STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: Tom Ramiccio )

) Case No. 00-265EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law, Judge Carolyn S. Holifield, held a formal hearing in this case on March 31, 2000, by video teleconference at sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Advocate: Virlindia Doss, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

301 South Bronough Street, Suite 200 Post Office Box 10555

Tallahassee, Florida 32302-2555 STATEMENT OF THE ISSUES

The issues for determination are: (1) whether Respondent violated Section 112.313(6), Florida Statutes, in misusing his official position by threatening to discontinue the City's patronage of the Complainant's business because she displayed the campaign sign of one of Respondent's opponents in her business window; and (2) if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 2, 1999, the Florida Commission on Ethics (the "Commission") entered an Order Finding Probable Cause to believe that Respondent, Tom Ramiccio, while serving as the Mayor of the City of Lake Worth, violated Section 112.313(6), Florida Statutes. On or about January 13, 2000, the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge to conduct a public hearing and prepare a recommended order.

Prior to the hearing, the parties submitted a Joint Prehearing Stipulation containing a number of stipulations of fact and law. The facts to which the parties stipulated required no proof at hearing.

At the hearing, the Advocate called three witnesses: Carol Dippel, Beverly Douglas, and Ella Riggs. The Advocate offered one exhibit, which was accepted into evidence. Respondent testified on his own behalf and called five witnesses: Bjon Javid, Barbara Massey, Wendy Newmeyer, H. Patrick Parrish, and Marianne Webber. Respondent offered four exhibits into evidence. Of those exhibits, Respondent's Exhibits 2 and 3 were received into evidence; Respondent's Exhibit 1 was rejected, and Respondent's Exhibit 4 was proffered. Upon consideration of Respondent's Exhibit 4, Section 90.610(1), Florida Statutes, and Respondent's Memorandum of Law relative thereto, that exhibit is also received into evidence and considered in this proceeding.

A Transcript of the proceeding was prepared and filed with the Division of Administrative Hearings on June 15, 2000. At the conclusion of the hearing, the time set for filing proposed recommended orders was 10 days after the Transcript was filed.

The Advocate and Respondent filed Proposed Recommended Orders, which have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Tom Ramiccio (Respondent) was elected to the Lake Worth City Council. He was elected mayor in 1997.

2. On February 21, 1999, Respondent was involved in a campaign for re-election. The election was held in March and Respondent was re-elected.

3. As Mayor of the City of Lake Worth (City of Lake Worth or City), Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.

4. Carol Dippel is a florist who owns a shop on Lake Avenue in downtown Lake Worth.

5. Once a year there is a "street painting festival" in the downtown area. The festival was in progress on February 21, 1999.

6. During the 1999 street painting festival, Respondent was campaigning for re-election. During the street festival, on February 21, 1999, Respondent went into Ms. Dippel's store, Lake

   Avenue Flowers and Balloons, because he noticed a campaign sign for his opponent in her store window. Respondent's opponent for that election was Pam Wynn.

7. Respondent was curious about why Ms. Dippel was supporting his opponent and inquired whether he had done anything to offend her. Ms. Dippel responded that she believed that Respondent had done a good job for the City, but that she was supporting Ms. Wynn because of Respondent's position on the neon lighting ordinance. Respondent told Ms. Dippel that even if Pam Wynn were elected, there would be no change in the neon ordinance. This was because four other city commissioners supported the neon ordinance.

8. Ms. Dippel had two neon calla lilies in her storefront and supported the rights of shop owners to use neon signs. Respondent, on the other hand, was strongly opposed to neon lights in the downtown area and had supported a recently-passed ordinance restricting the use of neon.

9. Respondent and Ms. Dippel then proceeded to have discussion that lasted about 10 to 15 minutes. They debated Respondent's vision of a historic downtown area and also discussed the artistic merits of neon and the role of the government in limiting the individual choice and rights of property owners.

10. The discussion between Respondent and Ms. Dippel was spirited but not angry. However, as Respondent turned to leave,

    he told Ms. Dippel that in the past he and the City of Lake Worth had done business with her but would no longer do so. Ms. Dippel felt that Respondent, by this statement, was trying to coerce or intimidate her into removing the Pam Wynn sign from the window of her shop.

11. Portions of the conversation between Respondent and Ms. Dippel were overheard by Beverly Douglas, an occasional employee of Ms. Dippel, who was working in the shop that day. Ms. Douglas heard Respondent tell Ms. Dippel that he, his wife, and the City of Lake Worth had been customers of Ms. Dippel but would no longer do business with her. Ms. Douglas believed that Respondent's conduct was intimidating and characterized his statements to Ms. Dippel as "giving her a hard time."

12. Ms. Douglas' testimony was credible and her account of Respondent's statement that he and the City of Lake Worth would discontinue doing business with Lake Avenue Flowers and Balloons corroborated that of Ms. Dippel.

