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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8IN RE: MICKEY ROSADO, )

13) Case No. 09-5227EC

17Respondent. )

19)

20RECOMMENDED ORDER

22Pursuant to notice, a final hearing was held in this case

33on, November 16, 2009, in Fort Myers, Florida, before Susan B.

44Harrell, a designated Administrative Law Judge of the Division

53of Administrative Hearings.

56APPEARANCES

57For Advocate: Lisa M. Raleigh, Esquire

63Jennifer Yencarelli, Esquire

66Office of the Attorney General

71The Capitol, Plaza Level-01

75Tallahassee, Florida 32399-1050

78For Respondent: Mickey Rosado, pro se

842121 Southeast 18th Place

88Cape Coral, Florida 33990

92STATEMENT OF THE ISSUES

96The issues in this case are whether Mickey Rosado violated

106Subsection 112.313(8), Florida Statutes (2005), 1 and, if so, what

116recommendation should be made for discipline.

122PRELIMINARY STATEMENT

124On April 29, 2009, the Florida Commission on Ethics

133(Commission) entered an Order Finding Probable Cause to

141believe that Respondent, Mickey Rosado (Mr. Rosado), violated

149Subsection 112.313(8), Florida Statutes. The case was forwarded

157to the Division of Administrative Hearings on September 23,

1662009, for assignment of an Administrative Law Judge.

174The Advocate and Mr. Rosado entered into a Joint Prehearing

184Stipulation, in which certain facts were admitted in Section E

194of the Joint Prehearing Stipulation. Those facts have been

203incorporated into this Recommended Order to the extent relevant.

212At the final hearing, the Advocate called Mr. Rosado as a

223witness. Advocate’s Exhibits 1 through 10 were admitted in

232evidence. Mr. Rosado testified in his own behalf and called the

243following witnesses: Guillermo Duque; Ricardo McCormack; Doris

250Rosado; Muriel Rosco; Angel Ramos, Jr.; Jorge Nunez; and Michael

260Villalobos. Respondent’s Exhibits 1 through 5, 8, and 9 were

270admitted in evidence. Respondent’s Exhibits 6 and 7 were

279offered in evidence, but were not admitted.

286The one-volume Transcript of the final hearing was filed on

296December 3, 2009. The parties filed their proposed recommended

305orders on December 14, 2009. The parties’ proposed recommended

314orders have been considered in the preparation of this

323Recommended Order.

325FINDINGS OF FACT

3281. Mr. Rosado served as member of the Cape Coral City

339Council (City Council) from April 2003 until he was suspended

349from office in January 2007. In addition to being on the City

361Council, Mr. Rosado owned a marketing business named Mickey

370Rosado Management, LLC. He and his wife also operated a small

381café and catering business.

3852. During the latter part of 2005, the City of Cape Coral

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

408office space. On December 5, 2005, the City Council met, and

419one of the items on the consent agenda was the request for

431authorization to offer $2,000,000 and negotiate a contract for

442the purchase of property located at 924 Del Prado Boulevard,

452Cape Coral, Florida. For purposes of this Recommended Order,

461this property will be referred to as the Motor City Property.

472Mr. Rosado voted against authorizing the negotiation of the

481purchase of the Motor City Property. In the discussion at the

492City Council meeting, Mr. Rosado stated that he felt the

502location had traffic problems. The motion to negotiate a

511contract for the Motor City Property passed on a seven-to-one

521vote.

5223. After the City Council meeting concluded, Mr. Rosado

531asked Terry Stewart (Mr. Stewart), who was the city manager, to

542look into purchasing some other property for the needed office

552space. The property was owned by Steve Westphal’s Used Car

562Factory, Inc., which is a car dealership owned by Steven L.

573Westphal (Mr. Westphal) and his children. The property to which

583Mr. Rosado was referring (Westphal Property) was located on Del

593Prado Boulevard, in Cape Coral, Florida. Mr. Stewart told

602Mr. Rosado that he would look into the Westphal Property.

