)                               CASE NO.  92-4946EC

     Respondent.                   )






     Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, after the parties' waiver of formal hearing, accepted documents, deposition testimony and stipulated facts in the above-styled case on January 28, 1993, and ordered the parties to file proposed recommended orders within 30 days of her Order entered January 29, 1993.




     Advocate:        Virlindia Doss

                      Assistant Attorney General

                      Department of Legal Affairs

                      The Capitol

                      Tallahassee, Florida  32399-1050


     For Respondent:  Leonard J. Dietzen, III

                      Parker, Skelding, Labasky & Corry

                      318 North Monroe Street

                      Post Office Box 669

                      Tallahassee, Florida  32302




     On July 22, 1992, the State of Florida Commission on Ethics issued an order finding probable cause that Respondent, Winston W. "Bud" Gardner, as a member of the Florida House of Representatives, violated Section 112.313(4), Florida Statutes, by accepting an all-expense paid weekend trip to Key West in May, 1988, for himself and his wife, when he knew or should have known that the trip was given to influence his official actions.


     The issue here is whether that violation occurred, and if so, what discipline or penalty is appropriate.




     On August 10, 1992, the Executive Director of the Commission on Ethics forwarded this case to the Division of Administrative Hearings for conduct of a public hearing and for a recommended order.


     After the case was set for a public hearing before the undersigned Hearing Officer, the Respondent and the Commission Advocate stipulated to a written record upon which the decision would be based.  That record consists of the depositions of Prentiss Mitchell, Charles Hood, William McCue, Paul Sanford, John Williamson, Michael Huey, Gary Guzzo, and Robert Coker; and the sworn statement of the Respondent, a letter written by the Respondent, and two factual stipulations.


     Both parties presented proposed recommended orders.  The findings of fact proposed by each are addressed in the attached appendix.




     1.  Respondent was elected to the Florida House of Representatives in 1978, where he served until his election to the Florida Senate in November 1988.  Respondent served in the Senate until November 1992.


     2.  On May 20, 1988, Respondent and his wife, together with a group of other persons departed Tallahassee in private airplanes for a weekend trip to Key West, which the participants called the "Conch Conference".


     3.  The group, with one exception, was comprised of lobbyists, legislators and their spouses or companions.


     4.  Among the lobbyists on the trip were William McCue, who lobbies for insurance interests; Gary Guzzo, who lobbies primarily for insurance and health care service industries; Paul Sanford, who lobbies for several insurance companies, Southern Bell, S. E. Toyota distributors and others; Prentiss Mitchell, who lobbies for insurance interests, as well as the Glass Packaging Institute and the Florida Fruit and Vegetable Association; Michael Huey, who lobbies for various interests; Charles Hood, who represents Georgia Pacific; John Williamson, who represents CSX Transportation; and Robert Coker, who lobbies for U. S. Sugar.


     5.  Gary Guzzo recalls these legislators on this or a prior year's trip to the Keys:  the Respondent, Frank Messersmith, Carl Carpenter, Beverly Burnsed, Jon Mills, Ron Johnson, Sam Bell and Chris Meffert.  (Guzzo, p.9)  House Sergeant at Arms, Wayne Westmark, also attended.


     The prior year's trip to the Keys to unwind had been a success, so the trip was scheduled again at a hectic time during the closing weeks of the legislative session.  Respondent recalls being invited by a group of lobbyists as he came off the floor of the House into the rotunda.  (Gardner, pp.6-7)  He knew his hosts were lobbyists and knew generally whom they represented.  (Gardner, p.21)


     6.  The lobbyists paid all the expenses of the legislators and their spouses, including food, lodging and entertainment.  At least two lobbyists, including Guy Spearman who represents Anheuser-Busch, provided private planes which the group used to travel to and from Key West. 


     7.  The cost of the trip was approximately $673 per person.  Because the lobbyists paid for both Respondent and his wife's expenses, the value to Respondent was $1,346.  (Gardner Letter, p.4)


     8.  In Key West, activities available to the legislators at the lobbyists' expense included diving, deep-sea fishing and golf.  The Respondent and his wife went deep-sea fishing for a half-day on Saturday, went shopping, had dinner, and returned with the group to Tallahassee on Sunday.


