07-001820EC In Re: Kevin Beary vs. * Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, June 10, 2009.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: KEVIN BEARY, )

)

Respondent. ) Case No. 07-1820EC

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Carolyn S. Holifield, held a formal hearing in the above-styled

case on December 13, 2007, in Tallahassee, Florida.

APPEARANCES

For Advocates: James H. Peterson, III, Esquire

Jennifer M. Erlinger, Esquire

Lisa M. Raleigh, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Albert T. Gimbel, Esquire

Robert J. Telfer, III, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

For Orange County Sheriff's Office:

Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue in this limited proceeding is whether the

issuance of the Order Finding Probable Cause against Respondent

affects his substantial interests and was based on an unadopted

rule, 1 as contemplated in Subsection 120.57(1)(e)1., Florida

Statutes (2006). 2

PRELIMINARY STATEMENT

On January 31, 2007, the Florida Commission on Ethics

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

that Respondent, Kevin Beary, while Sheriff of Orange County,

112.313(8). On April 19, 2007, the Commission referred the case

to the Division of Administrative Hearings ("DOAH").

On July 11, 2007, Respondent filed a Motion to Invalidate

Agency Action Based on Unpromulgated Rule. Thereafter, on

July 17, 2007, he filed an Amended Motion to Invalidate Agency

Action Based on Unpromulgated Rule ("Amended Motion").

The Amended Motion asserts that the following findings in

the Commission's Order Finding Probable Cause are based on an

unpromulgated rule: (1) Respondent violated Subsection

112.313(3), by doing business with his agency; and (2)

Respondent violated Subsection 112.313(7)(a), by having an

employment or contractual relationship with an entity or

entities doing business with his agency or which relationships

created conflicts of interest and public duties. The Amended

Motion also alleges that the Commission relied on or based the

foregoing findings on an unpromulgated rule, which it asserts is

included in an advisory opinion, CEO 99-2, issued by the

Commission.

The Amended Motion requests that the undersigned conduct a

de novo review of the Commission's probable cause findings,

determine that such finding was based on an unpromulgated rule,

conclude that such rule cannot be justified as provided in

Subsection 120.57(1)(e), and dismiss the allegations of the

Order Finding Probable Cause, which are based on the

unpromulgated rule.

In response, the Commission filed a Motion to Strike or

Dismiss Respondent's Motion to Invalidate Agency Action Based on

[an Alleged] Unpromulgated Rule ("Motion to Strike or Dismiss").

On September 17, 2007, a telephonic hearing was held on the

Amended Motion and the Motion to Strike or Dismiss. Thereafter,

on November 9, 2007, an Order Granting Request for De Novo

Review Pursuant to 120.57(1)(e) was entered, which provided that

the public hearing in the above-styled case be expanded to

determine whether the probable cause findings were based on an

unpromulgated rule.

On November 29, 2007, the Administrative Law Judge entered

an Order Granting Partial Stay and Re-Scheduling Hearing. That

Order stayed this proceeding pending resolution of Respondent's

interlocutory appeal to the Fifth District Court of Appeal,

except for the portion of this proceeding related to the instant

Subsection 120.57(1)(e) challenge. The Order rescheduled that

part of the hearing for December 13 and 14, 2007.

Prior to the final hearing, the parties submitted a Joint

Pre-Hearing Stipulation containing facts which were admitted and

required no proof at hearing.

At the final hearing, the parties offered 11 joint exhibits

(Joint Exhibits 1 through 5 and 11 through 16), all of which

were received into evidence. The Advocate offered five exhibits

(Exhibits 6 through 10), all of which were received into

evidence. Respondent presented the testimony of Phillip

Claypool, the executive director and general counsel of the

Commission, and the deposition transcript of James T. Moore, a

former commissioner of the Florida Department of Law Enforcement

("FDLE"), as Joint Exhibit 16. The Advocate also presented the

testimony of Phillip Claypool.

At the conclusion of Respondent's case, the Advocate made

an ore tenus motion for involuntary dismissal. The undersigned

reserved ruling on the motion and advised the parties that the

motion would be addressed in the recommended order.

