01-001439EC In Re: Morris Michael &Quot;Mike&Quot; Scionti vs. * Status: Closed Recommended Order on Friday, January 4, 2002.

Summary: Respondent allegedly committed numerous violations of Chapter 112, Florida Statutes; found guilty of soliciting and accepting free admissions to boxing events. Recommend $1,000 penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MORRIS MICHAEL "MIKE" )

SCIONTI, )

)

Respondent. ) Case No. 01 - 1439EC

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearing s, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal hearing in this case on August 13,

2001 through August 17, 2001, in Tampa, Florida.

APPEARANCES

For Advocate: Joseph Donnelly, Esquire

Veronica E. Donnelly, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Julie A. Reynolds, Esquire

4612 North 56th Street

Tampa, Florida 33610

STATEMENT OF THE ISSUES

The issues for determination are: (1) Whether Respondent,

as Director of the Florida State Athletic Commission ("Athletic

Commission") violated Subsection 112.313(2), F lorida Statutes,

by soliciting a $100,000 donation from Don King and/or Don King

Productions, Inc., on behalf of the Florida State Boxing

Foundation ("Foundation") which was established in part by

Respondent; (2) Whether Respondent violated Subsection

112. 313(4), Florida Statutes, by (a) accepting the $100,000

donation from Don King or Don King Productions, Inc., on behalf

of the Foundation, when he knew or should have known that the

donation may have been given to influence his official actions

relative to his advocating for the acceptance of long - term

promotional contracts in Florida by the Athletic Commission

and/or the licensing of Don King and/or Don King Productions,

Inc., as a promoter despite the existence of a pending

indictment in violation of the Athletic Commission rules;

(b) soliciting boxing officials for political contributions and

donations to the Foundation, and soliciting a boxing official

for a loan to Ms. Cathy Reed and travel expenses for Ms. Reed;

(3) Whether Respondent violated Subsect ion 112.313(6), Florida

Statutes, by (a) soliciting funds for the Foundation from

persons or entities regulated by the Athletic Commission;

(b) soliciting political contributions from persons regulated by

the Athletic Commission; (c) signing a letter prep ared by boxing

promoter Don King's attorney on Athletic Commission stationery,

which indicated the Athletic Commission's interpretation of

Section 548.056, Florida Statutes, as stated in letters written

by the former Executive Secretary, was the former Exe cutive

Secretary's personal opinion rather than the opinion or policy

of the Athletic Commission, in order to benefit Don King or Don

King Productions, Inc; (d) preparing and reading a position

paper opposed to the position taken by the former Executive

Se cretary of the Athletic Commission relative to the

interpretation of Section 548.056, Florida Statutes, and denying

that the earlier position was, in fact, the position of the

Athletic Commission in order to strengthen the arguments of Don

King or Don King Productions, Inc., for the use of exclusive

long - term promotional contracts in Florida, when he knew the

contrary to be true, or as a reward for the $100,000

contribution to the Foundation; (e) lying to the members of the

Athletic Commission who relied on his representations at its

November 5, 1998, meeting regarding the preparation of the

position paper he read to the commission at its August 13, 1998,

meeting; (f) soliciting tickets or complimentary admissions to

boxing matches for his or other Athletic Commission members'

guests from promoters; (g) soliciting a loan and travel expense

payments from Boxing Judge Peter Trematerra; (h) rewarding

Mrematerra with an assignment to judge a World Title fight

for telling the Athletic Commission what Responde nt wanted him

to say, despite Mrematerra's allegedly not having the

requisite experience to warrant such an assignment; (i) not

giving Boxing Judge Paul Herman boxing assignments that his

experience may have warranted after he refused to appear and

tes tify as to what Respondent wanted him to say before the

Athletic Commission; (j) making judging assignments based on

personal considerations of perceived loyalty or disloyalty to

Respondent, rather than on the experience levels of judges;

(k) directing At hletic Commission staff to remove

Mrematerra's and Mr. Herman's names from fight assignments

after they provided affidavits concerning Respondent's

misconduct to Department of Business and Professional

Regulation's Inspector General; (l) representing falsely to the

Salvation Army and the public on Athletic Commission stationery

that David Walker had completed 16 hours of his obligatory

community service; and (4) Whether Respondent violated

Subsections 112.3148(3) and (4), Florida Statutes, by solicitin g

and accepting tickets and free admissions from promoters, and,

if Respondent is guilty of any of these alleged offenses, what

penalty is appropriate.

