14-004678EC In Re: Daniel Calabria vs. * Status: Closed Recommended Order on Tuesday, May 12, 2015.

Summary: Advocate did not prove that mayor committed ethics violation by questioning a business owner and discussing the owner's sign urging votes for incumbent city commissioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: DANIEL CALABRIA,

Respondent. Case No. 14 - 4678EC

_______________________________/

RECOMMENDED ORDER

On March 10, 2015, a disputed fact hearing was held in this

case by video teleco nferenc e with sites in Tallahassee and

St. Petersburg before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Advocate : Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza L evel 01

Tallahassee, Florida 32399 - 1050

For Respondent: Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

Building B, Suite 431

2454 McMullen Booth Road

Clearwater, Florida 33759 - 1339

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent is guilty

of using or attempting to use his position as mayor of the City

of South Pasadena for his benefit or the benefit of candidates

that he supported in the 2014 city commission election, in

violation of section 112 .313(6), Florida Statutes (2013).

PRELIMINARY STATEMENT

The Ethics Commission received a sworn complaint that the

Respondent committed the alleged violation on the Friday before

the city commission election on Tuesday, March 11, 2014. The

Ethics Commis sion investigated, found probable cause, and

referred the matter to the Division of Administrative Hearings.

At the final hearing, six joint exhibits were admitted in

evidence. (Joint Exhibits 5 and 6 are t ranscripts of deposition

testimony of two witne sses, which were admitted in lieu of live

testimony.) The Advocate for the Ethics Commission called five

witnesses, including the Respondent, and had Advocate Exhibits 7

through 9 and 11 through 13 admitted in evidence. The Respondent

testified in his ca se and had one exhibit admitted in evidence.

A Transcript of the final hearing was filed on March 24,

2015. The parties filed proposed recommended orders that have

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. In M arch 2014, the Respondent was the mayor of the City

of South Pasadena, having been elected the year before. City

commission elections were scheduled for Tuesday, March 11. There

were two contested slots. The incumbents were Max Elson and

Arthur Penny. The challengers were Harris Blair and Robert

Small. The Respondent supported the challengers and donated to

their campaigns to unseat the incumbents, who had been voting

against the Respondent ' s positions since his election as mayor.

Of the two elections , the Respondent was more interested in

unseating Penny, who regularly opposed the mayor.

2. Pasadena Liquors is a retail business operating in the

City of South Pasadena. It was operated by Jimmy Valenty, whose

family trust owned the business. Althou gh not a resident and not

eligible to vote in the city commission elections, Valenty

supported Elson, who was a personal friend. A few weeks before

the election, Elson mentioned to Valenty that the campaign signs

Valenty allowed him to place outside Pasad ena Liquors kept

disappearing. Elson asked if Valenty would let him use the

marquee inside the front window. Valenty agreed. Elson then

asked if Valenty also would let Penny use it. Valenty had no

personal interest in Penny ' s campaign but agreed to his friend ' s

request. Valenty arranged the letters on the marquee to read:

" VOTE ELSON AND PENNY CITY COMMISSIONER. "

3. During the week before the election, the Respondent

received telephone calls regarding the marquee from several

constituents who were supporting Blair and Small. They did not

recall the marquee being used to solicit votes for city

commission elections in the past and questioned whether it was

legal. The Respondent was not aware of the sign before receiving

the telephone calls and told his constituents that he would look

into it.

4. On Friday, March 7, the Respondent went to Pasadena

Liquors to talk to Valenty and tell him about the telephone calls

he had received. Valenty asked if the Respondent was there as

mayor, and the Responden t said, no, he was there as a concerned

customer or concerned citizen. During the discussion about the

propriety and legality of the sign, Valenty asked to see the

city ' s sign ordinance. The Respondent offered to get a copy of

it for Valenty.

5. Norma lly, the mayor would not be involved in enforcement

of the city ' s sign ordinance. The city ' s government is run by

the mayor and five commissioners, all elected positions. The

city has five departments. The mayor oversees the administration

department. Each commissioner oversees one of the other four

departments. Code enforcement, which includes enforcement of the

sign ordinance, is part of the community improvement department

(CID). Code violations usually would come to the attention of

the city throu gh either a code enforcement inspection or a

citizen complaint, which would be referred to code enforcement

for investigation. It was the CID director ' s job to interpret,

as necessary, the ordinances being enforced. His interpretation

would stand unless the city commission overruled him.

6. In March 2014, Commissioner Elson was in charge of and

oversaw the CID. The CID ' s director, Neal Schwartz, reported

directly to Commissioner Elson. After talking to Valenty, the

Respondent went to Schwartz ' s offic e, told him about his

conversation with Valenty, and asked for a copy of the sign

ordinance pertaining to the Pasadena Liquors marquee. Schwartz

copied the sign ordinance, which was long and convoluted, and

highlighted the pertinent provisions. It was th e CID director ' s

opinion that the sign was legal , in part because the marquee was

a " reader board " with changeable letters.

