The Issue The issue for disposition is whether Barry Amos d/b/a Cloud Nine Travel violated section 559.927, F.S., by operating as a seller of travel without being registered, and if so, what remedial action is appropriate.
Findings Of Fact At all times relevant to the issues here, Barry Amos operated a business at 4312-101 Plaza Gate Lane, Jacksonville, Florida. In the latter months of 1993, Mr. Amos was interested in starting up a travel agency. He requested information from the department and was sent a registration packet with forms and a copy of the statute and rules. On December 29, 1993, Mr. Amos wrote to the department requesting an exemption from registration based on his understanding that he was entitled to such. His letter references a telephone conversation with "Melissa" at the department and states: "She informed me that since I would not be handling ticket stock or actual payments that I would not be required to register or post the surety bond with your department." (Petitioner's composite exhibit #1) Mr. Amos did not receive his exemption; instead the department sent another letter on February 10, 1994 reiterating that the law required registration unless he provided proof that he was exempt. Joseph Nicolosi is an investigator with the department's Division of Consumer Services. On July 19, 1994 he conducted what he calls an "on-site inspection" of Mr. Amos' business. He had the information on the business but did not have a proper phone number. He looked in the yellow pages and found a listing for "Cloud 9 Travel" with a telephone number. The individual who answered Mr. Nicolosi's telephone call identified himself as Barry Amos. Mr. Nicolosi asked about coming to the office to look at brochures and to plan a trip from Jacksonville to Colorado. Mr. Amos told him that his wife would meet him someplace or send him the brochures. Mr. Amos also said that he would have to figure out the cost of the trip and call him back and that payment would be made by Mr. Nicolosi to him for the trip; he, Mr. Amos, would make the arrangements. After the telephone call was terminated, Mr. Nicolosi called Mr. Amos back a few minutes later and asked if he would accept a check as payment. Mr. Amos replied that it would be better to use a credit card but he agreed that he would accept a check. Mr. Amos concedes that when he was in business as Cloud 9, he accepted personal or cashier's checks from the public for ticket purchases. He did not accept payment from the public for what he called "services", like a commission. The checks he accepted for ticket purchases were made out to Cloud 9 Travel and were used to purchase tickets for the clients. Commissions were paid to Cloud 9 from the ticket sellers. Barry Amos ceased operation as Cloud 9 Travel in January, 1995. He never registered as a seller of travel.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Agriculture and Consumer Services enter its final order finding that Respondent, Barry Amos d/b/a Cloud 9 Travel, violated section 559.927, F.S., imposing an administrative fine of $250.00, requiring that Respondent continue to cease and desist until properly registered as a seller of travel and denying such registration until the administrative fine is paid. DONE and ORDERED this 19th day of April, 1995, in Tallahassee, Leon County, Florida. MARY W. 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 19th day of April, 1995. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Jo Englander, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Mr. Barry Amos 4312-101 Plaza Gate Lane Jacksonville, Florida 32217
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Susan Swank, has filed a claim against the bond in the amount of $678.90 alleging that Passport failed to perform on certain contracted services. Petitioner's husband has been confined to a wheelchair since 1982 due to a medical condition. As such, all travel accommodations made by petitioner must be in handicap accessible facilities. When petitioner purchased from Passport a travel certificate entitling her and Mr. Swank to a five day, four night trip to the Bahamas, she noted on her contract "Must have handicap room." In addition, on the Customer Request Form filled out by petitioner on November 1, 1990, she wrote in large letters: "Attention, wheelchair - must have bottom floor." Both the contract and form were returned to Passport prior to petitioner's trip. Respondent concedes that it was aware of petitioner's special request. Indeed, its representative at hearing stated that she knew none of the hotels in the Bahamas used by Passport had satisfactory handicap accessible rooms, and she told a Passport customer service representive dealing with petitioner to so advise her of this fact. The representative failed to do so and instead booked the trip at a hotel which could not accommodate petitioner's husband. When petitioner and her husband arrived at their hotel in Freeport, the hotel was obviously unable to honor their request for a ground floor, handicap accessible room. Rather, it assigned them to an upstairs room with a bathroom door so small that the wheelchair could not gain access. Petitioner was forced to transfer to another, more expensive hotel and pay the additional cost herself. Had she known to begin with that no handicap accessible rooms were available, she would not have agreed to purchase the vacation package. Because of Passport's misrepresentation as to the type of accommodations being offered, petitioner is entitled to a refund of $678.90, the derivation of which is found in her exhibit 1 received in evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $678.90 from the bond. DONE AND ENTERED this 9th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of December, 1994. COPIES FURNISHED: Susan Swank 3447 Daren Drive Freeport, Illinois 61032 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Edmund Houze, has filed a claim against the bond for $348.00 alleging that Passport failed to perform on certain contracted services. In response to a promotion run by an Augusta, Georgia merchant, petitioner filled out a card for a "free" trip to the Bahamas, plus four days accommodation in Daytona Beach and Orlando. Thereafter, he was contacted by Caribbean Sun Tours (CST), a telemarketeer operating out of Tampa, Florida. During his conversation with a CST representative, petitioner was told that if he could not confirm his requested travel dates, his money would be refunded. On November 6, 1990, petitioner agreed to buy a travel certificate entitling the holder to a five-day, four-night vacation package to the Bahamas, plus four nights lodging in Florida. The certificate cost $399.00, and petitioner sent a check in that amount to CST. The certificate issued by CST carried the name, address and logo of Passport. At hearing, Passport contended that CST had "got hold" of some of Passport's travel certificates from another telemarketeer and was reselling them to travelers without Passport's authorization. Passport conceded, however, that it honored all certificates sold by CST, including petitioner's certificate. Accordingly, it is found that CST was acting as an agent on behalf of Passport. On June 1, 1991, petitioner sent Passport a deposit in the amount of $140.00 with his reservation for the cruise and land accommodations. He selected August 5-8, 1991, as the dates on which he desired to travel to Florida. He was told by Passport that the dates were unavailable. Further efforts by petitioner to find an acceptable date for travel were unsuccessful. At that point, and consistent with the representation made by Passport's agent, petitioner requested a refund of his money. He also filed a complaint with the Department. Passport agreed to refund petitioner the $140.00 deposit. Passport has denied liability for the remaining $348.00 on the theory that CST never sent it the money, and that company has gone out of business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and that he be paid $348.00. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of December, 1994. COPIES FURNISHED: Edmund Houze Route 1, Box 481 Reidsville, Georgia 30453 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue This case concerns the issue of whether the Respondent's law enforcement officer certification should be suspended, revoked, or otherwise disciplined for multiple violations of Section 943.145(3), Florida Statutes (1981). At the formal hearing the Petitioner called as witnesses Virgil P. Sandlin, David Charles Myers, Joseph Weil, and Neal Branch. Petitioner offered and had admitted into evidence four exhibits. The Respondent testified on his own behalf and offered no exhibits into evidence. Subsequent to the formal hearing, the Respondent filed a motion to supplement the record and that motion is denied on the basis that the documents sought to be made a part of the record are irrelevant to these proceedings. Respondent also filed a motion to dismiss and that motion is hereby denied. Counsel for Petitioner and Respondent filed proposed Findings of Fact and Conclusions of Law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as irrelevant to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings the Respondent was and is the holder of law enforcement certificate number 02-13259. That certificate is now in inactive status. During the months of April through November, 1981, the Respondent was an employee of the Florida Game and Fresh Water Fish Commission and was under the supervision of Blanchard Neal Branch. While employed with the Commission as an investigator, Atwell was issued a Toyota pickup truck, firearms, credentials, and confidential identification. The identification was a driver's license with Atwell's cover name. This driver's license was to be used strictly for identification and Respondent had been instructed of this fact on several occasions prior to June, 1981. Respondent was also issued a credit card for the purchase of gasoline for the government vehicle only. On June 24, 1981, Respondent was stopped for speeding by Florida Highway Patrol Trooper Virgil P. Sandlin. When stopped Respondent gave his name as Robert Leonard Austin and gave the trooper his confidential identification as his driver's license. The name, Robert Leonard Austin, was Respondent's cover name and the name that appeared on the license. This stop took place on U.S. 19 about five or six miles north of Inglis, Florida. The Respondent was given a ticket for driving 69 miles per hour in a 55-mile-per-hour zone. At the time he was stopped, Respondent had another individual in the truck with him. Approximately a month after the citation was issued Respondent contacted Trooper Sandlin and asked to meet with him. Trooper Sandlin did meet with Respondent and Respondent showed him his badge and asked the trooper to speak with the judge and ask him to withhold adjudication on the speeding ticket. Trooper Sandlin said he would do it as a professional courtesy. During this meeting Respondent used the name of Bobby Austin. As a result of the citation Respondent was found guilty and fined $25. The case was heard on August 13, 1981, and the fine was to be paid within ten days. The fine was not paid and the Department of Highway Safety and Motor Vehicles was notified to suspend Respondent's confidential driver's license. After learning of this, Captain Branch ordered Respondent to go to the court in Levy County and pay the fine. At the time of the stop in Levy County on June 24, 1981, Respondent was assigned to an undercover investigation in Dixie County and had lost complete contact with his backups for the 24-hour period in which he had been stopped. Prior to being assigned to the Dixie County investigation, Respondent had been assigned to an investigation in Levy County, but was not authorized to work on that investigation during the time he was assigned to the Dixie County investigation. Prior to June 24, 1981, Respondent had been counseled about driving at excessive speeds and had been cautioned to abide by the speed limits posted. On October 31, 1981, Respondent was stopped for speeding near Chiefland, Florida. The officer did not get an official clocking on Respondent's truck but estimated his speed to be in the range of 55 to 70 miles per hour in a 30-mile-per-hour zone. When the Chiefland police officer, David C. Myers, stopped the Respondent, he shined his spotlight on Respondent's vehicle and Respondent got out of the vehicle with his hands up. The police officer had radioed in a description of the truck and was informed that a vehicle meeting that description had been involved in a domestic dispute earlier in the day. As a result of this information, when Respondent gave the officer his driver's license, the officer began to run a wanted check on the license, which carried a Quincy address. At this time Respondent gave the officer a second driver's license with the same picture. He also showed the officer his credentials and explained that he was in the area working undercover with the Game and Fresh Water Fish Commission. Respondent described for the officer the case on which he was working. At no time during this stop did the officer draw his weapon. No charges were brought by the officer. After this incident Respondent informed Captain Branch, his