09-005227EC In Re: Mickey Rosado vs. * Status: Closed Recommended Order on Friday, January 15, 2010.

Summary: Member of City Council disclosed and used information given to him as a council member to his personal benefit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MICKEY ROSADO, )

) Case No. 09-5227EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on, November 16, 2009, in Fort Myers, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Advocate: Lisa M. Raleigh, Esquire

Jennifer Yencarelli, Esquire

Office of the Attorney General

The Capitol, Plaza Level-01

Tallahassee, Florida 32399-1050

For Respondent: Mickey Rosado, pro se

2121 Southeast 18th Place

Cape Coral, Florida 33990

STATEMENT OF THE ISSUES

The issues in this case are whether Mickey Rosado violated

Subsection 112.313(8), Florida Statutes (2005), 1 and, if so, what

recommendation should be made for discipline.

PRELIMINARY STATEMENT

On April 29, 2009, the Florida Commission on Ethics

(Commission) entered an Order Finding Probable Cause to

believe that Respondent, Mickey Rosado (Mr. Rosado), violated

Subsection 112.313(8), Florida Statutes. The case was forwarded

to the Division of Administrative Hearings on September 23,

2009, for assignment of an Administrative Law Judge.

The Advocate and Mr. Rosado entered into a Joint Prehearing

Stipulation, in which certain facts were admitted in Section E

of the Joint Prehearing Stipulation. Those facts have been

incorporated into this Recommended Order to the extent relevant.

At the final hearing, the Advocate called Mr. Rosado as a

witness. Advocate’s Exhibits 1 through 10 were admitted in

evidence. Mr. Rosado testified in his own behalf and called the

following witnesses: Guillermo Duque; Ricardo McCormack; Doris

Rosado; Muriel Rosco; Angel Ramos, Jr.; Jorge Nunez; and Michael

Villalobos. Respondent’s Exhibits 1 through 5, 8, and 9 were

admitted in evidence. Respondent’s Exhibits 6 and 7 were

offered in evidence, but were not admitted.

The one-volume Transcript of the final hearing was filed on

December 3, 2009. The parties filed their proposed recommended

orders on December 14, 2009. The parties’ proposed recommended

orders have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Mr. Rosado served as member of the Cape Coral City

Council (City Council) from April 2003 until he was suspended

from office in January 2007. In addition to being on the City

Council, Mr. Rosado owned a marketing business named Mickey

Rosado Management, LLC. He and his wife also operated a small

café and catering business.

2. During the latter part of 2005, the City of Cape Coral

(City) was involved in looking for property to expand the City’s

office space. On December 5, 2005, the City Council met, and

one of the items on the consent agenda was the request for

authorization to offer $2,000,000 and negotiate a contract for

the purchase of property located at 924 Del Prado Boulevard,

Cape Coral, Florida. For purposes of this Recommended Order,

this property will be referred to as the Motor City Property.

Mr. Rosado voted against authorizing the negotiation of the

purchase of the Motor City Property. In the discussion at the

City Council meeting, Mr. Rosado stated that he felt the

location had traffic problems. The motion to negotiate a

contract for the Motor City Property passed on a seven-to-one

vote.

3. After the City Council meeting concluded, Mr. Rosado

asked Terry Stewart (Mr. Stewart), who was the city manager, to

look into purchasing some other property for the needed office

space. The property was owned by Steve Westphal’s Used Car

Factory, Inc., which is a car dealership owned by Steven L.

Westphal (Mr. Westphal) and his children. The property to which

Mr. Rosado was referring (Westphal Property) was located on Del

Prado Boulevard, in Cape Coral, Florida. Mr. Stewart told

Mr. Rosado that he would look into the Westphal Property.

4. There are two versions of how Mr. Rosado came to know

that Mr. Westphal would be willing to sell the Westphal Property

to the City. According to Mr. Westphal, while visiting in

Tennessee, he was watching the December 5, 2005, City Council

meeting on television and listened to the discussion concerning

the purchase of the Motor City Property. Mr. Westphal stated

that he called Mr. Rosado to talk to Mr. Rosado in his capacity

as a member of the City Council and advised Mr. Rosado that he

would be willing to consider selling the Westphal Property to

the City. Mr. Westphal stated that he also called A.J. Boyd,

who was a member of the City Council, and told him of the

possibility of selling the Westphal Property to the City.

5. Mr. Rosado’s version is contained in a letter to the

Ethics Commission staff dated February 12, 2009, 2 in which

Mr. Rosado responded to the question of how he learned about the

availability of the Westphal Property as follows:

Mr. Malone’s question was: “How did I find

out about the property?” I replied that

through a conversation with Mr. Westphal,

when I called him about a property located

in Cape Coral, called Motor City. I asked

him about the property in question and he

replied that the property didn’t deserve to

be a location for a customer service center

for the City of Cape Coral. I told him your

property would be much better since it was

located by City property, [3] and he agreed.