6124. There are two versions of how Mr. Rosado came to know

624that Mr. Westphal would be willing to sell the Westphal Property

635to the City. According to Mr. Westphal, while visiting in

645Tennessee, he was watching the December 5, 2005, City Council

655meeting on television and listened to the discussion concerning

664the purchase of the Motor City Property. Mr. Westphal stated

674that he called Mr. Rosado to talk to Mr. Rosado in his capacity

687as a member of the City Council and advised Mr. Rosado that he

700would be willing to consider selling the Westphal Property to

710the City. Mr. Westphal stated that he also called A.J. Boyd,

721who was a member of the City Council, and told him of the

734possibility of selling the Westphal Property to the City.

7435. Mr. Rosado’s version is contained in a letter to the

754Ethics Commission staff dated February 12, 2009, 2 in which

764Mr. Rosado responded to the question of how he learned about the

776availability of the Westphal Property as follows:

783Mr. Malone’s question was: “How did I find

791out about the property?” I replied that

799through a conversation with Mr. Westphal,

805when I called him about a property located

813in Cape Coral, called Motor City. I asked

821him about the property in question and he

829replied that the property didn’t deserve to

836be a location for a customer service center

844for the City of Cape Coral. I told him your

854property would be much better since it was

862located by City property, [3] and he agreed.

870Furthermore, he said, tell Mr. Stuart [sic]

877I will sell the city the Del Prado property,

886and I did so immediately after the meeting

894that evening.

8966. Whether Mr. Westphal’s version or Mr. Rosado’s version

905is correct, the undisputed fact remains that Mr. Westphal

914advised Mr. Rosado, in Mr. Rosado’s capacity as a member of the

926City Council, that he was willing to sell the Westphal Property

937to the City and that Mr. Westphal wanted Mr. Rosado to convey to

950the City that the property was for sale.

9587. The evidence does not support a finding that

967Mr. Westphal was advising Mr. Rosado in Mr. Rosado’s private

977capacity that he was in the market to sell the Westphal Property

989to anyone other than the City. As Mr. Westphal put it, “I’m not

1002going to call a guy that delivers sandwiches to my dealership

1013about selling a large piece of property.” It is clear that

1024Mr. Westphal was talking to Mr. Rosado in Mr. Rosado’s capacity

1035as a member of the City Council.

10428. It is also clear that the information that Mr. Westphal

1053was willing to sell his property to the City was not information

1065that was available to the general public. The evidence

1074establishes that, before Mr. Westphal and Mr. Rosado talked in

1084December 2005 about selling the Westphal Property to the City,

1094Mr. Westphal had not had the Westphal Property on the market.

11059. As requested by Mr. Rosado, Mr. Stewart began looking

1115into the Westphal Property to determine whether the property

1124would be appropriate for the City’s needs. Mr. Stewart

1133contacted Mr. Westphal and was given permission to visit the

1143Westphal Property along with two other pieces of property owned

1153by Steve Westphal’s Used Car Factory, Inc.

116010. Sometime between December 5, 2005, and December 12,

11692005, Mr. Rosado contacted an employee of Top Two Development,

1179Inc., and advised that the Westphal Property was available for

1189sale. Mr. Rosado, in turn, advised Mr. Westphal that Top Two

1200Development, Inc., was interested in purchasing the Westphal

1208Property. A meeting was arranged at which Mr. Rosado introduced

1218Mrs. Giraldo to Mr. Westphal to discuss the purchase of the

1229Westphal Property and other properties owned by Steve Westphal’s

1238Used Car Factory, Inc., as well as the car dealership.

124811. Mrs. Giraldo spoke Spanish but not English, and

1257Mr. Westphal spoke English but not Spanish. Mr. Rosado and

1267Mrs. Giraldo’s daughter, who was also at the meeting, were bi-

1278lingual and translated for Mr. Westphal and Mrs. Giraldo.

1287Mr. Westphal, as representative of Steve Westphal’s Used Car

1296Factory, Inc., and Mrs. Giraldo, as representative of Top Two

1306Development, Inc., came to an understanding to negotiate for the

1316purchase of the properties and the stock of the dealership.

