HomeMy WebLinkAbout1524 VinokurIn Re: Gabe Vinokur,
Respondent
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Nicholas A. Colafella
Mark Volk
08 -010
Order No. 1524
7/22/09
8/4/09
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) of the Public Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegations. Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an "Investigative Complaint." A Stipulation of Findings and a Consent Agreement waiving
an evidentiary hearing were subsequently submitted by the parties to the Commission for
consideration. The Stipulated Findings are set forth as the Findings in this Order. The
Consent Agreement has been approved.
This adjudication of the State Ethics Commission is issued under the Ethics Act and
will be made available as a public document thirty days after the mailing date noted above.
However, reconsideration may be requested. Any reconsideration request must be
received at this Commission within thirty days of the mailing date and must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the
finality of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with the Ethics Act.
Vinokur, 08 -010
Page 2
I. ALLEGATIONS:
That Gabe Vinokur, a public official /public employee in his capacity as a Member
and Chairman/Vice- Chairman of the Lower Southampton Township Zoning Hearing Board,
Bucks County, violated Sections 1103(a) and 1105(b) of the State Ethics Act (Act 93 of
1998), 65 Pa.C.S. §§ 1103(a) and 1105(b), when he used the authority of his public
position for the private pecuniary gain of himself and /or a business with which he is
associated by participating in discussions and decisions of the Zoning Hearing Board
regarding requests of Colonial Nissan, Colonial Volkswagen and /or New Colonial Realty
Company at a time when his company, Creative Printing by R'MAE, was performing
printing services for these entities; when he filed a deficient Statement of Financial
Interests for the 2005 calendar year by failing to disclose any information relating to real
estate interests, creditors, gifts, transportation, lodging and hospitality, financial interest in
any legal entity engaged in business for profit and identity of any financial interest
transferred to a family member; when he failed to disclose on the Statement of Financial
Interests filed for the 2006 calendar year any information relating to creditors, real estate
interests, direct /indirect sources of income, gifts, transportation, lodging, hospitality, and
financial interest in any legal entity in business for profit and financial interests in a
business transferred to a member of his immediate family; and when he filed a deficient
Statement of Financial Interests for the 2007 calendar year by failing to disclose any
information relating to [the] calendar year for which the form was filed, direct /indirect
sources of income, financial interest in any legal entity in business for profit and financial
interest in a business transferred to a member of his immediate family.
II. FINDINGS:
1. Gabe Vinokur has served as a board member of the Lower Southampton Township
Zoning Hearing Board, Bucks County from at least 2000 until the present time.
a. Vinokur served as Vice - Chairman of the board in 2007.
2. Vinokur owns and operates a printing business known as Creative Printing by
R'Mae.
3. Articles of Incorporation for R'Mae, Inc. list Gabriel Vinokur as the President and
Eleanor Vinokur as the Secretary /Treasurer.
4. Creative Printing by R'Mae provides various types of printing services.
a. This includes business cards, envelopes and stationary.
5. Board members are appointed to the Zoning Hearing Board by the Board of
Supervisors for Lower Southampton Township.
a. The board consists of five members.
6. The jurisdiction of the Zoning Hearing Board is outlined in the Pennsylvania
Municipalities Planning Code (MPC) which in part provides that the zoning hearing
board shall have exclusive jurisdiction to hear and render final adjudications in
relation to but not limited to the following matters:
1. Substantive challenges to the validity of any land use ordinance;
2. Challenges to the validity of a land use ordinance [regarding]
questions or alleged defects in the process of enactment or adoption;
3. Appeals from the determination of the zoning officer or municipal
Vinokur, 08 -010
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engineer;
4. Applications for variances from the terms of the zoning ordinance and
flood hazard ordinance or such provisions within a land use
ordinance;
5. Applications for special exceptions under the zoning ordinance or
flood plain or flood hazard ordinance or such provisions within a land
use ordinance;
6. Appeals from the determination of any officer or agency charged with
the administration of any transfers of development rights or
performance density provisions of the zoning ordinance.
7 Hearings are conducted by the Zoning Hearing Board under Section 908 of the
MPC, which section sets forth the process and procedures for such hearings.
8. From 2002 through 2007 Officers representing Colonial Nissan, Inc., New Colonial
Realty Co., and Colonial Volkswagen, Inc. submitted applications to the Lower
Southampton Township Zoning Hearing Board requesting variances of Zoning
Ordinances involving land use and signs.
a. In 2007 Colonial Nissan was looking to expand its business.
9. Articles of Incorporation for Colonial Nissan, Inc. list Ronald Schwartz as the
President and William Stamps as the Vice - President.
10. Fictitious Name Registration for New Colonial Realty Co. lists the officers as Jeffrey
Feldman and William Stamps.
11. Articles of Incorporation of Colonial Volkswagen, Inc. list James Boyle as the
President and William Stamps as the Vice President.