supervisor, that he had had a run-in with a Chiefland police officer and that the officer had pulled a gun on him. Captain Branch called the police officer and questioned him about the incident. The officer denied pulling his gun and Captain Branch again questioned Atwell about the incident. Atwell again stated that the officer had pulled a gun and demonstrated the combat stance the officer had taken. At the time he was stopped in Chiefland, Respondent was assigned to an undercover investigation in Levy County where Chiefland is located. Because of problems relating to unauthorized trip extensions and problems with per diem (the method Respondent had used for claiming per diem), Respondent had been counseled and placed on a very strict schedule prior to October, 1981. He was instructed in each assignment as to when he would report to the assignment and when he would return. He was also given a call-in schedule and was instructed to call in and get authorization for any change or extension of his return time. In October, 1981, Respondent had two unauthorized trip extensions. On or about October 9, 1981, Respondent was on a trip and extended the trip two or three days without authorization. He did not call in and his supervisor had no knowledge of his whereabouts for that two- or three-day period. On October 23, 1981, Respondent left on a trip and was instructed to return no later than the morning of October 25, 1981. Respondent did not return and did not call in until October 27, 1981, when Captain Branch received a call from Respondent from his home in Quincy. He was two days overdue. When questioned about the unauthorized extension, Respondent stated he was with the subject of the investigation the entire time and could not call in. However, Respondent's investigative report revealed that he was not with the subject from midnight on October 24 to 1:00 p.m. on October 25, and from midnight on October 25 to the afternoon of October 26. Respondent could have called in during these time periods. During his employment with the Florida Game and Fresh Water Fish Commission the Respondent was counseled regarding irregularities in his per diem travel expense reports and vehicle cost reports. During the months of April through October, 1981, there were numerous discrepancies and unexplained irregularities in the travel expense reports, vehicle cost reports, law enforcement itinerary, and law enforcement investigative activity reports filed by Respondent. These irregularities include: A per diem report filed by Respondent reflects that he was on assignment in Levy County from 5:00 p.m. on April 9, 1981, through 8:00 a.m. on April 12, 1981. Per diem for this period was claimed and paid. On April 10, 1981, 20.7.gallons of gasoline were purchased in Quincy on Respondent's government credit card. On April 11, 1981, 31.2 gallons of gasoline were purchased in Chattahoochee on Respondent's government credit card. The itinerary report filed by Respondent for April 14, 1981, indicates 8 hours of duty. However, Respondent's vehicle cost report for the same date indicates his vehicle was in Quincy (home) on April 14. On April 18, 1981, Respondent purchased 18 gallons of gasoline in Quincy. On April 21, 1981, Respondent purchased 30.7 gallons of gasoline in Quincy. Respondent's itinerary for this period states that he was off duty on April 18 and 19 and worked in Tallahassee on April 20. The cost report for Respondent's vehicle indicates 266 miles were driven to Tallahassee and back to Quincy and vicinity. On April 24, 1981, Respondent purchased 33.3 gallons of gasoline in Quincy and on April 27, 1981, purchased 35.4 gallons of gasoline in Quincy. The itinerary report filed by Respondent for this period reflects that he was off duty April 24 through April 26, 1981, and worked four hours in Tallahassee on April 27. Respondent's vehicle cost report shows Respondent's vehicle was idle during this period except for a trip to Tallahassee. 70 miles were reported as driven during this period, but 35.4 gallons of gasoline were purchased. On May 15, 1981, 32 gallons of gasoline were purchased on Respondent's government credit card. On May 16, 1981, 31.9 gallons of gasoline were purchased on Respondent's government credit card. These purchases were made on a credit card issued in the name of Fredrick R. Tedder, an alias used by Respondent in a prior case. On May 19, 1981, 28.3 gallons of gasoline were purchased by Respondent on his government credit card in Quincy, Florida. Respondent's itinerary indicates he was off duty May 16 and 17 and worked in Tallahassee on May 18. The purchase on May 16 was not logged on the vehicle cost report and no receipts were submitted for this purchase. On May 23, 1981, Respondent purchased 12.2 gallons of gasoline in Quincy and on May 26, 1981, purchased 32.3 gallons of gasoline in Quincy. Respondent's itinerary report shows he was off duty May 23 and 24, and worked four hours in Tallahassee on May 25. The vehicle cost report shows the vehicle was idle on May 24 and made a trip to Tallahassee on May 25. 75 miles were reported as driven on these dates, but 32.3 gallons of gasoline were purchased. On June 6, 1981, Respondent purchased 17.4 gallons of gasoline in Quincy and on June 10, 1981, purchased 31 gallons of gasoline in Quincy. Respondent's itinerary report reflects that he was off duty June 6, 7, and 8 and worked 6 hours in Tallahassee on June 9. 18 miles were reported as driven on these dates but 31 gallons of gasoline were purchased. The purchase on June 6, was not logged on the vehicle cost report and Respondent submitted no receipts for this purchase. On June 11, 1981, Respondent purchased 11.2 gallons of gasoline in Crystal River, Citrus County, Florida. Respondent's travel voucher, itinerary report and investigative report show activities in Levy County from June 10 to June 12. The June 11 purchase was not logged on the vehicle cost report and no receipts were turned in. The license tag number recorded by the station attendant was not that of Respondent's commission-issued vehicle but was the tag number of a vehicle registered to Anita M. Simzyk of Inglis, Florida. On June 12, 1981, Respondent purchased 27.5 gallons of gasoline in Quincy and on June 16 purchased 23.6 gallons of gasoline in Capps, Florida. Respondent's itinerary report shows he was off duty on June 13 and 14 and worked in Tallahassee 6 hours on June 15. The vehicle cost report shows Respondent's vehicle was idle on these dates except for a trip to Tallahassee on June 15. 70 miles were reported as driven on these dates, but 23.6 gallons of gasoline were purchased. On June 17, 1981, Respondent purchased 36 gallons of gasoline in Chiefland, Levy County, Florida. Respondent's travel voucher indicates he left Tallahassee at 9:00 a.m. on June 16, en route to Dixie County and returned to Tallahassee at 1:00 p.m. on June 19. Respondent's investigative trip report indicates he arrived in Cross City, Dixie County, at 10:00 a.m. on June 16, went to Inglis in south Levy County from 10:00 p.m. to 11:30 p.m. on June 16 and returned to Cross City until midday on June 19. The vehicle cost report and itinerary also indicate detail in Dixie County during this period. On July 1, 1981, Respondent purchased 19.9 gallons of gasoline in Chiefland, Levy County, Florida. Respondent's travel voucher indicates he left Tallahassee for Dixie County at 2:00 p.m. on June 30 and returned to Tallahassee at 8:00 p.m. on July 3. No investigative trip report was submitted for this period and the vehicle cost report and itinerary report indicate detail in Dixie County during this period. On July 9 and July 13, 1981, Respondent's itinerary report shows 10 hours duty and 3 hours duty respectively. Respondent's vehicle cost report indicates his vehicle was idle on these two dates. On July 10, 1981, Respondent purchased 31.3 gallons of gasoline in Quincy and on July 14, 1981, purchased 29.3 gallons of gasoline in Quincy. Respondent's itinerary report indicates he was off duty July 4 and 5, worked in Tallahassee July 6 and 7, was off duty July 8, worked in Tallahassee July 9 and 10, was off duty July 11 and 12 and worked in Tallahassee July 13. The vehicle cost report indicates Respondent's vehicle was idle on these dates except for trips to Tallahassee on July 6, 7, and 10. There were 196 miles reported as driven during this period, but 60.6 gallons of gasoline were purchased. A travel voucher filed by Respondent indicates he left Tallahassee for Inglis at 10:00 a.m. on July 22, 1981, and returned to Tallahassee on July 24 at 4:00 a.m. There was $100 in per diem paid for this trip but no investigative report was filed for this period indicating travel to Inglis. The vehicle cost report shows travel from Tallahassee to Key West on July 19, Key West to Inglis on July 22 and return from Inglis to Tallahassee on July 23. On July 20, 1981, Respondent purchased 32.9 gallons of gasoline in Quincy. On July 25, 1981, Respondent purchased 33 gallons of gasoline in Quincy, Florida. On July 28, Respondent purchased 14.3 gallons of gasoline in Quincy. Respondent's travel voucher indicates he returned to Tallahassee at 4:00 a.m. on July 24. His itinerary indicates he was off duty on July 24, worked 7 hours on July 25, was off duty July 26, and worked 5 hours in Tallahassee on July 27. Respondent's vehicle cost report indicates his vehicle was idle on these dates except for trips to Tallahassee on July 25 and July 27. 230 miles were reported as driven during this period and 14.3 gallons of gasoline were purchased. On July 24, 1981, Respondent claimed investigative expense money. His itinerary for July 24, 1981, indicates he was off duty on July 24. On August 1 and 2, Respondent claimed investigative expense money of $8.75 and $6.50 respectively. Respondent's itinerary shows he was off duty both of these days. Respondent submitted no vehicle cost information for the period August 1 to August 10. The last logged mileage on July 31, 1981, was 52,282 and the next logged mileage was 53,525 on August 10. 1,243 miles were reported as driven during this period and 950 miles were unaccounted for. On August 6, 1981, Respondent purchased 37 gallons of gasoline in Quincy, Florida. Respondent's itinerary indicates he was off duty August 1 through 5. The July 6 purchase was not logged on the vehicle cost report and no receipts were turned in for the purchase. Respondent's travel voucher indicates he left Tallahassee for Inglis at 11:00 a.m. on August 6. His investigative trip report indicates he arrived in Inglis at 4:30 p.m. on August 6 and returned to Tallahassee on August 10 at 8:30 p.m. The distance from Tallahassee to Inglis round trip is 290 miles. The Respondent purchased 14.2 gallons of gasoline in Otter Creek and 31.9 gallons of gasoline in Crystal River on August 10, 1981. The purchase in Otter Creek was not recorded on the vehicle cost report. On September 2, 4, and 8, respectively, Respondent purchased 23.2 gallons of gasoline, 29 gallons of gasoline, and 27.4 gallons of gasoline in Quincy, Florida. Simultaneous with the purchase of 27.4 gallons on September 8, the Respondent also purchased 14.9 gallons of gasoline in Quincy. An itinerary filed by the Respondent indicates he was off duty from September 1 through September 3, worked 8 hours in Tallahassee on September 4, and was off duty September 5 through September 9. The vehicle cost report reflects that Respondent's government truck was idle during this time period except for the trip to Tallahassee on September 4. The 14.9 gallons of gasoline purchased on September 8 were not recorded on the vehicle cost report and no receipts were turned in for this purchase. 632 miles were recorded as driven and 94.5 gallons of gasoline were purchased during this time period. Respondent's itinerary indicates he worked 7 hours on September 21, and the vehicle cost report indicates Respondent's vehicle was in Levy County on September 21. However, Respondent's trip report and travel vouchers show that he returned to Tallahassee at 10:00 p.m. on September 20. Respondent's travel voucher reflects he left Tallahassee at 2:00 p.m. on September 24 en route to Inglis. His investigative trip report states that Respondent arrived in Inglis at 6:00 p.m. on September 24 and went back and forth from Inglis to Floral City until September 29. Respondent's travel voucher and trip report state that he returned to Tallahassee at 7:00 p.m. on September 29. However, an additional day of per diem for September 30, was added after the last entry on September 29. On October 1, 1981, Respondent purchased 23 gallons of gasoline in Quincy. Respondent's travel voucher stated he returned from Inglis at 7:00 p.m. on September 29 and the recorded ending mileage was 59,529. Respondent's itinerary report indicates he worked in Tallahassee 6 hours on September 30 and 10 hours on October 1. The recorded ending mileage on October 1 was 59,870. 