12-003138EC In Re: Steven J. Mueller vs. * Status: Closed Recommended Order on Thursday, January 24, 2013.

Summary: Candidates for public office are required to accurately complete financial disclosure form and this party did not and would not amend form voluntarily.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: STEVEN J. MUELLER , ) Case No. 12 - 3138EC

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice , this case was heard in St. Petersburg,

Florida, on November 15, 2012, before J. D. Parrish, an

Administrative Law with the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaz a Level One

Tallahassee, Florida 32399 - 1050

For Respondent: Steven J. Mueller, pro se

51 Freshwater Drive

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE S

Whether Respondent, Steven J. Mueller (Res pondent),

violated Florida law by filing an inaccurate Public Disclosure

of Financial Interests form and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On February 9, 2011, the Florida Commission on Ethics (the

Commission) issued an Order Fi nding Probable Cause against

Respondent that determined he had filed an inaccurate or

incomplete form that failed to disclose his liabilities, assets,

net worth, and a $20,000 .00 loan. As a result of the finding

reached by the Commission, it ordered a pub lic hearing be held

to address whether Respondent violated Florida law. On

September 19, 2012, the case was forwarded to DOAH for formal

proceedings.

At the hearing, the Commission through the Advocate

presented testimony from Respondent and A. Keith Powe ll, an

investigator with the Commission. Two exhibits, marked for

identification as AdvocateÓs Exhibits 1 and 2, were admitted

in to evidence for the Commission . Respondent offered

RespondentÓs Exhibits 1 and 2 which were also admitted into

evidence.

The Transcript of the proceedings was filed with DOAH on

November 30, 2012. The parties were granted ten days from that

date within which to file a proposed order. The Advocate timely

filed a Proposed Recommended Order which has been considered in

the prepar ation of this Recommended O rder. Respondent did not

file a proposed recommended order.

FINDING S OF FACT

The Parties

1. The Commission is the state entity charged with the

responsibility of administering, maintaining records, reviewing

complaints, and dis ciplining violations of Florida law

pertaining to Article II, Section 8, Florida Constitution.

2. As a former candidate for public office, Respondent was

subject to the requirements of Florida law pertaining to the

disclosure of financial interests as set forth in Article II,

Section 8, Florida Constitution.

3. More specifically, Respondent was a candidate for the

Florida House of Representatives, District 48, in the 2010

election. As such, Respondent was obligated to file a 2009 CE

Form 6, ÐFull and P ublic Disclosure of Financial Interests

(Form 6).Ñ

The Form

4. Form 6 requires a candidate to list assets,

liabilities, and net worth. Explicit in the form is the

requirement that the information provided in Form 6 be accurate

and complete. Page 2 of F orm 6 requires that the document be

submitted under oath.

5. Respondent completed Form 6 on June 7, 2010.

Respondent represented his net worth (Part A, Form 6) as of

June 7, 2010, to be $500,000 .00 .

6. Respondent represented the aggregate value of his

household goods and personal effects to be $100,000 .00 (Part B,

Form 6).

7. Respondent listed individual assets valued at over

$1 , 000 .00 as: a Binelli 12 - gauge shotgun ; a Hitachi television ;

a sofa ; a Ford F150 ; and a Buick LeSabre (Part B, Form 6).

8. U nder Part C, Form 6, Respondent listed his liabilities

in the amount of $90,384 .00 owed to Morgan Stanley.

The Inaccuracies

9. With regard to assets, Respondent failed to list: his

home ; a Porsche Boxter automobile ; a Sea Ray boat, a Ski

Nautique boat ; a bank account valued at $4,691.18, and a

$20,000 .00 loan made to his campaign.

10. With regard to the disclosure of his liabilities,

Respondent did not list an address (as required by Form 6) for

his creditor, Morgan Stanley.

The Complaint

11. On or abo ut July 30, 2010, a complainant filed a

complaint against Respondent alleging inaccuracies in

RespondentÓs Form 6. On August 11, 2010, the complaint was

deemed sufficient for investigation purposes.

12. During the course of the investigation, Respondent was

afforded the opportunity to file an amended Form 6 to clarify

any omissions or inaccuracies that may have been included in the

original form. He did not accept the offer.