The Transcript was filed with the Division of

Administrative Hearings on January 4, 2008. At the conclusion

of the hearing, the parties requested and were allowed to file

proposed recommended orders 30 days after the Transcript was

filed; by doing so, the time was waived for issuance of the

recommended order. Both parties timely filed Proposed

Recommended Orders, which have been considered in preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been

employed by and continuously served as the Sheriff of Orange

County, Florida, since taking office in January 1993, having

been elected to four successive terms.

2. In the aftermath of the September 11, 2001, terrorist

attacks, the Governor by Executive Order, later codified by the

Florida Legislature, created seven Regional Domestic Security

Task Forces (Task Forces) mirroring the seven FDLE geographical

regions throughout the state.

3. Members of the Task Forces were appointed by the

Commissioner of FDLE.

4. As a representative of local law enforcement,

Respondent qualified, by law, for appointment as a member of one

of the Task Forces created by Section 943.0312. 3

5. Co-chairs of the Task Forces were also appointed

directly by the Commissioner of FDLE. The law required that one

co-chair be the FDLE special agent in charge of the operational

region, the other a local sheriff or chief of police from within

the operational region. The co-chairs of the Task Forces were

appointed directly by the Commissioner of FDLE. 4

6. Respondent, as Sheriff of Orange County, was appointed

co-chair of Region 5 Task Force with that region's FDLE special

agent in charge.

7. Task Forces are advisory bodies to FDLE. The Task

Forces also provided operational support to FDLE in its

performance of functions pertaining to domestic security. 5

8. On or about August 5, 2005, the Commission received a

Complaint designated as Complaint 05-105. Complaint 05-105 was

filed against Respondent in his capacity as "Sheriff of Orange

County."

9. The executive director of the Commission found that

based on the information provided in the Complaint, the

allegations contained therein were sufficient to warrant a

preliminary investigation.

10. An investigation was conducted by Investigator Ronald

D. Moalli of the Commission, and a Report of Investigation was

released on the investigation on September 5, 2006.

11. On November 22, 2006, Respondent filed a written

Response to the Report of Investigation with the Commission.

12. Respondent's Response to the Investigation cited a

number of Commission opinions ("CEOs") in support of an argument

that Respondent did not have a contractual or employment

relationship subject to the prohibitions of Subsection

112.313(7)(a). The response also contained a number of legal

and factual arguments contending that the Report of

Investigation did not support a finding of probable cause as to

the allegations against Respondent.

13. On December 19, 2006, the Advocate's Recommendation

was filed with the Commission.

14. The Advocate's Recommendation stated that based on

evidence before the Commission, the Advocate recommended that

there was probable cause to believe that Respondent violated

five provisions of the Code of Ethics for Public Officers and

Employees ("Code of Ethics"), including violations of

Subsections 112.313(3) and 112.313(7)(a).

15. The Advocate's Recommendation does not reference

CEO 99-2, nor does it reference any statements contained in that

advisory opinion.

16. On January 9, 2007, Respondent filed a written

Response to the Advocate's Recommendation.

17. On January 26, 2007, during its executive session, the

Commission conducted a hearing to determine probable cause in

this case.

18. Probable cause hearings before the Commission are not

conducted ex parte as in some agencies. Rather, in addition to

materials submitted by the parties, oral argument is permitted.

However, the Commission does not give Respondents notice of

Chapter 120 rights, and due process rights do not attach until

after probable cause is found. § 112.324(3), Fla. Stat.

19. At the probable cause hearing, the Commission had

before them the Complaint, the Report of Investigation,

Respondent's Response to the Report of Investigation, the

Advocate's Recommendation, and Respondent's Response to the

Advocate's Recommendation. Fla. Admin. Code R. 34-5.006(5). In

addition to the foregoing, the Advocate and counsel for

Respondent made oral arguments at the probable cause hearing.

20. The Advocate argued:

There's a suggestion in the response [of

Respondent] that this wasn't his agency,

that his only agency was the sheriff's

office. I've got some materials. I've

spoken to Mr. Herron about this, and I

believe he would concur, that for

purposes. . . .

I am citing CEO 99-2. For the purposes of

these two provisions, and they're talking

about subsection (3), the doing business

with prohibition, and subsection (7), the

contractual conflict prohibition.