     9.  The lobbyists shared the cost of the trip equally and billed the expense to their clients,  or in one case, to their law firm's governmental affairs expense account.  Mr. Huey only billed clients who had issues pending before the Legislature at the time.  Similarly, Mr. Mitchell billed only one client.


     10.  The Respondent did not reimburse any of the lobbyists, nor did he offer to reimburse them or reciprocate by purchasing similar trips for them.  He knew the lobbyists were not paying out of their own pockets.


     11.  It is generally considered "bad form" to talk about business on trips such as this, but it was difficult to refrain entirely from talking about matters in which everyone present was interested; and legislative business invariably came up.  Mr. Huey was sure he talked to Respondent about some legislative issues in Key West.  (Huey, p.19)  None, including Mr. Huey, can remember any specific issues, and it is unlikely that significant direct advocacy occurred on the trip. 


     12.  Lobbyists promote the interests of their clients before the Legislature, primarily by obtaining passage of bills or amendments which would help their clients and by defeating bills which would injure their clients.  Influencing legislators is at the core of the lobbyist's vocation; it was the job of the testifying lobbyists to try and influence legislators.


     13.  The trip came right before the final two weeks of the legislative session when most bills are passed.  The persons selected for the trip were considered compatible and "fun" people, but they were also in leadership roles.  The lobbyists were "senior type lobbyists".  (Mitchell, p.11)


     Mr. Mitchell's clients had matters affecting their interests pending before the Legislature at the time, as did Mr. Huey's, Mr. Hood's, Mr. Coker's, Mr. Williamson's, Mr. Sanford's, Mr. McCue's, and Mr. Guzzo's.


     14.  At the time of the trip, the Respondent was a member of the House of Representatives.  He had been Chairman of the Finance and Taxation committee the year before and was, at the time of the trip, Chairman of the Rules and Calendar Committee.  He also served on the Appropriations, Rules and Calendar, Education K-12 and Joint Legislative Information Technology Resource Committees.  (Stip. No. 2)


     15.  Rules Chair is a powerful position.  In addition, since most bills go through the Appropriations Committee, this is an important committee assignment.


     Because Respondent had served in the House for ten years at the time of the trip, and because of his committee assignments, he was obviously in a position to help or harm the interests of the lobbyists.


     16.  Mr. Mitchell and Respondent were friends, but their friendship centered on their business relationship.  Mr. Mitchell stated,


           What we have to do in this process is when

           these folks come in, these freshmen, I have

           been around there for 23 years and nobody has

           been there longer than I have, so I have seen

           them all come in as freshmen, we try to make

           a determination as to who these people are

           going to be and whether they have leadership

           capabilities and certainly Bud is evidence by

           where he is today, we recognize that early

           on, so he became a good friend for that


                     (Mitchell, p.25, emphasis supplied)


     Mr. Huey's friendship with Respondent was also professional in nature.  This was not a pleasure trip motivated by friendship between the Respondent and his hosts.


     17.  The lobbyists hoped their expenditures would yield access and trust.  These intangible returns are best described in their own words:


          I guess its hard to quantify.  I think the

          opportunity to learn more about the specific

          issue or issues in general which may overall

          impact your clients is an opportunity that

          probably doesn't --there is no way that that

          information just gets sent out generally to

          the people who lobby, so the chance to be

          with legislators who are in particular

          positions and what have you, gives you maybe

          a chance to learn a little more about where

          the process is going to end up, not that they

          are disclosing anything to you that they

          wouldn't disclose to anybody else, but it

          gives you the chance to ask them.  So I think

          the primary thing that you're doing is

          hopefully getting some more time to access

          the folks under circumstances that you may be

          able to explain your position under less time

          -- with fewer time constraints on them than

          trying to catch them in their office when they

          are on the phone and trying to talk to three

          other people in their office.