13. After the investigation was completed, the Advocate

recommended that probab le cause be found in this matter. The

Commission made that recommendation on February 9, 2011.

14. As of the date of the formal hearing, Respondent did

not wish to change or amend Form 6.

CONCLUSIONS OF LAW

15 . DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. § 120.57(1), Fla. Stat.

(2012).

16. The Commission is authorized to conduct investigations

and to make public reports on complaints concerning violations

of law pertaining to ethics for public officers and emplo yees.

See § 112.322, Fla. Stat. (2012).

17. In this case, the Commission, through the Advocate,

bears the burden of proof to establish by clear and convincing

evidence Respondent violated Florida law in the submission of

his Form 6. See Latham v. Fla . C ommÓn on Ethics , 694 So. 2d

83(Fla. 1 st DCA 1997) .

18. Article II, Section 8, Florida Constitution, provides,

in pertinent part:

SECTION 8 Ethics in government. -- A public

office is a public trust. The people shall

have the right to secure and sustain that

trust against abuse. To assure this right:

(a) All elected constitutional officers and

candidates for such offices and, as may be

determined by law, other public officers,

candidates, and employees shall file full

and public disclosure of their fin ancial

interests.

* * *

(f) There shall be an independent

commission to conduct investigations and

make public reports on all complaints

concerning breach of public trust by public

officers or employees not within the

jurisdiction of the judic ial qualifications

commission.

(g) A code of ethics for all state

employees and nonjudicial officers

prohibiting conflict between public duty and

private interests shall be prescribed by

law.

(h) This section shall not be construed to

limit disclosures and prohibitions which may

be established by law to preserve the public

trust and avoid conflicts between public

duties and private interests.

(i) Schedule Ï On the effective date of this

amendment and until changed by law:

(1) Full and public disclosu re of financial

interests shall mean filing with the

custodian of state records by July 1 of each

year a sworn statement showing net worth and

identifying each asset and liability in

excess of $1,000 and its value . . .

* * *

(3) The independent commission provided for

in subsection (f) shall mean the Florida

Commission on Ethics.

19. Section 112.3144, Florida Statutes (2010) , provides,

in part:

Full and public disclosure of financial

interests.

(1) An officer who is required by s. 8,

Art. I I of the State Constitution to file a

full and public disclosure of his or her

financial interests for any calendar or

fiscal year shall file that disclosure with

the Florida Commission on Ethics.

* * *

(3) For purposes of full and public

disclo sure under s. 8(a), Art. II of the

State Constitution, the following items, if

not held for investment purposes and if

valued at over $1,000 in the aggregate, may

be reported in a lump sum and identified as

Ðhousehold goods and personal effectsÑ:

(a) Je welry;

(b) Collections of stamps, guns, and

numismatic properties;

(c) Art objects;

(d) Household equipment and furnishings;

(e) Clothing;

(f) Other household items; and

(g) Vehicles for personal use.

(4)(a) With respect to reporting, on form s

prescribed under this section, assets valued

in excess of $1,000 which the reporting

individual holds jointly with another

person, the amount reported shall be based

on the reporting individualÓs legal

percentage of ownership in the property.

However, a ssets that are held jointly, with

right of survivorship, must be reported at

100 percent of the value of the asset. For

purposes of this subsection, a reporting

individual is deemed to own a percentage of

a partnership which is equal to the

reporting indi vidualÓs interest in the

capital or equity of the partnership.

(b)1. With respect to reporting liabilities

valued in excess of $1,000 on forms

prescribed under this section for which the

reporting individual is jointly and

severally liable, the amount re ported shall

be based on the reporting individualÓs

percentage of liability rather than the

total amount of the liability. However,

liability for a debt that is secured by

property owned by the reporting individual

but that is held jointly, with right of

survivorship, must be reported at 100

percent of the total amount owed.

2. A separate section of the form shall be

created to provide for the reporting of the

amounts of joint and several liability of

the reporting individual not otherwise

reported in su bparagraph 1.

(5) Forms for compliance with the full and

public disclosure requirements of s. 8, Art.

II of the State Constitution shall be

created by the Commission on Ethics.

