The Issue Whether Respondent, when he voted April 18, 2002, as a member of the Palm Beach Gardens City Commission, on Resolution 54, 2002 and Resolution 57, 2002, relating to Parcel 6 and Parcel 24, respectively, of the Mirasol development project, knew that these measures would inure to the special private gain or loss of a principal by whom he was retained and thereby violated Section 112. 3143(3), Florida Statutes, as alleged in the Order Finding Probable Cause, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at the public hearing and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' Joint Prehearing Stipulation2: Each of the "Sabatello construction companies" referred to in the parties' Stipulations of Fact 3 and 4 was wholly owned by Carl Sabatello and his brothers Paul, Theodore, and Michael Sabatello (Sabatello Brothers), with each brother owning an equal (25%) share of the company. Of these companies, only one, Sabatello Development Corporation IV (SD IV) was involved in the Mirasol Project. SD IV has been in continuous existence since its formation in or around the 1980's. Carl Sabatello serves as its president, "oversee[ing] all [of its] functions." SD IV is a Subchapter S corporation. As such, its profits are passed through to the Sabatello Brothers, its four shareholders, in equal amounts. Respondent is a certified public accountant. Since 1989, through his accounting firm, he has provided tax preparation services to SD IV and the Sabatello Brothers. His firm has derived "anywhere from 15 to 25%" of its total income from the monies received for providing these services. Before establishing his accounting firm in 1989, Respondent was SD IV's chief financial officer and one of its shareholders. Taylor Woodrow Communities (Taylor Woodrow) was the master developer of the Mirasol Project. Taylor Woodrow's Craig Perna had "overall responsibility for every aspect of the [Mirasol] development" project, including the "selection of builders." The builder selection process started with Mr. Perna getting the names of "prominent builders in the Palm Beach Gardens market" having "excellent reputation[s]" and then contacting them to inquire as to their interest in participating in the Mirasol Project. Carl Sabatello was among those Mr. Perna contacted. He was contacted (by telephone) in mid-May of 2000, and advised Mr. Perna he was "very interested" in having his company, SD IV, considered for selection as a builder in Mirasol. SD IV, was one of at least ten or 12 builders vying to be selected to participate in the Mirasol Project. Over a period of approximately eight months (from mid-May 2000, to mid-January 2001), Taylor Woodrow requested and obtained from SD IV and from the other would-be participants in the project (Other Builders) information and documents in order to evaluate these builders' qualifications for selection. In the latter part of 2000, prior to any selection having been made, Carl Sabatello requested the Palm Beach Gardens City Attorney, Leonard Rubin, Esquire, "to provide a [written] legal opinion as to [Mr. Sabatello's] obligation to abstain from voting in [his] official capacity on matters relating to Mirasol that come before the [Palm Beach Gardens] City Council." In response to Mr. Sabatello's request, Mr. Rubin prepared a written memorandum, dated December 5, 2000, which was provided, not only to Mr. Sabatello, but to all members of the Palm Beach Gardens City Council, including Respondent, as well as to the Interim City Manager. The memorandum read as follows: You have indicated that the Sabatello Companies, of which you are a principal, is currently in negotiations with the developers of the Mirasol Planned Community District ("PCD") to become a builder of homes within that community. Your activities as a builder would be limited to specific parcels or pods within the PCD. You asked this office to provide a legal opinion as to your obligation to abstain from voting in your official capacity on matters relating to Mirasol that come before the City Council. Voting conflicts for members of the City Council are governed by section 112.3143, Florida Statutes. Subsection (3)(a) provides that a municipal officer shall not vote in an official capacity on any measure that "would inure to the special gain" of the officer, a principal by whom the officer is retained, or a relative or business associate of the officer. According to the state Ethics Commission, the determination of whether the officer receives a special private gain is based upon the size of the class of persons affected by the vote at issue. The Mirasol PCD encompasses a variety of residential, commercial, recreational and community uses. The residential uses range from low density single family homes to high density multi-family apartments. It is anticipated that your company's activities will be limited to the construction of single family dwellings within a specific, identifiable parcel for which a site plan has already been approved. Because of this limited involvement, there does not appear to be any requirement that you abstain from every vote relating to the approval of plats, parcels and site plans within the entire Mirasol PCD. See CEO 85-62 (city council member not prohibited from voting on rezoning of property within a large redevelopment area where member's corporation owns a parcel of land within the same area). By way of example, the City Council's approval of the site plan for the fire station or the plat for Jog Road in no way inures to your or your company's special