12. On or around April 17, 2007, Colonial Nissan through New Colonial Realty Co.
submitted a preliminary subdivision plan for three parcels of land in Lower
Southampton Township located at 117 Bustleton Pike, 16 Dolton Road and 4
Village Drive.
a. The properties were zoned both R -3 Residence and C- Commercial.
b. The plan called for a relocation of the property to allow for the expansion of
the Colonial Nissan parking area.
13. Minutes of the Lower Southampton Township Board of Supervisors meeting for
June 13, 2007, confirmed discussions about the New Colonial Realty subdivision
plan:
a. The proposed land development plan was going to require relief from the
requirements of the Zoning Ordinance.
b. The Board of Supervisors requested that New Colonial Realty Co. submit an
application to the Zoning Hearing Board before it would review this plan any
further.
c. The Board of Supervisors agreed until October 31, 2007, for New Colonial
Realty Co. to apply to the Zoning Hearing Board for interpretation and /or
variances of the Zoning Ordinances.
Vinokur, 08 -010
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14. On or around August 7, 2007, New Colonial Realty Co. filed an application, Appeal
No. Z07 -14, with the Lower Southampton Township Zoning Hearing Board
requesting an interpretation and /or variances of the Lower Southampton Township
Zoning Ordinance for sections of land 2003.4.A, 1402.4 and 1402.2.
a. New Colonial Realty Co. filed this application in connection with a
subdivision /land development application before the Board of Supervisors of
Lower Southampton Township.
b. New Colonial Realty Co. sought an interpretation or variance to allow the
adjustment of the existing common boundary between the properties, a
variance as to the required rear yard and buffer strip between the
commercial and residential zone and a variance as to the placement of
dumpsters within the front yard area on the commercial property.
15. Minutes of the Lower Southampton Township Zoning Hearing Board Meeting for
September 6, 2007, included discussions on the zoning issues involving New
Colonial Realty Co.
Board member Gabe Vinokur served as the Chairman of the Board for the
meeting due to the absence of Board Chairman George Williams.
b. New Colonial Realty Co. was seeking a variance for a buffer zone involving
a dumpster and parking spaces for its property zoned in a commercial area
that bordered a residential area.
a.
c. The participants included Ron Schwartz as the applicant for New Colonial
Realty Co., and he was represented by Attorney William Benz.
d. Lower Southampton Township Solicitor Michael Savona represented Lower
Southampton Township.
e. The meeting was continued until October 4, 2007.
16. On September 11, 2007, Michael Savona, Township Solicitor, on behalf of Lower
Southampton Township, submitted a letter to Lower Southampton Township Zoning
Hearing Board Solicitor Stephen Moyer requesting that a subpoena be issued by
the Zoning Hearing Board to New Colonial Realty Co. and Ron Schwartz for the
production of the following materials to the township:
a. Copies of all sales reports, invoices, and /or any other records indicating the
number of vehicles sold monthly and annually for 2005 and 2006 by Colonial
Nissan.
b. Copies of any floor plan or other records identifying the number of new cars
in stock or stored at 117 Bustleton Pike during each month of 2005 and
2006.
c. Copies of service records, including records for warranty service,
maintenance service, routine service, body work, repairs, and any and all
other vehicle service performed by Colonial Nissan, its service department
or mechanics, during 2005 and 2006, including daily, weekly, monthly,
quarterly and annual figures reflecting total vehicles serviced at 117
Bustleton Pike.
d. Identification of the total number of individuals employed by Colonial Nissan
Vinokur, 08 -010
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and assigned to work at 117 Bustleton Pike, including mechanics, parts
department employees, receptionists, janitorial staff, maintenance
employees, and any others, including both full and part -time employees, and
identifying the employment position of each.
17. On September 18, 2007, Moyer responded to Savona's letter requesting a
subpoena to be issued by the Zoning Hearing Board to New Colonial Realty Co.,
[which response] included the following:
a. In his capacity as acting Chairman of the Board, Gabriel Vinokur declined to
issue the requested subpoena.
1. Vinokur found the requested information to not be relevant to the
proceedings and the subpoena request to be overly burdensome.
b. Moyer referenced Section 908 of MPC [providing] that the Chairman or
Acting Chairman of the Board "shall have power to administer oaths and
issue subpoenas to compel the attendance of witnesses and the production
of relevant documents and papers, including witnesses and documents
requested by the parties."
c. Based on Acting Chairman Vinokur's decision concerning the subpoena
request, a subpoena was not issued.
18. Minutes of the Zoning Hearing Board meeting for October 4, 2007, confirmed there
was further discussion on the variances being requested by New Colonial Realty
Co.
a. Gabe Vinokur continued to serve as Acting Chairman even though Board
Chairman George Williams was present for the meeting.
1. This was also requested by Ron Schwartz and William Benz
representing New Colonial Realty Co.
b. Township Solicitor Michael Savona started the discussion by indicating that
he and Mr. Benz had met since the initial hearing and had agreed to the
following principles:
1. That the proposed lot line change for section of land 2003(4)(A) did
not violate the Zoning Ordinance.
