STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-1543

)

ARMOND PASQUALE, )

)

Respondent. )

) FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-1544

)

VERONICA PASQUALE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in these consolidated cases on June 15, 1998, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Veronica Pasquale, pro se

Armond Pasquale, pro se

15 Southeast Seminole Street Stuart, Florida 34994

Peter K. DeVuono, Qualified Representative 2950 Southeast Ocean Boulevard

Building 11, Apartment 2

Stuart, Florida 34996

For Respondent: Kristi Reid Bronson

Assistant General Counsel Florida Elections Commission The Capitol, Room 2002

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

1. Whether Respondents committed the violations alleged in the Orders of Probable Cause.

2. If so, what penalties they should receive.

PRELIMINARY STATEMENT

On November 7, 1997, the Florida Elections Commission (Commission), in the case of In re: Armond Pasquale, FEC Case No. 96-321, issued an Order of Probable Cause, which provided as follows:

THIS CAUSE came to be heard before the Florida Elections Commission at its meeting held on 27 and 28 October 1997 in Tallahassee, Florida.

Based on the facts set forth in the Statement of Findings, that are incorporated as a part of this order, the Commission finds that there is probable cause to believe that the above named Respondent violated the following section(s) of Chapter 106, Florida Statutes:

Section 106.07(5), Florida Statutes, prohibiting a campaign treasurer, candidate, or political committee chairman from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete.

Section 106.19(1)(b), Florida Statutes, failure of a person to report a contribution required to be reported by this chapter.

The Statement of Findings referred to in the Order of Probable Cause alleged that Armond Pasquale, in his capacity as the

campaign treasurer for the 1996 campaign of his wife, Veronica Pasquale, for a seat on the Stuart City Commission, willfully failed to report as contributions in the campaign treasurer's reports he submitted on behalf of the campaign (1) the value of "fliers" which contained endorsements of the candidacy of his wife and which were distributed by "a political committee called For A Commission That Serves Stuart (FACTSS)," and (2) the value of copies of these "fliers" that his wife's campaign received for use in the campaign.

On November 7, 1997, the Commission, in the case of In re: Veronica Pasquale, FEC Case No. 96-322, issued an Order of Probable Cause, which provided as follows:

THIS CAUSE came to be heard before the Florida Elections Commission at its meeting held on 27 and 28 October 1997 in Tallahassee, Florida.

Based on the facts set forth in the Statement of Findings, that are incorporated as a part of this order, the Commission finds that there is probable cause to believe that the above named Respondent violated the following section(s) of Chapter 106, Florida Statutes:

Section 106.03(1), Florida Statutes, failure of a political committee to file a statement of organization;

Section 106.44, Florida Statutes, failure of a group, club, association or other organization that endorses or opposes a candidate or referendum by means of political advertisement to file a statement of endorsement or opposition with the filing officer.

The Statement of Findings referred to in the Order of Probable

Cause alleged that Veronica Pasquale, during her 1996 campaign for a seat on the Stuart City Commission, willfully failed to file (1) "a statement of organization for the political committee created with Jim Carroll," who "prepared and paid for copying the [FACTSS] fliers" which "supported and opposed candidates" for office, and (2) a "statement of endorsement or

opposition . . . prior to distribution of the FACTSS fliers."

The Pasquales each requested a formal administrative hearing on the charges against them. Their requests were referred to the Division of Administrative Hearings (Division) on March 30, 1998. Mr. Pasquale's case was docketed as DOAH Case No. 98-1543. Mrs. Pasquale's case was docketed as DOAH Case No. 98-1544. At the request of Mrs. Pasquale, DOAH Case Nos. 98-1543 and 98-1544 were consolidated by order issued May 15, 1998.

As noted above, the hearing in these consolidated cases was conducted by the undersigned on June 15, 1998. Seven witnesses testified at the hearing: James Carroll; James Butler, Esquire; Dianne O'Donnell; Avron Rifkin, Esquire; Gerald Tighe; Diane Fuchs; and Charles Foster. In addition to the testimony of these seven witnesses, various exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed no later than July 31, 1998. The Pasquales filed a joint proposed recommended order on July 15,

1998. The Commission filed separate proposed recommended orders in DOAH Case Nos. 98-1543 and 98-1544 on July 31, 1998. The parties' proposed recommended orders have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. In 1996, Veronica Pasquale was a candidate for a seat on the Stuart City Commission. Her opponent was Gene Rifkin, the wife of Avron Rifkin, the complainant in FEC Case Nos. 96-321 and 96-322.

2. On August 28, 1996, Mrs. Pasquale appointed her husband, Armond Pasquale, the treasurer for her campaign, and Mr. Pasquale accepted the appointment.

3. The year before (1995), Mr. Pasquale had run for a seat on the Stuart City Commission and Mrs. Pasquale had been his campaign manager. As a Stuart City Commission candidate, Mr. Pasquale, on September 20, 1995, had signed and filed the following Statement of Candidate:

   I, Armond Pasquale, a candidate for the office of the Stuart City Commission, have received, read and understand the requirements of Chapter 106, Florida Statutes.

   
   

4. Following the 1995 election, in or around January of 1996, a group of like-minded Stuart citizens, concerned about local taxes and government spending, formed a discussion group (Discussion Group).

5. Members of the Discussion Group met regularly at the Flamingo Restaurant to discuss their concerns about city government. From 12 to 20 persons attended these meetings.

6. The Discussion Group did not have any formal structure or organization, nor did it have any officers or directors.

7. Members of the Discussion Group took turns leading the discussion.

8. Among the members of the Discussion Group were Gerald Tighe, an unsuccessful candidate for a seat on the Stuart City Commission in the 1995 election; Charles Foster, a Stuart City Commissioner who frequently disagreed with his fellow commissioners on tax and spending issues; and James Carroll, a local businessman who was in the desk-top publishing business.

9. Mr. Carroll attended some, but not all, of the Discussion Group meetings.

10. Mr. and Mrs. Pasquale started attending Discussion Group meetings approximately three months after the Discussion Group was formed.

11. On one occasion, a local attorney, James Butler, Esquire, at the request of Mr. Carroll, addressed the Discussion Group at one of its meetings and provided the members present with information regarding the law governing political committees. Mr. Butler advised the members as to what they needed to do and not to do to avoid being considered a political committee under Florida law.

12. The Discussion Group attempted to follow Mr. Butler's advice.

13. No member of the Discussion Group filed with the Stuart City Clerk, on the Discussion Group's behalf, either a statement of organization as a political committee or a statement of opposition or endorsement of any candidate in the 1996 Stuart City Commission races.

