04-003831EC In Re: Al Paruas vs. * Status: Closed Recommended Order on Friday, July 29, 2005.

Summary: Respondent`s use of his position as a town councilman, to have his wife`s parking ticket voided, constitutes a violations of the law of ethics.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: AL PARUAS, ) Case No. 04 - 3831EC

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on April 12, 2005, in Fort La uderdale, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Advocate: James H. Peterson, III, Esquire

Office of the Attorney General

The Cap itol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: James J. Birch, Esquire

Stuart R. Michelson, Esquire

Law Office of Stuart R. Michelson

200 Southeast Thirteenth St reet

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

Whether the Respondent, Al Paruas (Respondent), as a

member of the town council for the Town of Golden Beach,

Florida, improperly used his influence, as a public officer,

to hav e his wife’s parking ticket voided in violation of

Section 112.313(6), Florida Statutes (2002).

PRELIMINARY STATEMENT

This case began on October 21, 2003, when the Florida

Commission on Ethics (Commission) issued a finding of probable

cause against the Re spondent. The Commission found that the

Respondent had used his influence as a public officer of the

Town of Golden Beach, Florida (Town), to have a parking

ticket, which had been issued to his wife, voided. Such

action purportedly violated Section 112.3 13(6), Florida

Statutes (2002). The Respondent timely challenged the

Commission’s determination of probable cause and the case was

forwarded to the Division of Administrative Hearings for

formal proceedings on October 22, 2004. The Advocate

presented evi dence in support of the probable cause decision

( See § 112.322(6), Fla. Stat. (2002)).

Based upon a stipulation of the parties set forth in a

Joint Motion to Continue Final Hearing filed on January 21,

2005, the hearing was scheduled for April 12, 2005. A t the

hearing, the Advocate presented testimony from Dagmarra

Paruas, the Respondent’s wife; Leo Santinello, a policeman

employed by the Town; and the Respondent. Eight Joint

Exhibits (numbered 1 - 8) were admitted into evidence. The

Advocate for the Commi ssion also submitted its Exhibit 1,

which was received in evidence. The Respondent testified in

his own behalf, and Respondent’s Exhibit 1 was admitted into

evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearing s on April 26, 2005. By

stipulation, the parties agreed that proposed recommended

orders would be filed no later than June 30, 2005. The

Respondent filed his proposed order on July 1, 2005, but it

has been considered along with the timely filed proposal

submitted by the Advocate. The Joint Prehearing Stipulation

filed by the parties on April 8, 2005, has also been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations of this

case, the Respo ndent was an elected member of the Town

council. As such, the Respondent is subject to the mandates

of the Code of Ethics for public officers and employees found

in Chapter 112, Florida Statutes (2002).

2. On February 10, 2000, at approximately 5:25 p.m.

within the Town of Golden Beach, Florida, Dagmarra Paruas (the

Respondent’s wife) illegally parked her motor vehicle in a

handicapped zone at the public beach pavilion. Mrs. Paruas

exited her vehicle for a short amount of time (to see about

some tables a t the pavilion) and when she returned to the car,

Officer Santinello was at her vehicle preparing a citation.

3. Had Mrs. Paruas been respectful, remorseful or

apologetic at the time, Officer Santinello would have written

only a citation warning as it is his policy to warn persons

before writing a citation. Instead, Mrs. Paruas was

disrespectful toward the officer.

4. Based upon Mrs. Paruas’ parking violation and the

disrespectful manner in which she exited the beach parking

area, Officer Santinello dec ided he would let the citation

stand. Factors contributing to the officer’s decision were:

the aggressive backing out of the parking space causing

Officer Santinello to move quickly out of Mrs. Paruas’

vehicle’s path; Mrs. Paruas’ demand to speak to Hern an (Hernan

Cardeno, the Town’s police chief); and the way Mrs. Paruas

threw the ticket back at him after he attempted to hand the

citation to her.