PRELIMINARY STATEMENT

On October 10, 2000, the Florida Commission on Ethics (the

Commission) entered an Order Finding Probable Cause to believe

that Respondent violated various provisions of Chapter 112,

Florida Statutes, during his term as Executive Director of the

Athletic Commission. On April 13, 2001, the case was forwarded

to the Division of Administra tive Hearings. On April 27, 2001,

the case was set for final hearing in Tampa, Florida. Final

hearing was held on August 13, 2001 through August 17, 2001, in

Tampa, Florida. The Advocate called nine witnesses in its case

in chief: Peter Trematerra, Pau l Herman, Donald Hazelton,

Shelly Bradshaw, Allen Grossman (via deposition), Terry James,

Aleida Waldman, Julio Martinez and Respondent. The Advocate

offered 30 exhibits which were received into evidence. These

exhibits are numbered 1, 2, 3, 4, 7, 20, 21 , 25, 26, 27, 29, 30,

31, 32, 33, 34, 36, 41, 50, 57, 62, 67, 84, 87, 88, 90, 91, 105,

107, and 108. Respondent called nine witnesses: David Walker,

Bragg Crane, L. Tina Crane, Alvin Goodman, Eric Riley, Tommy

Torrino, Bobby Wilds, Alan Fields, M.D., and Brian Garry.

Respondent also testified in his own behalf. One exhibit was

received into evidence and numbered Respondent's Exhibit 1.

Shelly Bradshaw was presented as a rebuttal witness by the

Advocate.

Brian Garry, one of the witnesses, attempted to m ake his

testimony contingent on the acceptance of a sworn statement by

the undersigned Administrative Law Judge. This contingency was

not accepted. However, because the witness' sworn statement was

discussed on the record, it is included in this record i n a

sealed envelope as ALJ's Exhibit 1.

The Transcript of the Proceedings was filed with Division

of Administrative Hearings on October 12, 2001. Both Respondent

and the Advocate requested time extensions for filing proposed

recommended orders which were granted and extended the time for

filing until November 30, 2001. Both timely filed Proposed

Recommended Orders which were thoughtfully considered by the

undersigned Administrative Law Judge.

FINDINGS OF FACT

1. Respondent, Morris Michael "Mike" Scionti, was

Executive Director of the Athletic Commission from May 6, 1996

through March 11, 1999.

2. During his pre - employment interview with Commissioners

of the Athletic Commission, Respondent advanced his vision to

establish a foundation to assist boxers in obtaining job

training, education, and other benefits.

3. The Athletic Commission, through its Commissioners,

gave conceptual approval to the creation of a foundation but did

not want the Athletic Commission or Respondent to be directly

involved with the foundation.

4. Respondent initiated the formal creation of the Florida

State Boxing Foundation, Inc. ("Foundation"), in June 1997. The

Foundation obtained 501(c)(3) tax - exempt status in

December 1997. Respondent was never an employee, officer or

trus tee of the Foundation. After the formation of the

Foundation, there is no evidence of formal involvement of either

Respondent or the Athletic Commission in its affairs.

5. Respondent advocated the Foundation to individuals

interested in boxing and advise d the Athletic Commission of the

status of the Foundation at Athletic Commission meetings.

6. Early in 1997, at the request of Don King ("King"), a

successful and controversial boxing promoter, he and Respondent

met at King's office in South Florida. Pri or to this meeting

the parties had not known each other. During the discussion of

their common interest, boxing, King advised that he was moving

his entire boxing operation to Florida. In the discussion,

Respondent mentioned his vision of a foundation to assist

boxers. King indicated that he thought the foundation was a

wonderful idea and offered to donate $100,000 to get the

foundation started. The evidence presented clearly demonstrates

that Respondent did not solicit the donation from King.

7. Knowi ng that the Athletic Commission had instructed him

to "stay at arms length from the Foundation," Respondent did not

initially accept King's offer; he reported the offer at the next

Athletic Commission meeting where a cautious, tacit approval was

received. Respondent testified that he would have refused the

donation had the Athletic Commission voiced disapproval.