14. In or about January of 1996, shortly after the formation of the Discussion Group, one of the members of the Discussion Group, Mr. Carroll, produced and disseminated the first of approximately ten issues of a newsletter-type publication (Carroll's Publication or Publication) containing news and commentary regarding City of Stuart government. Mr. Carroll believed that his Publication was needed because the local news media were not fairly and accurately reporting "what was going on" in Stuart city government. Mr. Carroll, with the assistance of his wife, acquaintances and hired help, distributed copies of the Publication to the public by placing them in plastic bags weighted with rocks and then throwing the bags on the lawns of homeowners.

15. Carroll's Publication addressed issues that were the subject of Discussion Group meetings and expressed views on these issues that were consistent with those expressed at the meetings.

16. Furthermore, members of the Discussion Group, including Mrs. Pasquale, Commissioner Foster, and Gerald Tighe, contributed information and/or articles to Carroll's Publication.

17. Moreover, the Discussion Group's meetings at the Flamingo Restaurant were publicized in several issues of the Publication.

18. The Publication, however, was Mr. Carroll's, not the Discussion Group's. Mr. Carroll controlled the Publication's content and paid the costs involved in its production and distribution.

19. There was no indication in any of the six pre-1996 election issues of the Publication, however, that Mr. Carroll was the publisher of the Publication or otherwise involved in its production.

20. Mr. Carroll did not identify himself in these issues as the person responsible for the Publication because he was afraid that, if the Stuart city officials who were criticized in the Publication discovered that he was the publisher, they would take retaliatory measures against him.

21. Instead, Mr. Carroll made it appear as if the Discussion Group was responsible for these issues of the Publication.

22. In the very first issue of the Publication, in an article which read as follows, Mr. Carroll dubbed the Discussion Group "FACTSS (For a Commission That Serves Stuart)":

    A group of concerned Stuart citizens have joined together for the sole purpose of presenting the facts on each controversial issue as it comes before the Stuart City Commission. A proposed name for this group is FACTSS (For a Commission That Serves

    Stuart). If you would be interested in participating, this group meets at 7:30 a.m. at the Flamingo Restaurant each Tuesday following a Monday night Commission meeting.

    
    

    This pamphlet explaining comp time and its abuses, is the first of more to be produced. They will be published as the need arises.

    
    

    Already in the planning stages are issues of interest including zero based budgeting and irregularities in City election procedures.

    
    

    What action is taken on these issues is largely up to you. We urge you to attend City Commission meetings and become informed. Our main goal is simply to present you with the facts.1

    Later in that same issue, he indicated that his Publication was "[p]ublished By 'For A Commission That Serves Stuart.'"

23. He similarly indicated in the second issue of the Publication that it was "[p]ublished by FACTSS-For A Commission That Serves Stuart."

24. In the remaining pre-1996 election issues, he referred to the Publication as a "FACTSS Publication" and included other language suggesting that "FACTSS" (the name given the Discussion Group) was behind the Publication.

25. The fifth and six issues of Mr. Carroll's Publication contained telephone numbers that purported to be, but were not, those of the publisher of the Publication (who, as noted above, was Mr. Carroll). One of these telephone numbers was Mrs. Pasquale's.

26. Both of these issues, as well as the fourth issue of the Publication, also provided readers with a mailing address (Post Office Box 169, Stuart Florida 34995) for the publisher.

27. Post Office Box 169 was a post office box that members of the Discussion Group had obtained to enable non-members to contact them.

28. The $20.00 necessary to obtain the post office box was collected during one of the Discussion Group's meetings.

29. The Pasquales lived closer to the post office than any of the other Discussion Group members. Accordingly, it was Mrs. Pasquale who went to the post office and applied for the Discussion Group's post office box.

30. Mrs. Pasquale submitted the application for the post office box on April 15, 1996. On the application form that she filled out, she put down "FACTSS" as the "[n]ame to which box number is assigned" and indicated that she was the "Chairman" of "FACTSS." In actuality, FACTSS had no permanent chairman.

31. The members of the Discussion Group subsequently decided that they no longer needed a post office box. They therefore agreed to allow Mr. Carroll to use their post office box for his Publication. Mr. Carroll had sought such permission because he believed that using a post office box other than his own would help to conceal his role as the publisher of the Publication.

32. The 1996 Stuart City Commission races received extensive coverage in Carroll's Publication, particularly in the last two pre-1996 election issues (the fifth and sixth issues of the Publication).

33. The front page of the fifth issue of the Publication contained an article entitled, "Stuart City Commission Candidates See Same Mismanagement Problem," which advocated the election of Mrs. Pasquale and the reelection of Commission Foster. The article read as follows:

    Two years ago, you--the voters--put Charlie Foster into the city commission. For those two years, Charlie, a 22-year veteran of the Stuart City Commission, has valiantly tried to maintain your vote of confidence by voting on issues that would hold down taxes and control runaway spending. He is one person against four, and has not been able to break the tax-and-waste 4-vote bloc against him.

    
    

    This year we have the opportunity to break that 4-vote bloc by creating a conservative 3-vote bloc against it. Exercising our obligation as a news publication, we have interviewed and recommend a very capable

    candidate to help Foster: Veronica Pasquale, a 53-year old experienced business owner and a resident of Stuart for 17 years.

    
    

    Charlie and Veronica each have their own platform and their own independent ideas of what they can do to represent you, the voters. Together, they have a unifying objective to control city expenses and promote better fiscal responsibility and budget efficiency. This will result in a conservative city government that is more responsive to citizens' needs and their ability to pay their fair share of taxes.

    
    

    The 1996-97 budget went up $3 million from last year in what the 4-vote bloc wants you

    to believe is a "bare-bones" budget. Nonsense!

    
    

    A new 3-vote bloc composed of Charlie Foster, Veronica Pasquale and one more qualified candidate of like mind will reverse the trend of tax-and-waste that has been digging into your pockets for over 4 years and will bring about the conservative city government that existed before the Jeffersonian dynasty.

    This will save your money.

    
    

    Charlie needs help on the city commission. To save your tax dollars and reestablish conservatism in city government it is mandatory that you elect three like-minded candidates for Stuart city commission. Our

    third recommended candidate will be announced in the next FACTSS publication.

    
    

    The tax-and-spend waste 4-vote bloc must be broken, or the city will once again face bankruptcy.