341 miles miles were recorded as driven during this period and 23 gallons of gasoline were purchased. On October 6, Respondent's itinerary report indicates he worked 6 hours. His vehicle cost report for the same date reflects his vehicle was idle that date. Respondent's travel voucher indicates he left Tallahassee at 5:30 a.m. en route to Cross City and returned to Tallahassee at 11:00 p.m. the same day. Respondent's itinerary report indicates he was on duty 3 hours that date. Respondent's travel voucher states that he left Tallahassee at 5:30 a.m. on October 13, en route to Cross City and returned at 11:30 p.m. the same day. His itinerary report shows Respondent was off duty on October 13. The vehicle cost report indicates travel from Quincy to Cross City on both October 12 and October 13. On October 15, 1981, Respondent purchased 23.8 gallons of gasoline in Chiefland, Levy County, Florida. His itinerary report for the same date indicates he was off duty. The vehicle issued to Respondent was a four-cylinder Toyota pickup truck with dual fuel tanks. This truck was to be used for official state business only.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of violating Section 943.145(3)(c), Florida Statutes (1981) , and revoking Respondent's law enforcement officer certificate. DONE AND ENTERED this 27th day of March, 1984, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Grady Henry Atwell Post Office Box 667 Quincy, Florida 32351 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl G. McLaughlin, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Barbara Bradshaw, has filed a claim against the bond in the amount of $435.40 alleging that Passport failed to perform on certain contracted services. For touring a timeshare resort in early 1992, petitioner received a travel certificate as a gift. After paying a $179.00 validation fee, the certificate entitled the holder to a five day, four night stay in the Bahamas. The certificate carried the name, address and logo of Passport International Express, a fictitious name then being used by Passport. Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and the corporation was dissolved sometime in 1991. Even so, Incentive continued to sell Passport's travel certificates at least through April 1992, when petitioner received her certificate. Therefore, the travel services described in those certificates were protected by Passport's bond. To validate her certificate, on April 17, 1992, petitioner sent Passport International Express a check in the amount of $179.00. Thereafter, she upgraded her accommodations, purchased additional land accommodations, and paid for port taxes. These items totaled $242.00, and were paid by check sent to Incentive on May 26, 1992. Throughout this process, petitioner assumed she was still dealing with Passport since she was never formally advised that Passport had been dissolved or that Incentive had assumed all of Passport's obligations. Petitioner was scheduled to depart on her trip on July 24, 1992. On July 15, 1992, Incentive mailed her a form letter advising that it was necessary to "temporarily delay" her trip due to "circumstances beyond (its control.)" She was offered several options, including a total refund of her money to be made in January 1993. She opted for a refund. To date, however, nothing has been paid, and Incentive is now subject to bankruptcy court protection.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted and that she be reimbursed from the bond in the amount of $421.00. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: Barbara Bradshaw 1169 La Mesa Avenue Winter Springs, Florida 32708 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue is whether Robert J. Majka, Jr., violated the Florida Code of Ethics for Public Officers and Employees.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Respondent Majka is subject to the Code of Ethics. Mr. Majka, during times pertinent, was Chief of Emergency Services for Bay County, Florida, and is a reporting individual, as that term is used in the Code of Ethics, and is required to file annual financial disclosures with the Bay County Supervisor of Elections, as provided by Section 112.3145(2)(c). On February 7, 2006, long after the events involved with this case, he was promoted to the position of Assistant County Manager. As Chief of Emergency Services, Mr. Majka was in charge of the County's corrections program. During times pertinent he employed a staff member named Ann Cahall, whose duties included interacting routinely with the County's privatized corrections provider, CCA. On or about August 31, 1999, the Bay County Commission was addressing the problem of inmate overcrowding in its county correctional facilities, which were operated by CCA. On or about that time, the county correctional facility exceeded capacity by about 352 inmates. The Bay County Commissioners decided to address the issue. The Bay County Commission directed County Manager Jonathan A. Mantay and his staff to study the problem and to recommend courses of action. As a result of the study, two possible courses of action were recommended. One possible course of action was the adoption of the "Lifeline" program operated by CCA in Nashville, Tennessee, which CCA claimed would reduce recidivism by teaching inmates life skills and addressing drug abuse, among other things. CCA's corporate headquarters is located in Nashville. The other possible course of action was to emulate the program operated by Sheriff Joe Arpaio, of Maricopa County, Arizona. Sheriff Arpaio's program consists of housing inmates in tents that are sufficiently primitive that inmates, after having had the tenting experience, avoid repeating it either by not committing crimes in Maricopa County, or by committing them elsewhere. In order to evaluate the two courses of action, the Bay County Commission decided that three commissioners and certain staff should travel to the two sites and evaluate the programs. Mr. Majka, County Manager Mantay, and County Attorney Zimmerman, were among those who were designated to travel to Nashville and Phoenix. Mr. Majka's role, in giving that plan effect, was to contact CCA and Maricopa County and determine dates that they could support a visit from persons from Bay County. He contacted Brad Wiggins, the Director of Business Development for CCA, and also talked to the public information officer with the Maricopa County sheriff's office, in order to determine convenient dates. This was Mr. Majka's only involvement with the planning phase of the proposed trip. County Attorney Zimmerman called Mr. Wiggins on February 6, 2000, and inquired if CCA would pay for the airline tickets to Nashville. Mr. Zimmerman told Mr. Wiggins, when he asked CCA to pay for the trip, that having CCA pay the airfare, ". . . was the County's preferred way of doing things, and, in fact, that's when he recounted the story of the County taking some trips to New York and maybe some other places." Mr. Wiggins was not authorized by CCA to approve the payment of travel expenses for customers or others. He forwarded County Attorney Zimmerman's request to James Ball, his supervisor. Subsequently, Mr. Wiggins happened upon the CEO of CCA, a Dr. Crants, while walking about the Nashville headquarters of CCA. Dr. Crants directed Mr. Wiggins to fund the trip. Ultimately, as a result of these conversations, CCA paid Trade Winds Travel, Inc., of Panama City, Florida, for the cost of the air travel for the entire Bay County contingent to Nashville, and thence to Phoenix, and back to Panama City. The evidence is not conclusive as to whether it was the intent of CCA to fund the trip beyond Nashville, but they paid for the cost of the airfare for the entire trip. The request for the payment and the request to visit CCA in Nashville was driven by Bay County's needs, not by the needs of CCA. Bay County was one of CCA's most valued customers, however, and CCA was motivated to respond to their request. This was especially true because one of CCA's first contracts to provide correctional services was with Bay County. County Attorney Zimmerman's "marching orders" for many years was that if there was an opportunity to require a third party to pay an expense, then the third party should pay rather than Bay County. That policy is reflected in a variety of Bay County ordinances, including the requirement that developers pay for the cost of permitting. The third party payor policy was also reflected in a 1997 trip where Westinghouse was required by the County Commissioners to pay for the commissioners' and County staff's trip to Vancouver, B.C., and Long Island, New York, to evaluate the transfer of the resource recovery facility to another vendor. This was the trip that County Attorney Zimmerman discussed with Mr. Wiggins. This policy was set forth in a letter by County Attorney Zimmerman dated October 30, 1997, which informed the County Commissioners that all expenses in connection with their travel, and with the travel of staff, would be funded by Westinghouse. He further stated that, "[it] is our opinion that the payment of these necessary expenses are not 'gifts,' as that term is defined in State law." Prior to the trip to Nashville, Mr. Majka was present during a conversation between the County Manager and County Attorney. The discussion concerned whether Bay County or CCA would fund all or part of the trip. Mr. Majka could not have learned from this discussion that CCA would fund all or part of the trip, and nothing occurred which would have required him to make further inquiry. He specifically heard County Attorney Zimmerman opine during this conversation, that the trip was "legal." Subsequently, Mr. Majka was contacted by a Ms. Rogers in the County Manager's Office. He was directed to go to the County Manager's office to obtain an airline ticket for the trip. He does not recall if he received that information directly from Ms. Rogers or whether it was relayed to him by Ms. Cahall, but it was clear to him that the County Manager was requiring him to participate in the travel. He picked up the ticket as directed. The ticket did not indicate how payment was made. On Thursday, February 24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and television reporter Carmen Coursey, by commercial air, to Nashville, Tennessee. On Saturday, February 26, 2000, they traveled to Phoenix, Arizona, and they returned to Panama City on Tuesday, February 29, 2000. The trip was authorized by the Bay County Commission subsequent to several public discussions concerning the need for an on-site visit to Nashville and Phoenix. There was a legitimate public purpose for the trip. Channel 13 television news reporter, Carmen Coursey accompanied the officials. It is clear that there was nothing about the trip that was accomplished sub rosa. The airfare was paid by CCA directly to Trade Winds Travel, Inc. CCA did not ask for or receive reimbursement from either Bay County or the travelers. The cost of Mr. Majka's airfare for the entire trip was $1,257. Mr. Majka did not learn that CCA paid for the airfare until three or more years after the trip was completed. Mr. Majka at the time of the trip had no reason to contemplate the cost. After learning that CCA paid the tariff, he also learned that the cost of the trip exceeded $100. Upon arrival in Nashville, Mr. Majka, and the other travelers were greeted by Mr. Wiggins, who transported them to the Downtown Courtyard Marriott Hotel in a van. The cost of the transportation was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. The value was not established. Mr. Majka did not know who paid for the ground transportation. The travelers ate dinner, February 24, 2000, as a group that evening. Someone paid for Mr. Majka's dinner, but the record does not indicate that CCA paid for it. On Friday, February 25, 2000, Mr. Majka and the other travelers toured the Davidson County (Tennessee) Correctional Facility from 9:00 a.m. until noon. They ate lunch at the CCA corporate headquarters provided by CCA. That afternoon they met with Mr. Wiggins and other representatives of CCA. They discussed the possibility of CCA providing "Lifeline" and "Chances" programs operated by CCA, to Bay County. That evening, at CCA's expense, Mr. Majka and the other travelers were transported by CCA to a dinner that was paid for by CCA. CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Majka was not aware of either the cost of the dinner or who paid for it. Mr. Majka and the other travelers stayed two nights at the Marriott at a cost of $224.24. The cost of the hotel was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Majka learned after checking out from the Marriott, on February 26, 2000, through talking with others, that CCA had paid the hotel bill, but there is no evidence of record that he knew the amount, or that it was an amount more than $100. No evidence was adduced proving that Mr. Majka reasonably believed at that time that it was of a value of more than $100. On Saturday, February 26, 2000, Mr. Majka and the other travelers departed for Phoenix by air and observed Sheriff Arpaio's program the following Monday morning. They also toured the Phoenix Fire Department. The travelers, with the exception of County Attorney Zimmerman, stayed at the San Carlos Hotel. Mr. Majka's hotel bill in Phoenix was paid with a credit card issued to County Manager Mantay by Bay County. On Tuesday February 29, 2000, they all returned to Panama City. Bay County originally contracted with CCA to operate their detention facilities on September 3, 1985. This contract had a term of 20 years; however, it was amended on September 16, 1996, to reflect an expiration date of September 24, 1999. Other extensions followed. An amendment dated June 18, 2000, provided that "CCA shall operate the 'Lifeline Program' through September 1, 2001." On May 15, 2001, the contract was extended to September 30, 2006. Mr. Majka did not derive any person financial benefit as a result of CCA paying the lodging expenses in Nashville or as a result of CCA paying for his airfare. At no time has he attempted to reimburse CCA for the cost of the trip. Mr. Majka did not receive per diem or any amount in excess of the actual cost of the trip. The entity receiving a benefit from the trip was Bay County. Mr. Majka had a County credit card in his possession but by County policy he was not allowed to charge meals on it. His usual practice, when traveling on behalf of the County, is to obtain receipts and file an expense report at the conclusion of the trip. He would thereafter be reimbursed for his travel expenses. He did not file an expense report subsequent to this travel. It is found as a fact that the cost of the travel to Nashville and back to Panama City, and the cost of the hotel in Nashville, totaled more than $100 and Mr. Majka ultimately knew that the cost, when aggregated, was more than $100. Mr. Majka could not have acquired this belief, however, until more than three years after the trip because that is when he learned that CCA had paid for the airfare. It was not uncommon for Mr. Wiggins and other CCA officials to appear before the Bay County Commissioners on behalf of CCA, or to otherwise interact with representatives of CCA. Brad Wiggins was a lobbyist, as that term is defined in Section 112.3148(1)(b)1., and others interacted with Bay County on behalf of CCA and they were lobbyists also. During times relevant, Bay County did not maintain a lobbyist registration system.