private gain. You would, however, be required to abstain from any additional votes relating to the specific parcels or pods within the community in which your company possesses or acquires an interest by virtue of a contractual relationship with the master developer. Where a conflict of interest exists, you are required to state the nature of your interest prior to the vote and file a voting conflict memorandum with the City Clerk, within 15 days. The existence of a voting conflict does not necessarily require you to abstain from all discussion relating to the matter (although you are free to do so). If you plan to participate in discussion of a matter in which you know you have a conflict, you must file a written conflict memorandum before the public meeting. You have also expressed concern that upon learning that your company will be building homes within Mirasol, members of the public may perceive a conflict of interest in all matters relating to Mirasol. To avoid the appearance of impropriety, it would be appropriate to make the following disclos[ure] prior to any vote: "While it is anticipated that the Sabatello Companies will be building homes within Mirasol, the matter before the City Council does not concern the areas in which such construction will take place and is wholly unrelated to any interest held by me or my corporations." Should you have any questions or be in need of additional information, please do not hesitate to contact this office. In January of 2001, Taylor Woodrow selected SD IV to build on Mirasol Parcel 4.3 It sent Carl Sabatello a letter dated January 22, 2001, advising him of the selection, along with a Parcel Builder Agreement and Exclusive Agency Brokerage Agreement for Mirasol Parcel 4. These agreements were fully executed in February of 2001. Sometime thereafter SD IV began building on Mirasol Parcel 4. SD IV was one of first builders to start construction in Mirasol. SD IV eventually purchased all 46 lots in Mirasol Parcel 4, constructing homes on each. All of the homes it built were sold. On or about October 18, 2001, at Respondent's request, Mr. Rubin prepared and distributed to Respondent and the other members of Palm Beach Gardens City Council a written memorandum designed to provide "clarification and confirmation from [the City Attorney's] office regarding a Council Member's obligation to vote on an item before the City Council." In this memorandum, Mr. Rubin made the following points: A council member must vote in the absence of a voting conflict or conflict of interest. Section 28[6].012, Florida Statutes, requires a member of the City Council, who is present at a meeting, to vote on an item before the Council unless there is, or appears to be, a conflict of interest or voting conflict pursuant to the Code of Ethics for Public Officers and Employees. * * * A voting conflict arises when the vote inures the Council member's own special private gain or loss of the special private gain or loss of the Council member's principal, family member or business associate. * * * The special private gain to the Council member depends on the size of the class of persons affected and is fact-specific. * * * The special private gain to the Council member must be direct and proximate. * * * In the event of a voting conflict, a Council member must disclose the nature of the conflict and abstain from voting. Mr. Rubin's memorandum "reinforced what [Respondent] already knew about the law." On April 18, 2002, the Palm Beach Gardens City Council voted on and passed two measures concerning the Mirasol Project, one, Resolution 54, 2002, dealing with Mirasol Parcel 6 (a 10.11 acre site within the development), and the other, Resolution 57, 2002, dealing with Mirasol Parcel 10 (a 14.6-acre site within the development). As the summary statement on its first page reflects, Resolution 54, 2002 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for the approval of a site plan to allow for the development of 41 semi-custom homes, known as Mirasol Parcel 6, located within the Mirasol Planned Community District (PCD), as more particularly described herein; providing for conditions of approval; providing for waivers; providing for severability; providing for conflicts; and providing for an effective date. Section 5 of the resolution granted the following waivers: From Section 78-498 of the LDRs, to permit a 45-foot wide right-of-way. The code requires a minimum right-of-way width of 50 feet. From Section 78-141 of the LDRs, to permit a minimum lot width of 60 feet. The code requires a minimum width of 65 feet. From Section 78-141 of the LDRs, to permit lot coverage of 50%. The code requires a maximum lot coverage of 35%. From Section 78-141 of the LDRs, to permit a building side setback of 3 feet 1 inch on a "zero" side and 6 feet 11 inches on a "non-zero" side. The code requires a minimum side setback of 7.5 feet. From Section 78-141 of the LDRs, to permit a screen/accessory side setback of 3 feet 1 inch on a "zero" side and 5 feet on a "non-zero" side. The code requires a minimum side setback of 7.5 feet. From Section 78-141 of the LDRs, to permit a screen/accessory rear setback of 3 feet. The code requires a minimum setback of 10 feet. As the summary statement on its first page reflects, Resolution 57, 2002 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for the approval of a site plan to allow for the development of 26 custom homes, known as Mirasol Parcel 10, located within the Mirasol Planned Community District (PCD), as more particularly described