13. The City of Lake Worth does not have a contract to purchase flowers from Ms. Dippel's store, nor does it have an account there. However, the City of Lake Worth has purchased flowers from Ms. Dippel's store in the past, although not on a regular basis.

14. An affidavit from the City Finance Director reflects that the City purchased flowers or other products or services from Ms. Dippel's store on three occasions since March of 1996.

    According to the City's financial records, the City made the following payments to Lake Avenue Flowers: $12.00 on or about March 26, 1996; $95.00 on or about September 22, 1997; and

    $100.00 on or about May 26, 1998.

    
    

15. Respondent was not been involved in any of the aforementioned purchases made by the City from Ms. Dippel's store. However, Respondent, the city manager, and both of their secretaries were authorized to purchase flowers on behalf of the City.

16. The street painting festival was co-chaired by Respondent's friend and supporter, Marion Webber, and funded in part through City grant money. In prior years, the festival had used Ms. Dippel's store to provide gifts to participants.

17. After the February 21, 1999, incident, Ms. Dippel received no more business from the City of Lake Worth or the festival.

18. Respondent admitted that Ms. Dippel's version of what happened on February 21, 1999, is accurate, with the exception of the threat, which he denies. However, the testimony of Ms. Dippel is credible and her version of events, relative to Respondent's statements, is accepted.

    CONCLUSIONS OF LAW

    
    

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

20. Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission on Ethics 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.

21. 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. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Bolino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission, through its Advocate that is asserting the affirmative, namely, that Respondent violated Section 112.313(6), Florida Statutes. Therefore, the Commission has the burden of establishing by clear and convincing evidence the elements of Respondent's alleged violation. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997), citing Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996), and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also Section 120.57(1)(j), Florida Statutes.

22. As noted by the Florida Supreme Court:

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such

    weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In Re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowik v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. It has been alleged that Respondent violated Section 112.313(6), Florida Statutes, in using his position by threatening to discontinue the City's patronage of the Complainant's business because she displayed the campaign sign of one of Respondent's opponents in her store window.

24. Section 112.313(6), Florida Statutes, provides as follows:

    MISUSE OF PUBLIC POSITION. -- No public

    officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

25. The term "corruptly" is defined by Section 112.313(9), Florida Statutes, as follows:

    "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.

    
    

26. In order to establish a violation of Section 112.313(6), Florida Statutes, the Commission, through its

    Advocate, must prove the following elements by clear and convincing evidence:

    1. The Respondent must have been a public officer, employee of an agency, or local government attorney.

       
       

    2. The Respondent must have:

       
       

       1. Used or attempted to use his official position or any property or resources within his trust; or

          
          

       2. Performed his official duties.

          
          

    3. The Respondent's actions must have been taken to secure a special privilege, benefit or exemption for himself or others.

       
       

    4. The Respondent must have acted "corruptly," that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission which is inconsistent with the proper performance of his public duties.

       
       

27. Respondent has stipulated that he was a "public officer" and, as such, subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, the first element required to show a violation of Section 112.313(6), Florida Statutes, has been established.

28. In order to establish a violation of Section 112.313(6), Florida Statutes, it must next be shown that Respondent used or attempted to use his official position, or property or resources within his trust, or performed his official duties, to secure a special privilege, benefit, or exemption for himself or others.

29. The evidence established that Respondent used his position as mayor to imply that he could prevent Ms. Dippel from securing business from the City. The evidence also established that Respondent's goal was to intimidate Ms. Dippel into either supporting him or at least withdrawing her visible support for Ms. Wynn, Respondent's opponent. Therefore, the second and third elements necessary to establish a violation of Section 112.313(6), Florida Statutes have been proven.

30. It must next be established that Respondent acted corruptly, that is with wrongful intent and for the purpose of benefiting himself by by an act which was inconsistent with the proper performance of his public duties.

31. In the context in which the remark was made, the evidence clearly established that the Respondent intended the threatened discontinuance of the City's patronage to Ms. Dippel's store as punishment for her supporting Respondent's political opponent. The statement and conduct of Respondent was intentional and inconsistent with Respondent's performance of his public duties. Based on the foregoing, this element has been proven.

32. Each of the required elements set forth in paragraph

26 was established by clear and convincing evidence. Accordingly, the Commission, through its Advocate, has met its burden of proof in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Tom Ramiccio, violated Section 112.313(6), Florida Statutes; imposing a civil penalty of $2,000; and issuing a public censure and reprimand.

DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUMCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2000.

COPIES FURNISHED:

Bonnie J. Williams, Executive Director Florida Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Virlindia Doss, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Mark Herron, Esquire

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

301 South Bronough Street, Suite 200 Post Office Box 2555

Tallahassee, Florida 32302-2555

Sheri L. Gerety, Agency Clerk Florida Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Philip C. Claypool, General Counsel Florida Commission on Ethics

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 within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-000265EC

Orders for Case No: 00-000265EC