2. That a variance should be granted for section of land 1402(4)
allowing the buffer zone to be placed on the adjoining lot conditioned
upon:
aa. The creation of an easement on the residential lot in favor of
the commercial tract which would require the applicant and all
successors and assigns to maintain the buffer in perpetuity.
ab. The applicant would limit the number of vehicular spaces on
the proposed plan to 165, with no less than 20 spaces
designated as employee parking.
ac. The township should have reasonable access to the site.
c. A variance from the Zoning Ordinance for Section of Land 1402(2) should be
granted allowing the dumpsters, fence, and a buffer to be placed in
Vinokur, 08 -010
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accordance with the existing features plan.
19. On October 18, 2007, the Lower Southampton Township Zoning Hearing Board
issued an order in connection with the Application filed by New Colonial Realty Co.
for the properties located at 117 Bustleton Pike, 4 Village Drive and 16 Dolton
Road, Feasterville, Lower Southampton Township, Pennsylvania.
a. The Board interpreted the provisions for Section of Land 2003.4.A of the
Zoning Ordinance such that the proposed lot line adjustment was permitted
as of right and provisions of the Zoning Ordinance did not preclude
extension of the parking area onto the commercially zoned portion of the
Residential Properties.
b. The Board granted the variance request for sections of land 1402.2 and
1402.4 of the Zoning Ordinance, such that a variance was granted allowing
the reduction of the side /rear yard of the Commercial Property to 20 feet of
open space, a variance was granted as to the required buffer strip on the
Commercial Property, with such planted buffer strip to be planted and
maintained on the Residential Property located on Dolton Road, and a
variance from the front yard requirements under Section 1402.2 of the
Zoning Ordinance was granted such that dumpsters and other screening
could be placed within the front yard area along Dolton Road.
c. The order contained the signatures of all five Board Members approving the
variances, including Gabe Vinokur.
20. In addition to the foregoing, New Colonial Realty Co. had previously filed an
application for zoning relief in 2005 with the Lower Southampton Township Zoning
Appeal Board.
21. On October 3, 2005, New Colonial Realty Co. located at 104 Bustleton Pike,
Feasterville, Lower Southampton Township, Bucks County, Pennsylvania filed an
application, Appeal No. Z05 -21, with the Lower Southampton Township Zoning
Hearing Board requesting variances from the Sign Ordinance under Sections 103
and Section 115, Schedule A of Chapter 19 of the Ordinances of Lower
Southampton Township to permit installation of a new "Nissan" ground sign with
support poles in excess of 14 inches in diameter and an area in excess of thirty
square feet.
a. Section 115, Schedule A of the Sign Ordinance provides that in the C-
Commercial District a ground sign used for identification purposes is
permitted provided the area does not exceed 30 square feet.
b. Section 103 requires that the support poles for the proposed sign must not
be more than 14 inches in diameter.
1. Supporting structures in excess of this measurement shall be
considered in the overall size of the sign.
22. On November 17, 2005, a hearing was held by the Lower Southampton Township
Zoning Hearing Board to discuss the application filed by New Colonial Realty Co.
a. Gabe Vinokur along with the other board members was present and took
part in the board deliberations.
b. Ron Schwartz of New Colonial Realty Co. testified to the height of the
existing sign and requests for replacing the existing "Nissan" ground sign
Vinokur, 08 -010
Page 7
with a new sign complying with the standards and requirements imposed by
Nissan.
23. On December 1, 2005, the Lower Southampton Township Zoning Hearing Board
issued an Order that approved the variances for the Sign Size at New Colonial
Realty Co. [and specifically]
a. Granted a variance with regard to support poles of the proposed ground sign
such that the diameter of the two support poles could be increased from the
maximum of 14 inches as set forth in the definition of "Sign Size" under
Section 103 of the Sign Ordinance, to a maximum diameter of 4 feet 4 inches
per support pole.
b. Granted a variance that supporting poles in excess of the 14 inch diameter
limitation would not be considered in the overall size of the proposed ground
sign as otherwise required under the definition of "Sign Size" under Section
103 of the Sign Ordinance.
c. Granted a variance with regard to the area of the proposed ground sign to
be installed on the Property located at 104 Bustleton Pike, Feasterville,
Pennsylvania such that the face of the proposed ground sign (excluding the
support poles) could be increased from the maximum limit of 84 square feet
as permitted under the variance to Section 115, Schedule "A" of the Sign
Ordinance to a maximum of 100 square feet.
d. The Order contained the signatures of all five board members including
Gabe Vinokur approving the variances.
24. Creative Printing by R'Mae has been providing printing services since at least 2004
to Colonial Nissan and Colonial Volkswagen.
a. The printing work has included business cards, envelopes, labels and office
stationary.
b. Colonial Volkswagen had matters before the Zoning Hearing Board in 2002
resulting from an appeal made by the Township's Zoning Officer.