herein; providing for conditions of approval; providing for waivers; providing for severability; providing for conflicts; and providing for an effective date. Section 5 of the resolution granted the following waivers: From Section 78-498 of the LDRs, to permit a 45-foot wide right-of-way. The code requires a minimum right-of-way width of 50 feet. From Section 78-141 of the LDRs, to permit lot coverage of 45%. The code requires a maximum lot coverage of 35%. From Section 78-141 of the LDRs, to permit a building/screen side setback of 10 feet. The code requires a minimum side setback of 12 feet. From Section 78-141 of the LDRs, to permit an accessory structure setback of 5 feet. The code requires a minimum side setback of 12 feet. From Section 78-141 of the LDRs, to permit a screen/accessory rear setback of 3 feet. The code requires a minimum setback of 10 feet. The "waivers" that were granted by Resolution 54, 2002 and Resolution 57, 2002 were from the requirements of the Palm Beach Gardens Code that Taylor Woodrow, or whichever builder(s) it subsequently selected to build on the affected parcels, would otherwise have to meet. At the April 18, 2002, Palm Beach Gardens City Council meeting, Carl Sabatello orally announced to those in attendance, including Respondent, that he was going to abstain from voting on Resolution 54, 2002 and Resolution 57, 2002, explaining that he was involved in discussions regarding the possible purchase of the two parcels that were the subject of these measures. At the time of the vote on Resolution 54, 2002 and Resolution 57, 2002, although he may have been aware of the investment Mr. Sabatello's company had made in Mirasol Parcel 4, Respondent had no knowledge of any connection that Mr. Sabatello or his company may have had with Mirasol Parcel 6 and Mirasol Parcel 10 other than what Mr. Sabatello had told the audience at the meeting about the matter. As far as Respondent knew, neither Mr. Sabatello nor his company owned or had a contract to purchase Mirasol Parcel 6 or Mirasol Parcel 10. Respondent did not attempt to engage Mr. Sabatello in conversation or otherwise seek to find out more about the discussions Mr. Sabatello had referred to in his abstention announcement. Respondent did, however, consult with the Palm Beach Gardens City Attorney to determine whether or not he should vote on the resolutions. Respondent "knew [that the law required him] not to vote [on] things that a client had an interest in," but, based on what Mr. Sabatello had said at the meeting, he believed that Mr. Sabatello was merely "in a discussion phase" regarding the acquisition of an interest in Mirasol Parcel 6 and Mirasol Parcel 10 and that there had not been any agreement reached on the matter. He therefore voted on Resolution 54, 2002 and Resolution 57, 2002, consistent with the advice that the Palm Beach Gardens City Attorney had given. Approval of the site plans for Mirasol Parcel 6 and Mirasol Parcel 10 (which the passage of Resolution 54, 2002 and Resolution 57, 2002, respectively, accomplished) was needed before any permits for building on those two parcels could be obtained. Mr. Sabatello, on April 18, 2002, filled out a voting conflict form (Form 88, Memorandum of Voting Conflict) explaining why he did not vote on Resolution 54, 2002 and Resolution 57, 2002. On the form, he indicated that these votes "inured to the special gain of Sabatello Development Corp, IV, Inc, by whom I am retained," and then added that this "company," of which he was "an officer and owner[,] [was] in the process of negotiating [the] purchasing of Pod 6 & Pod 10." At the time he cast his votes for Resolution 54, 2002 and Resolution 57, 2002, Respondent was "not privy" to the contents of Mr. Sabatello's completed voting conflict form. On April 30, 2002, 12 days after the votes on Resolution 54, 2002 and Resolution 57, 2002, SD IV entered into an agreement with Taylor Woodrow to purchase all of the lots in Mirasol Parcel 6. It closed on lots 10, 11, 32, and 33 on September 25, 2002, and on the remaining lots in the parcel on January 3, 2003. SD IV built a home on every lot it purchased in Mirasol Parcel 6, and it sold every home it built. SD IV received a contract to purchase Mirasol Parcel 10, but it never executed the contract and therefore never acquired an interest in the parcel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a public report finding the evidence presented at the public hearing in this case insufficient to clearly and convincingly establish that Respondent violated Section 112.3143(3), Florida Statutes, by voting at the April 18, 2002, Palm Beach Gardens City Council meeting on Resolution 54, 2002 and Resolution 57, 2002, and dismissing the complaint filed against Respondent. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 4th day of March, 2009.