    
    

34. Another article in this issue of the Publication, entitled, "We Were Gullible to Think the News Could Change," also promoted Mrs. Pasquale's candidacy. It read, in pertinent part, as follows:

    Nothing has changed at the News. Although two new city commission candidates have declared their intent to run, the News has publicized only one. We are publicizing the other--Veronica Pasquale. We are biased in favor of good fiscal conservative government and factual reporting by our local news media. Until then, FACTSS is here.

35. Articles authored by Mrs. Pasquale and Commissioner Foster also appeared in this issue of the Publication, as did articles suggesting that incumbent City Commissioners Peter Walson and Kevin Henderson not be reelected.

36. The final pre-1996 election issue of the Publication contained editorial endorsements of the candidacies of Mrs. Pasquale, Commissioner Foster, and Karl Krueger, Jr., a candidate for a Stuart City Commission seat in Group 1. It also contained editorials urging the defeat of Gene Rifkin (Mrs. Pasquale's opponent), Bernard Malone (one of Commissioner Foster's opponents), and Peter Walson (Mr. Krueger's opponent).

37. Mr. Carroll had 3,000 copies made of the fifth issue of the Publication, for which he paid $373.43.

38. He had 5,000 copies made of the sixth issue of the Publication, for which he paid $512.53.

39. He made these expenditures independently, without coordinating with any of the candidates he endorsed in his Publication, including Mrs. Pasquale, or their agents, or with any other member of the Discussion Group.

40. On November 1, 1996, Mr. Pasquale was seen by Avron Rifkin, Esquire, the husband of Mrs. Pasquale's opponent, driving through a neighborhood in the City of Stuart distributing copies of the Publication which Mrs. Pasquale had received free of charge for use in her campaign.

41. The campaign treasurer's reports that Mr. Pasquale filed in his capacity as campaign treasurer on behalf of his wife's campaign and that he certified as being "true, correct and complete" contained no mention of the Publication's endorsements

    of his wife or the free copies of the Publication that his wife had been given.

42. After the distribution of the sixth issue of the Publication, but before the election, Mr. Carroll publicly disclosed that he was the publisher of the Publication. He did so in response to accusations that the candidates endorsed in the Publication were actually responsible for the Publication and promoting their own candidacies.

43. On or about November 6, 1996, Mr. Rifkin filed a complaint against Mr. and Mrs. Pasquale with the Florida Elections Commission.

44. Steven Shaw was assigned the task of investigating the complaint.

45. As part of his investigation, Mr. Shaw, on November 4, 1996, spoke with Mr. Carroll over the telephone. During their telephone conversation, Mr. Shaw told Mr. Carroll that "the case would be dropped" if Mr. Carroll provided invoices showing that he (Mr. Carroll) had paid for the printing of the Publication.

46. On or about November 19, 1996, Mr. Carroll sent the invoices to Mr. Shaw, along with a cover letter, which read as follows:

    Sorry that it has taken so long to comply with your request for copies of the invoices from the printer that printed the FACTSS publication for me. The printer has been extremely busy, and since only one issue was dated it has taken him some time searching his files. There are no invoices of the first two issues. I Xeroxed less than 100

    copies that were handed out at commission meetings.

    
    

    In our phone conversation you stated that if the invoices showed that I, and I alone, paid for the printing, the matter would be closed. In the spirit of cooperation I am enclosing copies of the invoices and now consider the issue closed.2

47. On or about November 25, 1996, Mrs. Pasquale wrote the following letter, which she sent to Mr. Shaw:

    Enclosed is my Statement to the Press dated November 2, 1996, concerning the circumstances leading to the erroneous assumption that I was involved in the production of the FACTSS Publication which Avron Rifkin thinks is a PAC. This statement, plus the two articles in local newspapers (revealing who the real publisher is) should verify that Mr. Rifkin's assumptions are false and malicious. You have been in contact with Jim Carroll, the real publisher of FACTSS, and he has verified this information.

    
    

    I saw no proof of allegations in the information Ms. Linthicum sent me; based on the lack of proof and the enclosures I am sending you, I request that you find no probable cause and dismiss the case.

    
    

    Confidentiality is hereby waived.3

    Mrs. Pasquale's November 2, 1996, Statement to the Press, to which she referred in her letter, read as follows:

    I am not the publisher of the FACTSS Publication, nor do I do the typesetting.

    
    

    When a group of concerned citizens began meeting together at a local restaurant to discuss what we perceive to be mismanagement of Stuart City Government, we at first thought we would be a "club." We then obtained a P.O. Box. I was the "chairman" because I was the M.C. at the meetings, and I

    used my address as required by the post office. The editor of the FACTSS Publication asked to use this box number as a contact for the newsletter, at that time we saw no reason why he could not.

    
    

    Upon the advice of a local attorney, we almost immediately dissolved the idea of forming a "club." We are not an organized group; we have no executive board; we have no formal ties to the FACTSS Publication.

    FACTSS is entirely separate from the group.

    
    

    As an individual, I sometimes have contributed articles. I did not contribute any articles to the latest FACTSS issue. As to including copies of FACTSS Publication in my absentee mailing, these were old issues of the newsletter which were made available to me at no cost.4

    Avron Rifkin, Gene Rifkin, and her campaign manager Sherry Guy are wrong when they accuse me of being the FACTSS publisher. As an attorney, Mr. Rifkin should know that he needs more than just suppositions to make an accusation stick, and in my opinion, his standing as a practicing attorney with the State Bar Association could be in jeopardy.

    Mr. Rifkin has accused me of being the publisher of the FACTSS Publication in a slanderous way, and I demand that he produce indisputable proof of that statement. If he cannot, I demand that he retract his accusation and make a public apology.

48. In the third week of February of 1997, Diana Fuchs replaced Mr. Shaw as the investigator assigned to Mr. and Mrs. Pasquales' cases.

49. Upon being assigned the cases, Ms. Fuchs reviewed the materials in the Commission's files. She became concerned when she read the November 19, 1996, letter that Mr. Carroll had sent to Mr. Shaw. After discussing the matter with her supervisor,

    she telephoned Mr. Carroll and advised him that his "supplying the invoices [did] not close the case" and that Mr. Shaw had no authority to promise him otherwise.

50. Following the completion of the investigation, the Commission adopted the recommendation of the Commission Advocate and issued an order finding that there was probable cause to believe that both Mr. and Mrs. Pasquale had committed campaign financing law violations.

    CONCLUSIONS OF LAW

    
    

51. Chapter 106, Florida Statutes, contains Florida's "campaign financing" law.

52. "Jurisdiction to investigate and determine violations of . . . [C]hapter [106, Florida Statutes] is vested in the Florida Elections Commission." Section 106.25(1), Florida Statutes.