                                      (Huey, p.21)

          Flying an airplane or playing golf or

          whatever, it's a way in which we get to know

          those legislators and not that -- it's not

          that you may even discuss any business, but

          certainly flying an airplane and someone

          sitting over in the right seat, you have got

          an opportunity to talk to him.  But even more

          important than that is that once you get back

          from a trip or once you get through playing

          golf with one of those guys, whether you talk

          business or not, certainly the next day if you

          were at the Capitol and you walked by his

          office, he is going to be more accessible to

          me than he would you if you had never met the

          guy.  That's the reason we do an awful lot of

          entertaining and spending time with these


                                      (Mitchell, p.26)

                         *      *      *

          This process down here is so -- it's fairly

          sophisticated and fairly complicated and

          there's a lot of demands on legislators'

          time and, to be honest with you, sometimes if

          you're not known and I'm not to a lot of

          legislators, they don't know me personally,

          and without some sort of contact and identity

          that's already established, you're just

          another face in the crowd that they see every

          day, all day long and, you know, I guess in

          some respect it's similar to a salesman, you

          cultivate your customer if you can and try to

          get to know him and him to know you.  It's

          just part of human nature, I think.

                                      (Hood, p.19)

          Well, you know, its like selling.  You know,

          you get to know your customer better.  I mean,

          we deal with these people, like you say, on a

          daily basis, and its just getting to know the

          legislators better so that you can talk with


                                    (Williamson, p.15)

          Well, you know, one of my responsibilities is

          to try to represent our company's interests in

          the legislative process.  And in order to do

          that, I have to have a certain credibility

          with members.  I've got to have a certain

          relationship with members, that they know me

          and they can count on me, that in the heat of

          the process over there, they can come to me

          and say, "Robert, I've got this issue that has

          come up.  Tell me how it impacts agriculture.

          Tell me how it impacts your company."


          At the same time, when I find something in the

          process that is in our company's best interest

          and want to go and talk to somebody, it's nice

          to be able to know that they know me, and they

          will take time to talk to me about it.


          So from our company's standpoint, we felt like

          over the years the time that I spent and the

          resources that I invested in this process was


                                       (Coker, p. 17)


          Well, I think if a legislator knew me and knew

          that I was an honest person, that I had been

          with him and -- let's say we went dove hunting

          and killed a dove, and the legislator thought

          he shot the dove, and I said, "Mine, mine,"

          and I did that every time a dove fell out of

          the air.  He's going to say, "Wait a minute.

          This is a person you just can't trust."  If

          I was playing golf with him or anything of

          that nature, if they saw that I was a person

          that had their same, if you will, likes and

          desires as far as recreational activities, I

          guess it was just a personal bond there.  We

          became closer, and they would believe when I

          was dealing with them in a business fashion

          that I would have the same ethics that I had

          with them when I was dealing with them on a

          personal basis.


          Q  So if I'm right here, it helps to establish

          a relationship?

          A  A personal relationship.

          Q  And that would be to your advantage if you

          had a personal relationship?

          A  Certainly.

                                     (McCue, p.10)


     18.  There is a direct nexus between that trust/access and the desired influence:


          I think my primary function as a lobbyist is

          to, first, monitor all legislation to

          determine what effect it may have on my

          clients, either positive or negative.  After

          making that determination, you either try to

          kill or amend the bad legislation or promote

          the good legislation, good in the sense of

          the manner in which it affects your clients.

          In order to do that, I think that I have to

          provide good, correct information to the

          legislators and the staff people.  I have to

          do everything in my power to make sure that

          my credibility with both those groups remains

          at the highest level possible and that I have

          access to those people in order to make sure

          my message has gotten to those people.  And

          hopefully, if they believe that my position

          is a correct one, then they will accept that

          and go in the direction that I would like them

          to with respect to their vote.

                        (Sanford, pp.6-7, emphasis added)


     19.  As a ten-year veteran of the House of Representatives when this trip was taken, Respondent had been the guest of various lobbyists and/or their employers on a number of occasions.  In his letter to the Ethics Commission, he writes:


          I think all the commission members should have

          an understanding of these first impressions.