Furthermore, he said, tell Mr. Stuart [sic]

I will sell the city the Del Prado property,

and I did so immediately after the meeting

that evening.

6. Whether Mr. Westphal’s version or Mr. Rosado’s version

is correct, the undisputed fact remains that Mr. Westphal

advised Mr. Rosado, in Mr. Rosado’s capacity as a member of the

City Council, that he was willing to sell the Westphal Property

to the City and that Mr. Westphal wanted Mr. Rosado to convey to

the City that the property was for sale.

7. The evidence does not support a finding that

Mr. Westphal was advising Mr. Rosado in Mr. Rosado’s private

capacity that he was in the market to sell the Westphal Property

to anyone other than the City. As Mr. Westphal put it, “I’m not

going to call a guy that delivers sandwiches to my dealership

about selling a large piece of property.” It is clear that

Mr. Westphal was talking to Mr. Rosado in Mr. Rosado’s capacity

as a member of the City Council.

8. It is also clear that the information that Mr. Westphal

was willing to sell his property to the City was not information

that was available to the general public. The evidence

establishes that, before Mr. Westphal and Mr. Rosado talked in

December 2005 about selling the Westphal Property to the City,

Mr. Westphal had not had the Westphal Property on the market.

9. As requested by Mr. Rosado, Mr. Stewart began looking

into the Westphal Property to determine whether the property

would be appropriate for the City’s needs. Mr. Stewart

contacted Mr. Westphal and was given permission to visit the

Westphal Property along with two other pieces of property owned

by Steve Westphal’s Used Car Factory, Inc.

10. Sometime between December 5, 2005, and December 12,

2005, Mr. Rosado contacted an employee of Top Two Development,

Inc., and advised that the Westphal Property was available for

sale. Mr. Rosado, in turn, advised Mr. Westphal that Top Two

Development, Inc., was interested in purchasing the Westphal

Property. A meeting was arranged at which Mr. Rosado introduced

Mrs. Giraldo to Mr. Westphal to discuss the purchase of the

Westphal Property and other properties owned by Steve Westphal’s

Used Car Factory, Inc., as well as the car dealership.

11. Mrs. Giraldo spoke Spanish but not English, and

Mr. Westphal spoke English but not Spanish. Mr. Rosado and

Mrs. Giraldo’s daughter, who was also at the meeting, were bi-

lingual and translated for Mr. Westphal and Mrs. Giraldo.

Mr. Westphal, as representative of Steve Westphal’s Used Car

Factory, Inc., and Mrs. Giraldo, as representative of Top Two

Development, Inc., came to an understanding to negotiate for the

purchase of the properties and the stock of the dealership.

Mr. Rosado drafted the Letter of Interest/Understanding for

Negotiation Purposes which Mrs. Giraldo and Mr. Westphal signed

on December 12, 2005.

12. After the meeting, Mr. Rosado approached Mr. Westphal

and wanted to know if there would be anything in the deal for

him. Mr. Westphal agreed to pay Mr. Rosado a finder’s fee of

$261,000 if the sale of the stock of the dealership between

Mr. Westphal and Mrs. Giraldo was completed. Mr. Rosado also

asked Mr. Westphal if he would include a new car for

Mr. Rosado’s wife, but Mr. Westphal balked at that suggestion.

13. A couple of weeks after the December 5, 2005, City

Council meeting, Mr. Stewart advised Mr. Rosado of his efforts

regarding the Westphal Property, and Mr. Rosado told Mr. Stewart

that the property was under contract. Mr. Rosado did not

divulge his participation in the introduction of Mrs. Giraldo

and Mr. Westphal.

14. By Invoice 50313, dated January 12, 2006, Mickey

Rosado Management, LLC, billed Top Two Development, Inc.,

$10,000 for the following services:

Consulting services for Business opportunity

with Steve Westphal’s Properties and

Business Purchase.

Developed Letter of Intent for business

agreement, deliver negotiations agreement

and notarized terms of agreement.

When the transaction is final Top Two

Development will also as part of the

agreement with MRM will provide a vihicle

[sic] of choice.

15. By check dated January 16, 2006, Top Two Development,

Inc., paid Mickey Rosado Management, LLC, $10,000 for the

services invoiced on January 12, 2006.

16. On March 12, 2006, Mickey Rosado Management, LLC,

invoiced Top Two Development, Inc., $10,000 for the following

services:

Provide interpreting services, at all

meetings pertaining Steve Westphal’s stock

purchase agreement. In person, phone

conferences, meetings, and all pertaining

needed area’s [sic] requested January,

February, March 2006.

These services include all dates, hours,

minutes, phone calls, meetings,

arrangements, appointments, travel,

transportation, etc.