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that Robert J. Majka, Jr. did not violate Section 112.3148(4), Florida Statutes, and dismissing the complaint filed against him. DONE AND ENTERED this 17th day of August 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2006. COPIES FURNISHED: Linzie F. Bogan, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Albert T. Gimbel, Esquire Gary E. Early, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Mitchell H. Abelman, has filed a claim against the bond for $389.00 alleging that Passport failed to perform on certain contracted services. Because the relevant events occurred some three or four years ago, many of the details concerning this transaction are somewhat vague. It is clear, however, that in response to a solicitation call, on August 15, 1990, petitioner purchased a travel certificate from Executive Travel, Inc., a Connecticut telemarketeer, authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to a five-day, four-night trip for two to the Bahamas, plus four nights' lodging in Daytona Beach and Orlando, Florida. For this, petitioner agreed to pay $389.00 through a charge to his credit card payable to the telemarketeer. The certificate carried the name, address, and logo of Passport. Prior to purchasing the certificate, petitioner was never told that in order to take the trip, he must pay additional charges. Had he known this, he would not have purchased the certificate. A travel certificate, video, and instructions were mailed by Passport to petitioner around August 22, 1990. The certificate clearly stated that it expired in one year, or on August 27, 1991. The instructions stated that in order to reserve travel dates, the traveler must return the certificate to Passport with the requested travel dates at least 75 days prior to the traveler's departure. Petitioner says he did not open up his mail from Passport for a considerable period of time and thus was initially unaware of these restrictions. On an undisclosed date, petitioner telephoned a representative of Passport and requested confirmation of certain travel dates. Although these dates were apparently more than a year after the certificate was issued, a Passport representative verbally approved the dates but told him that that in order to reserve those dates, he must send in an additional $90.00 for port charges, taxes, and meals on the ship. Petitioner refused to pay any more money since he had not been told this when he purchased the certificate. Therefore, he never returned the travel certificate to confirm his reservation. When petitioner telephoned a Passport representative a second time concerning the use of his certificate, he was told that his travel certificate had expired. He was offered the right to use the Florida portion of his trip but only if he paid a $50.00 deposit. Petitioner declined to do so and later filed this claim for a refund in the amount of $389.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $389.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: Mitchell H. Abelman 507 Chestnut Avenue Los Angeles, California 90042 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issues for determination are whether Respondent violated Subsections 112.313(2), 112.313(4) and 112.313(6), Florida Statutes (2004),1/ as alleged, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this proceeding, Danny Howell was a duly-elected commissioner for the City of Ocoee, Florida (hereinafter "City" or "City of Ocoee"). As a commissioner for the City of Ocoee, Respondent was subject to the requirements of Chapter 112, Part III, Florida Statutes, the Code of Ethics for Public Officers and Employees. At all times relevant to this proceeding, James Gleason was city manager for the City of Ocoee. Mr. Gleason was appointed city manager by the Ocoee City Commission in January 2001 and served in that position until March 2004. When Mr. Gleason was initially appointed as city manager, Respondent did not vote in favor of Mr. Gleason. During his tenure as city manager, Mr. Gleason was supervised by the Ocoee City Commission, which was comprised of five elected commissioners. As a commissioner, Respondent was one of Mr. Gleason's immediate supervisors. Several years prior to Mr. Gleason's appointment as city manager, he had been a commissioner for the City of Ocoee and a candidate for mayor. As a result of Mr. Gleason's political involvement in the City, Respondent knew Mr. Gleason before he was appointed city manager. When hired, Mr. Gleason's annual base salary was approximately $87,000.00. Mr. Gleason's annual base salary at the time of his termination from the position of Ocoee city manager was $103,000.00. As a City commissioner, Respondent was paid a monthly salary of $400.00 per month to serve on the City Commission. In addition to his $400.00 monthly salary, Respondent received a monthly stipend of $275.00 for local travel. Fine for Late-Filed Campaign Treasurer's Report At all times relevant to this proceeding, Jean Grafton served as the Ocoee city clerk and as the City's supervisor of elections. By letter dated April 12, 2001, Ms. Grafton advised Respondent that a $150.00 fine had been assessed against him due to his Campaign Treasurer's Report not being timely filed. The same or a similar letter was also sent to Vickie Prettyman, Respondent's campaign treasurer. Despite Respondent's having been notified of the $150.00 fine in April 2001, a year later the fine had not been paid. After the $150.00 fine remained outstanding for more than a year, Ms. Grafton requested Mr. Gleason's assistance in getting Respondent to pay the fine. Ms. Grafton told Mr. Gleason that if Respondent did not pay the $150.00 fine, she would have to notify the Florida Elections Commission that Respondent had failed to pay the fine. Upon learning that the $150.00 fine had not been paid, Mr. Gleason discussed the matter with Respondent. Respondent advised Mr. Gleason that Ms. Prettyman was to pay the fine. In making this statement, Respondent was reasonably relying on Ms. Prettyman's representation to him that she would pay the $150.00 fine. As Respondent's campaign treasurer in 2001, Ms. Prettyman took responsibility for late-filing Respondent's Campaign Treasurer's Report in April of that year. Thus, Ms. Prettyman assumed she should pay the fine. The $150.00 fine for the late filing of Respondent's Campaign Treasurer's Report was paid on May 17, 2002. There is no dispute that Mr. Gleason delivered $150.00 in cash to the City Clerk's Office and paid the fine that had been assessed against Respondent. However, there was conflicting testimony between Ms. Prettyman and Mr. Gleason as to who provided the funds for the payment of the $150.00 fine and under what circumstances the fine was paid. On May 17, 2002, Ms. Prettyman met with Mr. Gleason at the City's Beach Recreation Center, where Ms. Prettyman worked as interim recreation director for the City. The meeting was about an upcoming work-related project. After the meeting ended, Mr. Gleason reminded Ms. Prettyman that the $150.00 fine was still outstanding.2/ Ms. Prettyman then told Mr. Gleason she got paid that day3/ and would pay the fine after she cashed her paycheck during her lunch hour. Although it was lunch time, Ms. Prettyman told Mr. Gleason that she could not leave the recreation center until the other employee assigned to the center returned from lunch so that the center could remain open.4/ On May 17, 2002, Mr. Gleason volunteered to stay at the Beach Recreation Center, so it could remain open while Ms. Prettyman went to the bank to cash her paycheck. When Ms. Prettyman returned to the recreation center, she told Mr. Gleason that she would go to City Hall to pay the fine later that afternoon. In response, Mr. Gleason offered to take the money to City Hall and make the payment for Ms. Prettyman since he was going there after he left the recreation center. Ms. Prettyman accepted Mr. Gleason's offer to deliver the $150.00 to City Hall and pay the fine for her. Ms. Prettyman then gave Mr. Gleason $150.00 in cash to pay the outstanding fine. Mr. Gleason never gave Ms. Prettyman a receipt for the payment. However, a few days after Ms. Prettyman gave the $150.00 to Mr. Gleason, she checked with Ms. Grafton to determine if the fine had been paid. In response, Ms. Grafton acknowledged that the payment had been received. Mr. Gleason contradicts the foregoing account regarding payment of the $150.00 fine, as described and testified to by Ms. Prettyman. Specifically, Mr. Gleason denied that Ms. Prettyman gave him the $150.00 in cash to pay the fine and testified that he paid the fine out of his personal funds. According to Mr. Gleason, he paid the fine after being directed to do so by Respondent. Mr. Gleason testified that after Ms. Grafton asked him to assist her in getting Respondent to pay the fine, he discussed the matter with Respondent on two or three occasions. Mr. Gleason testified that on one of these occasions, Respondent told him (Gleason) that he made more money than Respondent so he (Gleason) should pay the fine and make it go away. Based on the foregoing comments that Respondent allegedly made, Mr. Gleason testified that he believed Respondent wanted, expected, or was directing him (Gleason) to pay Respondent's $150.00 fine. Furthermore, Mr. Gleason testified that he believed and/or feared that his job as city manager might or could be adversely affected if he did not pay the fine. Contrary to Mr. Gleason's testimony, the credible testimony of Respondent is that he never directed or in any way coerced, threatened, or pressured Mr. Gleason to pay the $150.00 fine. Ms. Prettyman's testimony regarding payment of the $150.00 fine and the circumstances surrounding the payment is found to be more credible than that of Mr. Gleason. Waiver of Fees Related to Late Payment of Water Bill During the time Mr. Gleason served as city manager, Respondent and his wife were sometimes late in paying for their residential water service. In March 2003, the City of Ocoee determined that Respondent's residential water service would be terminated due to non-payment of the balance owed on the account. On or about March 20, 2003, Cathy Sills, who worked in the City's Utilities Service Department (hereinafter referred to as "Utilities Department"), contacted Mr. Gleason and informed him that Respondent was on the City's water service cut-off list. Mr. Gleason then contacted Respondent and informed him that his water service was going to be turned off that day if his bill was not paid. After being notified that his water service was scheduled to be cut-off, Respondent told Mr. Gleason that either he (Respondent) or his wife would go to the Utilities Department that day to pay the past due balance. Respondent also told Mr. Gleason that he would not be able to pay the late charges and any other related fees. On March 20, 2003, after Mr. Gleason telephoned Respondent about his (Respondent's) delinquent water bill, Respondent went to the Utilities Department and paid his water bill. Some time after Respondent spoke to Mr. Gleason, but before he arrived at City Hall to pay his water bill, the water service had been turned off. Due to Respondent's existing financial difficulties, Respondent needed more time to pay the late charges or other fees related to the water bill. Nevertheless, Respondent never asked or directed Mr. Gleason to waive the late charges or other fees associated with his delinquent water