The Issue Whether Petitioner, Kay McGinn, willfully violated Subsection 106.07(5), Florida Statutes (2001), when she certified the correctness of a campaign treasurer's report that was incorrect, false, or incomplete because it failed to disclose an in-kind contribution by Frank Furman for the use of telephones used by Petitioner and her campaign volunteers in offices that Mr. Furman owned.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the Mayor of Pompano Beach, Florida. She ran unsuccessfully for Pompano Beach City Commission in 1996. Her campaigns for the same office in 1998, 2000, and 2002 were successful. The alleged offense took place during the 2002 election campaign. Petitioner is an intelligent, conscientious public servant. She is familiar with the Florida election law and is sensitive to her obligation to follow the law and diligent in her attempt to do so. During the 2002 campaign, Frank Furman, a long-time Pompano Beach business man who enjoys an excellent reputation, offered the use of his business offices to Petitioner for campaign activities. Petitioner chose to use Furman's office on six to eight occasions to make campaign-related local telephone calls. Typically, Petitioner and five or six volunteers would spend about one hour in the early evening calling Pompano Beach voters encouraging them to vote for Petitioner. Mindful of the election law requiring the reporting of "in-kind" contributions, Petitioner asked Mr. Furman the value of the use of his telephones for reporting purposes. Furman advised Petitioner that the use of his telephones had "no value." In reporting "in-kind" contributions, Petitioner's practice was to ask the contributor to provide an invoice reflecting the "fair market value" of the "in-kind" contribution. Armed with the invoice, she would then report the "in-kind" contribution. "Fair market value" is an economic concept used most frequently in reported Florida cases when referring to the value of real property taken in condemnation actions or in determining restitution in criminal cases. Numerous definitions are found. Typically, the definitions involve "a willing buyer and a willing seller, fully informed as to the value of the object of the transaction, neither being under any compulsion to buy or sell." Respondent's Statement of Findings, which was analyzed by Petitioner's expert witness, offers an amortized cost to Mr. Furman for use by Petitioner and her volunteers of the telephones. This amortized cost is apparently advanced as evidence of "fair market value" or "attributable monetary value." Mr. Furman pays a fixed-rate of slightly less than $1,500.00 per month for the use of 32 to 33 telephone lines. This means that each line costs approximately $46.87 per month. Assuming 30 days per month, the daily cost per line is $1.56. Assuming 24-hour days, the hourly cost per line is $0.065. Further assuming that six volunteers used one telephone for one hour on eight different days, the result is 48 hours of line use. The resulting amortized use cost, given the known use by Petitioner and her campaign volunteers, is $3.12. Amortized use cost is not fair market value. Neither an "attributable monetary value" nor a "fair market value" of Petitioner's use of Mr. Furman's telephones was established. To the contrary, it was established that there was no "market" for access to six to eight telephones for one hour, one night per week. While it is assumed that Petitioner would benefit from telephone calls made by her supporters, whether made from their individual homes or from some group setting, the evidence failed to established that Petitioner's use of Mr. Furman's telephones had any "attributable monetary value" or "fair market value." Given that the use of the telephones by Petitioner was during non-working hours when the telephones would normally be idle, it is not surprising that Mr. Furman advised Petitioner that there was no cost associated with the use of his telephones. His monthly telephone bill would be the same whether Petitioner used his telephones or not. Nor is Petitioner to be faulted for relying on the contributor's assessment of the value of the "in-kind" contribution of the use of the telephones. The real value to Petitioner's campaign was the use of Mr. Furman's office as a meeting place. As a practical matter, each volunteer could have taken a list of the telephone numbers of Pompano Beach voters to their respective homes and made the telephone calls from their homes. This was not a professional "phone bank," sometimes used in political campaigns where trained callers use scripted messages designed to elicit voter preferences and where the candidates receives "feed-back" on salient issues. A "fair market value" can be easily established for such services as they are common in the market place. The evidence suggests that campaign volunteers making telephone calls to registered voters from their homes or from someone's office is a common practice in political campaigns in Florida. It is also suggested that this common practice is not reported as a campaign contribution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, Kay McGinn, did not violate Subsection 106.07(5), Florida Statutes, as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of January, 2004. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Stuart R. Michelson, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue The issue is whether Mr. Lamb, violated Subsection 106.07(1), Florida Statutes (2008), on two occasions.