53. "For the purposes of [C]ommission jurisdiction, a violation [is] the willful performance of an act prohibited

    by . . . [C]hapter [106, Florida Statutes] or the willful failure to perform an act required by . . . [C]hapter [106, Florida Statutes]." Section 106.25(3), Florida Statutes.

54. "Willful violations" are further described in Section 106.37, Florida Statutes, as follows:

    A person willfully violates a provision of this chapter if the person commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited under this chapter, or does not commit an act while knowing that, or showing reckless

    disregard for whether, the act is required under this chapter. A person knows that an act is prohibited or required if the person is aware of the provision of this chapter which prohibits or requires the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required. A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation of this chapter.

55. The Commission may investigate violations of Chapter 106, Florida Statutes, "only after having received either a sworn complaint or information reported to it by the Division of Elections." Section 106.25(2), Florida Statutes.

56. Section 106.25(4), Florida Statutes, describes what the Commission must do when it receives a sworn complaint or a referral from the Division of Elections. It provides as follows:

    The [C]ommission shall undertake a preliminary investigation to determine if the facts alleged in a sworn complaint or a matter initiated by the division constitute probable cause to believe that a violation has occurred. Upon completion of the preliminary investigation, the [C]ommission shall, by written report, find probable cause or no probable cause to believe that this chapter or s. 104.271 has been violated.

    
    

    1. If no probable cause is found, the [C]ommission shall dismiss the case and the case shall become a matter of public record, except as otherwise provided in this section, together with a written statement of the findings of the preliminary investigation and a summary of the facts which the commission shall send to the complainant and the alleged violator.

    2. If probable cause is found, the [C]ommission shall so notify the complainant and the alleged violator in writing. All documents made or received in the disposition of the complaint shall become public records upon a finding by the commission.

       
       

       In a case where probable cause is found, the [C]ommission shall make a preliminary determination to consider the matter or to refer the matter to the state attorney for the judicial circuit in which the alleged violation occurred.

       
       

57. "When there are disputed issues of material fact in a proceeding conducted under ss. 120.569 and 120.57, a person alleged by the Elections Commission to have committed a violation of [Chapter 106, Florida Statutes] may elect, within 30 days after the date of the filing of the [C]ommission's allegations, to have a hearing conducted by an administrative law judge in the Division of Administrative Hearings." Section 106.25(5), Florida Statutes.

58. Section 106.265(1), Florida Statutes, which provides as follows, authorizes the Commission to impose fines upon those it finds to have violated the provisions of Chapter 106, Florida Statutes:

    The [C]ommission is authorized upon the finding of a violation of this chapter to impose civil penalties in the form of fines not to exceed $1,000 per count. In determining the amount of such civil penalties, the [C]ommission shall consider, among other mitigating and aggravating circumstances:

    1. The gravity of the act or omission;

    2. Any previous history of similar acts or omissions;

       
       

    3. The appropriateness of such penalty to the financial resources of the person, political committee, committee of continuous existence, or political party; and

       
       

    4. Whether the person, political committee, committee of continuous existence, or political party has shown good faith in attempting to comply with the provisions of this chapter.

       
       

59. In order for the Commission to levy a fine against an alleged violator, proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine deprives the person fined of substantial rights in property.

    Administrative fines . . . are generally punitive in nature. . . . Because the imposition of administrative fines . . . are penal in nature and implicate significant property rights, the extension of the clear and convincing

    evidence standard to justify the imposition of such a fine is warranted."); Section 120.57(1)(h), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute").

60. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the

    witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

61. Any fine imposed by the Commission may be based only upon those violations specifically alleged in the order of probable cause served on the alleged violator. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

62. In determining whether the alleged violator's conduct constituted a violation of Chapter 106, Florida Statutes, as alleged in the Commission's order of probable cause, it must be remembered that, because Chapter 106, Florida Statutes, to the extent that it authorizes the Commission to impose fines for violations of its requirements, "is, in effect, a penal

    statute . . . . [and it therefore ] must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . [alleged violator]." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977). See also Whitaker v. Department of Insurance, 680 So. 2d 528, 531 (Fla. 1st DCA 1996)("Because the statute is penal in nature, it must be strictly construed with any doubt resolved in favor of the licensee."); Department of Highway Safety and Motor Vehicles v.

    Meck, 468 So. 2d 993, 994-95 (Fla. 5th DCA 1984)("We agree with the circuit court that the statute, being penal in nature, must be

    strictly construed . . . . The ambiguity [in the statute therefore] must be resolved in favor of Meck.").

63. In the Order of Probable Cause issued in FEC Case No. 96-321, the Commission alleged that Mr. Pasquale, in his capacity as his wife's campaign treasurer, violated Sections 106.07(5)and

    106.19(1)(b), Florida Statutes, by willfully failing to report, as in kind contributions to his wife's campaign, the value of the endorsements of her candidacy contained in the Publication and the value of free extra copies of the Publication with which the campaign was provided.

64. Section 106.07, Florida Statutes, provides, in pertinent part, as follows:

    (1) Each campaign treasurer designated by a candidate . . . pursuant to s. 106.021 shall file regular reports of all contributions received, and all expenditures made, by or on behalf of such candidate . . . .

    
    

    (5) The candidate and his or her campaign treasurer, in the case of a

    candidate, . . . shall certify as to the correctness of each report; and each person so certifying shall bear the responsibility for the accuracy and veracity of each report. Any campaign treasurer, candidate, who

    willfully certifies the correctness of any report while knowing that such report is incorrect, false, or incomplete commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

65. Section 106.19(1)(b), Florida Statutes, provides as follows:

    (1) Any candidate; campaign manager, campaign treasurer, or deputy treasurer for any candidate; committee chair, vice chair,

    campaign treasurer, deputy treasurer, or other officer of any political committee; agent or person acting on behalf of any candidate or political committee; or other person who knowingly and willfully:

    
    

    (b) Fails to report any contribution required to be reported by this chapter;

    
    

    is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

    
    

66. "Contribution," as used in Chapter 106, Florida Statutes, is defined in Section 106.011(3), Florida Statutes, as follows:

    "Contribution" means:

    
    

    1. A gift, subscription, conveyance, deposit, loan, payment, or distribution of money or anything of value, including contributions in kind having an attributable monetary value in any form, made for the purpose of influencing the results of an election.