          You are elected the first week in November and

          immediately take office.  The Organization

          Session is two weeks later, but in those

          years, even before the Organization Session we

          were invited on our first trip - the party

          caucus - usually held away from Tallahassee.

          Most of the festivities associated with the

          caucus were paid for by the local community

          and lobbyists.  That was immediately followed

          by the Organization Session which was also an

          escape from reality with its endless line of

          parties and receptions also paid for by

          lobbyists.  Before the end of November we had

          received our initial notification of the Walt

          Disney World Legislative Weekend scheduled for

          February.  Usually in January we received an

          invitation to another legislative weekend

          sponsored by a local community such as Dade

          County or Broward County or Duval county or

          Brevard County.  That was usually scheduled

          for March or April so as to gain the most

          influence during the upcoming legislative

          session scheduled to begin in April.  That was

          also an all expense paid trip for legislators

          and their families paid for by businesses from

          the local community and lobbyists.  Lobbyists

          who contributed were allowed to attend.  Also

          about this time was the Agriculture Weekend

          Getaway down around Lake Okeechobee, all paid

          for by agriculture lobbyists.  By the time the

          first legislative session was ready to start,

          a new legislator was a seasoned traveler.

                                     (Letter, pp.1-2)


     20.  Referring to the Disney weekend, Respondent points out that he is "sure that the $80,000 to $100,000 cost to Disney for the weekend was not a totally benevolent gesture on their part."  (Letter, p.2)


     21.  Regarding the Brevard weekend, Respondent quotes an April 1987 Florida Today newspaper as saying that the legislative weekend is an idea. "...that may in time prove to be worth more than the $50,000 or so that will be spent...", and he asks "[d]o you think the contributions to support these weekend getaways by lobbyists from outside the regional areas were nothing more than a benevolent gesture, also?"  (Letter, pp.2-3)


     22.  The Respondent also points out that one of the newspaper's lobbyists "took a special charter to Tallahassee to bring the Speaker of the house to Brevard so that he could have some 'quality' time with him."  (Letter, p.3)


     23.  These statements made by the Respondent reveal that he knew that the intent of the lobbyists was to influence him in the performance of his official duties.  He observed that legislative weekends were usually scheduled for March or April "so as to gain the most influence during the upcoming legislative session scheduled to begin in April."  (Letter, p.2, emphasis added) 


     24.  The Respondent also states:


          During my first year in the legislature I

          discovered that the Speaker Designate was a

          flying enthusiast.  I was Commanding Officer

          of VMA-142 in Jacksonville.  I worked for over

          a year to obtain permission to take the future

          Speaker up in a two seat jet attack aircraft.

          I wanted a good committee assignment when he

          became Speaker.

                           (Letter, p.3, emphasis added)


From the very beginning of his legislative career Respondent recognized the effectiveness of gaining access to powerful persons to influence their decisions.




     25.  The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes, and Florida Commission on Ethics Rule 34-5.010, Florida Administrative Code.


     26.  The standard of proof in an administrative procedure is the preponderance of the evidence.  In re Michael Langton, 14 F.A.L.R. 4175, 4178 (1992); see also, In re Leo C. Nichols, 11 F.A.L.R. 5234 (1989).


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


          UNAUTHORIZED COMPENSATION.--No public officer

          or employee of an agency or his spouse or

          minor child shall, at any time, accept any

          compensation, payment, or thing of value when

          such public officer or employee knows, or,

          with the exercise of reasonable care, should

          know, that it was given to influence a vote or

          other action in which the officer or employee

          was expected to participate in his official



     28.  The parties have stipulated that the only issue that remains to be resolved is whether Respondent had actual or constructive knowledge that a thing of value, in this case a trip to Key West, was given to influence a vote or other action in which Respondent was expected to participate in his official capacity.  (Stip., p.5; Respondent's Proposed Recommended Order, p.12)


     29.  No evidence was presented to indicate Respondent was ever told that he would be expected to act or vote in a certain way in return for the trip;  no evidence was presented to indicate how Respondent ultimately did vote or act on matters affecting the trip donors; and no evidence was presented that the lobbyists initiated discussion of specific issues during their getaway opportunity.