Findings Of Fact The Commission is the state agency responsible for enforcing the campaign laws of the state. Mr. Lamb was served requests for admissions pursuant to Rule 1.370 of the Florida Rules of Civil Procedure. He did not timely respond to the Commission's requests for admissions. In fact, at the time the Second Amended Motion for Summary Final Order was filed, Mr. Lamb still had not responded. It is found that Mr. Lamb is not going to respond. The effect of this failure is to cause the matter elucidated in the following paragraphs to become the facts of this case. On or about August 23, 2007, Florida Homestead Fair Tax.com PAC of Florida Committee (Committee) filed its Statement of Organization of Political Committee. On August 23, 2007, the Committee filed its Florida Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations with the Division of Elections designating Kenneth E. Lamb as its chairman and treasurer. On August 23, 2007, the Committee filed its Registered Agent Statement of Appointment with the Division of Elections designating Kenneth E. Lamb as its registered agent. Mr. Lamb received a letter dated August 28, 2007, from Kristi Reid Bronson acknowledging receipt of the statement of Organization and Appointment of Campaign Treasurer for Florida Homestead Fair Tax.com PAC of Florida. Mr. Lamb received a letter dated January 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated January 18, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated July 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated April 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb received a letter dated April 25, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb received a letter dated July 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb's failure to file the Committee's 2007 Q4 Campaign Treasurer's Reports was willful. Mr. Lamb's failure to file the Committee's 2008 Q1 Campaign Treasurer's Reports was willful. As of May 18, 2009, Mr. Lamb has not filed the Committee's 2007 Q4 Report. As of May 18, 2009, Mr. Lamb has not filed the Committee's 2008 Q1 Report. Mr. Lamb's willful failure to file the Committee's 2007 Q4 Campaign Treasurer's Report is a violation of Subsection 106.07(1), Florida Statutes. Mr. Lamb's willful failure to file the Committee's 2008 Q1 Campaign Treasurer's Report is a violation of Subsection 106.07(1), Florida Statutes.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Conclusions For Petitioners: Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Tallahassee, FL 323999-1050 For Respondent: Robin Gibson, Esquire Gibson, Valenti & Ashley 212 East Stuart Avenue Lake Wales, Florida 33853 THE FEC STAFF’S EXCEPTIONS 1. Staff Exception #1 is approved. As the FEC has consistently held, FEC v. Morroni, Case No. FEC 97-060; FEC v. Bosezar, Case No. FEC 95-053; Division of Elections v. 2the FEC has reviewed the entire record and heard arguments of counsel. De La Portilla, Case No. FEC 93-045; FEC v. Harris, Case No. FEC 98-087; FEC v. De La Portilla, Case No. FEC 00-006; FEC v. Proctor, Case No. FEC 99-065; the burden of proof in cases involving alleged violations of Chapter 106 is by a “preponderance of the evidence.” For this reason, the FEC rejects the ALJ's characterization (COL @ § 17) of the burden as being “clear and convincing.” That being said, the Commission finds that the facts as found by the ALJ support the conclusions in the Recommended Order as modified by the FEC’s conclusions herein under either burden. 2. The Commission rejects Staff Exception #2. The FEC fully supports the Division of Elections’ position that parties required to submit information to the Division should do so using the appropriate forms. However, the evidence as found by the ALJ showed that Respondents did notify the Division that a new Deputy Treasurer for the political committee involved had been appointed prior to the submission of the Quarterly Report at issue even though the form used was that designated for candidates not for committees. Given the facts of this case, the Commission cannot say that the Respondents’ use of the incorrect form made their Quarterly Report so inaccurate as to make their certification of the Report “inaccurate or untrue” in violation of Section 106.07(5), Fla. Stat. While the FEC does not agree with the ALJ’s conclusion (COL @ 4§ 23-25) that using an incorrect form cannot form the underlying basis of a finding that a report violates Section 106.07(5), it agrees with his conclusion that no violation occurred here. . WHEREFORE, based upon the foregoing and as amended by the Commission’s rulings on the exceptions filed herein, the FEC hereby accepts the Findings of Fact, Conclusions of Law and Recommendation of the ALJ and DISMISSES the charges against the Respondents. nd > DONE and ORDERED this Q2 day of Cgurt 2003. Chanee Qnroins Chance Irvine, Chairman Florida Elections Commission CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to counsel for Respondents, Robin Gibson, Esquire, Gibson, Valenti & Ashley, 212 East Stuart Avenue, Lake Wales, Florida, 33853, by U.S. mail, and by hand delivery to Clerk, Florida Elections Commission, 107 West Gaines nd Street, Suite 224, Tallahassee mail this 22 day of — luge 2003. y; by
Findings Of Fact In May 1979, Respondent issued invitation for bids for office space in West Palm Beach, Florida, for the purpose of establishing a combined claims, tax, and appeals unemployment compensation office in the West Palm Beach area. The lease on the present office in West Palm Beach expires in December, 1979. Two prior invitations for bids on the required office space had failed to result in the receipt of any bids. The invitation for bids provided that Respondent reserved the right to reject any and all bids and to make the award deemed to be in the best interests of the State of Florida. (Testimony of Bradner, Exhibit 15) On May 30, 1979, Petitioner Richard S. Weinstein submitted the sole bid in response to the May 1979 invitation. He proposed to lease his building located at 1814 North Dixie Highway, West Palm Beach, and to meet all bid specifications and requirements. At the time of bid submission, Petitioner was leasing the building in question to a tenant who operated a used furniture store on the premises. In order to meet