STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: FRANK S. MESSERSMITH, )

) CASE NO. 93-0563EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to joint motion of the parties, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, adopts this Recommended Order in its entirety.

APPEARANCES

The Advocate: Virlindia Doss

Advocate for the Commission on Ethics Department of Legal Affairs

The Capitol, Suite 1601 Tallahassee, Florida 32399-1050

For Respondent: James C. Hauser

Messer, Vickers, Caparello, Madsen, Lewis, Goldman & Metz, P.A.

Post Office Box 1876 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Respondent committed the violations of Section 112.313(4), Florida Statutes, alleged in an Order Finding Probable Cause dated July 22, 1992, and if so, what penalty should be recommended.

FINDINGS OF FACT

1. On July 22, 1992, pursuant to its Report of Investigation, the State of Florida Commission on Ethics issued an order finding probable cause to believe that Respondent, Frank Messersmith, violated Section 112.313(4), Florida Statutes, by accepting an all-expense paid hunting trip in November 1987 to Riverview Plantation in Camilla, Georgia, when he knew or should have known that the trip was given to influence his official actions, and to believe that the Respondent violated Section 112.313(4), Florida Statutes, by accepting an all- expense paid hunting trip in November 1988 to Riverview Plantation in Camilla, Georgia, when he knew or should have known that the trip was given to influence his official actions.

   
   

2. On February 3, 1993, the Executive Director of the Commission on Ethics forwarded this case to the Division of Administrative Hearings.

   
   

3. On May 19, 1993, Respondent filed his "Statement of Position" in this cause. In so doing, while Respondent does not admit wrongdoing or violation of Section 112.313(4), Respondent made very clear that he did not legally challenge or contest the Commission's findings and determinations that Respondent

   improperly accepted two all-expense paid hunting trips. Also, in lieu of continued litigation and the incurring of additional fees and costs associated therewith, Respondent agreed to pay the requested fine of $1,800. Based on that Statement of Position, Respondent filed a Motion for Order of Remand, sending this matter back to the Commission on Ethics for entry of a Final Order resolving this matter consistent with the Statement of Position.

   
   

4. Based on the Statement of Position, I find that Respondent does not dispute the facts set out in the Report of Investigation. It is incorporated herein by reference.

5. On May 27, 1993, the parties filed a Joint Motion requesting this Hearing Officer to enter this Recommended Order.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

   UNAUTHORIZED COMPENSATION -- 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.

   
   

7. While Respondent does not admit wrongdoing, I conclude that the undisputed facts set forth in the Report of Investigation demonstrate violations of Section 112.313(4), Florida Statutes.

   
   

8. In view of the foregoing and upon review of the Report of Investigation, I find Respondent did violate Section 112.313(4), Florida Statutes, in 1987 and 1988, as alleged in the Order Finding Probable Cause.

   
   

   PENALTY

   
   

9. The Respondent submits that he is willing to pay a civil penalty of

   $1,800. The Advocate has not asked for any greater sum.

   
   

10. In view of the foregoing and upon review of the facts revealed by the Report of Investigation, I recommend imposition of a civil penalty in the amount of $1,800.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Frank Messersmith, violated Section 112.313(4), Florida Statutes, in two instances as alleged in Complaint No. 90-170, and that civil penalty of $1,800 be imposed upon him for said violations.

DONE AND RECOMMENDED this 8th day of June, 1993, in Tallahassee, Leon County, Florida.

MARY CLARK

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 8th day of June, 1993.

COPIES FURNISHED:

Virlindia Doss

Advocate for the Commission on Ethics

Department of Legal Affairs The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

James C. Hauser, Esquire

Messer, Vickers, Caparello, Madsen, Lewis, Goldman & Metz, P.A.

Post Office Box 1876 Tallahassee, Florida 32302

Bonnie Williams, Executive Director Ethics Commission

Post Office Box 6

Tallahassee, Florida 32302-0006

Phil Claypool, General Counsel Ethics Commission

Post Office Box 6

Tallahassee, Florida 32302-0006

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 10 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: 93-000563EC

Orders for Case No: 93-000563EC