09-001770EC In Re: Allen Enright Keen vs. * Status: Closed Recommended Order on Friday, November 20, 2009.

Summary: Respondent never "accepted" the theme park tickets. Therefore, the tickets were not gifts to Respondent and did not have to be reported.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ALLEN ENRIGHT KEEN, )

)

Respondent. ) Case No. 09-1770EC

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held on July 14, 2009, by

video teleconference at sites in Tallahassee and Orlando,

Florida, before Carolyn S. Holifield, Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Advocate: Jennifer M. Erlinger, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

Robert Leventhal, Esquire

Leventhal & Slaughter

111 North Orange Avenue, Suite 700

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues are: (1) whether Respondent violated Subsection 112.3148(8), by failing to report a $2,606.25 gift of Disney World and Universal Studios tickets on a Quarterly Gift

Disclosure Form, CE Form 9; and (2) if so, what is the

appropriate penalty.

PRELIMINARY STATEMENT

On March 25, 2009, the Commission on Ethics (the

"Commission") issued an Order Finding Probable Cause to believe

that Respondent, Allan Keen ("Respondent"), as chairman of the

Orlando-Orange County Expressway Authority (the "Expressway

Authority"), violated Subsection 112.3148(8), Florida Statutes

(2006). 1 The Commission forwarded the matter to the Division of

Administrative Hearings on or about April 3, 2009.

At the final hearing, the Advocate called two witnesses,

Respondent and Ronald Pecora. The Advocate offered three

exhibits which were admitted as evidence. Respondent presented

the testimony of one witness, James Joseph Stanley. Respondent

offered no additional exhibits.

The Transcript was filed with the Division of

Administrative Hearings on July 29, 2009. By agreement of the

parties, proposed recommended orders were to be filed 30 days

after the Transcript was filed. In a joint motion, filed

August 25, 2009, the parties requested that the time for filing

proposed recommended orders be extended to September 11, 2009.

By Order issued August 26, 2009, the joint motion was granted.

Both parties timely filed their Proposed Recommended Orders

under the extended time frame.

FINDINGS OF FACT

1. At all times pertinent to the proceedings, Respondent,

Alan Keen, served as chairman of the Orlando-Orange County

Expressway Authority.

2. At all times relevant hereto, Respondent was subject to

the requirements of Chapter, Part III, Florida Statutes, Code of

Ethics for Public Officers and Employees, for his acts and

omissions as chairman of the Expressway Authority. See

§§ 112.311(6) and 112.313, Fla. Stat.

3. In April 2006, Respondent was contacted by a family

friend, James Stanley, who resides in Costa Rica. Mr. Stanley

indicated that his father-in-law was paying for the family,

consisting of four children and eight adults, to travel to the

Orlando area in the Fall of 2006 and requested that Respondent

see if he could obtain theme park tickets for their use.

4. Mr. Stanley called Respondent and asked him to obtain

theme park tickets so that the tickets could be in-hand prior to

Mr. Stanley and his family arriving in Orlando. This request

was made purely for the purposes of convenience. 2

5. Respondent has known Mr. Stanley for more than 20 years

and considers to him to be a friend. Mr. Stanley described

Respondent as his mentor and a close friend. Respondent and

Mr. Stanley and their respective families socialize and have

visited with each other in the United States and in Costa Rica.

6. Mr. Stanley never asked for or expected Respondent to

obtain free theme park tickets. In fact, it was Mr. Stanley's

understanding and belief that his father-in-law, Rodrigo

Esquivel, was going to pay all the costs associated with the

trip.

7. Respondent contacted Bryan Douglas, the then director

of marketing for the Expressway Authority and asked Mr. Douglas

if he had access to complimentary tickets to Universal Studios

and Disney World theme parks. 3 In response to this request,

Mr. Douglas told Respondent that he did not know if he had

access to complimentary tickets, but indicated that he would

check.

8. As chairman of the Expressway Authority, Respondent had

no supervisory authority over Mr. Douglas and never signed any

of his paychecks.

9. Approximately two or three weeks after his initial

telephone call to Mr. Douglas, Respondent requested that his

personal assistant, Sherry Cooper, follow-up on whether

Mr. Douglas had any success in obtaining any complimentary

tickets. Respondent understood that Ms. Cooper, at the request

of Mr. Douglas, had inquired of Mr. Stanley how many adult and

how many children tickets were needed.

10. In 2006, Ronald Pecora was the owner of Pecora and

Blexrud, a marketing communications and public relations firm

that had a contract to do work the Expressway Authority.