25. The same officers of Colonial Nissan are also part of Colonial Volkswagen.
a. Colonial Nissan and Colonial Volkswagen are part of the Colonial Auto
Group.
26. Creative Printing by R'Mae performed printing services for Colonial Nissan and
Colonial Volkswagen on or around the same time that variances were reviewed and
approved by the Lower Southampton Township Zoning Hearing Board involving
Colonial Nissan.
a. As a Board Member of the Zoning Hearing Board Vinokur participated in the
process to deliberate and approve variances in 2005 and 2007 involving
Colonial Nissan while his business performed printing work for Colonial
Nissan and Colonial Volkswagen.
b. Vinokur never disclosed his business relationship with Colonial Nissan and
Colonial Volkswagen while reviewing zoning issues affecting them as a
Board Member of the Zoning Hearing Board.
27. During the period of time from October 2005 through December 2005, while the
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Page 8
Lower Southampton Township Zoning Hearing Board was considering the Colonial
Nissan zoning application, Creative Printing by R'Mae received $5,088.23 from
Colonial Nissan and $1,572.82 from Colonial Volkswagen for work performed for
those entities.
28. During the period of time from August 2007 through October 2007, while the Lower
Southampton Township Zoning Hearing Board was considering the Colonial Nissan
zoning application, Creative Printing by R'Mae received $6,901.16 from Colonial
Nissan and $4,868.39 from Colonial Volkswagen for work performed for those
entities.
29. Gabriel and Eleanor Vinokur filed U.S. Income Tax Returns on Internal Revenue
Service Form 1120 for Creative Printing by R'Mae for the calendar years 2005 and
2007.
30. Gabriel and Eleanor Vinokur realized profit percentages for Creative Printing by
R'Mae for the years 2005 and 2007 as follows:
a. 2005: Gross Profit
Percent Profit
b. 2007: Gross Profit
Percent Profit
31. Based on the percent of profit, Creative Printing by R'Mae's profit on the business
received from Colonial Nissan and Colonial Volkswagen in 2005 and 2007 while, on
or around the same time, Vinokur was participating in discussions and decisions of
the Zoning Hearing Board affecting Colonial Nissan and /or New Colonial Realty
Company, totaled $2,917.85 as follows:
a. Colonial Nissan
$228, 785
12%
$185,726
18%
1. 2005: Business Sales $5,088.23
Percent Profit 12%
Profit $ 610.59
2. 2007: Business Sales $6,901.16
Percent Profit 18%
Profit $1,242.21
3. Total Profit $1,852.80
b. Colonial Volkswagen
1. 2005: Business Sales $1,572.82
Percent Profit 12%
Profit $ 188.74
2. 2007: Business Sales $4,868.39
Percent Profit 18%
Profit $ 876.31
3. Total Profit $1,065.05
c. Total Profit for business received
Vinokur, 08 -010
Page 9
from Colonial Nissan and Colonial
Volkswagen $2,917.85
The following findings relate to Vinokur's failure to disclose information on his
Statement of Financial Interests forms for calendar years 2005, 2006 and 2007.
32. As a Board Member in calendar years 2005 through 2007, Gabe Vinokur was
required to file a Statement of Financial Interests (SFI) for the preceding calendar
years by no later than May 1.
33. An SFI compliance reviewed was conducted by the Investigative Division of the
State Ethics Commission on April 21 and 23, 2008, for Lower Southampton
Township.
34. Vinokur did not complete his SFI information for calendar years 2005 through 2007
for the following categories:
a. 2005: Real Estate Interests #8
Creditors #9
Gifts #11
Transportation, lodging #12
hospitality
Financial interest in any #14
legal entity engaged in
business for profit
Business interests transferred #15
to immediate family member
b. 2006: Real Estate Interests #8
Creditors #9
Gifts #11
Transportation, lodging #12
Hospitality
Financial interest in any #14
legal entity engaged in
business for profit
Business interests transferred #15
to immediate family member
c. 2007: Calendar year filing #7
Direst /indirect sources of #10
Income
Financial interest in any #14
legal entity in business for
profit
Business interest transferred #15
to immediate family member
35. All of the foregoing categories were left blank on the forms.
III. DISCUSSION:
As a Member of the Lower Southampton Township Zoning Hearing Board,
Respondent Gabe Vinokur (hereinafter also referred to as "Respondent," "Respondent
Vinokur," and "Vinokur ") is a public official subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq.