7. The CID director offered to check with the county

election supervisor to verify his opinion and was told that the

city clerk, who directed the administration department overseen

by the Respondent, was in charge of city elections. It was not

clear from the evidence whether the Respondent was still present

in the office of the CID director when he telephoned the county

elections s upervisor.

8. It was clear that the Respondent had left the CID

director ' s office before the CID director talked to the city

clerk. When the clerk was asked, she was of the opinion that the

sign was legal because it was not paid political advertising.

She was prepared to tell the Respondent her opinion if he

contacted her.

9. The Respondent did not contact the city clerk for her

opinion. After meeting with the CID director, the Respondent

returned to Pasadena Liquors to show Valenty the sign ordina nce.

Valenty saw nothing in the highlighted portions of the sign

ordinance that made it clear to him that the sign was illegal,

but there appeared to him to be a size limitation. Valenty got a

tape measure and concluded that the sign exceeded the size

re quirements. Valenty asked if the Respondent was requiring him

to remove the signage from the marquee. The Respondent said no,

it was up to Valenty to decide what to do with the sign. Valenty

was planning to remove the sign the next day anyway to replace it

with advertising for St. Patrick ' s Day, so he decided to go ahead

and switch the signage on the marquee that day.

10. At the election on March 11, the incumbents won.

11. After information was reported to him about the

Respondent ' s actions regardin g the Pasadena Liquors marquee,

Commissioner Penny swore out an Ethics Commission complaint

alleging that the Respondent went to Pasadena Liquors and

demanded that the owner remove the " vote - for - the - incumbents " sign

by falsely telling him that he was in vi olation of the political

advertisement laws, after insisting that the CID director call

the supervisor of elections and not waiting for the opinion of

the city clerk as to the sign ' s legality.

12. After receiving and reading the ethics complaint, the

Res pondent brought a copy to Valenty because his name was

mentioned , and the Respondent thought he should know about it.

Valenty read it and said there was nothing negative in it about

him, so he was not concerned about it. The Respondent did not

try to inf luence Valenty ' s reaction to the complaint, and there

was no evidence that there was anything else to this encounter.

13. A few months later, the Respondent asked the city clerk

to begin the process of recognizing the lounge at Pasadena

Liquors for being open for 25 years and to be sure to say that it

was at his request. When the city clerk broached the subject

with Valenty, he declined the honor because the timing suggested

to him that the recognition was to " make up for " any hard

feelings that arose fr om the issue regarding the business ' s

election sig n . In fact, the timing was a coincidence. The city

had recognized Pasadena Liquors for the 10 th anniversary of its

lounge being open, and other businesses in the city were

recognized similarly when they r eached landmark anniversaries.

1 4. It was not proven by clear and convincing evidence that

the Respondent ' s actions with respect to the Pasadena Liquors

marquee were taken for the purpose of influencing the election,

and it is unlikely that they had any influence on the election.

In part for these reasons, it was not proven by clear and

convincing evidence that the Respondent ' s actions with respect to

the Pasadena Liquors marquee were taken for the purpose of

securing a special privilege, benefit, or exe mption for himself

or the unsuccessful candidates. It also was not proven by clear

and convincing evidence that the Respondent ' s actions with

respect to the Pasadena Liquors marquee were taken with corrupt

intent.

CONCLUSIONS OF LAW

1 5 . Section 112.313( 6), Florida Statutes (2013), provided:

(6) 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 resource which may be

wit hin 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.

"' Corruptly ' means done with a wrongful int ent and for the

purpose of obtaining . . . any benefit resulting from some act or

omission of a public servant which is inconsistent with the

proper performance of his or her public duties. " § 112.312(9),

Fla. Stat. (2013). This means there must be proof that the

Respondent acted " with reasonable notice that [his or] her

conduct was inconsistent with the proper performance of [his or]

her public duties and would be a violation of the law or code of

ethics . " Siplin v. Comm ' n on Ethics , 59 So. 3d 150, 151 (Fla.

5th DCA 2011) (citations omitted).

1 6 . The elements of an ethics violation, including corrupt

intent, must be proven by clear and convincing evidence. Latham

v. Fla. Comm ' n on Ethics , 694 So. 2d 83, 86 (Fla. 1st DCA 1997).

1 7 . The Advocate ' s evi dence did not prove by clear and

convincing evidence that the Respondent corruptly used or

attempted to use his official position or any property or

resource within his trust, or performed his official duties, to

secure a special privilege, benefit, or exe mption for himself or

others.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order dismissing the charges against the Respondent.

DONE AND ENTERED this 12th day of May , 2015 , in Tallahassee,

Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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

Division of Administrative Hearings

this 12th day of May , 2015 .

COPIES FURNISHED:

Virlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Pos t Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmei er, P.A.

Building B, Suite 431

2454 McMullen Booth Road

Clearwater, Florida 33759 - 1339

(eServed)

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 e xceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.