8. It was not inappropriate for Respondent, as Executive

Director of the Athletic Commission, to advocate and publicly

support a foundation chart ered to provide job training,

education and other benefits to boxers.

9. On January 12, 1998, shortly after the Foundation

received 501(c)(3) status, Don King Productions, Inc., tendered

a $100,000 check to the Florida State Boxing Foundation, Inc.

10. N o evidence was presented indicating that Respondent

directly or indirectly benefited from King's $100,000 donation

to the Foundation or that the donation was made based upon any

understanding that Respondent's judgement or any official action

would be infl uenced by the donation. Nor is there any evidence

that Respondent should have known that the donation was given to

influence any official action by Respondent.

11. Boxing promoters, who do business in Florida, must

apply for an annual license. Don King and/or Don King

Productions, Inc., had been licensed in Florida in 1993, 1994,

1995, 1996, and 1997. The license application dated January 13,

1998, fails to reveal a Federal indictment for insurance fraud

in March 1997, although it improperly lists a lic ense suspension

for wire fraud in New Jersey.

12. Relying on the 1998 license application (which did not

reveal the March 1997 insurance fraud indictment), the Athletic

Commission staff in the Tallahassee office issued Don King

Productions, Inc., a 1998 p romoter's license. In August 1998,

after the discrepancy was discovered, the Athletic Commission

issued King a Rule to Show Cause as to why his 1998 license

should not be suspended or revoked for failure to report the

1997 insurance fraud indictment.

13 . The 1998 license renewal was handled through the

Athletic Commission's Tallahassee office. Respondent's office

was in Tampa; he was not directly involved in issuing the 1998

license. At the Rule to Show Cause hearing, Respondent blamed

the Tallahassee office staff for not finding King's omission.

14. "Exclusive" or "long - term" promotional contracts

between boxers and promoters, although a standard in the boxing

industry and widely accepted, have been a source of controversy

in Florida. Apparently, th ere was a division of opinion among

Commissioners of the Athletic Commission as to the

appropriateness of such contracts. Although the Athletic

Commission had not taken a formal position on the subject,

Respondent's predecessor, who was personally opposed to such

contracts, authored several letters indicating that such

contracts were not enforceable under Florida law.

15. Respondent did not share his predecessor's negative

opinion of "exclusive" or "long - term" promotional contracts, to

the contrary, he be lieved such contracts to be beneficial to

boxing. Respondent sought the advice of individuals involved in

boxing, including employees of King, on the subject.

16. Don King Productions, Inc., and other promoters would

benefit if "exclusive" or "long - term" promotional contracts were

recognized and enforceable in Florida.

17. On June 19, 1998, Respondent sent a letter on official

state stationery to Charles Lomax, attorney for Don King

Productions, Inc., advising him that the prohibition on

"exclusive" or " long - term" promotional contracts in Florida was

merely his predecessor's personal opinion. He stated he would

keep Mr. Lomax updated on the progress of this matter.

18. During the August 8, 1998, meeting of the Athletic

Commission, Respondent presented a memo which advocated

promotional contracts, clearly indicated his disagreement with

the position taken by his predecessor on the subject and

recommended that the Athletic Commission permit such contracts

subject to reasonable regulation.

19. Subsequent t o the meeting, Commissioner Terry James

had occasion to examine the Athletic Commission's file on

promotional contracts. When Commissioner James reviewed the

file, he noticed the computer tags on the documents in the file

were the same as the tags he had seen on Sonny Holtzman's

documents. Mr. Holtzman represented King on matters before the

Commission.

20. Although Don King Productions, Inc., and other

promoters benefited from Respondent's support of "exclusive" or

"long - term" promotional contracts, no evidence was presented

that demonstrated that Respondent's support was a result of

King's donation to the Foundation.

21. The advocate presented three witnesses, Peter

Tremetera, Paul Herman, and Shelly Bradshaw, who through their

actions during Responden t's tenure as Executive Director of the

Athletic Commission and their demeanor while giving testimony at

the final hearing, demonstrated such a negative bias toward

Respondent that much of their testimony is not credible.