11. In or about May 2006, Mr. Pecora became aware of the

request for theme park tickets from Christy Payne. Ms. Payne

was the representative of Pecora and Blexrud who was assigned to

work with the Expressway Authority. According to Mr. Pecora,

Ms. Payne reported to him that she was contacted by Mr. Douglas,

the marketing director for the Expressway Authority in regard to

theme park tickets.

12. Based on the above-referenced conversation between

Mr. Pecora and Ms. Payne, it was his (Mr. Pecora's)

understanding that the subject theme park tickets were for

Respondent. However, Mr. Pecora had no idea who would be using

the theme park tickets and never spoke to Respondent about those

tickets.

13. During Mr. Pecora's conversation with Ms. Payne

regarding the theme park tickets, he authorized her to purchase

the theme park tickets with her corporate credit card. As a

result of Mr. Pecora's authorization, a total of 12 theme park

tickets having a value of $2,606.25 were purchased using the

Pecora and Blexrud credit card.

14. At the time Mr. Pecora authorized Ms. Payne to

purchase the 12 theme park tickets, he anticipated being repaid

for the tickets. Mr. Pecora's actions after he received the

theme park tickets and the invoice for the purchase of those

tickets are consistent with that belief and expectation.

15. In mid-May 2006, the 12 theme park tickets and receipt

for payment invoice ("invoice") were delivered to Mr. Pecora's

business address in Winter Park, Florida. The invoice indicated

that the $2,606.25 payment for the theme park tickets had been

charged to Mr. Pecora's credit card. 4

16. A few days after receiving the tickets and invoice,

Mr. Pecora had one of his employees deliver the theme park

tickets and the original invoice for those tickets to Keewin

Properties. The reason Mr. Pecora sent the invoice to Keewin

Properties, whose principal was Respondent, was so that the

recipient would know how much to pay him for the tickets.

17. At the time that Mr. Pecora had the theme park tickets

and invoices sent to Keewin Properties, he knew that Respondent

was the owner of that business.

18. At or near the time Mr. Pecora directed his employee

to deliver the theme park tickets and invoice for those tickets

to Keewin Properties, he memorialized that transaction. In a

hand-written note dated May 18, 2006, Mr. Pecora indicated that

the original invoice had been sent to Keewin Properties.

19. Mr. Pecora understood that theme park tickets were not

for official business purposes of the Expressway Authority.

Accordingly, he did not send the invoice for the theme park

tickets to the Expressway Authority, but to Respondent's

privately-owned business.

20. On or about mid-May 2006, Respondent received the

theme tickets and the invoice that were delivered to him in a

small brown envelope.

21. When he received the tickets, Respondent was surprised

that Mr. Pecora was involved in obtaining the tickets because he

had merely asked Mr. Douglas whether he had access to

complimentary theme park tickets. However, Respondent was not

surprised to have received an invoice.

22. Upon receipt of the tickets, Respondent telephoned

Mr. Stanley and advised him that he had obtained the theme park

tickets and the invoice for the purchase of those tickets.

Because Respondent would be in Costa Rica in a few weeks, he

told Mr. Stanley that he would deliver the tickets and the

invoice when he arrived in Costa Rica. As he had promised, a

few weeks after speaking to Mr. Stanley, Respondent traveled to

Costa Rica and, while there, personally delivered the theme park

tickets and the invoice to Mr. Stanley.

23. When Mr. Stanley received the theme park tickets and

the invoice, he reviewed them. Soon thereafter, Mr. Stanley

gave both the tickets and the invoice to Mr. Esquivel. Prior to

giving the tickets and the invoice to Mr. Esquivel, Mr. Stanley

highlighted the name of the individual printed on the invoice

who was to be paid for the tickets.

24. On or about September 23, 2006, Mr. Stanley and his

family, including Mr. Esquivel, began their visit to the Orlando

area. During this trip, the theme park tickets were used by

Mr. Stanley's family.

25. Respondent did not use any of the theme park tickets.

26. Mr. Esquivel did not pay for the theme park tickets

prior to the time that Mr. Stanley's family used the theme park

tickets.

27. About ten days after Mr. Stanley's family, including

Mr. Esquivel, returned to Costa Rica from Orlando, Mr. Esquivel

suffered a stroke. As a result of the stroke, Mr. Esquivel was

hospitalized for about a week, but later returned to most of his

usual activities.

28. Respondent first learned that the theme park tickets

had not been paid for in December 2006, after reading an article

in the Orlando Sentinel newspaper. Until that time, Respondent

had assumed that Mr. Stanley or his father-in-law had paid for

the theme park tickets.