1326Mr. Rosado drafted the Letter of Interest/Understanding for

1334Negotiation Purposes which Mrs. Giraldo and Mr. Westphal signed

1343on December 12, 2005.

134712. After the meeting, Mr. Rosado approached Mr. Westphal

1356and wanted to know if there would be anything in the deal for

1369him. Mr. Westphal agreed to pay Mr. Rosado a finder’s fee of

1381$261,000 if the sale of the stock of the dealership between

1393Mr. Westphal and Mrs. Giraldo was completed. Mr. Rosado also

1403asked Mr. Westphal if he would include a new car for

1414Mr. Rosado’s wife, but Mr. Westphal balked at that suggestion.

142413. A couple of weeks after the December 5, 2005, City

1435Council meeting, Mr. Stewart advised Mr. Rosado of his efforts

1445regarding the Westphal Property, and Mr. Rosado told Mr. Stewart

1455that the property was under contract. Mr. Rosado did not

1465divulge his participation in the introduction of Mrs. Giraldo

1474and Mr. Westphal.

147714. By Invoice 50313, dated January 12, 2006, Mickey

1486Rosado Management, LLC, billed Top Two Development, Inc.,

1494$10,000 for the following services:

1500Consulting services for Business opportunity

1505with Steve Westphal’s Properties and

1510Business Purchase.

1512Developed Letter of Intent for business

1518agreement, deliver negotiations agreement

1522and notarized terms of agreement.

1527When the transaction is final Top Two

1534Development will also as part of the

1541agreement with MRM will provide a vihicle

1548[sic] of choice.

155115. By check dated January 16, 2006, Top Two Development,

1561Inc., paid Mickey Rosado Management, LLC, $10,000 for the

1571services invoiced on January 12, 2006.

157716. On March 12, 2006, Mickey Rosado Management, LLC,

1586invoiced Top Two Development, Inc., $10,000 for the following

1596services:

1597Provide interpreting services, at all

1602meetings pertaining Steve Westphal’s stock

1607purchase agreement. In person, phone

1612conferences, meetings, and all pertaining

1617needed area’s [sic] requested January,

1622February, March 2006.

1625These services include all dates, hours,

1631minutes, phone calls, meetings,

1635arrangements, appointments, travel,

1638transportation, etc.

1640This invoice is an extension agreement of

1647January Invoice 50313 as agreed by

1653Mrs. Giraldo, payment is due 3/1/06 to

1660continue services.

166217. By check dated March 21, 2006, Top Two Development,

1672Inc., paid Mickey Rosado $10,000 for services rendered.

168118. In 2007, Mr. Rosado was arrested for his involvement

1691in the attempted sale of the Westphal Property for operating as

1702a broker without a license in violation of Subsection

1711475.42(1)(a), Florida Statutes.

171419. On January 30, 2007, Governor Charlie Crist entered an

1724executive order suspending Mr. Rosado from his position as a

1734member of the City Council.

173920. Mr. Rosado was not re-elected to the City Council in

1750September 2007.

175221. On July 27, 2008, Mr. Rosado entered a guilty plea to

1764one count of brokering without a license and one count of misuse

1776of confidential information. The plea agreement provided that

1784Mr. Rosado was to make restitution of $10,000.

1793CONCLUSIONS OF LAW

179622. The Division of Administrative Hearings has

1803jurisdiction over the parties to and the subject matter of this

1814proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

182223. Section 112.322, Florida Statutes, and Florida

1829Administrative Code Rule 34-5.0015, authorize the Commission to

1837conduct investigations and to make public reports on complaints

1846concerning violations of Part III, Chapter 112, Florida Statutes

1855(the Code of Ethics for Florida Public Officers and Employees).