       
       

    2. A transfer of funds between political committees, between committees of continuous existence, or between a political committee and a committee of continuous existence.

       
       

    3. The payment, by any person other than a candidate or political committee, of compensation for the personal services of another person which are rendered to a candidate or political committee without charge to the candidate or committee for such services.

       
       

    4. The transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, and the term includes any interest earned on such account or certificate.

       Notwithstanding the foregoing meanings of "contribution," the word shall not be construed to include services, including, but not limited to, legal and accounting services, provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or political committee. This definition shall not be construed to include editorial endorsements.

67. An "editorial endorsement," as used in Section 106.011(3), Florida Statutes, which is an unpaid expression of opinion by the person or persons responsible for the publication or broadcast in question regarding the candidacy of another, is to be distinguished from a "political advertisement," which is defined in Section 106.011(17), Florida Statutes, as follows:

    "Political advertisement" means a paid expression in any communications media prescribed in subsection (13), whether radio, television, newspaper, magazine, periodical, campaign literature, direct mail, or display or by means other than the spoken word in direct conversation, which shall support or oppose any candidate, elected public official, or issue. However, political advertisement does not include:

    
    

    1. A statement by an organization, in existence prior to the time during which a candidate qualifies or an issue is placed on the ballot for that election, in support of or opposition to a candidate or issue, in that organization's newsletter, which newsletter is distributed only to the members of that organization.

       
       

    2. Editorial endorsements by any newspaper, radio or television station, or other recognized news medium.

       
       

68. An expenditure made for a "political advertisement" supporting a candidate constitutes an "independent expenditure," as defined in Section 106.011(5), Florida Statutes, if the expenditure is "not controlled by, coordinated with, or made upon consultation with" the candidate or an agent of the candidate.

69. Section 106.08(1)(a), Florida Statutes, limits the amount of "contributions" a candidate can receive from any one

    person to $500.00 or less. Chapter 106, Florida Statutes, however, does not impose a similar restriction on the amount of "independent expenditures" a person can make with respect to a particular candidate, although persons making "independent expenditures in excess or $1,000 on behalf of or in opposition to a candidate," pursuant to Section 106.085, Florida Statutes, must provide to "all candidates in the affected race and the qualifying officer of such candidates" a "notice in writing of such independent expenditure, a general description of the subject and content of such expenditure, the amount of such expenditure, and a detailed description of the media type or use of such expenditure, within 24 hours after obligating any funds for such expenditure."

70. Pursuant to Section 106.143(4)(b), Florida Statutes, "[a]ny person who makes an independent expenditure for a political advertisement shall provide a written statement that no candidate has approved the advertisement to the newspaper, radio station, television station, or other medium for each such advertisement submitted for publication, display, broadcast, or other distribution" and "[t]he advertisement must also contain a statement that no candidate has approved the advertisement."

71. While it is the responsibility of a candidate's campaign treasurer to report a "contribution" received and accepted by or on behalf of the candidate, the reporting of an "independent expenditure" (of $100.00 or more) is the responsibility of the person making the expenditure pursuant to Section 106.071(1),

    Florida Statutes, which provides as follows:

    
    

    Each person who makes an independent expenditure with respect to any candidate or issue, which expenditure, in the aggregate, is in the amount of $100 or more, shall file periodic reports of such expenditures in the same manner, at the same time, and with the same officer as a political committee supporting or opposing such candidate or issue. The report shall contain the full name and address of each person to whom and for whom each such expenditure has been made; the amount, date, and purpose of each such expenditure; a description of the services or goods obtained by each such expenditure; and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made. Any political advertisement paid for by an independent expenditure shall prominently state "Paid political advertisement paid for by (Name of person or committee paying for advertisement) independently of any

    (candidate or committee) ," and shall

    contain the name and address of the person paying for the political advertisement.

    
    

72. The Commission contends that the value of the Publication's endorsements of Mrs. Pasquale were "contributions" which Mr. Pasquale, as his wife's campaign manager, was required to report in the treasurer's reports that he filed.

73. The preponderance of the record evidence establishes, however, that these alleged "contributions" were in fact merely the written opinions of the editor and publisher of the Publication, James Carroll, who was solely responsible for their content, and that they constituted "editorial endorsements," which are specifically excluded from the definition of "contribution" set forth in Section 106.011(3), Florida Statutes.

74. In urging the undersigned to find that these endorsements were not "editorial endorsements" excluded from the statutory definition of "contribution," the Commission, in its proposed recommended order filed in DOAH Case No 98-1543, makes the following argument:

    In Section 106.011(17), the term editorial endorsement as it relates to political advertisements is limited to those by any newspaper, radio or television station or other recognized news medium. The language in Section 106.011(3), as it relates to the exclusion of editorial endorsements, was added to Section 106.011 at the same time as the language relating to political advertisements. Therefore, it would seem logical that the term editorial endorsement as used in Section 106.011(3) would have the same meaning as the term editorial endorsement in Section 106.011(17).

    
    

    For this reason, it is the Commission's position that the only editorial endorsements excluded from the definition of contribution would be those editorial endorsements by any newspaper, radio or television station or other recognized news medium.

    
    

75. The argument is not persuasive. If anything, the presence of the qualifying language, "by any newspaper, radio or television station, or other recognized news medium," in the definition of "political advertisement" (found in Section 106.011(17), Florida Statutes) suggests that the Legislature did not intend to limit the types of "editorial endorsements" excluded from the definition of "contribution" (found in Section 106.011(3), Florida Statutes, which, unlike Section 106.011(17), Florida Statutes, does not contain any similar qualifying

    language). Had the Legislature intended otherwise, it could have easily included in subsection (3) of Section 106.011, Florida Statutes, the qualifying language it used in subsection (17) of the same statute. Its failure to have done so reflects the Legislature's intent to exclude all editorial endorsements, not just those described in Section 106.011(17), Florida Statutes, from the definition of "contribution," as that term is used in Chapter 106, Florida Statutes. See Leisure Resorts, Inc., v.

    Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995)("When the legislature has used a term, as it has here, in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded."); Myers v. Hawkins,

    362 So. 2d 926, 929 (Fla. 1978)("The term "judicial tribunal" is found in the Florida Constitution only in Section 8(e) of Article II, although the terms "courts" and "administrative agencies" are used elsewhere frequently. We presume that the language differentiation was intentional."); Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515,

    516 (Fla. 1st DCA 1984)("The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended."); Ocasio v. Bureau of Crimes Compensation, Division of Workers’ Compensation, 408 So. 2d 751, 753 (Fla. 3d DCA 1982)("[I]f it wished, the legislature could easily have accomplished the result achieved below simply by using the familiar and unequivocal expression "husband or wife" or, even

    more obviously, "spouse"-as it significantly did in another portion, subsection (1)(c), of the identical statute. Its deliberate use of a quite different term in (2 )(c) is strong evidence indeed that it intended a quite different meaning."); U.S. v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").