This invoice is an extension agreement of

January Invoice 50313 as agreed by

Mrs. Giraldo, payment is due 3/1/06 to

continue services.

17. By check dated March 21, 2006, Top Two Development,

Inc., paid Mickey Rosado $10,000 for services rendered.

18. In 2007, Mr. Rosado was arrested for his involvement

in the attempted sale of the Westphal Property for operating as

a broker without a license in violation of Subsection

475.42(1)(a), Florida Statutes.

19. On January 30, 2007, Governor Charlie Crist entered an

executive order suspending Mr. Rosado from his position as a

member of the City Council.

20. Mr. Rosado was not re-elected to the City Council in

September 2007.

21. On July 27, 2008, Mr. Rosado entered a guilty plea to

one count of brokering without a license and one count of misuse

of confidential information. The plea agreement provided that

Mr. Rosado was to make restitution of $10,000.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

23. Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34-5.0015, authorize the Commission to

conduct investigations and to make public reports on complaints

concerning violations of Part III, Chapter 112, Florida Statutes

(the Code of Ethics for Florida Public Officers and Employees).

24. The Advocate has the burden to establish the

allegations in the Order Finding Probable Cause by clear and

convincing evidence. Latham v. Florida Commission on Ethics ,

694 So. 2d 83 (Fla. 1st DCA 1997).

25. The Order Finding Probable Cause alleges that

Mr. Rosado violated Subsection 112.313(8), Florida Statutes,

which provides:

(8) DISCLOSURE OR USE OF CERTAIN

INFORMATION.--A current or former public

officer, employee of an agency, or local

government attorney may not disclose or use

information not available to members of the

general public and gained by reason of his

or her official position, except for

information relating exclusively to

governmental practices, for his or her

personal gain or benefit or for the personal

gain or benefit of any other person or

business entity.

26. In order to establish a violation of Subsection

112.313(8), Florida Statutes, the following elements must be

proven:

1. Mr. Rosado must have been a public

officer or employee.

2. Mr. Rosado must have disclosed or used

information which was:

(a) not available to members of the general

public, and

(b) gained by reason of his official

position.

3. Such information must have been

disclosed or used with an intent to secure

personal gain or benefit for Mr. Rosado or

another person or business entity.

27. While a member of the City Council, Mr. Rosado was

a “public officer” as that term is defined in Subsection

112.313(1), Florida Statutes, and used in Subsection 112.313(8),

Florida Statutes. Subsection 112.313(1), Florida Statutes,

defines a “public officer” to include “any person elected or

appointed to hold office in any agency, including any person

serving on an advisory body.” Subsection 112.313(2), Florida

Statutes, defines agency to include any local government entity.

Mr. Rosado was an elected member of the City Council.

28. Mr. Westphal requested Mr. Rosado in Mr. Rosado’s

capacity as a member of the City Council to advise the City that

the Westphal Property could be sold to the City. This

information was not available to the general public and was told

to Mr. Rosado only because Mr. Rosado was a member of the City

Council.

29. Mr. Rosado disclosed the information to Top Two

Development, Inc., and introduced Mrs. Giraldo to Mr. Westphal

in order to facilitate the sale of the Westphal Property to Top

Two Development, Inc. Mr. Rosado had an agreement with

Mr. Westphal for the payment of a finder’s fee if the deal was

concluded. Mr. Rosado was also contracting with Top Two

Development, Inc., for services relating to the negotiation of

the sale of the Westphal Property. Thus, Mr. Rosado disclosed

and used the information with an intent to financially benefit

himself or his company.

30. The Advocate has established by clear and convincing

evidence that Mr. Rosado violated Subsection 112.313(8), Florida

Statutes.

31. Mr. Rosado is no longer a member of the City Council.

Section 112.317, Florida Statutes, provides that the Commission

may recommend penalties of public reprimand and censure and a

civil penalty not to exceed $10,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

Mr. Rosado guilty of violating Subsection 112.313(8), Florida

Statutes, and recommending the imposition of a public reprimand

and censure and a civil penalty of $7,500.

DONE AND ENTERED this 15th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 15th of January, 2010.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2005 version.

2/ Respondent’s Exhibit 1.

3/ The Westphal Property was located adjacent to the City’s

public works department.

COPIES FURNISHED :

Kaye Starling, Agency Clerk

Florida Commission on Ethics

3600 Maclay Boulevard, South

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Lisa M. Raleigh, Esquire

Jennifer Yencarelli, Esquire

Office of the Attorney General

The Capitol, Plaza Level-01

Tallahassee, Florida 32399-1050

Mickey Rosado

2121 Southeast 18th Place

Cape Coral, Florida 33990

Philip C. Claypool, Executive Director

and General Counsel

Florida Commission on Ethics

3600 Maclay Boulevard, South

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

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.