186524. The Advocate has the burden to establish the

1874allegations in the Order Finding Probable Cause by clear and

1884convincing evidence. Latham v. Florida Commission on Ethics ,

1892694 So. 2d 83 (Fla. 1st DCA 1997).

190025. The Order Finding Probable Cause alleges that

1908Mr. Rosado violated Subsection 112.313(8), Florida Statutes,

1915which provides:

1917(8) DISCLOSURE OR USE OF CERTAIN

1923INFORMATION.--A current or former public

1928officer, employee of an agency, or local

1935government attorney may not disclose or use

1942information not available to members of the

1949general public and gained by reason of his

1957or her official position, except for

1963information relating exclusively to

1967governmental practices, for his or her

1973personal gain or benefit or for the personal

1981gain or benefit of any other person or

1989business entity.

199126. In order to establish a violation of Subsection

2000112.313(8), Florida Statutes, the following elements must be

2008proven:

20091. Mr. Rosado must have been a public

2017officer or employee.

20202. Mr. Rosado must have disclosed or used

2028information which was:

2031(a) not available to members of the general

2039public, and

2041(b) gained by reason of his official

2048position.

20493. Such information must have been

2055disclosed or used with an intent to secure

2063personal gain or benefit for Mr. Rosado or

2071another person or business entity.

207627. While a member of the City Council, Mr. Rosado was

2087a “public officer” as that term is defined in Subsection

2097112.313(1), Florida Statutes, and used in Subsection 112.313(8),

2105Florida Statutes. Subsection 112.313(1), Florida Statutes,

2111defines a “public officer” to include “any person elected or

2121appointed to hold office in any agency, including any person

2131serving on an advisory body.” Subsection 112.313(2), Florida

2139Statutes, defines agency to include any local government entity.

2148Mr. Rosado was an elected member of the City Council.

215828. Mr. Westphal requested Mr. Rosado in Mr. Rosado’s

2167capacity as a member of the City Council to advise the City that

2180the Westphal Property could be sold to the City. This

2190information was not available to the general public and was told

2201to Mr. Rosado only because Mr. Rosado was a member of the City

2214Council.

221529. Mr. Rosado disclosed the information to Top Two

2224Development, Inc., and introduced Mrs. Giraldo to Mr. Westphal

2233in order to facilitate the sale of the Westphal Property to Top

2245Two Development, Inc. Mr. Rosado had an agreement with

2254Mr. Westphal for the payment of a finder’s fee if the deal was

2267concluded. Mr. Rosado was also contracting with Top Two

2276Development, Inc., for services relating to the negotiation of

2285the sale of the Westphal Property. Thus, Mr. Rosado disclosed

2295and used the information with an intent to financially benefit

2305himself or his company.

230930. The Advocate has established by clear and convincing

2318evidence that Mr. Rosado violated Subsection 112.313(8), Florida

2326Statutes.

232731. Mr. Rosado is no longer a member of the City Council.

2339Section 112.317, Florida Statutes, provides that the Commission

2347may recommend penalties of public reprimand and censure and a

2357civil penalty not to exceed $10,000.

2364RECOMMENDATION

2365Based on the foregoing Findings of Fact and Conclusions of

2375Law, it is RECOMMENDED that a final order be entered finding

2386Mr. Rosado guilty of violating Subsection 112.313(8), Florida

2394Statutes, and recommending the imposition of a public reprimand

2403and censure and a civil penalty of $7,500.

2412DONE AND ENTERED this 15th day of January, 2010, in

2422Tallahassee, Leon County, Florida.

2426S

2427SUSAN B. HARRELL

2430Administrative Law Judge

2433Division of Administrative Hearings

2437The DeSoto Building

24401230 Apalachee Parkway

2443Tallahassee, Florida 32399-3060

2446(850) 488-9675

2448Fax Filing (850) 921-6847

2452www.doah.state.fl.us

2453Filed with the Clerk of the

2459Division of Administrative Hearings

2463this 15th of January, 2010.

2468ENDNOTES

24691/ Unless otherwise indicated, all references to the Florida

2478Statutes are to the 2005 version.

24842/ Respondent’s Exhibit 1.