29. Soon after reading the above-referenced newspaper

article, Respondent called Mr. Stanley to ask if they had paid

for the theme park tickets. Mr. Stanley told Respondent he

believed that his father-in-law had paid for the tickets, but

indicated that he would check on the matter. Upon checking, Mr.

Stanley determined that his father-in-law had not paid for the

tickets.

30. Based on his personal knowledge of his father-in-law,

Mr. Stanley concluded that his father-in-law simply forgot to

pay for the tickets. 5

31. Soon after discovering that Mr. Esquivel had not paid

for the theme park tickets, Mr. Stanley also learned that

criminal proceedings related to the theme park tickets were

pending against Mr. Pecora. Therefore, Mr. Stanley, in

consultation with his attorneys, decided that payment for the

theme park tickets should be made after the criminal proceedings

were over.

32. About a month prior to this proceeding, Mr. Stanley

received wiring instructions from Mr. Pecora's attorney.

Immediately thereafter, Mr. Stanley wired the full payment for

the theme park tickets to Mr. Pecora's attorney, on behalf of

Mr. Pecora.

33. Mr. Stanley's father-in-law gave him the funds which

were wired to Mr. Pecora's attorney.

34. Respondent did not file a Quarterly Gift Disclosure,

CE Form 9, regarding receipt of the theme park tickets. The

reason Respondent did not file a Quarterly Gift Disclosure

Statement was that the theme park tickets were not for him and

were not used by him. Therefore, Respondent did not believe

that the tickets were a gift.

35. Mr. Pecora, the procurer of the theme park tickets,

did not consider the theme park tickets as a gift. Moreover, he

never intended to make those tickets a gift.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2009).

37. Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34-5.0015 authorize the Florida

Commission on Ethics to conduct investigations and to make

public reports on complaints concerning violations of

Chapter 112, Part III, Florida Statutes (the Code of Ethics for

Public Officers and Employees).

38. Respondent is subject to the requirements of

Chapter 112, Part III, Florida Statutes, for his acts and

omissions during his tenure as chairman of the Expressway

Authority.

39. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceedings. Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino

v. Department of Health and Rehabilitative Services , 348 So. 2d

349 (Fla. 1st DCA 1977). In this proceeding, it is the

Commission, through its Advocate, that is asserting the

affirmative--that Respondent violated Subsection 112.3148(8),

Florida Statutes.

40. Commission proceedings which seek recommended

penalties against a public officer or employee require proof of

the alleged violation by clear and convincing evidence. See

Latham v. Florida Commission on Ethics , 694 So. 2d 83 (Fla. 1st

DCA 1997). Therefore, to meet its burden, the Commission must

establish by clear and convincing evidence the elements of

Respondent's alleged violations.

41. As noted by the Supreme Court of Florida:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

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

42. Respondent is charged with violating Subsection

112.3148(8), Florida Statutes, which provides in pertinent part:

(8)(a) Each reporting individual or

procurement employee shall file a statement

with the Commission on Ethics not later than

the last day of each calendar quarter, for

the previous calendar quarter, containing a

list of gifts which he or she believes to be

in excess of $100 in value, if any, accepted

by him or her, for which compensation was

not provided by the donee to the donor

within 90 days of receipt of the gift to

reduce the value to $100 or less, except the

following:

1. Gifts from relatives.

2. Gifts prohibited by subsection (4) [6]

or s. 112.313(4). [7]

3. Gifts otherwise required to be

disclosed by this section.

(b) The statement shall include:

1. A description of the gift, the

monetary value of the gift, the name and

address of the person making the gift, and

the dates thereof. If any of these facts,

other than the gift description, are unknown

or not applicable, the report shall so

state.

2. A copy of any receipt for such gift

provided to the reporting individual or

procurement employee by the donor.

(c) The statement may include an

explanation of any differences between the

reporting individual's or procurement

employee's statement and the receipt

provided by the donor.

(d) The reporting individual's or

procurement employee's statement shall be

sworn to by such person as being a true,

accurate, and total listing of all such

gifts.

* * *

(f) If a reporting individual or

procurement employee has not received any

gifts described in paragraph (a) during a

calendar quarter, he or she is not required

to file a statement under this subsection

for that calendar quarter.

43. Subsection 112.3148(2)(d), Florida Statutes, defines a

"reporting individual" as follows:

[A]ny individual, including a candidate upon

qualifying, who is required by law, pursuant

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

or s. 112.3145, to file full or limited

public disclosure of his or her financial

interests.