* * *

(e) Any person who is required to file full

and public discl osure of financial interests

and whose name is on the commissionÓs

mailing list but who fails to timely file is

assessed a fine of $25 per day for each day

late up to a maximum of $1,500; however this

$1,500 limitation on automatic fines does

not limit the civil penalty that may be

imposed if the statement is filed more than

60 days after the deadline and a complaint

is filed, as provided in s. 112.324 . The

commission must provide by rule the grounds

for waiving the fine and the procedures by

which each person whose name is on the

mailing list and who is determined to have

not filed in a timely manner will be

notifi ed of assessed fines and may appeal.

The rule must provide for and make specific

the following:

1. The amount of the fine due is based upon

the earliest of the following:

a. When a statement is actually received by

the office.

b. When the statemen t is postmarked.

c. When the certificate of mailing is

dated.

d. When the receipt from an established

courier company is dated.

2. Upon receipt of the disclosure statement

or upon accrual of the maximum penalty,

whichever occurs first, the commission shall

determine the amount of the fine which is

due and shall notify the delinquent person.

The notice must include an explanation of

the appeal procedure under subparagraph 3.

Such fine must be paid within 30 days after

the notice of payment due is tra nsmitted,

unless appeal is made to the commission

pursuant to subparagraph 3. The moneys

shall be deposited into the General Revenue

Fund.

3. Any reporting person may appeal or

dispute a fine, based upon unusual

circumstances surrounding the failure to

file on the designated due date, and may

request and is entitled to a hearing before

the commission, which may waive the fine in

whole or in part for good cause shown. Any

such request must be made within 30 days

after the notice of payment due is

transmi tted. In such a case, the reporting

person must, within the 30 - day period,

notify the person designated to review the

timeliness of reports in writing of his or

her intention to bring the matter before the

commission.

* * *

(h) Notwithstanding a ny provision of

chapter 120, any fine imposed under this

subsection which is not waived by final

order of the commission and which remains

unpaid more than 60 days after the notice of

payment due or more than 60 days after the

commission renders a final or der on the

appeal must be submitted to the Department

of Financial Services as a claim, debt, or

other obligation owed to the state, and the

department shall assign the collection of

such fine to a collection agent as provided

in s. 17.20 .

* * *

(7) The commission shall adopt rules and

forms specifying how a person who is

required to file full and public d isclosure

of financial interests may amend his or her

disclosure statement to report information

that was not included on the form as

originally filed. If the amendment is the

subject of a complaint filed under this

part, the commission and the proper

dis ciplinary official or body shall consider

as a mitigating factor when considering

appropriate disciplinary action the fact

that the amendment was filed before any

complaint or other inquiry or proceeding,

while recognizing that the public was

deprived of a ccess to information to which

it was entitled.

20. In this case, the Commission, through the Advocate,

has established by clear and convincing evidence that Respondent

did not complete Form 6 accurately. The omission of assets

valued at more than $1 , 000 .00 , the omission of the address for

Morgan Stanley, and the failure to disclose a bank account

sufficient to loan $20,000 .00 , all point to a casual

indifference to the financial disclosure requirements of Florida

law. Among assets not disclosed was Respo ndentÓs home. It is

reasonable to conclude the homeÓs value exceeds $1 , 000 .00 . By

RespondentÓs admission the Porsche, Sea Ray boat, and Correct

Craft boat all individually exceed $1 , 000 .00 in value.

RespondentÓs failure to correctly complete Form 6 or t o amend it

when provided the opportunity constitute violations of

Article II, Section 8, Florida Constitution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commission enter a Final Order

and Pub lic Report determining that Respondent violated

Article II, Section 8, Florida Constitution, and imposing a fine

in the amount of $1 , 500.00.

DONE AND ENT ERED this 24th day of January , 2013 , 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

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divi sion of Administrative Hearings

this 24th day of January , 2013 .

COPIES FURNISHED :

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Kaye B. Starling

Florida Commission on Ethics

Post Offic e Drawer 15709

Tallahassee, Florida 32317 - 5709

Steven J. Mueller

51 Freshwater Drive

Palm Harbor, Florida 34684

Virlindia Doss, Executive Director

Florida Commission on Ethics

Suite 201

3600 Maclay Boulevard, South

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

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.