     30.  None of this matters under section 112.313(4), Florida Statutes, which does not require "...that there be an actual agreement, that the intended purpose of the gift (to influence) be achieved or that the Respondent 'intended' that the gift was to influence his vote."  In re Bernard Hart, 14 F.A.L.R. 1054, 1076 (1991), aff'd, Fourth District Court of Appeal, August 12, 1992.


     31.  Respondent argues that the lack of evidence of a specific nexus connecting the thing of value (the trip) to a particular bill or issue exonerates him as it did the Respondent in In re James Resnick, 14 FALR 1002 (1991).  In that case, the Ethics Commission stated:


          As found above no evidence was presented that

          would have related an occasion when the

          Respondent was provided complimentary tickets

          to a specific matter involving the promoter in

          which the Respondent would have been expected

          to participate in his official capacity, such

          as a pending or potential disciplinary

          proceeding against a promoter's license.  In

          the absence of some nexus of this nature, it

          cannot be concluded that the Respondent's

          conduct violated Section 112.313(4), Florida

          Statutes, regardless of whether his agency had

          ongoing regulatory responsibilities over the

          business of the promoters from whom he

          accepted complimentary tickets.  Accordingly,

          the Respondent did not violate Section

          112.313(4), Florida Statutes.

                                      (Resnick, p. 1006)


     32.  The circumstances are vastly different here.  Respondent had more than an ongoing regulatory responsibility over the interests of the lobbyists.  The evidence proved he had real, effective power to act on those interests and he would very likely be required to act on them at some point in the last few weeks of the session immediately following the trip.


     33.  Resnick was a State Athletic Commission member and the "things of value" he received were two free tickets to boxing matches, not a $1,346 weekend.  The General Counsel for the Department of Business Regulation had instructed the Commission members that it was permissible for them to accept up to two tickets per match.


     34.  Finally, the specific holding of Hart, cited above, was made after Resnick was decided, and substantially erodes any precedential value of Resnick.


     35.  This conclusion avoids the illogic of prohibiting specific influence "purchases" while permitting "investments" which may ultimately prove more valuable.


     36.  There is another more significant nexus at issue here, the nexus between access and influence.  The lobbyists' testimony, as well as the candid statements of the Respondent plainly establish that access was the quid pro quo.  The circumstances described in this proceeding further establish that influence was the natural and intended result of that access.


     37.  The Respondent's letter acknowledges that most persons and entities do not give away "something for nothing".  The Ethics Commission has recognized this principle.  In CEO 75-21, the Commission opined that a trip offered by Florida Power and Light Company to Florida Pollution Control Board members would cause a reasonably prudent person to be influenced and should be refused.  In CEO 75-43, the Commission found that members of Tampa Board of Port Wardens and Pilot Commissioners should not accept gifts of cases of liquor from a group of pilots.


     38.  The acknowledgments by Respondent that trips from parties with business before the Legislature were not "benevolent gestures" and his own use of the practice in trying to obtain a good committee assignment leave no room for doubt that he knew the purpose of the trip.


     39.  The Respondent was Rules Chairman at the time of the trip and in a position of leadership in the House; he was in a position to impact the interests of any lobbyist or group.  The Respondent knew his hosts and knew that they had issues before the Legislature.  The Respondent assumed the lobbyists would pay for the trips; he was aware the gifts were part of the lobbyists' job.  The Respondent has never taken his hosts on any reciprocal type of outing.  Respondent knew the gift was not one made out of friendship.  Finally, the monetary value of the trip is significant.  Although cost alone is not determinative, the Commission has indicated that the greater the value of the thing given, the more difficult it is to justify its being given for any purpose except to influence.  CEO's 80-27, 85-83.  The weekend's value was rather more than a luncheon tab.


