02-000825EC In Re: Patrick Loebig vs. * Status: Closed Recommended Order on Wednesday, September 11, 2002.

Summary: Respondent successfully defended an allegation that he did not file a CE Form 9, Quarterly Gift Disclosure, by asserting that he did not believe that the gift was of a value in excess of $100.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PATRICK LOEBIG, )

)

Respondent. ) Case No. 02 - 0825EC

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

August 6, 2002, in Tall ahassee, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Advocate: Virlindia Doss, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: D. Andrew Byrne, Esquire

Cooper, Byrne, Blue & Schwartz

1358 Thomaswood Drive

Ta llahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent violated Section 112.3148(8)(a), Florida

Statutes, by failing to disclose a gift with a value in excess

of $100, which was received from a co - worker.

PRELIMINARY STATEMENT

Subse quent to a complaint and a hearing by the Commission

on Ethics (Commission), an Order Finding Probable Cause was

filed on September 11, 2001. The Chairman of the Commission

forwarded the matter to the Division of Administrative Hearings

(Division) on Febr uary 21, 2002, and it was filed by the

Division on February 22, 2002. The case was set for hearing on

June 4, 2002.

Pursuant to the Advocate's Motion to Continue, filed

May 14, 2002, the case was re - scheduled for hearing on August 6,

2002, and was h eld in Tallahassee, Florida, on that date.

The Advocate presented the testimony of five witnesses, two

of which were by deposition. In addition to the deposition

transcripts, the Advocate offered 15 exhibits. All of the

Advocate's exhibits were ad mitted into evidence.

Respondent called no witnesses and offered two exhibits

which were admitted into evidence.

No Transcript was filed. Both parties timely submitted

Proposed Recommended Orders which were considered in the

preparation of thi s Recommended Order.

FINDINGS OF FACT

1. Pursuant to Article II, Section 8, Florida

Constitution, and Section 112.320, Florida Statutes, the

Commission is empowered to serve as the guardian of the

standards of conduct for the officers and employees o f the

state. Pursuant to Sections 112.324 and 112.317, Florida

Statutes, the Commission is empowered to conduct investigations

and to issue a Final Order and Public Report recommending

penalties for violations of the Code of Ethics for Public

Officers and Employees (Code of Ethics).

2. Respondent, during all times pertinent, was employed by

the Florida Department of Revenue (DOR) as Chief Assistant

Counsel, and, as such, was subject to the requirements of the

Code of Ethics.

3. Respondent has b een a member of the Florida Bar since

January 1988 and has worked for DOR since June 30, 1994. He is

AV rated by the Martindale - Hubble rating system and is Board

certified in appellate practice by the Florida Bar.

4. Wayne Mitchell, an attorney and Respondent's co - worker,

prior to October 1, 1997, purchased three multi - day passes to

Disney World, a theme park near Orlando, Florida. He paid

approximately $75.00 each, plus tax, for the passes. His

girlfriend, Donna Harrington, also purchased a pass f or

approximately $75.00 plus tax. These passes provided unlimited

access to the Magic Kingdom, EPCOT, and MGM Studios during the

period October 1, 1997, through December 17, 1997.

5. The passes were not transferable. They had

Mr. Mitchell's name , the names of his two children, and

Ms. Harrington's name printed on them. No one other than the

named parties could use the passes without defrauding Disney

World.

6. In November of 1997, Mr. Mitchell gave Respondent

physical possession of the fo ur passes. It was not

Mr. Mitchell's intent that Respondent use the passes. They were

provided to him so that he could inspect them. Mr. Mitchell

expected only that Respondent, upon examination of the passes,

would conclude that they provided an econom ical means in which

to visit theme parks. Respondent, however, believed that

because Mr. Mitchell gave him possession of the passes, it was

Mitchell's intent that Respondent use them.

7. Respondent took the passes to Disney World. On

November 16, 1 997, he successfully used the passes to enter the

park. His party, including himself, consisted of seven people.

He used a pass for himself, and relatives Taylor Graham, Kristi

Pierce, and Josephine Caito. No one at Disney World checked to

ensure that t he holders of these passes had names that matched

the names printed on the passes.