bill. Furthermore, Respondent never asked or directed Mr. Gleason to make sure that Respondent's water service was not cut off to restore water services after it was cut off. Mr. Gleason testified that after he talked to Respondent about his (Respondent's) delinquent water bill, he called Ms. Sills at the Utilities Department and asked her what the policy was regarding waiver of late charges. Mr. Gleason then told Ms. Sills that if the policy allowed for such a waiver, she should remove Respondent's late charges and the disconnect/service interruption fee from his account.5/ At all times relevant to this proceeding, the City of Ocoee had an informal "forgiveness" policy in which late charges and other penalties related to delinquent water bills were waived. The purpose of the policy was to provide assistance to individuals, who like Respondent, were having financial difficulties. Consistent with the City's "forgiveness" policy, Mr. Gleason had routinely directed the Utilities Department employees to waive late fees and other fees related to delinquent water bills of eligible citizens and to work out payment plans for them. Ms. Sills waived Respondent's late charges and the service interruption fee associated with Respondent's water bill after being directed to do so by Mr. Gleason. As a result of this waiver, on March 20, 2003, two late fee charges totaling $50.00 and one service restoration fee of $50.00 were "reversed" or removed from Respondent's account. Ms. Sills confirmed the waiver in an e-mail to Mr. Gleason in which she wrote, "Pursuant to our conversation and you [sic] direction, I have reversed from [Respondent's] account" two late fees at $25.00 each and one service restoration fee of $50.00. Respondent received a call from Ms. Sills advising him that the late fees and other fees related to his water bill had been waived. However, she did not mention why they were waived or at whose direction. At the time Mr. Gleason directed Ms. Sills to waive Respondent's late fees, Mr. Gleason knew that Respondent was currently experiencing financial difficulties and had been experiencing such difficulties for some time. Based on Respondent's financial circumstances, he was eligible for the waiver of late fees and service interruption fees under the City's "forgiveness" policy. The City's "forgiveness" policy, which was applied in Respondent's case and effectively waived his late charges and service interruption fees, was also routinely used in other financial hardship cases. Respondent had been delinquent in paying his water bill on other occasions because of the financial difficulties he was experiencing. However, the waiver of late fees and service interruption fees given to Respondent in March 2003, at the direction of Mr. Gleason, was the only waiver that Respondent ever received. Not long before March 20, 2003, the City Commission adopted a policy which increased the late charges for delinquent water bills from $5.00 to $25.00. When the Commission was considering the fee increase, Respondent opposed the increase. Notwithstanding Respondent's opposition to the increase in late charges for delinquent water bills, he believes that once a policy is adopted by the Commission, it should be applied equally to everyone. In accordance with this belief, Respondent did not ask or direct Mr. Gleason to violate City policy with regard to Respondent's water service, water bill, or fees/charges related thereto. Payment of City-Issued Credit Card on Balance At all times relevant to this proceeding, City commissioners received a monthly stipend of $275.00 to cover travel costs and expenditures in the local area. The City of Ocoee is located in Orange County, Florida. However, the resolution that established the monthly stipend for City commissioners defined the "local area" as Orange, Seminole, Lake, and Osceola counties.6/ In addition to receiving the monthly stipend of $275.00 for local travel, the City issued credit cards to the City commissioners. Each month, the charges incurred by City commissioners were reviewed by the City's Finance Department to reconcile and ensure the legitimacy of the charges. On May 9, 2002, Gequitha Cowan, executive assistant to the mayor and commissioners of the City of Ocoee, sent an e-mail to Respondent. In the e-mail, Ms. Cowan reminded Respondent that he had not yet paid the City the $354.18 to cover non-reimbursable charges that he charged on the City-issued credit card. Ms. Cowan sent Mr. Gleason a courtesy copy of the e-mail. Of the $354.18 outstanding balance on the credit card, $157.83 was for expenses Respondent incurred that were related to his attending the League of Cities conference held in Atlanta, Georgia. The remaining credit card balance of $196.35 was for local charges, primarily to restaurants made during a seven-month period, September 1, 2001, through April 2002. Respondent admitted that included in the $196.35 credit card balance is a $28.80 charge for which he should not be reimbursed. This charge resulted from Respondent's inadvertently using his City-issued (Visa) credit card, instead of his personal Visa credit card when he purchased medicine at a local store. Except for the $28.80 charge, Respondent believed that the other charges at issue were expenses for which the City should have reimbursed him. After Mr. Gleason received a copy of Ms. Cowan's May 9, 2002, e-mail, he met with Respondent to see if any of the charges identified in the e-mail were expenditures that could be properly reimbursed by the City. With respect to the $157.83 expenditure, Respondent presented no documentation to support reimbursement. As to the remaining balance (except the $28.80 Eckerd's charge), the credit card charges were for expenditures made at establishments in the local area and were not reimbursable by the City. There is no allegation that the expenditures made by Respondent were not legitimate expenses. However, based on the City's policy, expenditures for official City business in the local area should have been paid out of Respondent's monthly stipend. Such expenditures were not reimbursed by the City, even if the expenses were put on the City-issued credit card. Pursuant to the City's policy, generally, the City reimbursed City commissioners only for expenditures involving official business outside the local area. Respondent sometimes mistakenly made improper charges when using his City-issued credit card because he did not understand the City's policy related thereto.7/ In fact, as of the date of this proceeding, Respondent acknowledged that he still does not understand the policy. Due to Respondent's frustration with not understanding the City's policy and resulting problems associated therewith, Respondent voluntarily returned his City-issued credit card to the City's Finance Department in 2002. Although Respondent believed, albeit mistakenly, that he should have been reimbursed for the subject charges on the City-issued credit card, he never brought the issue regarding the disputed charges before the City Commission, the final arbiter of such disputes. Having failed to do so, Respondent does not dispute that he was obligated to pay the City $354.18, as determined by the City's Finance Department. After Respondent received Ms. Cowan's e-mail and talked to Mr. Gleason about the charges, he did not immediately pay the charges. The reason Respondent did not pay the charges in May or early June 2002, was that he was not working. As a result of being unemployed, Respondent was experiencing financial difficulties and did not have the money to pay the $354.18 to the City.8/ On June 3, 2002, Mr. Gleason paid the City of Ocoee $354.18 from his personal funds to cover Respondent's outstanding City-issued credit card debt. Mr. Gleason paid the outstanding charges using a personal check which had the imprinted name of Mr. Gleason and Mr. Gleason's wife. The memo section of the check indicated that the check was for "miscellaneous expenses" for the same time period as Respondent's outstanding charges. There is no dispute that on June 3, 2002, Mr. Gleason paid the $354.18 to cover Respondent's outstanding credit card charges. However, the circumstances surrounding the credit card payment, the reason Mr. Gleason made the payment, and whether Respondent repaid Mr. Gleason for the payment are disputed. Although, due to his financial situation, Respondent was unable to timely pay his outstanding $354.18 credit card charges, he never asked or directed Mr. Gleason to pay those charges. Furthermore, Respondent never coerced, threatened, or pressured Mr. Gleason to pay the credit card charges. Respondent was out-of-town on June 3, 2002, the day Mr. Gleason paid his $354.18 credit card bill, but returned to the City of Ocoee a day or a few days later. Respondent first learned that Mr. Gleason had paid the $354.18 outstanding credit card balance in or about early June 2002, after returning from his out-of-town trip. Mr. Gleason approached Respondent at City Hall and told him that he (Gleason) had taken care of the credit card bill. Mr. Gleason then gave Respondent the receipt which showed that Mr. Gleason had paid Respondent's outstanding $354.18 credit card bill. Mr. Gleason told Respondent that he paid the credit card bill because he was trying to help him (Respondent) out with "Martha" and did not want Respondent to look bad. Respondent was surprised to learn that Mr. Gleason had paid the $354.18. In response to Mr. Gleason's statements to Respondent described in paragraph 60, Respondent told Mr. Gleason that he had no right to pay the outstanding credit card bill and that he did not want him to pay the bill. Respondent also told Mr. Gleason that his paying the bill would "create a bad problem" for both of them. The "Martha" referred to by Mr. Gleason during his conversation with Respondent, discussed in paragraph 60, was Martha Lopez Anderson, a citizen of the City of Ocoee. At the time in question (May or early June 2002) Ms. Anderson, a very active citizen in the community and a familiar face at City Hall, was making public record requests regarding the travel expenses of City commissioners. The travel records requested and being reviewed by Ms. Anderson were located in the Finance Department in City Hall. Consequently, it was common knowledge among many City employees at City Hall that Ms. Anderson was reviewing the City commissioners' travel records. After Mr. Gleason paid Respondent's credit card balance, but prior to October 1, 2002, Richard Waldrop, a friend of Respondent and long-time City employee, became aware that Ms. Anderson was reviewing the City Commissioners' travel records. In fact, Ms. Anderson spoke to Mr. Waldrop about the matter and told him that Mr. Gleason had paid a bill for Respondent and that Respondent had not repaid Mr. Gleason. Mr. Waldrop does not recall the actual date that he learned that Respondent owed Mr. Gleason money for the bill that Mr. Gleason had paid. However, Mr. Waldrop's credible testimony was that he is sure that it was prior to October 1, 2002. After June 3, 2002, but prior to October 2002, Respondent was approached by Mr. Waldrop, who asked him if Mr. Gleason had paid a bill owed by Respondent. In response to his friend's inquiry, Respondent told Mr. Waldrop that Mr. Gleason had paid the bill, but without Respondent's prior knowledge. Respondent also acknowledged that he had not repaid Mr. Gleason, because he did not have the money. Upon learning that Respondent had not repaid Mr. Gleason, Mr. Waldrop was concerned that this was something that Mr. Gleason might want to "hold over" Respondent's head. Mr. Waldrop told Respondent that this situation "didn't look good" and then offered to lend Respondent $420.00 so that he could reimburse Mr. Gleason. Respondent accepted Mr. Waldrop's offer to lend him $420.00 so that he could repay Mr. Gleason. In order to repay the loan to Mr. Waldrop, Respondent and Mr. Waldrop agreed that Respondent, through his (Respondent's) and his wife's cleaning service, would provide house cleaning services to Mr. Waldrop and his wife two hours every other week until the debt was repaid. These services were provided at no charge for about a year, until the $420.00 debt was repaid. After Respondent received the $420.00 loan from Mr. Waldrop, he reimbursed Mr. Gleason for the outstanding credit card balance that Mr. Gleason had paid on June 3, 2002. Although the amount Respondent owed Mr. Gleason was $354.18, when Respondent repaid Mr. Gleason, he gave Mr. Gleason $355.00 in cash. Due to the passage of time, Respondent does not recall the exact date that he reimbursed Mr. Gleason for paying Respondent's $354.18 outstanding credit card debt. Nonetheless, Respondent testified credibly that he repaid Mr. Gleason weeks, rather than months, after he learned that Mr. Gleason had paid Respondent's credit card bill. Furthermore, Respondent testified credibly that he is certain that he reimbursed Mr. Gleason prior to October 1, 2002. Mr. Gleason denied that Respondent repaid him the $354.18. Also, Mr. Gleason's testimony regarding the circumstances which resulted in his paying Respondent's outstanding credit card debt contradicts Respondent's testimony. According to Mr. Gleason, he met with Respondent in or about May 2002, after receiving Ms. Cowan's e-mail, about his credit