Vinokur, 08 -010
Page 10
The allegations are that Respondent Vinokur violated Sections 1103(a) and 1105(b)
of the Ethics Act:
(1) When he used the authority of his public position for the
private pecuniary gain of himself and /or a business with which
he is associated by participating in discussions and decisions
of the Zoning Hearing Board regarding requests of Colonial
Nissan, Colonial Volkswagen and /or New Colonial Realty
Company at a time when his company, Creative Printing by
R'MAE, was performing printing services for these entities;
(2) When he filed a deficient Statement of Financial Interests for
the 2005 calendar year by failing to disclose any information
relating to real estate interests, creditors, gifts, transportation,
lodging and hospitality, financial interest in any legal entity
engaged in business for profit and identity of any financial
interest transferred to a family member;
When he failed to disclose on the Statement of Financial
Interests filed for the 2006 calendar year any information
relating to creditors, real estate interests, direct /indirect
sources of income, gifts, transportation, lodging, hospitality,
and financial interest in any legal entity in business for profit
and financial interests in a business transferred to a member
of his immediate family; and
(4) When he filed a deficient Statement of Financial Interests for
the 2007 calendar year by failing to disclose any information
relating to the calendar year for which the form was filed,
direct /indirect sources of income, financial interest in any legal
entity in business for profit and financial interest in a business
transferred to a member of his immediate family.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
(3)
65 Pa. C. S. § 1103(a).
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
Vinokur, 08 -010
Page 11
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa. C. S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure
that a person required to file the Statement of Financial Interests form must provide.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Respondent has served as a Member of the Lower Southampton Township Zoning
Hearing Board ( "Zoning Hearing Board ") from at least 2000 until the present time.
Respondent served as Vice - Chairman of the Zoning Hearing Board in 2007.
The Zoning Hearing Board consists of five Members. Zoning Hearing Board
Members are appointed by the Lower Southampton Township ( "Township ") Board of
Supervisors. Per the Pennsylvania Municipalities Planning Code, the Zoning Hearing
Board's jurisdiction includes, but is not limited to, hearing and rendering final adjudications
in relation to applications for variances from the terms of the Township Zoning Ordinance.
In a private capacity, Respondent owns and operates a printing business known as
"Creative Printing by R'Mae." Articles of Incorporation for R'Mae, Inc. list "Gabriel Vinokur"
as President.
Since at least 2004 Creative Printing by R'Mae has been providing printing services
to two corporations named "Colonial Nissan, Inc." ( "Colonial Nissan ") and "Colonial
Volkswagen, Inc." ( "Colonial Volkswagen "). Per the Stipulated Findings, there are
connections between Colonial Nissan and Colonial Volkswagen. The officers of Colonial
Nissan are part of Colonial Volkswagen, and Colonial Nissan and Colonial Volkswagen are
part of the "Colonial Auto Group." Stipulated Fact Findings 25 -25 a. An individual named
William Stamps is an officer of both corporations and is also an officer of a third business
named New Colonial Realty Company." Stipulated Fact Findings 9 -11.
On October 3, 2005, New Colonial Realty Company filed an application with the
Zoning Hearing Board requesting variances from the Township Sign Ordinance to permit
installation of a new "Nissan" ground sign with support poles in excess of the authorized
maximum of 14 inches in diameter and an area in excess of the authorized thirty square
feet. On November 17, 2005, the Zoning Hearing Board held a hearing to discuss the
application. Ron Schwartz of New Colonial Realty Company testified regarding the height
of the existing sign and requests for replacing the existing "Nissan" ground sign with a new
sign complying with the standards and requirements imposed by Nissan. Respondent was
present at the meeting and took part in the deliberations of the Zoning Hearing Board.
On December 1, 2005, the Zoning Hearing Board issued an Order that approved
the variances requested by New Colonial Realty Company. The Order: (1) granted a
variance such that the diameter of the two support poles could be increased to a maximum
Vinokur, 08 -010
Page 12
diameter of 4 feet 4 inches each; (2) granted a variance that support poles in excess of the
14 inch diameter limitation would not be considered in the overall size of the proposed
ground sign; and (3) granted a variance such that the face of the proposed ground sign
(excluding the support poles) could be increased to a maximum of 100 square feet. The
Order approving the variances contained the signatures of all five Zoning Hearing Board
Members including Respondent.
In 2007 Colonial Nissan was looking to expand its business. On or about April 17,
2007, Colonial Nissan through New Colonial Realty Company submitted a preliminary
subdivision plan for three parcels of land in the Township located at 117 Bustleton Pike, 16
Dolton Road and 4 Village Drive. The properties were zoned both R -3 Residence and C-
Commercial. The plan would allow for the expansion of the Colonial Nissan parking area.
The proposed land development plan would require relief from the requirements of the
Zoning Ordinance.
On or about August 7, 2007, New Colonial Realty Company filed an application with
the Zoning Hearing Board requesting an interpretation and /or variances of the Township
Zoning Ordinance in connection with the aforesaid subdivision /land development
application. New Colonial Realty Company sought an interpretation or variance to allow
the adjustment of the existing common boundary between the properties, a variance as to
the required rear yard and buffer strip between the commercial and residential zone, and a
variance as to the placement of dumpsters within the front yard area on the commercial
property.