8. At the same time Respondent entered the park, his wife

and their two children also entered the park. Respondent's wife

and his two children gained access by pres enting tickets she

bought from the park on that day for the sum of $103.62.

9. Respondent, his wife, and their two children

subsequently returned to Tallahassee. Prior to departing for

Tallahassee, he gave the passes to his brother who lived in

Iowa , who had come to the Orlando area to meet with Respondent

and his family and to enjoy the theme parks.

10. On November 18, 1997, Respondent's brother, or his

brother's family, used two of Mr. Mitchell's passes to visit

EPCOT.

11. On November 2 0, 1997, Respondent's brother, or his

brother's family, used two of Mr. Mitchell's passes to visit MGM

Studios.

12. Respondent's brother mailed the passes back to

Respondent subsequent to their return to Iowa, and Respondent

thereafter returned the p asses to Mr. Mitchell.

13. Respondent did not report the receipt of the passes

that he used for himself and for Taylor Graham, Kristi Pierce,

and Josephine Caito, and which he allowed his brother to use, on

the Commission's CE Form 9, Quarterly Gift Disclosure.

14. The regular daily admission price for the attractions

in November of 1997, for a child, was $33.92 plus tax, and the

price for an adult, was $42.14, plus tax. On November 16, 1997,

the cost of entry for the two adults and two childre n who

entered on the passes, had they actually purchased tickets,

would have been $152.12, plus applicable tax.

15. Respondent testified under oath that he believed that

the passes were worth less than $100.00. Respondent maintained

that the more fr equently a pass was used, the lower its value.

For example, under his view of the matter, if a person used a

ticket costing $75.00 twice, the value would be only $37.50. If

used four times, the value would be $18.75.

CONCLUSIONS OF LAW

16. The Divi sion of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

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

Florida Administrative Code, autho rize the Commission to conduct

investigations and to issue final orders and public reports

concerning violations of the Code of Ethics.

18. 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); Balino v.

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

(Fla. 1st DCA 1977). Therefore, the Commission, through its

Advocate, has the burden of proof.

19. Because of the penalties provided by Section 112.317,

Florida Statutes, the Commission, through its Advocate, must

prove its case by clear and convincing evidence. Latham v.

Florida Com'n on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997).

20. Section 112.3148(8)(a), Florida Statutes, the statute

under which Respondent was charged, provides as follows:

112.3148 Reporting and prohibited receipt

of gifts by individuals filing full or

limited public disclosure of financial

interests and by procurement employees. --

* * *

(8)(a) Each reporting individual or

procurement employee shall file a statement

with the Commission on Ethics on the last

day of each calendar quarter, for the

previous calendar quarter, contai ning 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, exc ept the following:

1. Gifts from relatives.

2. Gifts prohibited by subsection (4) or

s. 112.313(4).

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 reporti ng 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.

(e) 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.

21. Respondent was a "reporting individual," as that term

is defined in Section 112.3148(2)(d), Florida Statutes, and

during times pertinent was subject to the provisions of Section

112.3148(8)(a), Florida Statutes.

22. "Gift" is defined for purposes of the Code of Ethics

by Section 112.312(12), Florida Statutes, as follows:

112.312. Definitions

As used in this part an d for purposes of the

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

Constitution , unless the context oth erwise

requires:

* * *

(12)(a) "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 o f 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:

* * *

4. The use of tangible or intangible

personal property.

23. In ord er for a valid gift to occur under the common

law, there must be a complete and irrevocable surrender of

dominion over the res , coupled with an intent then and there to

pass title. A delivery which does not confer the present right

to reduce the res into possession of the donee is insufficient.

See Kuebler v. Kuebler , 131 So. 2d 211 (Fla. 1st DCA 1961), and

Eulette v. Merrill Lynch, Pierce, Fenner and Beane , 101 So. 2d

603 (Fla. 3d DCA 1958).

24. The language in Section 112.312(12)(a), Florida

Stat utes, however, provides an exception to the common law

definition of a gift for purposes of Section 112.3148, Florida

Statutes. This definition, when referring to the receipt of

something, states "that which is accepted by the donee" without

regard to whe ther there is a donative intent or intent to pass

title.