22. The solicitation and acceptan ce of free tickets and

misuse of "pass lists" to boxing events by Commissioners and

staff of the Athletic Commission has historically been a

problem. This is evidenced by a 1991 Ethics Commission case

involving a former chairman of the Athletic Commission [In re:

James Resnick, 14 F.L.A.R. 1001 (1991)], a March 26, 1997,

inquiry response from a Ethics Commission staff attorney on the

subject, and specific direction on the subject from the Athletic

Commission staff attorney. It is clearly appropriate for

C ommissioners and staff who have a legitimate function

associated with a boxing event to be admitted to the event

without paying an admission fee. It is similarly clear that it

is inappropriate for relatives, friends, political associates,

and other indivi duals who have no legitimate Athletic Commission

function to gain free admission to a boxing event as a result of

an association with the Athletic Commission.

23. Respondent gave Peter Trematerra free tickets to

several boxing events. Respondent placed a n attorney who had no

Athletic Commission involvement on the pass list "all the time."

Respondent solicited free tickets from a promoter in the Lou

Duva organization.

24. Respondent signed a receipt for twenty 75 - dollar

tickets and thirty 50 - dollar ticket s for a January 31, 1998,

boxing event at the Ice Palace in Tampa.

25. During his tenure as Executive Director, Respondent

solicited and accepted free tickets to boxing events from event

promoters, or caused the names of individuals who had no

legitimate function related to the Athletic Commission to be

placed on "pass lists" which allowed free admissions to boxing

events.

26. Evidence was presented that indicated that not only

Respondent but others associated with the Athletic Commission

solicited and ac cepted tickets or passes for individuals who had

no legitimate function with particular boxing events.

27. In September 1997, David Walker performed 16 hours of

community service at the Tampa office of the Athletic Commission

28. Two documents were signe d by Respondent, one, a letter

dated September 21, 1997, indicating that David Walker had

performed 16 hours of community service; the second, a memo

indicating that David walker had completed the 16 hours of

community service on two Saturdays, September 6 and 13, 1997.

29. David walker testified that he had completed the

community service on weekdays.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120. 57(1), Florida Statutes (1997).

31. Section 112.322, Florida Statutes, and Rule 34 - 5.0015,

Florida Administrative Code, authorize the Commission on Ethics

to conduct investigations and to make public reports on

complaints concerning violations of Part III , Chapter 112,

Florida Statutes (the Code of Ethics for Public Officers and

Employees).

32. 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 Transp ortation v.

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

Department of Health and Rehabilitative Services , 348 So. 2d 349

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

on Ethics, through its Advocate, that is asserting t he

affirmative: that Respondent violated Subsections

112.313(2),112.313(4), 112.313(6) and 112.3148(3) and (4),

Florida Statutes. Therefore, the burden of establishing by

clear and convincing evidence the elements of Respondent's

violation is on the Comm ission on Ethics. Latham v. Florida

Commission on Ethics , 694 So. 2d 83 (Fla. 1st. DCA 1997).

33. 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 w itnesses

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 fir m 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).

34. If determined to be guilty o f the violations of the

Subsections of Chapter 112, Florida Statutes, as alleged,

Respondent may suffer a civil penalty, public censure and

reprimand. Statutes that authorize the imposition of penal

sanctions must be strictly construed and any ambiguity m ust be

construed in favor of Respondent. Elmariah v. Department of

Business and Professional Regulation , 574 So. 2d 164, 165 (Fla.

1st. DCA 1990). The Florida lenity statute, Subsection

775.021(1), Florida Statutes, provides that: "offenses" defined

by any Florida Statute must be construed most favorably to the

offender if the language is susceptible to different meanings.

Pasquale v. Florida Elections Commission , 759 So. 2d 23, 26

(Fla. 4th. DCA 2000).

35. Respondent, in his capacity as Executive Di rector of

the Athletic Commission, was a public officer subject to the

provisions of the Code of Ethics for Public Officers and

Employees contained in Part III of Chapter 112, Florida

Statutes, and is subject to the jurisdiction of the State of

Florida Com mission on Ethics. Subsection 112.313(1), Florida

Statutes, defines the term "public officer" to include "any

person . . . appointed to hold office in any agency. . . ." An

"agency" is defined in Subsection 112.312(2), Florida Statutes,

to include "any s tate . . . commission."