44. For purposes of the Code of Ethics, the term "gift" is

defined in Subsection 112.312(12)(a)10., Florida Statutes, as

follows:

"Gift," for purposes of ethics in

government and financial disclosure required

by law, means that which is accepted by a

donee or by another on the donee's behalf ,

or that which is paid or given to another

for or on behalf of a donee, directly,

indirectly, or in trust for the donee's

benefit or by any other means, for which

equal or greater consideration is not given

within 90 days, including:

* * *

10. Entrance fees, admission fees, or

tickets to events, performances, or

facilities.

45. To prove that Respondent violated Subsection

112.3148(8), Florida Statutes, by failing to report the gift on

his Quarterly Gift Disclosure Form, CE Form 9, the following

elements must be proven:

a. Respondent is a "reporting person" within the

meaning of that provision.

b. Respondent, or another on his behalf,

"accepted" a gift (i.e. the theme park tickets).

c. The "gift" was in excess of $100, and

Respondent did not provide compensation to reduce the

value of the gift to less than $100.

d. The "gift," not from a relative, is

prohibited by Subsection 112.3148(4), Florida Statutes

(i.e. gifts from political committees or lobbyists),

or is otherwise required to be disclosed. 8

e. Respondent failed to report the "gift" on his

Quarterly Gift Disclosure Form, CE Form 9, no later

than the last day of the calendar quarter, for the

quarter in which the "gift" was received.

46. The evidence in this case established that at the time

relevant to this proceeding, Respondent was a "reporting

individual" within the meaning of Subsection 112.3148(2)(d),

Florida Statutes.

47. The evidence established that the value of the theme

park tickets received by Respondent was in excess of $100 and

that Respondent did not pay for those tickets.

48. The evidence established that the theme park tickets

received by Respondent were not from a relative. Moreover, no

evidence was presented that the theme park tickets were

otherwise exempt from the reporting requirements of Subsection

112.3148(8)(a), Florida Statutes.

49. Respondent acknowledged that he did not report the

theme park tickets on his Quarterly Gift Disclosure Form, CE

Form 9, because he did not believe the tickets were gifts.

50. Having established four of the five elements required

to prove a violation of Subsection 112.3148(8), Florida

Statutes, the remaining and controlling issue is whether the

theme park tickets were "accepted" by Respondent.

51. Subsection 112.312(12)(a)10., Florida Statutes,

defines the term "gift" as "that which is accepted by a donee or

by another on the donee's behalf . . . for which equal or

greater consideration is not given within 90 days of receipt of

the gift." See Florida Administrative Code Rule 34-13.210,

which provides the same definition of "gift."

52. Pursuant to its rulemaking authority, the Commission

promulgated Florida Administrative Code Rule 34-13.200. That

rule defines the terms "donor" and "donee" as follows:

(1) A "donor" is the person or entity who

provides or pays for a gift, whether

directly or indirectly.

(2) A "donee" is the person who receives

the gift, or on whose behalf the gift is

made.

53. The term "acceptance" is not defined in the Code of

Ethics or in any of the rules promulgated thereunder. When a

term is not defined in statute, "[o]ne of the most fundamental

tenets of statutory construction requires that we give statutory

language its plain and ordinary meaning." Green v. State , 604

So. 2d 471, 473 (Fla. 1992). When necessary, the plain and

ordinary meaning "can be ascertained by reference to a

dictionary." Id.

54. According to Random House Webster's Unabridged

Dictionary (2nd Ed. 2001), at page 11, "accept" means "to take

or receive something offered" and "to accept as a present."

Black's Law Dictionary (Revised 4th Ed. 1968) defines "accept"

as follows: "[t]o receive with approval or satisfaction; to

receive with the intent to retain." Finally, the term

"acceptance of gift" is defined in Ballantine's Law Dictionary

(1969 Lexus Law Publishing) as "a donee's exercise of dominion

over, or the assertion of the rights to, the subject of the

gift."

55. In light of the definitions of "accept" or derivatives

thereof, it is concluded that Respondent never accepted the

tickets as a gift. As demonstrated by the established facts in

this case, Respondent received the theme park tickets, but never

had the intent or intended to retain the tickets. Moreover,

there was no evidence that Respondent ever exercised dominion

over or the asserted rights to the theme park tickets.

56. At most, the evidence in this case established only

that Respondent had custody of the theme park tickets for

several weeks.