The Commission has said for purposes of

these two provisions, we must determine the

agency of the advisory board members. And

then they speak of two other opinions. We

reiterated our view that in determining an

individual's agency for purposes of the Code

of Ethics, an advisory board to a governing

body is part of that body.

So, being on the task force, [Respondent's]

agency was FDLE. That's the point.

21. At the probable cause hearing, following the argument

of the Advocate and counsel for Respondent, the Commission voted

to accept the recommendation of the Commission's Advocate with

respect to four of the five violations of the Code of Ethics.

22. On January 31, 2007, the Commission issued the Order

Finding Probable Cause to believe that Respondent violated four

provisions of the Code of Ethics.

23. Respondent alleges the Commission relied on and based

the findings of probable cause to believe that Respondent

violated Subsections 112.313(3) and (7)(a) on the following

statement in CEO 99-2.

[I]n determining an individual's "agency"

for purposes of the Code of Ethics, an

advisory board to a governing board is part

of that body.

24. Under existing law, CEO 99-2 is not binding on

Respondent. 6

25. Arguments of counsel are not binding on the

Commission. Moreover, the Advocate's arguments to the

Commission are not rules.

26. None of the written documents before and available to

the Commission at the probable cause hearing, refer to or

mention CEO 99-2 or the application of that advisory opinion.

27. In its Order Finding Probable Cause, the Commission

ordered, in accordance with Chapter 120 that a public hearing be

held on the allegations set forth in the Order Finding Probable

Cause.

28. On or about April 19, 2007, the Commission referred

Complaint 05-105 to DOAH and requested a formal administrative

hearing and to enter a recommended order regarding whether

Respondent violated the Code of Ethics as alleged by the Order

Finding Probable Cause.

29. Two of the four allegations set forth in the Order

Finding Probable Cause material to this segment of the

proceeding state that Respondent violated:

a. Section 112.313(3), Florida Statutes, by

doing business with his own agency.

b. Section 112.313(7)(a), Florida Statutes,

by having employment or contractual

relationship with a business entity or

entities doing business with Respondent's

agency . . . .

30. As of the date of this proceeding, the public hearing

on the Complaint had been stayed pending the outcome of this

proceeding and of an appeal of a discovery matter.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2007).

32. The Commission is authorized to conduct investigations

and to make public reports on Complaints concerning violations

of Part III, Chapter 112. § 112.322, Fla. Stat., and Fla.

Admin. Code R. 34-5.0015.

33. Respondent initiated this proceeding under Subsection

120.57(1)(e) and seeks "to invalidate agency action based on an

unpromulgated rule." As a basis for this action, Respondent

asserts findings of probable cause are based on an advisory

opinion, CEO 99-2, which is an unadopted rule.

34. Subsection 120.57(1)(e) provides:

(e)1. Any agency action that determines the

substantial interests of a party and that is

based on an unadopted rule is subject to

de novo review by an administrative law

judge.

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

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

issue of the proceedings. Florida Department of Transportation

v. J.W.C. Company, 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), cert. denied , 370 So. 2d 458

(Fla. 1979).

36. In this case, Respondent is asserting the affirmative

of the issue related to Subsection 120.57(1)(e). Therefore,

Respondent has the initial burden. To meet that burden,

Respondent must establish by a preponderance of evidence that:

(1) there was agency action that affected his substantial

rights; and (2) the agency action was based on an agency

statement that was an unadopted rule. Implicit in the latter is

Respondent's burden to establish that the agency statement is a

rule.

Analysis of Claim Under Subsection 120.57(1)(e)1.

37. Initially, Respondent has the burden to establish that

he has standing under Subsection 120.57(1)(e)1. In order to do

so, Respondent must establish that his "substantial interests"

have been affected by the agency action.

38. To be substantially affected by an agency statement,

Respondent must establish "a real and sufficiently immediate

injury in fact." Lanoue v. Fla. Department of Law Enforcement ,

751 So. 2d 94, 96 (Fla. 1st DCA 1999). This injury, in fact

"must not be based on pure speculation or conjecture." Ward v.

Board of Trustees of the Internal Improvement Trust Fund , 651

So. 2d 1236, 1237 (Fla. 4th DCA 1995).