the specifications of the bid, the property required considerable renovation and improvement which Petitioner agreed to accomplish. (Testimony of Petitioner, Exhibit 2) A bid selection committee composed of four departmental employees in Respondent's Tallahassee headquarters was appointed to consider Petitioner's bid and arrive at appropriate recommendations. On June 7, 1979, one of the committee members, accompanied by several officials of the West Palm Beach Office, inspected Petitioner's building and the surrounding area to determine its suitability for the proposed unemployment compensation office. Based upon statements made by those officials and the building's tenant that the area was unsafe and subject to frequent vandalism and theft, the committee member thereafter recommended to the selection committee that the bid be rejected and that the Department should readvertise for new bids. The committee unanimously accepted the recommendation and, on June 13, 1979, Petitioner was advised in a letter from the Respondent's support services director that his bid had been rejected based on the "inability of the building to meet our programmatic needs." Petition thereafter protested the decision and, as a result, the Secretary of the Department, Wallace E. Orr, directed the entire committee to make an on-site evaluation of the property and surrounding area. Thereafter, on July 18, 1979, the committee visited the site. At this time, each committee member, together with one of the officials of the local office, inquired of various businessmen in the surrounding area as to local criminal activity and solicited their opinion as to safety and security problems. One of the committee members also telephoned a city police desk sergeant concerning crime statistics in the area. (Testimony of Petitioner, Lowhorn, Orr, Bradner, Exhibits 3-4, 12) Petitioner gave the committee members a petition from a number of local businessmen supporting his bid, and a letter from the nearby Good Samaritan Hospital advising that it may construct a medical office building adjacent to the hospital in the future. Letters were also sent to the Department by the manager of an apartment building adjacent to Petitioner's premises stating that the area was safe and that there had been no break-ins in more than four years, and from the Mayor of West Palm Beach to the Secretary of the Department describing the area and asserting that it was making a resurgence in character as a result of city improvements and that it was no more unsafe than most of the areas of the city. Another letter, dated July 20, 1979, was sent to the Department from the West Palm Beach Downtown Development Authority Executive Director stating that the area was growing, new buildings were being developed, and that the downtown area generally was becoming a "hub" for governmental facilities. Upon return to Tallahassee, each member of the bid committee rendered a report and recommendations concerning Petitioner's bid. They applied weighted criteria in its consideration, and concluded that the bid was unacceptable because it failed to meet the two criteria of "condition of immediate vicinity of location" and "security of the facility." In these respects, they basically found that (a) the various businesses in the area were essentially "fortified" against burglary and vandalism, (b) the proposed office would be subjected to break-ins and possible loss of valuable office equipment and unemployment compensation checks, (c) the local departmental employees would be fearful of working in an unsafe area and (d) an office located at Petitioner's premises would be "depressing" to members of the public who utilized the departmental services. No mention was made in the various reports of the petition or letters sent to the Department by civic officials. The committee again recommended rejection of the bid and, by letter of August 1, 1979, Petitioner was advised of this fact and that new calls for bids would be made in the near future. Secretary Orr had viewed the premises himself and agreed with the committee recommendations that the site was unsuitable for the establishment of a local office. He felt that placement of the office in the area where Petitioner's building was located would be inconsistent with departmental goals to upgrade their state offices and improve their "image." He had not been made aware of most of the various letters and the petition provided to the committee, but had considered the letter of the West Palm Beach Mayor prior to arriving at his decision. (Testimony of Butler, Frisch, Radner, Baker, Orr, Lowhorn, Renfroe, Quigg, Petitioner, Exhibits 6-10, 11-12, 16) The street on which Petitioner's building is located is commercial in nature, although it is on the fringe of a residential community. It is an older part of the city and, until about five years ago, was in a rundown and depressed condition. In recent years, however, there has been an upgrading of the character of the downtown area of West Palm Beach which extends northerly to encompass the businesses in Petitioner's vicinity. The establishment of governmental facilities in the downtown and adjacent areas have been encouraged and a state office building is located in the area. A Department of Health and Rehabilitative Services "halfway house" has been erected approximately two blocks from Petitioner's building. Additionally, a branch banking facility, professional offices, several quality restaurants, and other modern business establishments are in the near vicinity. A