At a September 6, 2007, meeting of the Zoning Hearing Board, the zoning issues
involving New Colonial Realty Company were discussed. Respondent served as
Chairman of the Zoning Hearing Board for the meeting due to the absence of Chairman
George Williams. The participants included Township Solicitor Michael Savona ( "Savona ")
and Ron Schwartz as the applicant for New Colonial Realty Company, represented by
Attorney William Benz ( "Benz "). The meeting was continued until October 4, 2007.
Between meetings, Respondent declined a request by Savona for the issuance of a
subpoena to New Colonial Realty Company and Ron Schwartz for the production of certain
information /materials pertaining to Colonial Nissan as detailed at Fact Findings 16 a -16 d.
Respondent found the requested information to not be relevant to the proceedings and the
subpoena request to be overly burdensome. Based upon Respondent's decision
concerning the subpoena request, a subpoena was not issued.
At the October 4, 2007, Zoning Hearing Board meeting, Respondent continued to
serve as Acting Chairman even though Chairman George Williams was present for the
meeting. This was requested by Ron Schwartz and Benz. During the meeting, Savona
indicated that he and Benz met after the prior meeting and were in agreement that the
proposed lot line change did not violate the Zoning Ordinance and that a variance should
be granted as to the buffer zone subject to certain specified conditions. The meeting
minutes note that a variance should be granted allowing the dumpsters, fence, and a buffer
to be placed in accordance with the existing features plan.
On October 18, 2007, the Zoning Hearing Board issued an Order in connection with
the aforesaid application filed by New Colonial Realty Company. The Zoning Hearing
Board interpreted the provisions of the Zoning Ordinance such that the proposed lot line
adjustment was permitted as of right and provisions of the Zoning Ordinance did not
preclude extension of the parking area onto the commercially zoned portion of the
Residential Properties. The Zoning Hearing Board granted a variance allowing the
reduction of the side /rear yard of the Commercial Property to 20 feet of open space. The
Zoning Hearing Board granted a variance as to the required buffer strip on the Commercial
Property, with such buffer strip to be planted and maintained on the Residential Property
located on Dolton Road. Additionally, the Zoning Hearing Board granted a variance from
Vinokur, 08 -010
Page 13
the front yard requirements of the Zoning Ordinance such that dumpsters and other
screening could be placed within the front yard area along Dolton Road. The Order
contained the signatures of all five Zoning Hearing Board Members approving the
variances, including Respondent.
As a Member of the Zoning Hearing Board, Respondent participated in the process
to deliberate and approve variances in 2005 and 2007 involving Colonial Nissan while his
business performed printing work for Colonial Nissan and Colonial Volkswagen.
Respondent never disclosed his business relationship with Colonial Nissan and Colonial
Volkswagen while reviewing such zoning issues as a Zoning Hearing Board Member.
From October 2005 through December 2005, while the Zoning Hearing Board was
considering the Colonial Nissan zoning application regarding sign size, Creative Printing
by R'Mae received $5,088.23 from Colonial Nissan and $1,572.82 from Colonial
Volkswagen for work performed for those entities.
From August 2007 through October 2007, while the Zoning Hearing Board was
considering the Colonial Nissan zoning application regarding the expansion of Colonial
Nissan, Creative Printing by R'Mae received $6,901.16 from Colonial Nissan and
$4,868.39 from Colonial Volkswagen for work performed for those entities.
The parties have stipulated that the profit made by Creative Printing by R'Mae on
the business received from Colonial Nissan and Colonial Volkswagen in 2005 and 2007, at
or about the time Respondent was participating in discussions and decisions of the Zoning
Hearing Board affecting Colonial Nissan and /or New Colonial Realty Company, totaled
$2,917.85, of which $1,852.80 was attributable to Colonial Nissan and $1,065.05 was
attributable to Colonial Volkswagen.
As for Respondent's Statements of Financial Interests ( "SFIs "), the parties have
stipulated that Respondent did not complete the required information on his SFIs for
calendar years 2005 and 2006 for the following disclosure categories: real estate
interests; creditors; gifts; transportation, lodging and hospitality; financial interest in any
legal entity engaged in business for profit; and identity of any financial interest in a
business which has been transferred to an immediate family member. On his SFI for
calendar year 2007, Respondent did not identify the calendar year filing and also did not
complete the required information for the following disclosure categories: direct /indirect
sources of income; financial interest in any legal entity engaged in business for profit; and
identity of any financial interest in a business which has been transferred to an immediate
family member. All of the foregoing categories were left blank on the forms.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations
as follows:
3. The Investigative Division will recommend the following in relation to
the above allegations:
a. That an unintentional violation of Section 1103(a) of the
Public Official and Employee Ethics Act, 65 Pa.C.S. §
1103(a), occurred in relation to Vinokur's participation
in discussions and decisions of the Zoning Hearing
Board regarding requests of Colonial Nissan, Colonial
Volkswagen and /or New Colonial Realty Company at a
time when a business with which he is associated,
Creative Printing by R'MAE, was performing printing
Vinokur, 08 -010
Page 14
services for these entities.
b. That violations of Section 1105(b) of the Public Official
and Employee Ethics Act, 65 Pa.C.S. § 1105(b),
occurred when Vinokur filed deficient Statements of
Financial Interests for calendar years 2005 through
2007.