39. Respondent presented no evidence at this proceeding to

establish that he suffered a "real and sufficiently immediate

injury" because of the findings of probable cause. Instead,

Respondent's counsel merely argued, "This Order of Probable

Cause substantially affects [Respondent's] substantial

interest." 7

40. In absence of any evidence that the findings of

probable cause substantially affected his interests, Respondent

does not have standing.

41. Assuming, though not concluding, that Respondent has

standing in this proceeding pursuant to Subsection 120.57(1)(e),

he must establish that the agency statement is a rule within the

meaning of Subsection 120.52(15).

42. In this case, Respondent alleges the Commission's

advisory opinion, CEO 99-2, and the specified findings in the

Order Finding Probable Cause are agency statements that rules.

43. Subsection 120.52(15) defines "rule" as follows:

(15) "Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing

rule. . . .

44. Courts have found that any agency statement that

either requires compliance, creates certain rights while

adversely affecting others, or otherwise has the direct and

consistent effect of law is a rule. See Balsam v. Department of

Health and Rehabilitative Services , 452 So. 2d 976, 977-978,

(Fla. 1st DCA 1984); State Department of Administration v.

Harvey , 356 So. 2d 323 (Fla. 1st DCA 1978).

45. Pursuant to Section 112.322, the Commission renders

CEOs (advisory opinions) upon the request of public officials,

candidates for public office, and public employees as to the

application of the Code of Ethics to specific facts.

§ 112.322(3)(a), Fla. Stat. These opinions, until amended or

revoked, are binding only on the conduct of the officer,

employee or candidate who requested the opinion or with

reference to whom the opinion was sought, unless material facts

were omitted or misstated in the request for the opinion.

§ 112.322(3)(b), Fla. Stat. Hence, the advisory opinions

contained in CEOs are not statements of general applicability.

46. The reasoning in CEO 99-2 interprets and advises on

the applicability of the Code of Ethics as to a particular set

of facts and circumstances and is binding only on the individual

who requested the opinion. Accordingly, CEO 99-2 is not a

statement of general applicability as the statements and

interpretations included therein do not apply to Respondent 8 or

anyone except the person who requested the opinion. Moreover,

CEO 99-2 is dispositive on the specific set of facts and

circumstances provided by the individual requesting the opinion.

47. Based on the conclusion in the above paragraph,

CEO 99-2 is not a rule within the meaning of Subsection

120.52(15).

48. Respondent also asserts that the Commission's Order

Finding Probable Cause is an agency statement of general

applicability that has not been adopted as a rule. (Presumably,

Respondent is referring not to the entire Order Finding Probable

Cause, but to the findings of probable cause related to

violations of Subsections 112.313(3) and (7)(a).)

49. Respondent asserts that the findings of probable cause

at issue in this proceeding are statements of general

applicability that implement, interpret, or prescribe law or

policy. However, Respondent offers no evidence in support of

his assertion.

50. The Commission is empowered to make findings of

probable cause, conduct the complaint process, and make findings

as to whether a violation of the Code of Ethics has occurred.

§§ 112.322 and 112.324, Fla. Stat. In this case, so far, the

Commission has only found that "there is probable cause to

believe" that Respondent violated Subsections 112.313(3)

and (7)(a). The findings of probable cause apply only to

Respondent and do not implement, interpret or prescribe law.

Rather, the findings reflect that based on the evidence

presented, the Commission believes that Respondent violated the

above-referenced provisions of the Code of Ethics.

51. In order to sustain a probable cause determination,

there must merely be "some evidence considered by the panel that

would reasonably indicate that the violation has occurred." See

Fish v. Dept. of Health, Board of Dentistry , 825 So. 2d 421, 423

(Fla. 1st DCA 2002). A determination of whether Respondent

violated Subsections 112.313(3) and (7)(a) will be addressed at

a subsequent proceeding 9 where the allegations must be proved by

clear and convincing evidence. See Latham v. Florida Commission

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

52. In light of the foregoing, the Order Finding Probable

Cause and the findings contained therein are not rules within

the meaning of Subsection 120.52(15), Florida Statutes.