     40.  In CEO 75-21, the Commission opined that the term, "influence", referred to an alteration of an official's independence and impartiality of judgment.  In CEO 80-27, the Commission adopted the following definition of the word, "influence":  "To affect, modify, or act upon by physical, mental or moral power, especially in some gentle, subtle and gradual way."  The Commission has found that the providing of a trip by one who stands to gain from the actions of the recipient evidences an intent to influence.  In CEO 75-22, the Commission advised a city director of Housing and Urban Development not to accept a trip sponsored by General Electric Corporation, saying "logical analysis would lead one to accept the premise that General Electric, to warrant the expenditure of corporate funds, would do so only on the basis that beneficial results would accrue to the company.  And this cannot be compatible with a complete absence of intent to influence."


     41.  The transfer of money or other valuables carries with it the tendency to create a quid pro quo relationship.  This has been recognized by both the Florida and the United States Supreme Courts as the rationale behind the limitation on campaign contributions.  See Richman v. Shevin, 354 So.2d 1200 (Fla. 1977), cert. den. 439 U.S. 953, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978), citing Buckley v. Valeo, 421 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1978).


     42.  While there may have been no quid pro quo in the strict sense of expecting the Respondent to vote in a particular way on a specific bill, the trips were designed to engender favorable feelings by the Respondent toward his hosts and their interests.  This is influence as the Commission has defined it.


     43.  Respondent in his letter earnestly argues that this proceeding has unfairly singled him out of myriad others who also accepted expense-paid trips in the past.


     44.  The statute in question here had been on the books for over ten years when the trip was made.  If, as suggested in Respondent's letter, the rules were different then, those rules have not been cited in this proceeding.  It is obvious that Respondent and others considered that the rules were different then.  That those others, with few exceptions, are not also before the Commission, is irrelevant; and the reasons that others are not being pursued, if indeed they are not, is outside of the record in this proceeding.  That the practice of accepting trips was common is testament to its efficacy, not to its propriety.


     45.  Based on the evidence before me and on the thorough argument of counsel for both parties, I conclude that Respondent knew or should have known that the Key West trip in May 1988 was provided to him and his wife to obtain access to him and thus influence him in his official capacity as an important member of the Florida House of Representatives; and, Section 112.313(4), F.S., was violated.


     46.  Respondent's argument in his proposed recommended order that the statute is unconstitutional specifically preserves that issue for another more appropriate tribunal.




     47.  Section 112.317, Florida Statutes, provides, in pertinent part:


          112.317 Penalties.--

          (1)  Violation of any provision of this part,

          including, but not limited to, any failure to

          file any disclosures required by this part or

          violation of any standard of conduct imposed

          by this part, or violation of any provision of

          s. 8, Art. II of the State constitution, in

          addition to any criminal penalty or other

          civil penalty involved, shall, pursuant to

          applicable constitutional and statutory

          procedures, constitute grounds for, and may be

          punished by, one or more of the following:

                     *          *          *

          (d)  In the case of a former public officer or

          employee who has violated a provision

          applicable to former officers or employees or

          whose violation occurred prior to such

          officer's or employee's leaving public office

          or employment:

          1.  Public censure and reprimand.

          2.  A civil penalty not to exceed $5,000.

          3.  Restitution of any pecuniary benefits

          received because of the violation committed.


     48.  Section 112.324, F.S. provides, in pertinent part:


          112.324  Procedures on complaints of violations.--

                     *          *          *

          (3)  If, in cases pertaining to members of the

          Legislature, upon completion of a full and

          final investigation by the commission, the

          commission finds that there has been a

          violation of this part or of any provision of

          s. 8, Art. II of the State Constitution, the

          commission shall forward a copy of the

          complaint and its findings by certified mail

          to the President of the Senate or the Speaker

          of the House of Representatives, whichever is

          applicable, who shall refer the complaint to

          the appropriate committee for investigation

          and action which shall be governed by the

          rules of its respective house.  It shall be

          the duty of the committee to report its final

          action upon the complaint to the commission

          within 90 days of the date of transmittal to

          the respective house.  Upon request of the

          committee, the commission shall submit a

          recommendation as to what penalty, if any,

          should be imposed.  In the case of a member

          of the Legislature, the house in which the

          member serves shall have the power to invoke

          the penalty provisions of this part.

