FINAL ORDER AND PUBLIC REPORT

On June 26, 1998, an Administrative Law Judge (“ALJ”) for the Division of Administrative Hearings submitted her Recommended Order to the Commission on Ethics and the parties to the proceeding, Respondent Dennis Wardlow and the Commission’s Advocate. A copy of the Recommended Order is incorporated herein by reference.

The Respondent timely filed Exceptions to the Recommended Order, and the Advocate timely filed an Exception to the penalty recommendation. The matter is now before the Commission for final agency action.

I. STANDARD OF REVIEW

Section 120.57(1)(j), Florida Statutes (1997), proclaims the standard of review that governs the Commission’s final action on the Recommended Order. It states:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.

II. RULINGS ON EXCEPTIONS

1. Respondent’s first exception is to the finding of fact contained in Paragraph 5. In it, Respondent appears to be arguing that Paragraph 5 should be modified to find that the contract he had entered into with Bigler had been orally amended to include work other than that described in the agreement. As stated previously, Section 120.57(1)(j), Florida Statutes, precludes the Commission from rejecting or modifying findings of fact unless it determines that the findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Because there is no suggestion that the findings of fact in Paragraph 5 were not based upon competent substantial evidence or that the proceedings did not comply with the essential requirements of law, and because there is competent substantial evidence in the record to support the findings of Paragraph 5 (Joint Exhibit 17, pp.6-8), Respondent’s first exception is denied.

2. Respondent’s next exception, to Paragraph 8, objects to the finding that “Bigler personally delivered the checks.” As noted in Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985), “It is the hearing officer’s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.” Because Respondent’s exception fails to state any lawful reason for rejecting the Administrative Law Judge’s finding of fact, and because the finding itself is based upon competent substantial evidence (Joint Exhibit 14, p. 99), it is denied.

3. In Respondent’s third exception, he excepts to Finding of Fact Paragraph 14. In it, he asserts that Bigler was cited by a Code Enforcement Officer for Monroe County, not the City of Key West, and that Gene Favors is a County employee, not a City employee. Our review of the record, particularly Joint Exhibit 17, pp. 15-17, supports Respondent’s assertion. Accordingly, Respondent’s third exception is accepted to the extent that Gene Favors was a County employee. The remainder of Respondent’s exception is denied, however, inasmuch as it is the Administrative Law Judge’s function to make inferences from the evidence and the Commission is precluded from reweighing the evidence to reach a different conclusion. Heifetz, supra.

4. Respondent’s next exception attacks Findings of Fact Paragraphs 15 through 19. Those findings address the Respondent’s efforts as Mayor in helping Bigler obtain a City franchise and place a sign on Smathers Beach. The exception essentially seeks to have the Commission reweigh the evidence and reach a result different from that of the Administrative Law Judge. Because the findings of fact contained in Paragraphs 15, 16, 17, 18, and 19 are supported by competent substantial evidence (Joint Exhibit 18, pp.224, 230, 233, 234, 249; Joint Exhibit 15, pp. 28-30, 33, 34, 36, 39, 41, 66; Joint Exhibits 3 and 4) , Respondent’s exception is denied.

5. In an exception directed at Finding of Fact Paragraph 25, Respondent asserts that it was Kocis’ illegal operation, not his $100 weekly payment from Bigler, that prompted Respondent’s intervention in the controversy over jet ski operations at Smathers Beach. Respondent’s exception is denied. The Commission declines the invitation to reweigh the evidence and reach a result different from that of the Administrative Law Judge, particularly where there is competent substantial evidence to support the ALJ’s findings of fact (T. 26, 33-35; Joint Exhibit 16, pp.14-15).

6. Paragraph 29 is excepted to by Respondent because, he claims, he never spoke with other members of the City Commission outside of Commission meetings. Respondent’s exception is denied. The finding of fact is not that he, in fact, spoke with the Commission members outside of a Commission meeting but, rather, that he said he had spoken to several people on the Commission. Whether he violated the Sunshine Law (Section 286.011, Florida Statutes) is not material to this proceeding. Moreover, the record reveals competent substantial evidence to support Finding of Fact Paragraph 29 (T. 42).