57. The clear and convincing evidence established that:

(1) the theme park tickets and the invoice for the tickets were

delivered to and received by Respondent; (2) the theme park

tickets were for Respondent's friend, Mr. Stanley; (3) upon

receiving the tickets and invoice, Respondent notified

Mr. Stanley that the tickets and invoice had been delivered; and

(4) as Respondent had promised, he delivered the tickets and

invoice to Mr. Stanley a few weeks after they were delivered to

him, when he (Respondent) arrived in Costa Rica. No evidence to

the contrary was presented.

58. The undisputed evidence established that neither

Respondent, nor Mr. Pecora, intended the theme park tickets to

be gifts. 9 The Advocate's argument that the intent of Respondent

and Mr. Pecora is irrelevant, is not persuasive. While the

intent of Respondent and Mr. Pecora, without more, is not

dispositive of the matter, their intent and their accompanying

actions must be considered. In this case, the evidence

established that, at each step, the invoice was sent along with

the tickets indicating an expectation that the tickets would be

paid. 10

59. As noted above, one of the elements required to

establish a violation of Subsection 112.3148(8)(a), Florida

Statutes, is that the gift, in this case, theme park tickets, be

accepted by the reporting individual. The evidence in this case

failed to establish that the theme park tickets were "accepted"

by Respondent.

60. Having failed to establish, by clear and convincing

evidence, that the theme park tickets were "accepted" by

Respondent, there is no requirement that he report those tickets

on a Quarterly Gift Disclosure Form, CE Form 9. Therefore, it

is concluded that Respondent did not violate Subsection

112.3148(8), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission on Ethics issue a final

order and public report finding that Respondent, Allen Keen, did

not violate Subsection 112.3148(8), Florida Statutes, and

dismissing the Complaint filed against him.

DONE AND ENTERED this 20th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th of November, 2009.

ENDNOTES

1/ All statutory references are to Florida Statutes (2006),

unless otherwise noted.

2/ Mr. Stanley's father-in-law was aware of his relationship

with Respondent and suggested that he (Mr. Stanley) call

Respondent so they could have the tickets prior to their arrival

in Orlando.

3/ Respondent made this request because he was aware that it

was "common practice" for marketing and public relations

businesses to have access to such tickets.

4/ This presumably was the corporate credit card of Pecora and

Blexrud.

5/ In December 2006, due to the effects of the stroke,

Mr. Stanley's father-in-law had no recollection of the theme

park tickets and, thus, was unable to provide any explanation as

to the reason for not sending the payment for the tickets.

6/ Subsection 112.3148(4), Florida Statutes (2006), states:

(4) A reporting individual or procurement

employee or any other person on his or her

behalf is prohibited from knowingly

accepting, directly or indirectly, a gift

from a political committee or committee of

continuous existence, as defined in

s. 106.011, or from a lobbyist who lobbies

the reporting individual's or procurement

employee's agency, or directly or indirectly

on behalf of the partner, firm, employer, or

principal of a lobbyist, if he or she knows

or reasonably believes that the gift has a

value in excess of $100; however, such a

gift may be accepted by such person on

behalf of a governmental entity or a

charitable organization. If the gift is

accepted on behalf of a governmental entity

or charitable organization, the person

receiving the gift shall not maintain

custody of the gift for any period of time

beyond that reasonably necessary to arrange

for the transfer of custody and ownership of

the gift.

7/ Subsection 112.313(4), Florida Statutes (2006), states:

(4) UNAUTHORIZED COMPENSATION.--No public

officer, employee of an agency, or local

government attorney or his or her spouse or

minor child shall, at any time, accept any

compensation, payment, or thing of value

when such public officer, employee, or local

government attorney 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, employee,

or local government attorney was expected to

participate in his or her official capacity.

8/ See Subsection 112.3148(8)(a)1. through 3, Florida Statutes,

quoted in paragraph 40 of Conclusions of Law.

9/ The fact that Mr. Pecora mistakenly believed that the

tickets were for Respondent in no way changes this fact and

conclusion.

10/ The evidence established that Mr. Pecora sent the tickets

and the invoice to Respondent; Respondent then sent the tickets

and invoice to Mr. Stanley; and when Respondent learned that Mr.

Stanley had not paid for the tickets, he (Respondent) contacted

him.

COPIES FURNISHED :

Philip C. Claypool, Executive Director

and General Counsel

Florida Commission on Ethics

3600 Macclay Boulevard, South

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Jennifer M. Erlinger, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

Kaye Starling, Agency Clerk

Florida Commission on Ethics

3600 Macclay Boulevard, South

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Robert Leventhal, Esquire

Leventhal & Slaughter

111 North Orange Avenue, Suite 700

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.