76. To hold that "the only editorial endorsements excluded from the definition of contribution would be those editorial endorsements by any newspaper, radio or television station or other recognized news medium," as the Commission now contends, would require the Commission to add qualifying language to subsection (3) of Section 106.011, Florida Statutes, that the Legislature, by all appearances, intentionally omitted. This the Commission cannot do. See Chaffee v. Miami Transfer Company, Inc., 288 So. 2d 209, 215 (Fla. 1974)("To say, as the employer would have us do, that in merger cases the true meaning of s 440.15(3)(u) is that disability for purposes of that section is the greater of physical impairment or loss of earning capacity only if there is a loss of earning capacity is to invoke a limitation or to add words to the statute not placed there by the Legislature. This we may not do."); In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender,

    561 So. 2d 1130, 1137 (Fla. 1990)("Courts should not add additional words to a statute not placed there by the legislature, especially where uncertainty exists as to the intent of the legislature."); Hialeah, Inc., v. B & G Horse Transportation, Inc., 368 So. 2d 930, 933 (Fla. 3d DCA 1979)("[A] court may not invoke a limitation or add words to a statute not placed there by the legislature. . . . Construing Section 323.24 to provide jurisdiction for the enjoining of persons who intend to or are preparing to operate a vehicle in violation of Chapter 323,

    requires the court to extend the meaning of the section beyond

    that intended by the legislature, and requires the addition of words to the section.").

77. Neither may the Commission construe the provisions of Chapter 106, Florida Statutes, including Section 106.011(3), Florida Statutes, to the extent that they are ambiguous, against Mr. Pasquale. Inasmuch as these provisions are penal in nature, any ambiguities must be resolved in Mr. Pasquale's favor. See Lester v. Department of Professional and Occupational Regulations,

    348 So. 2d 923, 925 (Fla. 1st DCA 1977); Whitaker v. Department of Insurance, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Department of Highway Safety and Motor Vehicles v. Meck, 468 So. 2d 993, 994-95 (Fla. 5th DCA 1984).

78. Because the "editorial endorsements" contained in the Publication were not "contributions," as defined in Section 106.011(3), Florida Statutes,5 Mr. Pasquale's failure to make mention of them in the treasurer's reports that he filed on behalf of his wife's campaign, in his capacity as campaign treasurer, and that he certified as being "true, correct and complete" constituted a violation of neither Section 106.07(5), Florida Statutes, nor Section 106.19(1)(b), Florida Statutes.

79. Accordingly, to the extent that the charges against Mr. Pasquale allege otherwise, they should be dismissed.

80. Clear and convincing record evidence, however, does support the allegation that Mr. Pasquale violated Sections 106.07(5)and 106.19(1)(b), Florida Statutes, by willfully failing

    to report as in kind contributions to his wife's campaign, the

    value of free extra copies of the Publication with which his wife's campaign was provided for use in the election.

81. As the Commission points out in its proposed recommended order filed in DOAH Case No. 98-1543, the record contains evidence of out-of-court statements made by Mrs. Pasquale6 to the effect that her campaign was furnished free copies of the Publication. These hearsay statements, standing alone, are insufficient, pursuant to Section 120.57(1)(c), Florida Statutes,7 to support a finding against Mr. Pasquale. See Adams v. School Board of Brevard County, 470 So. 2d 760, 762 (Fla. 5th DCA 1985). There is, however, other evidence, which would be admissible over objection in a civil action, supporting a finding against Mr. Pasquale that his wife's campaign was given copies of the Publication free of charge: the testimony of Mr. Rifkin that he saw Mr. Pasquale driving through a neighborhood in the City of Stuart distributing copies of the Publication; the testimony of Mr. Carroll to the effect that, if Mr. Pasquale distributed copies of the Publication, it was not at Mr. Carroll's request; and the treasurer's reports that Mr. Pasquale filed (that are included in Petitioner's Exhibit 1), which reflect that Mrs. Pasquale's campaign did not make any expenditures to purchase copies of the Publication. This non-hearsay evidence, coupled with the evidence of Mrs. Pasquale's out-of-court statements, clearly and convincingly establishes that her campaign received free copies of the Publication for use in her race against Mrs. Rifkin.

82. These free copies of the Publication constituted in kind "contributions," as defined in Section 106.011(3), Florida Statutes.

83. The record evidence further clearly and convincingly establishes that Mr. Pasquale was aware of the campaign's receipt of these in kind "contributions" and he knew or should have known he was obligated, as his wife's campaign treasurer, to report these "contributions," but that, in violation of Sections 106.07(5)and 106.19(1)(b), Florida Statutes, he knowingly and willfully failed to do so, despite certifying that the campaign treasurer's reports he filed on behalf of the campaign were "true, correct and complete."

84. Having carefully considered the facts of the instant case, in light of the provisions of Section 106.265, Florida Statutes, it is the recommendation of the undersigned that the Commission fine Mr. Pasquale $500.00 for having violated these provisions of Chapter 106, Florida Statutes.

85. In the Order of Probable Cause issued in FEC Case No. 96-322, the Commission alleged that Mrs. Pasquale was a member of a political committee that endorsed and opposed candidates for

    seats on the Stuart City Commission and that she violated Sections 106.03(1) and 106.144, Florida Statutes, by willfully failing, on behalf of the political committee, to file a statement of organization and a statement of endorsement or opposition.

86. Section 106.03(1), Florida Statutes, provides as

    follows:

    
    

    Each political committee which anticipates receiving contributions or making expenditures during a calendar year in an aggregate amount exceeding $500 or which is seeking the signatures of registered electors in support of an initiative shall file a statement of organization as provided in subsection (3) within 10 days after its organization or, if later, within 10 days after the date on which it has information which causes the committee to anticipate that it will receive contributions or make expenditures in excess of $500. If a political committee is organized within 10 days of any election, it shall immediately file the statement of organization required by this section.

