09-005227EC
In Re: Mickey Rosado vs.
*
Status: Closed
Recommended Order on Friday, January 15, 2010.
Recommended Order on Friday, January 15, 2010.
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. Advocates 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. Respondents Exhibits 1 through 5, 8, and 9 were
270admitted in evidence. Respondents 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 Citys
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 Westphals 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. Rosados 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. Malones 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 didnt 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. Westphals version or Mr. Rosados version
905is correct, the undisputed fact remains that Mr. Westphal
914advised Mr. Rosado, in Mr. Rosados 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. Rosados private
977capacity that he was in the market to sell the Westphal Property
989to anyone other than the City. As Mr. Westphal put it, Im 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. Rosados 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 Citys 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 Westphals 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 Westphals
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. Giraldos daughter, who was also at the meeting, were bi-
1278lingual and translated for Mr. Westphal and Mrs. Giraldo.
1287Mr. Westphal, as representative of Steve Westphals 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 finders 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. Rosados 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 Westphals 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 Westphals stock
1607purchase agreement. In person, phone
1612conferences, meetings, and all pertaining
1617needed areas [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. Rosados
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 finders 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/ Respondents Exhibit 1.
24883/ The Westphal Property was located adjacent to the Citys
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.
- Date
- Proceedings
- PDF:
- Date: 01/15/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 12/03/2009
- Proceedings: Transcript of Proceedings filed.
- Date: 11/16/2009
- Proceedings: CASE STATUS: Hearing Held.
- 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: Notice of Hearing (hearing set for November 16 and 17, 2009; 9:00 a.m.; Fort Myers, FL).
- PDF:
- Date: 09/23/2009
- Proceedings: Order for Supplemental Investigation Facts Materially Related to Complaint filed.
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
-
Lisa Marie Raleigh, Esquire
Address of Record -
Mickey Rosado
Address of Record -
Kaye B. Starling
Address of Record -
Jennifer Yencarelli, Assistant Attorney General
Address of Record