Conclusion Under Subsection 120.57(1)(e)1.

53. As noted above, Petitioner failed to establish that he

had standing to bring a claim under Subsection 120.57(1)(e),

Florida Statutes. However, even if he had standing based on the

above conclusions, Respondent's claim would fail as he did not

establish that the agency statements are rules within the

meaning of Subsection 120.52(15), Florida Statutes. As stated

in United Wisconsin Life Insurance Co. v. Dept. of Insurance ,

Case No. 01-3135 (DOAH November 27, 2001) (Final Order

November 27, 2001); affirmed 831 So. 2d 239 (Fla. 1st DCA 2002),

"[i]f the statements alleged to be rules in the [c]omplaint, are

not rules, then the inquiry needs to go no further." That being

the case, there is no need to analyze the agency statement in

the context of Subsection 120.57(1)(e)2., Florida Statutes. 10

Probable Cause Findings Not Subject to Section 120.57

Proceedings

54. The Advocate has asserted that the proceeding which

Respondent initiated under Section 120.57(1)(e) to invalidate

agency action finding probable cause to believe that Respondent

violated provisions of the Code of Ethics, is not subject to a

challenge under Section 120.57.

55. In support of this position, the Advocate relies on

Subsection 120.57(5), Florida Administrative Code Rules 34-5.006

and 28-106.101, and the cases discussed below.

56. Subsection 120.57(5) provides: "This section does not

apply to agency investigations preliminary to agency action."

In a concurring opinion in Manasota-88 Inc. v. Gardinier, et.

al. , 481 So. 2d 948, 951 (Fla. 1st DCA 1986), Judge Smith noted

that "preliminary, probable cause type determinations cannot

ordinarily be regarded as agency action triggering the right to

a 120.57 hearing, unless the right to a hearing is supported by

the statutory framework guiding the particular agency action in

question."

57. Florida Administrative Code Rule 34.5.006(4) gives

Respondent and the Advocate the right "to attend the hearing at

which the probable cause determination is made." Pursuant to

that rule, Respondent and the Advocate are permitted to make

"brief oral statements in the nature of oral argument at the

probable cause hearing," but are precluded from presenting

testimony or other evidence.

58. Florida Administrative Code Rule 34.5.006(5) provides

that the probable cause determination is the conclusion of the

preliminary investigation. Such preliminary proceedings are

excluded from Section 120.57. Subsection (5) of that statutory

provision provides: "This chapter does not apply to agency

investigations preliminary to agency action."

59. Consistent with the provisions cited in the above

paragraph, Florida Administrative Code Rule 28-106.101 provides:

"This chapter applied to all proceedings under Chapter 120,

F.S., except as follows: . . . (2) Agency investigations or

determinations of probable cause preliminary to agency

action[.]"

60. Subsection 112.324(3) provides, in pertinent part:

(3) A preliminary investigation shall be

undertaken by the commission of each legally

sufficient complaint over which the

commission has jurisdiction to determine

whether there is probable cause to believe

that a violation has occurred. . . If the

commission finds from the preliminary

investigation probable cause to believe that

this part has been violated or that any

other breach of the public trust has been

committed, it shall so notify the

complainant and the alleged violator in

writing. . . Upon request submitted to the

commission in writing, any person who the

commission finds probable cause to believe

has violated any provision of this part or

has committed any other breach of the public

trust shall be entitled to a public hearing.

Such person shall be deemed to have waived

the right to a public hearing if the request

is not received within 14 days following the

mailing of the probable cause notification

required by this subsection. . . .

61. Based on the foregoing, Respondent has no right to

challenge the Commission's findings of probable cause in

Subsection 120.57(1)(e). Rather, it is clear that Respondent's

Section 120.57 rights were triggered after the Commission made

its probable cause determination. As noted above, Respondent

has exercised that right. However, at the time of this

proceeding, that matter was stayed pending the outcome of this

proceeding and of a pending appeal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order and Public Report be entered

on this part of the proceedings only, finding that:

(1) Respondent, Kevin Beary, failed to show that the issuance of

the Order of Probable Cause against him affects his substantial

interests and was based on an unadopted rule, as contemplated by

Subsection 120.57(1)(e)1.; and (2) dismissing Respondent's

Amended Motion to Invalidate Agency Action Based on

Unpromulgated Rule.