                     *          *         *

          (7)  If, in cases pertaining to complaints

          other than complaints against impeachable

          officers or members of the Legislature, upon

          completion of a full and final investigation

          by the commission, the commission finds that

          there has been a violation of this part or of

          s. 8, Art. II of the State Constitution, it

          shall be the duty of the commission to report

          its findings and recommend appropriate action

          to the proper disciplinary official or body as

          follows, and such official or body shall have

          the power to invoke the penalty provisions of

          this part:

                     *          *          *

          (i)  In any case concerning a former member of

          the Legislature who has violated a provision

          applicable to former members or whose

          violation occurred prior to leaving public

          office, the proper disciplinary official is

          the Speaker of the House of Representatives or

          the President of the Senate, whichever is


          (emphasis supplied)


     49.  The Ethics Commission has taken the position that it is without authority to recommend a penalty in a case involving a member of the Legislature:


          Violations of the Code of Ethics are penalized

          in accordance with the procedures specified in

          Section 112.324, Florida Statutes.  Section

          112.324, Florida Statutes.  Section 112.324(3)

          provides that when the Commission finds that a

          member of the Legislature has committed a

          violation, the Commission shall forward its

          findings to the President or Speaker, as

          appropriate, for referral to committee for

          investigation and action.  That subsection

          specifically states:  "Upon request of the

          committee, the commission shall submit a

          recommendation as to what penalty, if any,

          should be imposed."  Therefore, the Commission

          is not empowered to recommend a penalty for

          any statutory violation at this stage of its


                              Langton, supra, at 4178.


     50.  At the time of the hearing and Commission order, Respondent Langton was still a legislator.  The Respondent here is not, and subsection 112.324(7), rather than subsection (3), applies.  It is, therefore, necessary to recommend a penalty.


     51.  As Respondent is no longer a public official, the imposition of a penalty as a deterrent makes no sense.  The violation was, nonetheless, serious, and some penalty is appropriate.


     52.  Restitution to the donors would amount to a windfall.  The value of the thing received, however, provides a benchmark for establishing a civil penalty, as Respondent should not be permitted to keep what he improperly gained.




     Based on the foregoing, it is, hereby,




     That the Commission on Ethics enter its final order and public report finding that Winston W. "Bud" Gardner violated Section 112.313(4), F.S., and recommending a civil penalty of $1,346.


     DONE AND RECOMMENDED this 7th day of April, 1993, in Tallahassee, Leon County, Florida.




                              MARY CLARK

                              Hearing Officer

                              Division of Administrative Hearings

                              The DeSoto Building

                              1230 Apalachee Parkway

                              Tallahassee, Florida  32399-1550

                              (904) 488-9675


                              Filed with the Clerk of the

                              Division of Administrative Hearings

                              this 7th day of April, 1993.





     The following constitute specific rulings on the findings of fact proposed by the parties.


The Advocate's Proposed Findings


     1.       Adopted in paragraph 1.

     2.       Adopted in paragraph 2.

     3.       Adopted in substance in paragraph 3.  The exact

              number was not established.

     4.       Adopted in paragraph 4, except that it was not

              established that Guy Spearman was on the trip. 

              Another lobbyist was mentioned, Bernie Parrish, but

              the evidence here does not establish that he was on

              the trip either.

     5.       Adopted in substance in paragraph 5; although

              Guzzo's testimony related to both years' trips.

     6.       Adopted in paragraph 6.

     7.       Adopted in paragraph 7.

     8.       Adopted in paragraph 8.

     9.       Adopted in substance in paragraph 9, although not

              all billed their clients, as found in paragraph 9.

     10.      Adopted in paragraph 10.

     11.      Adopted in paragraph 11.


                              Part II


     1.-4.    Adopted in summary in paragraph 12.