25. It is concluded that Respondent received a gift from

Mr. Mitchell. This conclusion is based upon the evidence

produced at the hearing and admissions made during the course of

discovery. I t is also based on the wording of the joint

prehearing stipulation, at E.8., to the effect that, "In

November 1997, Wayne Mitchell provided the Respondent four Walt

Disney World passes for Respondent's use during a planned trip

to Disney World."

26. Specifically, the use of the tickets was a gift of

intangible personal property, in that the passes' value is based

upon that which the property represents rather than its own

intrinsic value. Section 192.001(11)(b), Florida Statutes.

27. The receip t of a gift as defined by the Code of Ethics

must be reported on a CE Form 9, Quarterly Gift Disclosure, if

the gift received by the recipient is one which the recipient

" believes to be in excess of $100 in value." Section

112.3148(8), Florida Statutes. Therefore, a determination of

what Respondent believed the gift to be worth is required.

28. Section 112.3148(7)(h), Florida Statutes, provides as

follows:

(h) Entrance fees, admission fees, or

tickets shall be valued on the face value of

the ticket or fee, or on a daily or per

event basis, whichever is greater.

29. The face value of each of the four passes was

approximately $75.00, plus tax. Therefore, it is tempting to

conclude that the value of the gift was in excess of $300.00, or

in any event, more than $100.00. Or, if the face value

methodology should be rejected, one might conclude that the

amount paid by Respondent's wife, $152.12, represented the value

of the passes, and that therefore the value of the passes was,

perforce, in excess of $100.00. See CEO 94 - 043 -- October 13,

1994.

30. The passes, however, were not "tickets" of a type

which fit the definition of Section 112.3148(7)(h), Florida

Statutes, because the holders of these passes had to dupe the

authorities at Disney Wo rld in order to use them. Because the

holders could have been turned away at the gate, an element of

risk is associated with the passes which detracts from their

value. Stated another way, if the passes were sold in an arm's -

length transaction, the price would be discounted, possibly

substantially, because the purchaser might be unsuccessful in

using them.

31. In determining value one might also conclude that for

an honest person, the passes would have no value at all. A

person who would be unwilli ng to cheat Disney World, would not

pay any amount for the passes.

32. If a clear statutory or rule definition of value

cannot be found which fits this case, and it cannot, the

determination of value becomes a task fraught with difficulty.

Determini ng the discount attributable to the element of risk is

a matter for expert testimony of a kind not produced at the

hearing in this case.

33. Because of the lack of proof of value, it cannot be

found that the passes were worth over $100.00. This is not a

matter which has to be proved, but if the passes were clearly of

a value of more than $100.00, a determination that Respondent

was dissembling in his claim that he believed them to be

worthless would be easier.

34. It is not important that Res pondent's asserted belief

that the passes were worth $100.00 or less is correct, or even

reasonable. The issue is whether or not Respondent actually

believed that the passes were of a value of $100.00 or less.

Therefore, in order for the Advocate to prev ail, it is necessary

to prove by clear and convincing evidence that Respondent was

prevaricating.

35. Proof in this regard is made difficult by the lack of

proof as to the actual value and compounded by the fact that the

record did not make manifest that at times pertinent Respondent

was actually aware of the cost of the passes. Mr. Mitchell did

not testify with any certainty that he told Respondent what he

had paid for the passes and it is uncertain when Respondent

learned what his wife paid for th e three tickets she purchased.

Proof of what others paid for access to Disney World, at times

pertinent, would have helped to illuminate what Respondent

actually believed.

36. The evidence, taken as a whole, does not prove by

clear and convincing evidence that Respondent was prevaricating.

Accordingly, Respondent's assertion under oath that he believed

the value of the passes was not more than $100.00 must be

accepted.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a final order be entered dismissing the

Order Finding Probable Cause.

DONE AND ENTERED this 11th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Div ision 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

th is 11th day of September, 2002.

COPIES FURNISHED :

D. Andrew Byrne, Esquire

Cooper Byrne Blue & Schwartz

1358 Thomaswood Drive

Tallahassee, Florida 32308

Virlindia Doss, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Flori da 32399 - 1050

Kaye Starling, Agency Clerk

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

Philip C. Claypool, General Counsel

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

Bonnie J. Williams, Executive Director

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All pa rties 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.