DONE AND ENTERED this 11th day of August, 2008, 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] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2008.

ENDNOTES

1/ The term "unadopted rule" and "unpromulgated rule" are used

interchangeably.

2/ All references to Chapters, Sections and Subsections are to

Florida Statutes (2006), unless otherwise indicated.

3/ Subsection 943.0312(1)(c) provides:

Each task force membership may also include

representatives of state and local law

enforcement agencies,. . . and other persons

deemed appropriate and necessary by the task

force co-chairs.

4/ Subsection 943.0312(1)(b) provides:

Each task force shall be co-chaired by the

department's special agent in charge of the

operational region in which the task force

is located and by a local sheriff or chief

of police from within the operational

region.

5/ Subsection 943.0312(1), which established the regional

domestic security task force framework, provided:

To assist the department and the Chief of

Domestic Security in performing their roles

and duties in this regard, the department

shall establish a regional domestic security

task force in each of the department's

operational regions. The task forces shall

serve in an advisory capacity to the

department and the Chief of Domestic

Security. . . .

6/ While the Commission on Ethics has authority to issue

advisory opinions, those opinions are binding only on the

conduct of the public officer or employee or candidate that

sought the opinion.

(3)(a) Every public officer, candidate

for public office, or public employee, when

in doubt about the applicability and

interpretation of this part or s. 8, Art. II

of the State Constitution to himself or

herself in a particular context, may submit

in writing the facts of the situation to the

Commission on Ethics with a request for an

advisory opinion to establish the standard

of public duty. Any public officer or

employee who has the power to hire or

terminate employees may likewise seek an

advisory opinion from the commission as to

the application of the provisions of this

part or s. 8, Art. II of the State

Constitution to any such employee or

applicant for employment. An advisory

opinion shall be rendered by the commission,

and each such opinion shall be numbered,

dated, and published without naming the

person making the request, unless such

person consents to the use of his or her

name.

(b) Such opinion , until amended or

revoked, shall be binding on the conduct of

the officer, employee, or candidate who

sought the opinion or with reference to whom

the opinion was sought , unless material

facts were omitted or misstated in the

request for the advisory opinion. (Emphasis

added.)

Subsection 112.322(3)(a).

7/ With regard to the issue of "substantial interest,"

Respondent's counsel further stated:

I don't believe anybody here suggests that

the finding of probable cause is nothing for

Sheriff Beary to worry about, no problem, no

big deal, that it does not affect a

substantial interest; and that the agency

action is based on an unadopted rule or not

contained in the statute. That's the

definition. I think we demonstrated that.

8/ In the Pre-hearing Stipulation, Respondent stipulated or

admitted that "[u]nder existing law, advisory opinion CEO 99-2

is not binding on him."

9/ The hearing on the underlying complaint had been stayed at

the time of this proceeding.

10/ Subsection 120.57(1)(e)2. provides:

2. The agency action shall not be presumed

valid or invalid. The agency must

demonstrate that the unadopted rule:

a. Is within the powers, functions, and

duties delegated by the Legislature or, if

the agency is operating pursuant to

authority derived from the State

Constitution, is within that authority;

b. Does not enlarge, modify, or contravene

the specific provisions of law implemented;

c. Is not vague, establishes adequate

standards for agency decisions, or does not

vest unbridled discretion in the agency;

d. Is not arbitrary or capricious. A rule

is arbitrary if it is not supported by logic

or the necessary facts; a rule is capricious

if it is adopted without thought or reason

or is irrational;

e. Is not being applied to the

substantially affected party without due

notice; and

f. Does not impose excessive regulatory

costs on the regulated person, county, or

city.

COPIES FURNISHED :

Philip C. Claypool, Executive Director and

General Counsel

Florida Commission on Ethics

Post Office Box 15709

Tallahassee, Florida 32317-5709

Albert T. Gimbel, Esquire

Robert J. Telfer, III, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

Kaye Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

James H. Peterson, III, Esquire

Jennifer M. Erlinger, Esquire

Lisa M. Raleigh, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Wayne H. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

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.