    
    

87. "Political committee," as used in Chapter 106, Florida Statutes, is defined in Section 106.011(1), Florida Statutes, as follows:

    "Political committee" means a combination of two or more individuals, or a person other than an individual, the primary or incidental purpose of which is to support or oppose any candidate, issue, or political party, which accepts contributions or makes expenditures during a calendar year in an aggregate amount in excess of $500; "political committee" also means the sponsor of a proposed constitutional amendment by initiative who intends to seek the signatures of registered electors. Organizations which are certified by the Department of State as committees of continuous existence pursuant to s. 106.04, national political parties, and the state and county executive committees of political parties regulated by chapter 103 shall not be considered political committees for the purposes of this chapter. Corporations regulated by chapter 607 or chapter 617 or other business entities formed for purposes other than to support or oppose issues or candidates are not political committees if their political activities are limited to

    contributions to candidates, political parties, or political committees or expenditures in support of or opposition to an issue from corporate or business funds and if no contributions are received by such corporations or business entities.

    
    

88. In its proposed recommended order filed in DOAH Case No. 98-1544, the Commission asserts that, "[b]y their actions James Carroll, Veronica Pasquale, Armond Pasquale, Gerald Tighe, Charles Foster and other unknown persons became a political committee" and "[w]hen their actions resulted in an expenditure in excess of $500 for express advocacy, the group was required to file a statement of organization as a political committee." It is undisputed that the individuals named by the Commission, including Mrs. Pasquale and Mr. Carroll, were members of a group (that has been referred to herein as the Discussion Group) that met regularly at the Flamingo Restaurant to discuss their concerns about city government. The Commission's assertion that that these individuals, acting together, spent "in excess of $500 for express advocacy" is not supported by even a preponderance of the record evidence.8 While Mr. Carroll, who was a member of the Discussion Group, made expenditures in excess of $500.00 in connection with the production and distribution of those issues of the Publication which endorsed and opposed Stuart City Commission candidates in the 1996 election, the preponderance of the record evidence establishes that, in so doing, Mr. Carroll was acting, not on behalf of the group or in collaboration with any other group member, including, most significantly, Mrs. Pasquale, but rather

    in his individual capacity.

    
    

89. Because the proof fails to establish that Mrs. Pasquale belonged to any group which "accept[ed] contributions or ma[de] expenditures during a calendar year in an aggregate amount in excess of $500" for the purpose of supporting a candidate or issue on the ballot, it is insufficient to establish that she was a member of a "political committee," as defined by Section 106.011(1), Florida Statutes, obligated to file a statement of organization pursuant to Section 106.03(1), Florida Statutes. The charge that Mrs. Pasquale violated Section 106.03(1), Florida Statutes, by failing to file such a statement of organization should therefore be dismissed.

90. The other statutory provision Mrs. Pasquale is alleged to have violated, Section 106.144, Florida Statutes, provides as follows:

    1. Any group, club, association, or other organization, except organizations affiliated with political parties regulated by chapter 103, which intends to endorse or oppose the candidacy of one or more candidates for public office, or which endorses or opposes any referendum, by means of political advertisements shall, prior to publishing, issuing, broadcasting, or otherwise distributing such advertisement, file a statement as provided by this section with the officer or officers provided in this section. Such statement shall be filed with the officer before whom each candidate that the organization intends to endorse or oppose qualified for office pursuant to law. Each statement shall contain the following information:

       1. The date the organization was chartered and the number of members during the most recent 12 months and how many of these members, if any, have paid dues;

          
          

       2. A list of current officers or directors of such organization and a statement as to their method of selection;

          
          

       3. A statement of the procedures used by such organization in determining which candidates to endorse or oppose;

          
          

       4. If political advertisements for endorsement or opposition purposes are to be paid from funds other than the dues of the membership of the organization, a statement describing the sources of such funds; and

          
          

       5. The amount of funds paid to the organization by candidates for public office, including payments in the form of dues, and the name of, and office sought by, each such candidate.

          
          

    2. Any officer, director, or other person acting on behalf of an organization who willfully violates the provisions of subsection (1) is subject to the civil penalties prescribed in s. 106.265.

    
    

91. In its proposed recommended order filed in DOAH Case No. 98-1544, the Commission asserts that Mrs. Pasquale was a member of "the group known as FACTSS [a name given to the Discussion Group, which] produced and distributed several political advertisements." According to the Commission, the "political advertisements" that the group "produced and distributed" were the issues of the Publication that urged readers to vote for certain Stuart City Commission candidates in the 1996 election and to not vote for their opponents. The preponderance of the record evidence establishes, however, as

    noted above, that it was Mr. Carroll, acting alone in his individual capacity, and not the Discussion Group, who paid the production and distribution costs and was responsible for determining what was included in these issues in the Publication.

92. Because the proof fails to establish that Mrs. Pasquale belonged to any group which "endorse[d] or oppose[d] the candidacy of one or more candidates for public office, or which endorse[d] or oppose[d] any referendum, by means of political advertisements," it is insufficient to establish that she violated Section 106.44, Florida Statutes, as alleged by the Commission.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a final order:

1) finding Mr. Pasquale guilty of violating Sections 106.07(5)and 106.19(1)(b), Florida Statutes, by willfully failing to report as in kind contributions to his wife's campaign the free extra copies of the Publication the campaign received; 2) fining Mr. Pasquale $500.00 for violating these provisions of Chapter 106, Florida Statutes; 3) dismissing the remaining charges against Mr. Pasquale (in FEC Case No. 96-321); and 4) dismissing all charges against Mrs. Pasquale (in FEC Case No. 96-322).

DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1998.

ENDNOTES

1 Mr. Carroll suggested elsewhere in this issue that the "local news media" were not "reporting fairly and accurately all the facts on major issues."

2 The Pasquales contend that, inasmuch as Mr. Carroll provided these invoices to Mr. Shaw, the Commission is estopped from prosecuting them and must "close" their cases as Mr. Shaw promised. The argument is without merit. Even assuming that Mr. Shaw entered into an agreement with Mr. Carroll, of which the Pasquales were intended third party beneficiaries, to dismiss the complaints against the Pasquales upon Mr. Shaw's receiving these invoices from Mr. Carroll, such an agreement would be unenforceable against the Commission because Mr. Shaw had no authority to contract away the Commission's enforcement powers. Once a complaint is received by the Commission, it may be dismissed only by the Commission itself, acting in accordance with the provisions of Chapter 106, Florida Statutes. See Martin County v. Indiantown Enterprises, Inc., 658 So. 2d 1144, 1146 (Fla. 4th DCA 1995)("Courts usually shrink from finding an estoppel against a governmental entity where the actions of the official are unauthorized or unlawful."); Santa Rosa County v. Gulf Power Company, 635 So. 2d 96, 102 (Fla. 1st DCA 1994)("[C]ounties cannot be estopped from denying the validity of acts that exceeded their delegated powers."); P.C.B. Partnership V. City of Largo, 549 So. 2d 738, 741 (Fla. 2d DCA 1989)("With regard to the City's contractual liability, we agree with the position taken by the City that the subject contract is ultra vires and therefore unenforceable. . . . The City does not have the authority to enter into such a contract, which effectively contracts away the exercise of police powers."); Corona Properties of Florida, Inc. v. Monroe County, 485 So. 2d 1314, 1317 (Fla. 3d DCA 1986)("Ordinarily, a governmental entity may not be estopped from the enforcement of its ordinances by an illegally issued permit.").