laundry plant is across the street from Petitioner's building and at the present time presents an unsatisfactory appearance. It is intended, however, by the owners to expand and remodel the building in the near future. The City of West Palm Beach has the second highest crime incident rate in the state based on population. The city is divided into ten zones for police purposes, and during 1978, the zone in which Petitioner's building is located was average from the standpoint of crime statistics. In the opinion of the City Chief Police Inspector, it is typical of the various commercial areas located along U.S. Federal Highway No. 1, and as safe an area in the daytime as any in the city. He is of the further opinion that a burglar alarm would be a sufficient security precaution for nighttime safety, and that with such protection, a building would have adequate security. The highest crime rate in the city is located in the zone where the city hall, police station and other governmental buildings are located. Although business and professional individuals in the area near Petitioner's building have experienced minor vandalism and occasional illegal entries in the past, they uniformly are of the opinion that the area is safe with normal security precautions, such as a burglar alarm. A local boat sales establishment has a fence around the premises and a watch dog, but no burglar alarm. These precautions are designed to protect the expensive boats which are located out- side the building. The apartment building next to Petitioner's premises has not experienced break-ins in recent years although some of its elderly patrons have been exposed to occasional purse snatching on the street. The laundry plant across the street from Petitioner's building experiences various window breakage by youths on the weekends, and had a break-in recently in the nighttime through a poorly secured door in the rear of the premises. (Testimony of Lowhorn, Stackhouse, Hauser, Hodges, Lee, Lunney, Eddy, Ring, Eaton, DeSanti, Witt (Deposition - Exhibit 1), Exhibits 12-14).
Recommendation That Petitioner's bid be accepted by Respondent and recommended for approval to the Department of General Services. DONE and ENTERED this 17th day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Kenneth H. Hart, Jr. and Chad J. Motes, Esquires Department of Labor and Employment Security 2561 Executive Center Circle E. Suite 131 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, a Florida-licensed yacht salesman, should be disciplined for violation of Rule 61B- 60.006(2), Florida Administrative Code, as alleged in the Administrative Complaint dated May 10, 2000.
Findings Of Fact At all times pertinent to the issues herein, DBPR, through its Division of Florida Land Sales, Condominiums and Mobile Homes (the Division) was the state agency in Florida responsible for the licensing and discipline of yacht salespersons and brokers in this state and the regulation of the yacht-brokering profession. Respondent, Justo Lamar (Lamar), has been licensed as a yacht salesperson since November 1976. Prior to this action, Lamar has never been the subject of disciplinary action arising out of the practice of his profession. This action was precipitated by a yacht owner, Juan A. Galan (Galan), who unsuccessfully attempted to sell his yacht to a client of Lamar's. In July 1998, Galan listed his yacht, the Caliente, for sale through Ardell Yacht and Ship Brokers (Ardell). The listing resulted in negotiations for the purchase of the Caliente by one Larry Griggs (Griggs), a prospective customer represented by Lamar. At all times relevant to this case, Lamar was acting as a sales agent for Allied Marine and its broker, Dwight Tracy (Tracy). As set forth in more detail below, the negotiations between Galan and Griggs took place over a three-month period from October 1998 through December 1998 with no meeting of the minds. On July 12, 1999, some seven months after negotiations between Griggs and Galan terminated, Galan lodged a complaint with DBPR. Although the complaint was ostensibly directed against salesman Lamar and broker Tracy, each and every allegation in the complaint was directed to the broker's conduct, not Lamar's. Galan, who did not testify at final hearing, alleged in his complaint that "Broker presented a contract representing that deposit had been received/deposited (upon acceptance). In fact, broker never deposited check and we wasted our time and money on survey/sea trial as buyer was not (at that time or any time later) financially capable of buying boat @ $1.75 million." Galan provided some, but by no means all, of the documents which revealed the details of the prolonged and ultimately unsuccessful negotiations between Galan and Griggs. In the narrative portion of his complaint, Galan asserted that he lost money on sea trials and implied, without actually stating, that the Caliente had been taken off the market during the pendency of negotiations with Griggs. For reasons which remain unclear, the Division did not focus its investigation on Tracy, who was the obvious target of Galan's complaint. Instead, it targeted Lamar, who was an obvious add-on target of Galan's ire. The exhibits reveal a complex series of offers and counteroffers and jockeying for negotiating advantage, not just between Galan and Griggs as prospective Seller and Buyer of the Caliente, but also between Lamar and the two brokers, all three of whom stood to profit if the transaction were consummated. Negotiations for the Caliente began in late October 