card balance. Mr. Gleason testified that during that discussion, Respondent told Mr. Gleason that he (Gleason) made the "big bucks" and "could afford it [the credit card balance]." In May 2002, when Respondent's outstanding credit card balance was at issue, Mr. Gleason knew that Respondent was having financial difficulties, as well as other problems. Mr. Gleason testified that, in light of those difficulties, when Respondent made the comments noted in paragraph 73, Mr. Gleason believed that Respondent either did not have the money to pay the credit card bill or did not intend to pay it. Mr. Gleason did not interpret the alleged comments (that Mr. Gleason made "big bucks" and could afford to pay the outstanding credit card balance) as an attempt by Respondent to coerce, threaten, or pressure him to pay the $354.18 or to extort the money from him. Rather, Mr. Gleason testified that he implied from those comments that Respondent was asking Mr. Gleason for a loan. Contrary to Mr. Gleason's interpretation of the foregoing comments made by Respondent, Respondent did not ask Mr. Gleason for a loan, imply that Mr. Gleason should lend him money to pay the $354.18 outstanding credit card balance, or direct Mr. Gleason to pay Respondent's outstanding credit card balance. At this proceeding, Mr. Gleason testified that Respondent never repaid him for the $354.18 payment that he made to the City for Respondent. This testimony contradicts an earlier statement Mr. Gleason made at a City Commission meeting. During the October 1, 2002, City Commission meeting, Mr. Gleason stated that the commissioner, for whom he had paid an outstanding credit card balance, had repaid him in full and that he (Gleason) owed the commissioner some change. Mr. Gleason did not name the commissioner to whom he was referring, but he was referring to Respondent.9/ Mr. Gleason made the statement that the commissioner had paid him in full, in response to comments of Ms. Anderson, in the context of a broader discussion about commissioners' travel expenses. Almost as an aside to the specific "travel expenses" topic being discussed, Ms. Anderson mentioned that inappropriate charges made by "commissioners" were being reimbursed by Mr. Gleason.10/ During the course of making the foregoing comments, Ms. Anderson never specifically named the commissioners whose expenses were being reimbursed by Mr. Gleason. The statement Mr. Gleason made at the October 1, 2002, City Commission meeting, is consistent with the credible testimony of Respondent on two points. First, Mr. Gleason's statement that he was paid in full supports Respondent's testimony that he reimbursed Mr. Gleason for paying the $354.18 credit card balance to the City prior to October 1, 2002. Second, Mr. Gleason's statement that he owed the commissioner change is consistent with Respondent's testimony that, when he reimbursed Mr. Gleason, he gave Mr. Gleason $355.00 in cash. This was $.82 cents more than the outstanding credit card bill that Mr. Gleason paid. In this proceeding, Mr. Gleason testified that when the issue of his paying Respondent's $354.18 credit card charges came up at the City Commission meeting, he did not tell the truth when he said that Respondent had paid him. Mr. Gleason testified that on October 1, 2002, but prior to the City Commission meeting that day, Respondent approached Mr. Gleason and advised him that Respondent's $354.18 credit card bill issue might be raised at the meeting. Mr. Gleason also testified that Respondent told him that if the issue were raised at the meeting, Mr. Gleason should say that Respondent had paid/reimbursed him.11/ Mr. Gleason testified that he lied at the City Commission meeting at the behest of Respondent, because he "wanted to keep [Respondent's] favoritism in terms of [Gleason's] job." As to matters related to the payment of Respondent's outstanding $354.18 credit card debt and the circumstances related thereto, Respondent's testimony is found to be more credible than that of Mr. Gleason. Purchase of Surplus Computer While serving on the City Commission, Respondent's wife, Mrs. Howell, and their son, frequently visited City Hall. During these visits, it was customary for Respondent's son, who was about ten-years-old, to visit Mr. Gleason, whose office was next door to Respondent's office. When Respondent's son went to Mr. Gleason's office, Mr. Gleason would give him candy and sodas. Mr. Gleason and Respondent's son enjoyed a cordial relationship. The City of Ocoee periodically disposes of surplus equipment, including computers, by use of a closed bid system which was open to employees and elected officials. In or about September 2003, during one of Mrs. Howell's and her son's visits to Mr. Gleason's office, a discussion ensued about computers and the City's upcoming sale of its surplus computers. Mrs. Howell's son stated that he wanted one. That day, Mrs. Howell's son had gone to Mr. Gleason's office first, and she joined him there later. In response to Respondent's and Mrs. Howell's son saying he wanted a computer, Mr. Gleason volunteered to get him one as a gift. Mrs. Howell responded by telling Mr. Gleason, "No. He [referring to her son] can wait." Mrs. Howell rejected Mr. Gleason's offer initially because she felt that the family could not afford one, and she did not feel comfortable allowing her son to accept a gift from Mr. Gleason. However, she did not feel comfortable telling Mr. Gleason, especially in her son's presence, that she could not afford the computer her son wanted. Mrs. Howell was adamant and repeatedly told Mr. Gleason that she did not want him to purchase a computer for her son. Nonetheless, Mr. Gleason insisted that he was going to get the computer for her son anyway. After Mrs. Howell made it clear that she did not want Mr. Gleason to purchase a computer for her son, Mr. Gleason said to her, "Listen, I'm going to get it and you can do whatever you want, if you want to pay me back or whatever." Mrs. Howell's final answer to Mr. Gleason was the same one that she initially shared with Mr. Gleason--she did not want him to purchase a computer for her son. Mrs. Howell never asked or agreed to Mr. Gleason buying a computer for her son, and she never agreed to pay Mr. Gleason for purchasing a computer. Respondent was not present in Mr. Gleason's office with his wife and son when Mr. Gleason and Mrs. Howell were discussing the surplus computer, but Mrs. Howell told Respondent about the conversation later. After learning of his wife's conversation with Mr. Gleason, Respondent told Mr. Gleason that he did not want his son to have a computer. Based on this discussion, Respondent believed the matter was settled. There was a computer in Respondent's home, and Respondent believed that for his ten-year-old son to have his own computer would be a detrimental distraction. Mr. Gleason's offer to buy a surplus computer as a gift for Respondent's son was subject to Mr. Gleason being a successful bidder. In order to purchase one of the City's surplus computers, a potential purchaser had to submit a bid. Consistent with this policy, Mr. Gleason submitted a bid for a surplus computer. On September 19, 2003, Mr. Gleason was notified that his bid of $130.10 was one of the successful bids and that he had won one of the City's surplus computers. A few days later, Mr. Gleason purchased the surplus computer to give to Respondent's son. On Monday, September 22, 2003, Mr. Gleason sent an e-mail to Respondent indicating that he had successfully bid on one of the surplus computers. In the e-mail, Mr. Gleason stated that he was going to pay for the computer on Tuesday and then "turn the PC [computer] over to [Respondent's son] for his room." Mr. Gleason then wrote, "We can work out the details later!" Both Respondent and his son read this e-mail. The September 22, 2003, e-mail gave the false and/or misleading impression that Respondent had asked Mr. Gleason to purchase the computer for Respondent's son, knew that Mr. Gleason had submitted a bid on the computer, and had agreed to repay Mr. Gleason for the computer. In fact, none of those impressions were accurate. Respondent never asked Mr. Gleason to bid on a computer for Respondent's son or to purchase such computer. Neither did Respondent ever promise to pay Mr. Gleason for a computer. Although the implication in the September 22, 2003, e-mail was false, there is no indication that Respondent replied to the e-mail. Furthermore, Respondent provided no explanation or reason as to why he failed to respond to the misleading e-mail. On or about September 22, 2003, after Mr. Gleason paid for and received the surplus computer, and he took the computer to Respondent's home, unannounced. When Mr. Gleason brought the computer to Respondent's home, Respondent and his wife were placed in an awkward position. Their son was home when Mr. Gleason brought the computer and was very happy and excited about getting a computer. Seeing the expression on her son's face, Mrs. Howell did not have the heart to tell Mr. Gleason to take the computer back. Rather than disappoint their son, Respondent and his wife allowed Mr. Gleason to install the computer. Not long after Mr. Gleason brought the computer to Respondent's home, Respondent called Mr. Gleason several times and told him to come and pick up the computer. Despite Respondent's repeated directives, Mr. Gleason never came to get the computer. At some point, Mr. Gleason left a voice mail message on Respondent's home telephone indicating that the surplus computer he purchased and gave to Respondent's son was a gift. Rather than picking up the computer as Respondent had requested, on October 1, 2003, Mr. Gleason sent Respondent another e-mail message which stated, "The computer is a gift from [sic] to [Respondent's son], tell [Mrs. Howell] to not worry about any cost-he is a good kid and I hope it helps him with his school work." The October 1, 2003, e-mail implies that Mrs. Howell had agreed to pay for the computer, that Mr. Gleason had now decided that the computer was a gift, and that he no longer expected Mrs. Howell to repay him for purchasing the computer. However, that implication is not only misleading, but unfounded. Nevertheless, Mrs. Howell never agreed to repay Mr. Gleason for the computer. Instead, she, like her husband, had repeatedly refused Mr. Gleason's offer to purchase a computer as a gift for their son. Even though Respondent did not want Mr. Gleason to purchase a computer for his son, there is no indication that Respondent or his wife replied to the October 1, 2003, e-mail. Respondent never directed, requested, threatened, coerced, or pressured Mr. Gleason to purchase a computer for their son. However, when Mr. Gleason brought the computer to Respondent's home, he accepted it. After realizing he had exercised poor judgment in accepting the computer, Respondent did not return the computer to Mr. Gleason. Instead, Respondent kept demanding that Mr. Gleason pick up the computer from Respondent's home. Even when it became apparent that Mr. Gleason was not going to pick up the computer, Respondent never returned the computer to Mr. Gleason. The computer never worked properly so eventually, Respondent and/or his wife threw it in the trash. Mr. Gleason disputes and contradicts the foregoing account of events related to his purchasing the computer for Respondent's son. Mr. Gleason testified that Respondent initially approached him and expressed an interest in the City's surplus computers. According to Mr. Gleason, Respondent asked if such computers could be purchased on a payment plan. Mr. Gleason testified that after checking with the appropriate office, he advised Respondent that the City did not accept payment plans for the purchase of surplus computers and equipment. Mr. Gleason testified that Respondent then told Mr. Gleason that he (Respondent) wanted Mr. Gleason to get him a computer and that he expected Mr. Gleason to be successful on the bid. Mr. Gleason testified that in October 2003, he decided to give the computer to Respondent's son because his relationship with Respondent by this time had become adversarial, and he decided that it would be in his best interest not to make an issue of purchasing the computer. With regard to the purchase of the computer for Respondent's son and issues related thereto, the testimony of Respondent and Mrs. Howell is found to be more credible than that of Mr. Gleason. Gleason's Termination as City Manager In February 2004, about four months after Mr. Gleason gave the computer to Respondent's son, Respondent and two other City Commission members voted to terminate Mr. Gleason's employment with the City. As a result of this majority vote, Mr. Gleason was terminated as city manager. Respondent voted to terminate Mr. Gleason because he believed that Mr. Gleason was not doing the job. Respondent also was concerned that Mr. Gleason had taken inappropriate and unsolicited actions (i.e., purchasing the computer in September 2003 and paying the $354.18 credit card debt in June 2002), presumably to help Respondent. All the actions taken by Mr. Gleason were unsolicited and done gratuitously because Mr. Gleason thought that he was losing Respondent's support, and Mr. Gleason was trying to gain or regain Respondent's support. Instead of gaining Respondent's support, Mr. Gleason's inappropriate and unsolicited actions had the opposite effect. Respondent, displeased with Mr. Gleason's inappropriate and unsolicited actions, was offended by those actions and voted to terminate Mr. Gleason as city manager. The month after he was terminated, Mr. Gleason filed a Complaint with the Commission on Ethics (hereinafter the "Commission on Ethics" or "Commission") making the allegations, which are the subject of this proceeding.