     1.-6.    Adopted in substantial part in paragraph 17.

     7.-9.    Adopted in paragraph 13.

     10.      See Part I, paragraph 9, above.

     11.      Adopted in paragraph 14.

     12.-13.  Adopted in paragraph 15.

         14.  Rejected as unnecessary.

         15.  Adopted in paragraph 10.

     18.-19.  Adopted in paragraph 16.

     20.-23.  Rejected as unnecessary.

     24.-25.  Adopted in substance in paragraphs 17 and 18.


                              Part IV


     1.       Adopted in paragraph 5.

     2.-4.    Adopted in paragraph 10.

     5.-6.    Rejected as unnecessary.

     7.       Adopted in paragraph 19.

     8.       Adopted in paragraph 20.

     9.       Adopted in paragraph 21.

     10.      Adopted in paragraph 22.

     11.      Adopted in substance in paragraph 23.

     12.      Adopted in paragraph 24.

     13.-15.  Rejected as cumulative or unnecessary.


Respondent's Proposed

Findings of Fact


     1.-2.    Rejected as unnecessary.

     3.       Addressed in Conclusions of Law paragraph 27.

     4.       Addressed in Preliminary Statement.

     5.       Adopted in paragraph 14.

     6.       Adopted in paragraph 2.

     7.       Adopted in substance in paragraph 13.

     8.       Rejected as unnecessary.

     9.       Adopted in part in paragraph 5, otherwise rejected

              as irrelevant.

     10.-11.  Rejected as irrelevant.

     12.      Adopted in part in paragraph 5.  While relaxation

              was the reason for the venue, it was not the trip's

              primary purpose as established by the greater

              weight of evidence.

     13.      Adopted in part in paragraph 17.  Access was,

              however, the primary rather than secondary purpose.

     14.      Adopted in paragraph 12.

     15.      Rejected as contrary to the evidence.

     16.      Rejected as unnecessary.

     17.-19.  Adopted in substance in paragraph 13.

     20.      Rejected as unnecessary.  Actually, this reply by

              Respondent further evidences his knowledge of the

              lobbyists' clients' reason for paying for the trip.

     21.      Adopted in paragraph 8.

     22.      Adopted in part in paragraph 9, otherwise rejected

              as contrary to the weight of evidence.

     23.      Rejected as unnecessary.

     24.      Adopted in part in paragraph 7.  The exact number

              of lobbyists contributing was not established.

     25.      Rejected as irrelevant.

     26.      Rejected as unnecessary.  The cost of the trip is

              relevant, but Respondent's belief that the cost was

              "fairly minor" is either not credible (if

              calculated to disavow his knowledge of the intent

              to influence) or simply inconclusive.  "Fairly

              minor" is meaningless.

     27.-30.  Adopted in paragraph 19.

     31.-32.  Rejected as unnecessary or irrelevant.  The

              lobbying need not occur on the trip for the

              influence to be exercised.

     33.-36.  Adopted in substance in paragraph 11.

     37.      Rejected as unnecessary or contrary to the weight

              of evidence.  The friendships were professional,

              according to the evidence.

     38.      Adopted in paragraph 17.

     39.      Rejected as irrelevant, except for the statement

              that Respondent never felt as though anyone was

              trying to influence him in any way, which statement

              is rejected as contrary to the greater weight of

              the evidence, including evidence from Respondent's

              own statements.





Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida  32399-1050


Leonard J. Dietzen, III, Esquire

Parker, Skelding, Labasky & Corry

318 North Monroe Street

Post Office Box 669

Tallahassee, Florida  32302


Bonnie Williams

Executive Director

Ethics Commission

Post Office Box 6

Tallahassee, Florida  32302-0006


Phil Claypool

General Counsel

Ethics Commission

Post Office Box 6

Tallahassee, Florida  32302-0006





All parties have the right to submit written exceptions to this Recommended Order.  All agencies allow each party at least 10 days in which to submit written exceptions.  Some agencies allow a larger period within which to submit written exceptions.  You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order.  Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.