4. Vinokur agrees to make payment in the amount of $3,667.85 in
settlement of this matter payable to the Commonwealth of
Pennsylvania and forwarded to the Pennsylvania State Ethics
Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
5. Vinokur agrees to file amended Statements of Financial Interests for
calendar years 2005, 2006, and 2007 disclosing all required
information, including but not limited to Creative Printing by R'MAE, a
business with which he is associated; real estate interests; creditors;
gifts; transportation; lodging and hospitality; financial interest in any
legal entity engaged in business for profit and identity of any financial
interest transferred to a family member, with Lower Southampton
Township Zoning Hearing Board and copies to the State Ethics
Commission for compliance purposes.
6. Vinokur agrees to resign from the Lower Southampton Township
Zoning Hearing Board on January 1, 2010.
7 The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other authority
to take action in this matter. Such, however, does not prohibit the
Commission from initiating appropriate enforcement actions in the
event of Respondent's failure to comply with this agreement or the
Commission's order or cooperating with any other authority who may
so choose to review this matter further.
Consent Agreement, at 1 -2.
In considering the Consent Agreement, we accept the recommendation of the
parties for the finding of an unintentional violation of Section 1103(a) of the Ethics Act.
Respondent used the authority of office when he participated in discussions and
decisions of the Zoning Hearing Board regarding applications filed by New Colonial Realty
Company in 2005 and 2007 for variances as to a Nissan ground sign and an interpretation
and /or variances as to a parking area expansion of Colonial Nissan. At or about the same
time Respondent was participating in the aforesaid matters before the Zoning Hearing
Board, a business with which Respondent is associated, Creative Printing by R'Mae, was
performing printing services for Colonial Nissan and Colonial Volkswagen.
We note that Section 1103(a) of the Ethics Act pertaining to conflict of interest does
not prohibit public officials /public employees from having outside business activities or
employment. However, a public official /public employee generally would have a conflict of
interest in his public capacity in matters involving a business with which he is associated
(Gorman, Order 1041; Rembold, Order 1303; Wilcox, Order 1306), or his or the
business's customer(s) /client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010). A
conflict of interest would not exist under Section 1103(a) of the Ethics Act as to a
customer /client from which the public official /public employee or business with which he is
Vinokur, 08 -010
Page 15
associated would receive only a de minimis (insignificant) financial benefit. (See, "de
minimis economic impact" exclusion to the definition of "conflict" or "conflict of interest," 65
Pa.C.S. § 1102.)
In the instant matter, the parties have stipulated that the profit made by Creative
Printing by R'Mae on the business received from Colonial Nissan and Colonial
Volkswagen in 2005 and 2007, at or about the time Respondent was participating in
discussions and decisions of the Zoning Hearing Board affecting Colonial Nissan and /or
New Colonial Realty Company, totaled $2,917.85, of which $1,852.80 was attributable to
Colonial Nissan and $1,065.05 was attributable to Colonial Volkswagen. We conclude
that the "de minimis" exclusion to the definition of "conflict" or "conflict of interest" would
not be applicable in this case.
We parenthetically note that the Stipulated Findings do not reference any printing
services being provided to New Colonial Realty Company. Additionally, apart from the
Consent Agreement, the Stipulated Findings would not necessarily lead to the inclusion of
printing services provided to Colonial Volkswagen as a basis for a conflict of interest in this
case. However, per the Consent Agreement, the parties are in agreement that the
recommended unintentional violation of Section 1103(a) should reference such services.
We accept the recommendation of the parties, and we hold that an unintentional
violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to
Respondent's participation in discussions and decisions of the Zoning Hearing Board
regarding requests of Colonial Nissan, Colonial Volkswagen and /or New Colonial Realty
Company at a time when a business with which he is associated, Creative Printing by
R'MAE, was performing printing services for these entities.
We agree with the parties that violations of Section 1105(b) of the Ethics Act
occurred when Respondent filed deficient SFIs for calendar years 2005 through 2007. Per
the Stipulated Findings, Respondent did not complete the required information on his SFIs
for calendar years 2005 and 2006 for the following disclosure categories: real estate
interests; creditors; gifts; transportation, lodging and hospitality; financial interest in any
legal entity engaged in business for profit; and identity of any financial interest in a
business which has been transferred to an immediate family member. On his SFI for
calendar year 2007, Respondent did not identify the calendar year filing and also did not
complete the required information for the following disclosure categories: direct /indirect
sources of income; financial interest in any legal entity engaged in business for profit; and
identity of any financial interest in a business which has been transferred to an immediate
family member. All of the foregoing categories were left blank on the forms.