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 Respondent violated Subsection 112.313(4), Florida Statutes, in one of the four instances alleged; Respondent did not violate Subsection 112.313(4), Florida Statutes, in three of the four instances alleged; Respondent did not violate Subsection 112.313(6), Florida Statutes, in any of the four instances alleged; and Respondent did not violate Subsection 112.313(2), Florida Statutes, in any of the four instances alleged; and imposing a civil penalty of $500.00 for the single violation. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th of September, 2007.
The Issue Has Respondent Try Fresh Produce, Inc. (Try Fresh) made proper accounting to Petitioner Green Grassing Company, Inc. (Green Grassing) in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Try Fresh from November 13, 1994, through December 9, 1994, by Green Grassing to be handled by Try Fresh as agent for Green Grassing on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Green Grassing was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statute, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Try Fresh was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8839 issued by the Department, supported by bond number BD 0694273 in the amount of $75,000, written by Florida Farm Bureau General Insurance Company with an inception date of September 23, 1994, and an expiration date of September 22, 1995. Green Grassing delivered certain quantities of agricultural products (squash) to Try Fresh during the fall and winter growing season of 1994-95. However, it is the accounting of the squash that was delivered between November 13, 1994, and December 9, 1994, inclusive, that is in dispute. It was verbally agreed between Try Fresh and Green Grassing that Try Fresh would act as Green Grassing's agent in the sale of the squash delivered to Try Fresh for the account of Green Grassing on a net return basis. There is no dispute as the quantity of squash or size of squash delivered by Green Grassing to Try Fresh during the above period of time. Furthermore, there is no dispute as to the charges made by Try Fresh for handling the squash, including but not limited to the commission charged by Try Fresh. There is some disagreement concerning the quality of the squash delivered by Green Grassing. However, none of the witnesses had personal knowledge as to the quality of the squash delivered by Green Grassing. Upon delivering the squash to Try Fresh, Green Grassing was given a numbered delivery receipt listing Green Grassing as owner of the squash showing the number of cartons delivered, the date delivered, the initials of the employee receiving the squash and the kind and size of squash delivered. On most of these receipts there were four blank squares located just above the line for the date on the receipt. Starting from the left side of the receipt, the squares represent average, below average, poor and very poor quality, respectively. It was the responsibility of the employee receiving the squash for Try Fresh to place a check mark in one of the squares to indicate the quality of the squash upon delivery. Only the accounting for the squash from delivery receipt ticket numbers 086 dated November 13, 1994; 005 dated November 15, 1994; 017 dated November 16, 1994; 047 dated November 17, 1994; 451 dated November 18, 1994; 463 dated November 19, 1994; 500 dated November 23, 1994; 501 dated November 25, 1994; 397 dated December 5, 1994, and 329 dated December 9, 1994, is being contested in this proceeding. The delivery receipts being contested are included in Petitioner's composite exhibit 1 and Respondent's composite exhibit 1. A compilation of those delivery receipts is attached to the Complaint in Petitioner's composite exhibit 2. Once Try Fresh found a market for the squash, a pre-numbered billing invoice was prepared by Try Fresh showing its customer's name and the quantity, description and price of the squash sold. In any given sale, the quantity of the squash sold may include squash furnished by Green Grassing and other producers. Therefore, under description on the billing invoice Try Fresh would show the size and type of squash being sold, the initials of the producer, the quantity of squash being sold for that producer and the producer's receipt number for example, med. s/n GGI 68/086. In its accounting to Green Grassing, Try Fresh prepared a statement which included the delivery receipt number, the quantity of squash sold, description of the product, i.e. med, s/n squash, the price per carton of squash and the total amount for the quantity sold. The statements also noted when a certain quantity of a squash had been transferred to another ticket number or if a trouble memo number (T number) was involved in a particular sale. Payment for the squash was made by Try Fresh to Green Grassing from these statements. Sometimes payment was for only one delivery receipt while at other times for several delivery receipts for different dates. The statements are included as part of Petitioner's composite exhibit 5. Petitioner's composite exhibit 4 is the Florida Vegetable Report, Volume XIV, Nos. 21 - 25 and 27 - 39, dated November 10, 14, 15, 16, 17, 21, 22, 23, 28, 29, 30, 1994 and December 1, 2, 5 - 9, 1994, which establishes prices paid during this period of time for small and medium straight neck squash. The report does not list prices paid for large straight neck squash. There is no evidence that the quality of the squash delivered to Try Fresh by Green Grassing during this period of time was the same quality of squash from which the prices in the report were derived. On November 13, 1994, Green Grassing delivered 32 cartons of small, straight neck squash (sm s/n squash), 145 cartons of medium, straight neck squash (med s/n squash), and 42 cartons of large, straight neck squash (lg s/n squash) to Try Fresh as reflected in delivery receipt number 086 dated November 13, 1994, showing Green Grassing as owner of the squash. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 086 to indicate the quality of the squash at the time of delivery to Try Fresh on November 13, 1994. There is no dispute as to accounting of the 145 cartons of medium, straight neck squash reflected on delivery receipt 086. Try Fresh's statement of accounting to Green Grassing dated November 25, 1994 (page 5 of Petitioner's composite exhibit 5) indicates that the 32 cartons of small , s/n squash listed on receipt number 086 were transferred to receipt number 258 with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on a statement dated December 2, 1994 (page 13 of Petitioner's composite exhibit 5) with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on an undated statement (page 21 of Petitioner's composite exhibit 5) with reference made to trouble memo (T number 0040) with the price is left open and no payment made to Green Grassing. There is no further reference to these 32 cartons of squash (delivery receipt 086, ticket 258 or T number 0040) in the statement of accounting. There is no evidence that Green Grassing was paid for the 32 cartons of sm s/n squash as reflected by delivery receipt number 086. There is no indication on billing invoice number 065562 that the 32 cartons of sm, s/n squash from delivery receipt number 086 were included in the 240 cartons of sm, s/n squash shipped to Georgia Vegetable Co. as was the normal practice by Try Fresh as set out in Finding of Fact 7. Furthermore, there is insufficient evidence to show that the 32 cartons of squash were found to be below quality by a federal inspection (Certificate No. M-460187-8) on November 17, 1994, which resulted in Try Fresh receiving a reduced price of $1.71 per carton as shown on T number 0017 (trouble memo). This amount was paid to Green Grassing as shown by statement of accounting dated December 23, 1994, (see page 28 Petitioner's composite exhibit 5). However, those 32 cartons of squash were identified as transfer ticket number 259 which relates to delivery receipt number 005 dated November 15, 1994, not delivery receipt number 086 (see pages 9 and 13 of Petitioner's composite exhibit 5). Try Fresh has failed to account to Green Grassing for the 32 cartons of sm, s/n squash delivered on November 13, 1994, as reflected by delivery receipt number 086. Based on the prices Try Fresh billed and was paid for sm, s/n squash by its customer (including sm s/n squash belonging to Green Grassing) during this period, a price of $8.00 per carton would be reasonable price. Try Fresh owes Green Grassing for 32 cartons of sm s/n squash at $8.00 per carton for a total of $256.00. Try Fresh's statement of accounting dated November 25, 1994, (page 5 Petitioner's composite exhibit 5) shows 10 cartons of lg, s/n squash from delivery receipt number 086 as being transferred to ticket number 258 with a note of trouble memo (T number 0036) with the price left open and no payment to Green Grassing. The same page of the statement shows 21 cartons of lg, s/n squash from delivery receipt number 086 being dumped due to poor quality without payment to Green Grassing. The same page shows 11 cartons of lg, s/n squash being transferred to ticket number 258 without any explanation or payment to Green Grassing. These 11 cartons are accounted for at $2.00 per carton for a total of $22.00 on page 21 of Petitioner's composite exhibit 5. There is no evidence (testimony, trouble memo or federal inspection) to show why the 11 cartons of squash brought only $2.00 per carton when lg s/n squash from delivery ticket number 086 were billed out at $8.00 per carton on November 19, 1994 (see billing invoice number 065593). Likewise, there was no evidence as to who purchased these squash. Try Fresh's billing invoice number 065593 shows 50 cartons of lg, s/n squash being billed to G & B at 8.00 per carton which included 10 cartons of lg, s/n squash belonging to Green Grassing from delivery receipt number 086. Trouble Memo (T number 0036) shows a problem with the 50 cartons of lg, s/n squash shipped to G & B Produce on November 19, 1994, and reported on November 23, 1994, which resulted in the price being reduced to $2.50 per carton. Although sketchy, Respondent's accounting for the 10 cartons of squash on T number 0036 and the 21 cartons of squash dumped is sufficient. However, there is insufficient accounting for the 11 cartons of squash. Try Fresh owes Green Grassing $6.00 per carton, the difference between the billed price of $8.00 per carton and the $2.00 per carton paid, for 11 eleven cartons of squash for a total of $66.00. On November 15, 1994, Green Grassing delivered 198 cartons of med, s/n squash and 118 cartons of sm, s/n squash to Try Fresh as evidence by delivery receipt number 005 dated November 15, 1994. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 005 to indicate the quality of the squash at the time of delivery to Try Fresh on November 15, 1994. There is no dispute as to 98 cartons of med, s/n squash and 9 cartons of sm, s/n squash. Try Fresh paid $1.00 per carton for the balance of 100 cartons of med, s/n squash listed on delivery receipt number 005 that is in dispute on February 3, 1995, by check number 2217 (see pages 35 and 36 of Petitioner's composite exhibit 5). However, there is no evidence to show that at the time these med, s/n squash were received by Try Fresh's customer, who allegedly reduced the price to Try Fresh, that the squash was of inferior quality and would demand a price of only $1.00 per carton when those same squash brought an average of $11.00 per carton from other Try Fresh customers. Try Fresh has failed to make a proper accounting for the 100 cartons of med, s/n squash. Try Fresh owes Green Grassing the difference of $10.00 per carton for 100 cartons of squash for a total amount of $1,000.00. The 99 cartons of sm, s/n squash reflected on delivery receipt number 005 that are in dispute were paid for by Try Fresh at the rate of $10.40 per carton for 77 cartons and $1.71 per carton for 32 cartons. Although 77 cartons were billed out at $12.00 per carton (see billing invoice number 065592), there is sufficient evidence (T number 0022) to support the reduction in price to $10.40 per carton. However, there is insufficient evidence to show the reduction in price to $1.71 per carton for the 32 cartons. Try Fresh has failed to make proper accounting for the 32 cartons. Try Fresh owes Green Grassing $8.69 per carton, the difference between $10.40 per carton that was paid for the 77 cartons and the $1.71 paid for the 32 carton for a total amount of $278.08. On November 16, 1994, Green Grassing delivered 64 cartons of med, s/n squash and 25 cartons of sm, s/n squash to Try Fresh as reflected by delivery receipt number 017. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 017 to indicate the quality of the squash at the time of delivery to Try Fresh on November 16, 1994. On November 25, 1994, Try Fresh paid Green Grassing $12.00 per carton for 21 cartons of med, s/n squash and $12.00 per carton for 25 cartons of sm, s/n squash by check number 1447 as shown on pages 4 through of Petitioner's composite exhibit 5. However, page 28 of Petitioner's composite exhibit shows a zero amount for 25 cartons of sm, s/n squash reference to delivery receipt number 017. This is apparently an error, as is T number 0033 (Trouble Memo). Try Fresh also paid $12.00 per carton for the 43 cartons of med, s/n squash by check number 2009 dated January 6, 1995 (see pages 31 and 32 of Petitioner's composite exhibit number 5). There has been proper accounting by Try Fresh of the squash reflected by delivery receipt number 017. On November 17, 1994, Green Grassing delivered 93 cartons of sm, s/n squash and 161 cartons of med, s/n squash to Try Fresh as reflected by delivery receipt number 047. None of the squares are checked and there is nothing in the remarks section of delivery receipt 047 to indicate the quality of the squash at the time of delivery to Try Fresh on November 17, 1994. Only the accounting of the 93 cartons of the sm, s/n squash is disputed. On November 18, 1994, Try Fresh billed out 13 cartons of sm, s/n squash from delivery receipt number 047 to Georgia Vegetable on billing invoice number 065592 at $12.00 per carton. Try Fresh was advised by Georgia Vegetable of a problem. Trouble memo (T number 0022) was prepared by Try Fresh which indicated that after working with Georgia Vegetable a price of $10.40 per carton was agreed upon. Green Grassing was paid $10.40 per carton (see page 30 of Petitioner's composite exhibit number 5). Try Fresh has made proper accounting of these squash. On November 19, 1994, Try Fresh billed out 80 cartons of sm, s/n squash from delivery receipt number 047 to Phil Lucks on billing invoice number 65596 at an undetermined price (the price had been redacted on the billing invoice). Although trouble memo (T number 0032) indicates a problem (brown & decay) with 100 cartons of sm, s/n squash shipped on November 22, 1994, there was no evidence that these were the same squash billed on billing invoice number 065596. Try Fresh has failed to present sufficient evidence to show why these squash did not bring the same price the other sm, s/n squash on delivery receipt number 047 brought. Try Fresh has failed to properly account for these 80 cartons of squash. Therefore, Try Fresh owes Green Grassing $10.40 per carton for 80 cartons of squash for a total of $832.00. On November 18, 1994, Green Grassing delivered 33 cartons of lg, s/n squash, 41 cartons of med, s/n squash and 20 cartons of sm, s/n squash to Try Fresh as evidenced by delivery receipt number 451 dated November 18, 1994. The delivery receipt indicates that the squash was of very poor quality when delivered. The 20 cartons of sm, s/n squash was billed to T & M at $6.00 per carton. Although there is a trouble memo (T number 0025), it appears that Green Grassing was paid $6.00 per carton for these 20 cartons of squash. There is no evidence that these squash were of the same quality as those referenced in the Florida Vegetable Report for this period of time which could demand a price of $12.00 per carton as argued by Green Grassing. Furthermore, Green Grassing has produced no evidence that Try Fresh received $12.00 per carton for these squash. Try Fresh has made proper accounting of the 20 cartons of sm, s/n squash reflected in delivery receipt number 451. The 33 cartons of lg, s/n squash from delivery ticket number 451 required re-grading by Try Fresh. After re-grading, 16 cartons were not fit for sale. The 17 cartons of lg, s/n squash remaining after re-grading were sold by Try Fresh for $6.00 per carton. This amount was paid to Green Grassing by check number 1812 dated December 23, 1994, (see pages 27 and 28 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting for the 33 cartons of squash reflected in delivery receipt number 451. The 41 cartons of med, s/n squash from delivery ticket number 451 was invoiced at an undetermined price (priced appeared to be redacted from the invoice) on billing invoice number 065582. Trouble memo (T number 0033) indicates that the 41 cartons of med, s/n squash from billing invoice number 065582 were brown and decayed and were rejected by Lucks. Try Fresh has made proper accounting of these 41 cartons of squash reflected in delivery receipt number 451. On November 19, 1994, Green Grassing delivered 32 cartons of sm, s/n squash, 54 cartons of med, s/n squash and 3 lg, s/n squash to Try Fresh as reflected by delivery receipt number 463. The delivery receipt indicates that the squash were of poor quality when delivered to Try Fresh on November 19, 1994. There is no dispute as to the accounting of the 54 cartons of med, s/n squash. On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $16.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $400.00 (see pages 12 and 15 Petitioner's composite exhibit 5). On January 5, 1995, by check number 2009, Try Fresh paid Green Grassing $4.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $100.00 (see pages 31 and 32 of Petitioner's composite exhibit 5). On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $1.00 per carton for 7 cartons of sm, s/n squash for a total of $7.00 from delivery ticket number 463. Try Fresh has paid Green Grassing a total of $507.00 for the sm, s/n squash from delivery receipt number 463. However, thirty two cartons of sm, s/n squash at $16.00 per carton would total $512.00. Since there is no evidence to support a price less than the $16.00 per carton paid by Try Fresh on December 2, 1994, Try Fresh owes a Green Grassing a balance of $5.00. There is sufficient evidence to show that the 3 cartons of lg, s/n squash from delivery receipt number 463 were re-graded and none were salvaged. Other than the $5.00 above, Try Fresh has made proper accounting of the squash reflected in delivery receipt number 463. On November 23, 1994, Green Grassing delivered 16 cartons of sm, s/n squash, 44 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 500 dated November 23, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 23, 1994. There is no dispute as to the 16 cartons of sm. s/n squash or the 44 cartons of med, s/n squash. The 5 cartons of lg, s/n squash from delivery receipt 500 were sold to American Growers by Try Fresh for $4.00 per carton as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 500, notwithstanding the prices listed in the Florida Vegetable Report for this period of time. On November 25, 1994, Green Grassing delivered 18 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 501 dated November 25, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 25, 1994. There is no dispute as to the accounting for the 18 cartons of sm, s/n squash or the 68 cartons of med, s/n squash. The 5 cartons of lg, s/n squash were sold to American Growers for $4.00 per carton by Try Fresh as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 501, notwithstanding the price listed in the Florida Vegetable Report for this period of time. On December 5, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 16 cartons of lg, s/n squash to Try Fresh as reflected in the delivery receipt number 397 dated December 5, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 5, 1994. The 2 cartons of sm, s/n squash were sold on December 6, 1994, at $8.00 per carton as reflected in billing invoice number 065749 dated December 6, 1994. Sixteen cartons of the med, s/n squash were sold on December 6, 1994, to K & M South for $8.00 per carton as reflected in billing invoice number 065003 dated December 6, 1994. Twenty seven cartons of the med, s/n squash were sold to Tom Lange Co. for $10.00 per carton as reflected in an unnumbered billing invoice dated December 9, 1994 with customer order no. 23- 4020. Twenty five cartons of the med, s/n squash were sold to G & B for $10.00 per carton as reflected in an unnumbered billing invoice dated December 10, 1994, with customer order number 8130. Sixteen cartons of lg, s/n squash were sold to Erenbaum for $5.00 per carton as reflected in an unnumbered billing invoice dated December 6, 1994 with customer number 9472. Although these prices are below prices quoted in the Florida Vegetable Report for December 6 - 9, 1994, for small and medium s/n squash (no prices quoted for large, s/n squash), the prices are consistent with prices Try Fresh was receiving during this same period for small, medium and large s/n squash that it handled for other producers. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 397, notwithstanding the prices listed in the Florida Vegetable Report for this period of time. On December 9, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 31 cartons of med, s/n squash and 17 lg, s/n squash to Try Fresh as reflected in delivery receipt number 329 dated December 9, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 9, 1994. There is no dispute as to the accounting of the 2 cartons of small and 31 cartons of medium squash. The 17 cartons of large, s/n squash were billed to Erenbaum in billing invoice number 065035 dated December 9, 1994. It appears that the price originally billed to Erenbaum's was redacted and zero per carton written on billing invoice. A federal inspection was called for and the squash were found to be below quality. This resulted in a zero return on the squash. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 329. From a review of Try Fresh's records placed into evidence that its accounting to Green Grassing was not always in accordance with Section 604.22(1), Florida Statutes. Particularly, there was no record of the quality of the squash, no explanation of the adjustments to the original price, or if an explanation was given, it was not clear and no record of when payment was received by Try Fresh from the purchaser making it difficult to determine the timeliness of the accounting of the sales and payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Try Fresh Produce Co., be ordered to pay Petitioner Green Grassing Co., Inc. the sum of $2,437.08. DONE AND ENTERED this 28th day of July, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 28th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1532A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted jointly by the Respondents Aetna and Naples in this case. Both Petitioner Green Grassing Co., Inc. and Respondent Try Fresh Produce, Co. elected not to file proposed findings of fact and conclusions of law as allowed under Section 120.57(1)(b)(4), Florida Statutes. COPIES FURNISHED: J. Ragon Barnett, III 6 East Broadway Street Ft. Meade, Florida 33841 Hank Cord Post Office Box 995 Zolfo Springs, Florida 33890 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800
The Issue The issue is whether Respondent violated the Code of Ethics for Public Officers and Employees.
Findings Of Fact The District is a state agency involved with the management of the water resources of several Northeast Florida counties. Ms. Keel is a resident of Palatka, Florida, and is a former employee of the District. Her name was Cheryl L. Worgum when she began working for the District in December 1997, as a Business Resource Specialist. During times pertinent, Ms. Keel held the position of Business Resource Specialist II. Her duties included purchasing supplies on behalf of the District. She was issued a State of Florida purchasing card to facilitate the accomplishment of her duties. When she was issued the purchasing card on August 14, 2002, Ms. Keel signed a cardholder agreement to the effect that she understood certain purchases were prohibited and that she would adhere to the District's purchasing card policy. The District's purchasing card policy provided that the purchasing card would be used for District needs only. The policy made it clear that the purchasing card was not provided to Ms. Keel so that she could supplement her income. Ms. Keel understood the policy. While employed by the District in 2003 and 2004, and in January 2005 on two occasions, which were subsequent to her resignation on December 30, 2004, Ms. Keel made purchases totaling $19,659.09 for her own personal benefit. These purchases included items of apparel, school supplies, lamps, and electronics, among other items that were not acquired for the benefit of the District. Ms. Keel submitted a letter of apology to the District dated June 21, 2005. In that letter, she accepted responsibility for her actions. As of December 2007, Ms. Keel had repaid only $1,400 of the $19,659.09 that she had wrongfully obtained.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent Cheryl W. Keel, violated Subsection 112.313(6), Florida Statutes; that she be required to pay a civil penalty in the amount of $10,000 and restitution in the amount of $18,259.09; and that she be publicly censured and reprimanded. DONE AND ENTERED this 16th day of May, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2008. COPIES FURNISHED: Jennifer M. Erlinger, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Cheryl W. Keel 650 Bardin Road Palatka, Florida 32177 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool Executive Director and General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