5. Mrs. Paruas is a member of the Town’s beach

committee. At or near the time of the citation, Mrs. Paruas

was checking on arrangements at the beach pavilion for the

beach committee. She did not believe the citation was fair

because she was at the pavilion for a short time and was there

in her capacity as a Town beach committee member.

6. After Mrs. Paruas ad vised the Respondent that she had

received a citation for parking at the pavilion, the

Respondent telephoned the Town’s chief of police. During the

conversation with the chief (Hernan Cardeno) the Respondent

stated he was unhappy with the way the police d epartment was

being run and was unhappy his wife had received a parking

citation. Mr. Paruas did not understand why his wife had

received the citation.

7. At a subsequent meeting with the police chief at the

police department, the Respondent asked when t he Town started

giving councilmen’s wives tickets.

8. The Respondent again reminded the police chief that

he was unhappy with the police department. At the time, the

Respondent was serving as vice mayor for the Town.

9. The Respondent was not persuade d by the information

provided to him regarding the ticket. He continued to

complain regarding the citation to the police chief and to

Officer Santinello. At some point during the meeting at the

police office, Officer Santinello was told it would be in hi s

best interests to take back the citation.

10. When Officer Santinello asked whether his job was

being threatened, he advised the Respondent and the police

chief that he would contact the police union.

11. The Respondent told Officer Santinello to tak e back

the ticket and apologize to his wife.

12. A short while later (after the Respondent had left

the police office), the police chief suggested to Officer

Santinello that he should void Mrs. Paruas’ ticket.

13. The next day, Officer Santinello voided the citation

by preparing a County Court Cancellation Form for the ticket.

Mrs. Paruas was not required to pay the citation or appear in

court or have any adverse entry on her driving record.

14. Officer Santinello voided the citation because he

was af raid of losing his job. He did not want additional

conflict over the matter. Officer Santinello did not want to

get on the Respondent’s bad side, given his position in the

Town. Officer Santinello would like the entire incident to be

forgotten. Officer Santinello expressed regret over the

incident as it has potentially damaged his employment future

with the Town.

15. Mrs. Paruas and the Respondent benefited from the

cancellation of the citation.

16. Had the Respondent not challenged Officer Santinello

as he did, and had he not been a member of the Town council,

the citation would not have been voided.

17. Neither Mrs. Paruas or the Respondent took

responsibility for the fact that she had, in fact, parked

illegally at the beach pavilion.

18. Mrs. Pa ruas is not entitled to park in a handicapped

zone. Members of the Town council and their spouses are not

entitled to park illegally as an extra benefit of their public

roles within the Town.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. §§ 120.569, 120.57(1), and 112.322, Fla.

Stat. (2002).

20. As the party asserting the affirmative of the issue,

the Advocate bears the burden of proof in this matter. See

Department of Transportation v. J.W.C. Co., Inc. , 396 So. 2d

778 (Fla. 1 st DCA 1981). As the Advocate seeks a penalty

against a public officer, the standard of proof to be applied

in the instant case requires that the allegations be

established by clear and convincing evidence. See Latham v.

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

1997). Accordingly, the standard that must be applied in this

matter is whether the Advocate has established by clear and

convincing evidence that Respondent used his official position

as a Town council member to cause a citation issued to his

wife to be voided.

21. In order to meet the “clear and convincing”

standard, evidence must be of such a weight and nature that it

produces in the mind of the trier of fact a firm belief or

conviction without hesitancy as to the truth of the

allegation. Such standard is more than a “preponderance of

the evidence,” but less than “beyond," and to the exclusion of

a reasonable doubt.” See In Re Davey , 645 So. 2d 398 (Fla .

1994).

22. Section 112.313(6), Florida Statutes (2002),

provides:

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 r esource 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.

23. Section 112.3 12(9), Florida Statutes (2002),

provides:

"Corruptly" means done with a wrongful

intent and for the purpose of obtaining, or

compensating or receiving compensation for,

any benefit resulting from some act or

omission of a public servant which is

inconsiste nt with the proper performance of

his or her public duties.

