any attempt to influence the decision by oral

    or written communication whether made by the officer or at his direction.

    
    

19. In order to establish that Muniz violated Section 112.3143(2)(b), Florida Statutes (1989), the following elements must be established:

    
    

    1. Muniz must be an appointed public officer serving on either an advisory or non-advisory collegial body.

    2. Muniz must have:

       1. Participated in a matter which inured to his special private gain, or the special gain of any principal by whom he is retained, without

          first publicly disclosing the nature of his interest in the matter orally at the meeting; and /or

       2. Failed to disclose the nature of his interest in the matter described in a. above, as public record in a written memorandum filed within

          15 days of the meeting at which the participation occurred with the person responsible for recording the minutes of the meeting.

          
          

20. The Advocate has established that Muniz violated Section 112.3143(2)(b), Florida Statutes.

    
    

21. The Advocate established that Muniz was an appointed public officer of a non-advisory collegial body. He was an appointed member of the City of Cape Coral Contractors' Regulatory Board.

    
    

22. The Advocate established that Muniz participated in two disciplinary cases before the Board against David Tracey and Tracey Construction for whom Muniz's air conditioning company had several active subcontracts. He recommended to the Board that it table one of the cases and seconded a motion to acquit in the other case. The Board had the authority to revoke or suspend David Tracey and Tracey Construction's license to operate within the City.

    Thus, the action of the Board could have affected the ongoing contracts that Muniz had with Tracey Construction and any future contracts that Muniz may have had with Tracey Construction. Although Muniz argues that it was the policy of the Board to allow contractors whose licenses had been suspended or revoked to continue with their ongoing contracts, the Board still had the authority to curtail the activities of the contractors on their current contracts. The record is clear that Muniz and Tracey Construction had a more than a sporadic business relationship prior to February, 1990. If the license for Tracey Construction was suspended or revoked, Muniz would lose what future business he may have had with Tracey Construction. It is undisputed that Muniz did not disclose his relationship with David Tracey and Tracey Construction prior to

    participating in the cases and that he did not file a memorandum disclosing the nature of his conflict within 15 days of the meeting at which his participation occurred.

    
    

23. Section 112.3143(3), Florida Statutes, (1989) provides as follows:

    
    

    No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the

    assembly the nature of his interest in the matter from which he is abstaining from voting and, within

    15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. . . .

    
    

24. In order to establish that Muniz violated Section 112.3143(3), Florida Statutes (1989), the following elements must be proved:

    
    

    1. Muniz must be a county, municipal or local public officer serving on either an advisory or non-advisory collegial body.

    2. Muniz must have:

       1. Voted on a measure which inured to his special private gain, or knowingly voted on a measure which inured to the special gain of a principal (other than an "agency" as defined in

          Section 112.312(2), Florida Statutes,) by whom his is retained; and/or

       2. Failed to publicly state to the assembly prior to the vote being taken the nature of his interest in the measure described in (a), above; and/or

       3. Failed to disclose the nature of his interest in the measure described in (a) above, as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting at which the vote occurred.

       
       

25. The Advocate has established that Muniz violated Section 112.3143(3), Florida Statutes.

    
    

26. The Advocate established that as a member of the City of Cape Coral Contractors' Regulatory Board, Muniz was a municipal or other local public officer serving on a non-advisory collegial body.

    
    

27. The Advocate established that Muniz failed to abstain from voting on the two disciplinary cases involving Tracey Construction. For the reasons stated in the discussion above of the Section 112.3143(2)(b) violation, the disciplinary cases would constitute measures that would inure to the special benefit of Muniz as the owner and operator of Delta T Contracting, the company

with whom Tracey Construction had active subcontacts. Muniz did not publicly state the nature of his interest in David Tracey and Tracey Construction prior to the votes taken on the matters and he did not file a memorandum within 15 days after the voting occurred.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that

Paul Muniz violated Sections 112.3143(2)(b), and (3), Florida Statutes; imposing a civil penalty of $750 for each violation (a total of $1500); and issuing a public censure and reprimand.

DONE AND ENTERED this 31st day of October, 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 31st day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5806EC

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:

Advocate's Proposed Findings of Fact.

1. Paragraphs 1-19: Accepted.

2. Paragraphs 20-23: Accepted in substance.

3. Paragraph 24: Rejected as unnecessary detail.

4. Paragraph 25: Rejected as irrelevant since the facts established that Muniz did not file a conflict of interest form within the time frames established in Sections 112.3143(2)(b) and (3).

5. Paragraph 26: Rejected as unnecessary.

6. Paragraph 27: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts actually found.

7. Paragraph 28: Rejected as constituting argument.

8. Paragraph 29: Rejected as subordinate to the facts actually found.

9. Paragraphs 30: The first sentence is accepted in substance. The second sentence is rejected as constituting argument.

10. Paragraph 31: Accepted.

11. Paragraph 32: The last sentence is rejected as subordinate to the facts found. The remainder is accepted in substance.

12. Paragraph 33: Rejected as subordinate to the facts found.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1a-1q: Accepted.

2. Paragraphs 2a-2f: Rejected as recitation of testimony.

3. Paragraph 3a: Accepted in substance.

4. Paragraph 3b: Accepted in substance to the extent that there was no evidence presented which established that Delta T and Tracey Construction had entered into a formal continuing contract; however the evidence did establish that Delta T and Tracey Construction had

   routinely done business together prior to February 28, 1990.

5. Paragraph 3c: Accepted in substance to the extent that there was no evidence presented that Paul Muniz had a contract with Tracey Construction; however the evidence did establish that the company, of which Paul Muniz owned 75 percent, did have a contractual relationship with Tracey Construction.

6. Paragraph 3d: Rejected as immaterial.

7. Paragraph 3e: Rejected to the extent that there would have been no affect on Delta T's business and rejected that there would have been little impact on Delta T's business as immaterial.

8. Paragraphs 3f-3g: Rejected as immaterial since the Board did have the authority to do so.

9. Paragraph 3h: Rejected as immaterial because the Board had the authority to suspend or revoke the license.

10. Paragraph 3i: Rejected as immaterial because the Board had the authority to do so.

11. Paragraph 3j: Rejected as not supported by the greater weight of the evidence. See 3i above.

12. Paragraph 3k: Rejected as constituting argument.

13. Paragraph 3l: Rejected as constituting a conclusion of law.

14. Paragraph 3m-3q: Rejected as not supported by the greater weight of the evidence.

COPIES FURNISHED:

Stuart F. Wilson-Patton Assistant Attorney General Advocate for the Florida

Commission on Ethics

Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

John Charles Coleman, Esquire 2300 McGregor Boulevard

Post Office Box 2089

Fort Myers, Florida 33902-2089

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

Tallahassee, 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.

Docket for Case No: 93-005806EC

Orders for Case No: 93-005806EC