36. While Respondent was the Executive Director,

Subsections 112.313(2) and (4), Florida Statutes, prohibited him

from soliciting and/or accepting anything of value from persons

regulated by the Athletic Commission. Subsections 11 2.313(2)

and (4), Florida Statutes, provide as follows:

(2) Solicitation or acceptance of gifts. -

- No public officer, employee of an agency,

local government attorney, or candidate for

nomination or election shall solicit or

accept anything of value to t he recipient,

including a gift, loan, reward, promise of

future employment, favor, or service, based

upon any understanding that the vote,

official action, or judgment of the public

officer, employee, local government

attorney, or candidate would be influe nced

thereby.

(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 he r official capacity.

37. With respect to an alleged violation of Subsection

112.313(2), Florida Statutes, the Advocate must establish by

clear and convincing evidence that:

a. The Respondent was either a public

officer or a public employee.

b. The Respondent either solicited or

accepted anything of value to the recipient.

c. The solicitation or acceptance was

based upon the understanding that the

official action or judgment of the public

officer would be influenced thereby.

38. With respect t o an alleged violation of Subsection

112.313(4), Florida Statutes, the Advocate must establish by

clear and convincing evidence that:

a. The Respondent was either a public

officer or a public employee.

b. The Respondent accepted compensation

payment or a thing of value which was:

(1) Accepted by the Respondent with

actual knowledge that the compensation

payment or thing of value was given to

influence a vote or other action in which

the Respondent was expected to participate

in his official capac ity; or

(2) Accepted by the Respondent when he

should have known (with the exercise of due

diligence) that the compensation payment or

thing of value was given to influence a vote

or other action in which the Respondent was

expected to participate in his official

capacity.

39. The evidence fails to demonstrates that the elements

for the alleged violations as they relate to the $100,000

donation from Don King and/or Don King Productions, Inc., have

been met. There is no evidence that Respondent sol icited a

$100,000 contribution to the foundation he envisioned from King

when he spoke of his plan to form such a foundation in a private

meeting with King. To the contrary, the evidence suggests that

King gratuitously offered the donation. There is no e vidence

showing that Respondent benefited or received anything of value

as a result of the donation. Nor is there any evidence that the

donation was given based upon an understanding that Respondent's

official action or judgement would be influenced by th e donation

or that Respondent should have known the donation was given to

influence an official action. If evidence elicited at the final

hearing circumstantially suggests any of the foregoing elements

of proof, it falls far short of being "clear and conv incing."

40. No credible evidence was presented that Respondent

solicited boxing officials for political contributions or

donations to the Foundation; similarly, there is no competent

evidence that Respondent solicited Peter Tremetera, a boxing

official, for a loan and travel expenses for Ms. Cathy Reed.

41. Subsection 112.313(6), Florida Statutes, provides:

(6) Misuse of public position. -- No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict with s.

104.31.

42. In order to prove Respondent violated Subsection

112.313(6), Florida Statutes, the Advocate must prove by clear

and convincing evidence the following elements of the alleged

violations:

a. The Respondent must be either a public

official or a public employee.

b. The Respondent must have used or

attempted to use his official position or

property or resources within his trust or

performed his official duties:

(1) Corruptly; and

(2) With an intent to secure a speci al

privilege, benefit or exemption for himself

or others.

43. The term "corruptly" is defined in Subsection

112.312(9), Florida Statutes, as follows:

(9) "Corruptly" means done with a

wrongful intent and for the purpose of

obtaining, or compensating o r receiving

compensation for, any benefit resulting from

some act or omission of a public servant

which is inconsistent with the proper

performance of his or her public duties.

44. No credible evidence was presented that Respondent

solicited funds for th e Foundation or solicited political

contributions from persons or entities regulated by the Athletic

Commission.

45. The fact that Respondent's personal opinion as to the

propriety of "exclusive" or "long - term" promotional contracts

was shared by King and other promoters and was not in concert

with Respondent's predecessor, and that Respondent sought the

advice of individuals in the boxing community, including

individuals employed by King, does not demonstrate corrupt use

of Respondent's official position or that he intended to secure

a special benefit for King and others similarly situated.