Accordingly, we hold that violations of Section 1105(b) of the Ethics Act, 65 Pa.C.S.
§ 1105(b), occurred when Respondent filed deficient SFIs for calendar years 2005 through
2007.
As part of the Consent Agreement, Respondent has agreed to make payment in the
amount of $3,667.85 payable to the Commonwealth of Pennsylvania and forwarded to this
Commission within thirty (30) days of the issuance of the final adjudication in this matter.
Respondent has also agreed to file amended SFIs with the Zoning Hearing Board
for calendar years 2005, 2006, and 2007 disclosing all required information, including but
not limited to disclosing Creative Printing by R'MAE as a business with which he is
associated and accurately completing the blocks pertaining to real estate interests;
creditors; gifts; transportation, lodging, and hospitality; financial interest in any legal entity
engaged in business for profit; and identity of any financial interest in a business which
has been transferred to an immediate family member. Respondent has agreed to forward
copies of all such filings to this Commission for compliance verification purposes.
Vinokur, 08 -010
Page 16
2010.
Respondent has also agreed to resign from the Zoning Hearing Board on January 1,
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
Accordingly, per the Consent Agreement of the parties, Respondent is directed to
make payment in the amount of $3,667.85 payable to the Commonwealth of Pennsylvania
and forwarded to this Commission by no later than the thirtieth (30 day after the mailing
date of this adjudication and Order.
To the extent he has not already done so, Respondent is directed to file amended
SFIs with the Zoning Hearing Board for calendar years 2005, 2006, and 2007 disclosing all
required information, including but not limited to disclosing Creative Printing by R'MAE as
a business with which he is associated and accurately completing the blocks pertaining to
real estate interests; creditors; gifts; transportation, lodging, and hospitality; financial
interest in any legal entity engaged in business for profit; and identity of any financial
interest in a business which has been transferred to an immediate family member, and to
forward copies of all such filing t �s to this Commission for compliance verification purposes
by no later than the thirtieth (30 day after the mailing date of this adjudication and Order.
Finally, having agreed to resign from the Zoning Hearing Board on January 1, 2010,
Respondent is directed to satisfy that term of the Consent Agreement.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV. CONCLUSIONS OF LAW:
1. As a Member of the Lower Southampton Township Zoning Hearing Board ( "Zoning
Hearing Board "), Respondent Gabe Vinokur ( "Vinokur ") is a public official subject to
the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq.
2. Vinokur unintentionally violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), in relation to his participation in discussions and decisions of the Zoning
Hearing Board regarding requests of Colonial Nissan, Inc., Colonial Volkswagen,
Inc. and /or New Colonial Realty Company at a time when a business with which
Vinokur is associated, Creative Printing by R'MAE, was performing printing services
for these entities.
3. Violations of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred
when Vinokur filed deficient Statements of Financial Interests for calendar years
2005 through 2007.
In Re: Gabe Vinokur,
Respondent
ORDER NO. 1524
File Docket: 08 -010
Date Decided: 7/22/09
Date Mailed: 8/4/09
1 As a Member of the Lower Southampton Township Zoning Hearing Board ( "Zoning
Hearing Board "), Respondent Gabe Vinokur ( "Vinokur ") unintentionally violated
Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1103(a), in relation to his participation in discussions and decisions of the
Zoning Hearing Board regarding requests of Colonial Nissan, Inc., Colonial
Volkswagen, Inc. and /or New Colonial Realty Company at a time when a business
with which Vinokur is associated, Creative Printing by R'MAE, was performing
printing services for these entities.
2. Violations of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred
when Vinokur filed deficient Statements of Financial Interests for calendar years
2005 through 2007.
3. Per the Consent Agreement of the parties, Vinokur is directed to make payment in
the amount of $3,667.85 payable to the Commonwealth of Pennsylvania and
forwarded to the Pennsylvania State Ethics Commission by no later than the
thirtieth (30 day after the mailing date of this Order.
4. To the extent he has not already done so, Vinokur is directed to file amended
Statements of Financial Interests with the Zoning Hearing Board for calendar years
2005, 2006, and 2007 disclosing all required information, including but not limited to
disclosing Creative Printing by R'MAE as a business with which he is associated
and accurately completing the blocks pertaining to real estate interests; creditors;
gifts; transportation, lodging, and hospitality; financial interest in any legal entity
engaged in business for profit; and identity of any financial interest in a business
which has been transferred to an immediate family member, and to forward copies
of all such filings to the Pennsylvania State Ethics Commission for compliance
verification purposes by no later than the thirtieth (30 day after the mailing date of
this Order.
5. Having agreed to resign from the Zoning Hearing Board on January 1, 2010,
Respondent is directed to satisfy that term of the Consent Agreement.
6. Compliance with Paragraphs 3, 4, and 5 of this Order will result in the closing of this
case with no further action by this Commission.
a. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair
Name, Case #
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