1998. On October 30, 1998, Lamar's client Griggs, through a corporation he controlled, issued a $150,000 check for "Deposit, 72' (sic) Caliente Sportfisherman." This check accompanied a Brokerage Purchase and Sale Agreement dated October 29, 1998, offering to purchase the Caliente for $1,500,000. That same day, Galan's representatives faxed Lamar to advise that Griggs' offer was insufficient. Lamar forthwith provided the check to his broker, Tracy. Negotiations between Galan and Griggs continued in November. Galan chose to by-pass his own Broker and negotiate directly with Lamar over lunch on November 18, 1998. Lamar wrote Galan's demands on the back of a restaurant placemat. The primary sticking point was Galan's insistence on a "bottom line" of $1,665,000 to him, after all commissions and other expenses, if any, were paid. Griggs nevertheless persevered in his effort to buy the Caliente for $1,500,000. On November 24, 2000, Griggs executed another Brokerage Purchase and Sale Agreement in which he offered an entity called Majua, Inc., of which Galan was President, the opportunity to sell the Caliente to Griggs for $1,500,000. Galan signed the November 24 agreement, but added an addendum which materially changed the terms. The addendum unilaterally purported to raise the sales prices to Galan's previously stated "bottom line" of $1,665,000. Thanksgiving passed, and negotiations wore on. On December 4, 1998, Griggs executed a third Brokerage Purchase and Sale Agreement, raising his offer to $1,755,000. The new offer expressly stipulated that Griggs' $150,000 earnest money check could be deposited when and if all parties executed this new proposed agreement. Like the October 29 and November 24 brokerage purchase and sale agreements, the December 4 document never ripened into a contract. The December 4 document was a clear and unembarrassed reminder from Griggs that an earnest money check had been written by Griggs, but was not on deposit, and was not going to be on deposit until such time as Galan had signed off on the contract as written by Griggs. Galan nevertheless permitted a sea trial of the Caliente in furtherance of negotiations, now in their fifth week. Also as part of the negotiating process, Galan permitted some, but not all, of the inspections requested by Griggs. Expenses for the sea trial and inspections were borne entirely by Griggs. By Christmas Eve, relations between the parties had deteriorated to the point where Lamar retrieved the check from the Allied Marine corporate files and returned it to Griggs. At no time did negotiations with Lamar's client Griggs preclude or interfere with efforts by Galan to negotiate with and sell the Caliente to any other prospective purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DBPR enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 1st day of March, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 1st day of March, 2001.
Findings Of Fact Until December of 1974, respondent William W. Lambert did business as a general contractor under the corporate name of Lambert Enterprises, Inc. As qualifying agent for the corporation, he built homes, poured concrete, laid sod, and did other general contracting. During 1974, respondent was in the process of acquiring a sod farm, as well as being engaged in the general contracting business. Lambert Enterprises, Inc. dealt largely with other contractors. When The Commonwealth Corporation went bankrupt, other contractors, notably the Collins brothers, also ended up in bankruptcy, and unable to make good on outstanding obligations to Lambert Enterprises, Inc. Respondent caused a voluntary petition in bankruptcy to be filed on behalf of Lambert Enterprises, Inc., on November 22, 1974. At that time he held all the stock in Lambert Enterprises, Inc., and served both as president and as a member of the board of directors of the corporation. Respondent Lambert has never been interested in any other corporation that has been declared bankrupt, and has never gone into bankruptcy personally. Mr. William E. Wingate, an investigator for the Florida Construction Industry Licensing Board, checks bankruptcy records twice monthly. By looking through bankruptcy records, he has learned of ten to twelve bankruptcies, in the Northern District of Florida, involving contractors in the last two years. He may have missed some, but every time he finds out about a contractor's bankruptcy, he reports it to the Board's Jacksonville office. On July 31, 1975, he first learned of respondent's corporation's bankruptcy. He obtained certified copies of pertinent papers which he then forwarded to other Board staff in Jacksonville. After Lambert Enterprises, Inc. failed, respondent obtained a general contractor's license as an individual, which is currently in force. Since December of 1975, respondent has been employed by Century Construction, first in Tallahassee, then in Jacksonville, where he is now a project manager for the company. Permits for work performed by Century Corporation are not pulled on respondent's license. Respondent's financial condition is now stable, and he is financially sound.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent be reprimanded. DONE and ENTERED this 25th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry S. Sinoff, Esquire Blackstone Building, Suite 1010 Jacksonville, Florida 32202 Daniel J. Wiser, Esquire Post Office Box 10137 Tallahassee, Florida 32302 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board 1010 Blackstone Building Jacksonville, Florida 32202