46. The evidence elicited from Commissioner Terry James

regarding the "computer tags" does not demonstrate clearly and

convincingly that Respondent's memo and letter s regarding the

issue of promotional contracts were not Respondent's own opinion

and work product. Nor does it demonstrate that Respondent

"lied" to the Athletic Commission as alleged.

47. No credible evidence was presented that Respondent

punished or re warded any boxing official's assignments based on

personal considerations of perceived loyalty or disloyalty or

any other inappropriate consideration.

48. Evidence establishes clearly and convincingly that

Respondent solicited and accepted free tickets fr om boxing

promoters and caused individuals names to be placed on "pass

lists" who had no legitimate reason for being admitted to the

particular boxing event without paying an admission charge. In

so doing, Respondent was acting in his official capacity, h is

actions were corrupt as defined, and these actions were done to

obtain a special benefit for himself or another person.

49. The evidence demonstrates clearly and convincingly

that the memo authored by Respondent with reference to the

actual days on whi ch David Walker performed community service

was inaccurate. I do not find that this inaccuracy was done

corruptly as defined in Subsection 112.312(9), Florida Statutes.

50. Subsections 112.3148(3) and (4), Florida Statutes,

provide as follows:

(3) A r eporting individual or procurement

employee is prohibited from soliciting any

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 the partner, firm,

employer, or principal of such lobbyist,

where such gift is for the personal benefit

of the reporting individual or procurement

employee, another reporting individual or

procurement employee, or any member of the

immediate f amily of a reporting individual

or procurement employee.

(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 co mmittee 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

o r 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.

51. In order to prove Respondent vio lated Subsection

112.3148(3), Florida Statutes, the Advocate must establish the

following elements:

a. Respondent must have been a reporting

individual or procurement employee.

b. Respondent must have solicited a gift,

food, or beverage.

c. The gift must been solicited from a

lobbyist who lobbies Respondent or his

"agency."

d. The gift must be for the personal

benefit of the reporting person or

procurement employee or any member of the

immediate family of a reporting individual

or procurement employee.

52. Subsection 112.3148(2)(e), Florida Statutes, defines

"procurement employee" as "any employee of [a] . . . commission

. . . of the executive branch . . . of state government who

participates through . . . recommendation, . . . renderi ng of

advice . . . or in any other advisory capacity in the

procurement of contractual services or commodities . . . if the

cost of such service exceeds $1,000 in any year." No clear and

convincing evidence was presented that Respondent met the

statutory definition of a "procurement employee." Nor was clear

and convincing evidence presented that the boxing promoters from

whom Respondent may have received free tickets or passes are

"lobbyists" as that term is used in Subsection 112.3148(2)(b)1,

Florida Sta tutes.

53. In order to prove Respondent violated Subsection

112.148(4), Florida Statutes, the Advocate must establish the

following elements:

a. Respondent must have been a reporting

individual or procurement employee.

b. Respondent must have know ingly

accepted the gift, with a value in excess of

$100.00, directly or indirectly.

c. Respondent must know or reasonably

believe the gift has a value in excess of

$100.00.

d. The gift must have been accepted from

a lobbyist who lobbies Respondent or his

"agency."

The Advocate failed to prove clearly and convincingly that

Respondent was a procurement employee or that the boxing

promoters that Respondent received tickets or passes from were

lobbyists as defined by Subsection 112.3148(2)(b)1, Florida

Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order and public report be entered

finding that Respondent, Morris Michael "Mike" Scionti, violated

Subsection 112.313(6), Florida Sta tutes, to the extent that

Respondent solicited and accepted tickets or complimentary

admissions to boxing matches as represented in the Order Finding

Probable Cause; imposing a civil penalty of $1,000; and issuing

a public censure and reprimand; and that t he remainder of the

violations alleged in the Order Finding Probable Cause be

dismissed.

DONE AND ENTERED this 4th day of January, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Divisi on of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of January, 2002.

COPIES FURNISHED :

Joseph Donnelly, Esquire

Veronica E. Donnelly, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Julie A. Reynolds, Esquire

4612 North 56th Street

Tampa, Florida 33610

Kaye Starling, Agency Clerk

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Phillip C. Claypool, General Counsel

Commission on Ethics

2822 Remington Green Circle, Suite 101

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.