24. It is undisputed the Respondent was a public officer

and is subject to the mandates of Chapter 112, Florida

Statutes (2002). Further, it is undisputed that the

Respondent’s wife received a benefit from the cancellation of

the ticket. When the citation was voided, the Respondent and

his wife were not required to appear in court (had they sought

to challenge the ticket) or pay the fine imposed for the

violation.

25. The real issue, then, is whether the Respondent was

using his public position to obtain the benefit of having the

ticket voided or was merely exercising his right of free

speech to speak out against the ticket. The weight of the

credible evidence supports the former. Average cit izens

entitled to challenge tickets are not able to bully police

officers. They may not telephone the chief of police and

participate in a conference over the issuance of a ticket.

Moreover, neither the Respondent nor his wife has denied the

underlying f act of the issue: that Mrs. Paruas was illegally

parked.

26. In this case, the clear and convincing weight of the

credible evidence supports the conclusion that the Respondent

used his public position to persuade the officer to void the

ticket. Mrs. P aruas did not believe she should be ticketed

despite the fact that she parked illegally. She made no

attempt to apologize for her rudeness to the officer, and

showed little remorse for her conduct during the formal

hearing of this cause. Mrs. Paruas main tained that because

the main entrance to the parking area was closed (or under

construction) and she was required to enter the lot through

the exit she was unable to park in an appropriate parking

space. Given the layout of the pavilion parking lot, such

explanation is simply not credible. There were ample parking

spaces available to Mrs. Paruas. In fact, she moved her

vehicle into one such space before leaving the parking lot.

27. The Respondent’s efforts to discredit Officer

Santinello by suggesting t hat the confrontation in Chief

Cardeno’s office was not documented in the memorandum drafted

to memorialize the citation is not persuasive. First, neither

the chief nor the officer wanted to recount the circumstances

of the Respondent’s interference in th e matter. Second, had

they documented more specific information regarding the

Respondent’s conduct, additional allegations may have been

appropriate. In short, by agreeing to void the citation,

Officer Santinello was trying to let the whole matter be don e

with. He did not want to pursue the citation or the instant

complaint against the Respondent at any time. A third party,

not a party to this case, brought the matter before the

Commission.

28. Section 112.317, Florida Statutes, provides, in

pertinen t part:

(1) Violation of any provision of this

part, including, but not limited to, any

failure to file any disclosures required by

this part or violation of any standard of

conduct imposed by this part, or violation

of any provision of s. 8, Art. II of t he

State Constitution, in addition to any

criminal penalty or other civil penalty

involved, shall, pursuant to applicable

constitutional and statutory procedures,

constitute grounds for, and may be punished

by, one or more of the following:

(a) In the cas e of a public officer:

1. Impeachment.

2. Removal from office.

3. Suspension from office.

4. Public censure and reprimand.

5. Forfeiture of no more than one -

third salary per month for no more

than 12 months.

6. A civil penalty not to exceed

$10,0 00.

7. Restitution of any pecuniary

benefits received because of the

violation committed.

29. The Advocate has recommended penalties consistent

with the foregoing statute and the case law applicable to this

type of charge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Ethics Commission enter a

Final Order and Public Report concluding that the Respondent,

Al Paruas, violated Section 112.313(6), Florida Statutes

(2002). The Respondent should b e subject to a public

reprimand and the imposition of a civil penalty not to exceed

$10,000.

DONE AND ENTERED this 29th day of July, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

J. D. Parrish

Administrative Law Judge

Division 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 29th day of July, 2005.

COPIES FURNISHED:

Kaye Starling, Agency Clerk

Commission on Ethics

3600 Macclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Philip C. Claypool, General Counsel

Commission on Ethics

3600 Macclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32314 - 5709

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

James J. Birch, Esquire

Law Of fice of Stuart R. Michelson

200 Southeast 13th Street

Fort Lauderdale, Florida 33316

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.