24883/ The Westphal Property was located adjacent to the City’s

2498public works department.

2501COPIES FURNISHED :

2504Kaye Starling, Agency Clerk

2508Florida Commission on Ethics

25123600 Maclay Boulevard, South

2516Post Office Drawer 15709

2520Tallahassee, Florida 32317-5709

2523Lisa M. Raleigh, Esquire

2527Jennifer Yencarelli, Esquire

2530Office of the Attorney General

2535The Capitol, Plaza Level-01

2539Tallahassee, Florida 32399-1050

2542Mickey Rosado

25442121 Southeast 18th Place

2548Cape Coral, Florida 33990

2552Philip C. Claypool, Executive Director

2557and General Counsel

2560Florida Commission on Ethics

25643600 Maclay Boulevard, South

2568Post Office Drawer 15709

2572Tallahassee, Florida 32317-5709

2575NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2581All parties have the right to submit written exceptions within

259115 days from the date of this Recommended Order. Any exceptions

2602to this Recommended Order should be filed with the agency that

2613will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/06/2010
Proceedings: Agency Final Order
PDF:
Date: 05/06/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 01/15/2010
Proceedings: Recommended Order
PDF:
Date: 01/15/2010
Proceedings: Recommended Order (hearing held November 16, 2009). CASE CLOSED.
PDF:
Date: 01/15/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/14/2009
Proceedings: Respondent Recomendations(sic) filed.
PDF:
Date: 12/14/2009
Proceedings: Advocate's Proposed Recommended Order filed.
Date: 12/03/2009
Proceedings: Transcript of Proceedings filed.
Date: 11/16/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/09/2009
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 11/05/2009
Proceedings: Notice of Telephonic Deposition (of T. Stewart) filed.
PDF:
Date: 11/02/2009
Proceedings: Notice of Substitution of Counsel (of J. Yencarelli) filed.
PDF:
Date: 11/02/2009
Proceedings: Notice of Telephonic Deposition filed.
PDF:
Date: 10/20/2009
Proceedings: Notice of Deposition filed.
PDF:
Date: 10/13/2009
Proceedings: Notice of Appearance (Lisa M. Raleigh) filed.
PDF:
Date: 10/09/2009
Proceedings: Advocate's First Request for Production of Documents to Mickey Rosado filed.
PDF:
Date: 10/07/2009
Proceedings: Notice of Serving Advocate's Second Set of Interrogatories filed.
PDF:
Date: 10/07/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/07/2009
Proceedings: Notice of Hearing (hearing set for November 16 and 17, 2009; 9:00 a.m.; Fort Myers, FL).
PDF:
Date: 10/06/2009
Proceedings: Notice of Serving Advocate's First Request for Admissions filed.
PDF:
Date: 10/05/2009
Proceedings: Notice of Serving Advocate's First Set of Interrogatories filed.
PDF:
Date: 10/01/2009
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 09/23/2009
Proceedings: Order Finding Probable Cause filed.
PDF:
Date: 09/23/2009
Proceedings: Advocate's Recommendation filed.
PDF:
Date: 09/23/2009
Proceedings: Supplemental Report of Investigation filed.
PDF:
Date: 09/23/2009
Proceedings: Report of Investigation filed.
PDF:
Date: 09/23/2009
Proceedings: Order for Supplemental Investigation Facts Materially Related to Complaint filed.
PDF:
Date: 09/23/2009
Proceedings: Determination of Investigative Jurisdiction and Order to Investigate filed.
PDF:
Date: 09/23/2009
Proceedings: Complaint 07-001 filed.
PDF:
Date: 09/23/2009
Proceedings: Agency referral filed.
PDF:
Date: 09/23/2009
Proceedings: Initial Order.

Case Information

Judge:
SUSAN BELYEU KIRKLAND
Date Filed:
09/23/2009
Date Assignment:
09/23/2009
Last Docket Entry:
05/06/2010
Location:
Fort Myers, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
Suffix:
EC
 

Counsels

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Related Florida Statute(s) (6):

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