7. In his last exception to a Finding of Fact, the Respondent excepts to Paragraph 31 by arguing that his employment with Bigler did not constitute “financial ties with Warren Watersports and Bigler.” This exception is denied. There is substantial, competent evidence to support Finding of Fact 31, including the stipulated Findings of Fact that the parties admitted into evidence prior to the start of the hearing--Stipulated Findings of Fact 3, 4, and 5.

8. The next series of exceptions are directed to the Conclusions of Law. Taking the exceptions as a group, none contend that the ALJ misapplied or misconstrued the various laws the Respondent was alleged to have violated. Instead, all of the Respondent’s exceptions to the various conclusions of law simply seek to have the Commission reweigh the evidence considered by the ALJ and reach a contrary conclusion. In Goin v. Commission on Ethics, 658 So.2d 1131 (Fla. 1st DCA 1995), we were admonished for substituting our judgment for that of the hearing officer where we rejected a conclusion of law and found that Goin’s conduct did violate Section 112.313(4), Florida Statutes. The court held that although labeled a conclusion of law, the finding was actually an ultimate fact which the Commission could not reject since it was supported by the record. Heifetz, supra. In the matter now before us, we find no error in the Administrative Law Judge’s application of the law to the facts as she found them. Because her conclusions of law are, in essence, questions of ultimate fact supported by competent substantial evidence in the record, Respondent’s exceptions to Paragraphs 50, 51, 53, 55, 57, 59, 61, 62, and 63 are denied.

9. Respondent also excepts to the ALJ’s penalty recommendation, suggesting that his present circumstances negatively impact his ability to pay. Inasmuch as the ALJ’s penalty recommendation is clearly within the bounds of the law set forth in Section 112.317, Florida Statutes, and inasmuch as inability to pay is not a defense to the imposition of a fine or restitution, Respondent’s exception to the penalty recommendation is denied.

10. The Advocate also excepts to the penalty recommendation, although he argues that the penalty recommendation is too low and that it should be increased to $15,000. In support of his exception, the Advocate points out that in the case of In re Jimmy Whaley, Complaint No. 95-84, the Commission recommended a civil penalty of $5,000 for his violations of Sections 112.313(2) and 112.313(6), Florida Statutes. The Advocate submits that the violations in the instant case are more egregious than the violations in Whaley and that the penalty should reflect the difference. As previously stated, Section 120.57(1)(j), Florida Statutes, allows us to reduce or increase the recommended penalty where we have reviewed the complete record and explain in our order, by citing to the record, our reasons for modifying the penalty recommendation. At any rate, the Advocate’s exception to the penalty recommendation is denied. The recommended penalty in Whaley did not include a restitution penalty and we believe that the ALJ’s penalty recommendation here is appropriate under the circumstances. Accordingly, we adopt the Administrative Law Judge’s penalty recommendation.

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order, except as modified herein, are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

2. Accordingly, the Commission on Ethics concludes that the Respondent, as Mayor of the City of Key West, violated Sections 112.313(2), 112.313(4), 112.313(6), 112.313(7)(a), 112.3143(3), and 112.3145, Florida Statutes.

RECOMMENDED PENALTY

In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon Respondent Dennis Wardlow in the amount of $5,000, that he receive a public censure and reprimand, and that he be ordered to make restitution to the State of Florida in the amount of $7,900.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1998, in Tallahassee, Florida.

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Date

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Charles A. Stampelos

Chair

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at 2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

cc: Mr. Michael Halpern and Mr. Mel Black, Attorneys for Respondent

Mr. Eric S. Scott, Commission Advocate

Mr. Jace Hobbs, Complainant

Division of Administrative Hearings