3 Mrs. Pasquale's November 25, 1996, letter, along with her November 2, 1996, Statement to the Press, were offered into evidence as Petitioner's Exhibit 4. The Pasquales objected to the admission of this exhibit, as well as to other evidence of statements made by Mrs. Pasquale, on the ground that the Commission obtained these statements in violation of Mrs. Pasquale's constitutional rights inasmuch as Mrs. Pasquale was not advised, before giving the statements to the Commission, of her right to remain silent and her right to counsel. Because it appeared that Mrs. Pasquale voluntarily provided the statements to the Commission and that she was at no time under arrest, in custody, or otherwise deprived of freedom of action, the undersigned overruled the Pasquales' objections and admitted Petitioner's Exhibit 4 and the other challenged evidence. See

Abbelaez v. State, 626 So. 2d 169, 175 (Fla. 1993)("Miranda warnings are not required outside the context of custodial interrogation . . . ."); State v, Burns, 661 So. 2d 842, 844 (Fla. 5th DCA 1995)("Miranda warnings are required only when a defendant is subjected to custodial interrogation."); Bunse v. State, 661 So. 2d 389, 393 (Fla. 5th DCA 1995)("Miranda warnings are only necessary where there is a custodial interrogation."); Department of State, Division of Licensing v. Berry, Case No. 92- 4294 (DOAH November 2, 1993)(Recommended Order)("Respondent's contention that statements made by Respondent to the investigator are inadmissible because he was not given a Miranda warning is without merit. Respondent was not under arrest and the investigator had no authority to arrest him."); Department of Professional Regulation v. Alexander, Case No. 89-6093 (DOAH August 7, 1990)(Recommended Order)("After review of the memoranda, it is determined that the Respondent is entitled to exercise the privilege against self-incrimination during professional disciplinary investigations conducted by the Department if the refusal to testify is based on a reasonable fear of criminal prosecution. . . . However, under the facts set forth in Findings of Fact, paragraph 3, Respondent was never subjected to custodial interrogation and therefore there was no requirement to recite Miranda warnings to Respondent. Therefore, the statements made by Respondent during noncustodial interrogations are admissible regardless of the interviewer's subjective intent to elicit culpable statements."). It should be noted, however, that these statements fall within the "admissions" exception to the hearsay rule (found in Section 90.803(18), Florida Statutes) only as to Mrs. Pasquale (and not as to Mr. Pasquale). Accordingly, these statements, standing alone, are insufficient to support findings of fact in the case against Mr. Pasquale. See Adams v. School Board of Brevard County, 470 So. 2d 760, 762 (Fla. 5th DCA 1985)("The evidence in these cases consisted primarily of statements the students made to the administrative deans at the high school. The students did not testify at the hearing. The administrative deans testified the students' statements were made to them voluntarily, and without promises of lenience. As to each child, his or her own statement was admissible as an 'admission,' Sec. 90.803(18), Fla. Stat. (1983), although as applied to the other students, it was hearsay, Sec. 90.801(1)(c), Fla. Stat. (1983). However, hearsay is admissible at administrative hearings, and it is sufficient to bolster a fact-finding conclusion, so long as there is other competent evidence.").

4 In a letter dated October 22, 1996, that she had written to the Commission regarding an earlier complaint that Commissioner Henderson had filed concerning the Publication, Mrs. Pasquale had likewise stated that, in her "political flier[s]," she had "included extra back issues of the FACTSS Publication . . . (which [had been] made available to [her] free of charge)."

5 It appears that these "editorial endorsements" would not constitute "contributions" even under the construction of Section 106.011(3), Florida Statutes, urged by the Commission because they were made by a "recognized news medium," the Publication, which, since January of 1996, had been providing its readers in the City of Stuart with information and commentary regarding their city government. See Florida Elections Commission v. Horne, Case No. 94-0803 (DOAH September 27, 1994)(Recommended Order). Moreover, inasmuch as the expenditures made by Mr. Carroll in connection with these "editorial endorsements"(which exceeded $100.00) were not controlled by, coordinated with, or made upon consultation with any one else, including Mrs. Pasquale or any agent acting on her behalf, they would constitute, even assuming that the "editorial endorsements" were in fact "political advertisements," as that term is used in Chapter 106, Florida Statutes, "independent expenditures," as defined in Section 106.011(5), Florida Statutes, that Mr. Carroll, the person making the expenditures, not Mr. Pasquale, would be responsible for reporting pursuant to Section 106.071(1), Florida Statutes.

6 Neither Mrs. Pasquale, nor her husband, testified at the final hearing.

7 Section 120.57(1)(c), Florida Statutes, provides that "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."

8 That is not to say, however, that there was no evidence supporting such an assertion. The evidence upon which the Commission relies, in the view of the undersigned, is simply insufficient to outweigh the evidence to the contrary (most significantly, the testimony of Mr. Carroll concerning his Publication, which the undersigned has credited).

COPIES FURNISHED:

Veronica Pasquale Armond Pasquale

15 Southeast Seminole Street Stuart, Florida 34994

Peter K. DeVuono

2950 Southeast Ocean Boulevard Building 11, Apartment 2

Stuart, Florida 34996

Kristi Reid Bronson Assistant General Counsel Florida Elections Commission The Capitol, Room 2002

Tallahassee, Florida 32399-1050

Valerie M. Crotty, Chairman Florida Elections Commission The Capitol, Room 2002

Tallahassee, Florida 32399-4539

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 exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

1 Mr. Carroll suggested elsewhere in this issue that the "local news media" were not "fairly and accurately all the facts on major issues."

2 The Pasquales contend that, inasmuch as Mr. Carroll provided these invoices to Mr. Shaw, the Commission is estopped from prosecuting them and must "close" their cases as Mr. Shaw promised. The argument is without merit. Even assuming that Mr. Shaw entered into an agreement with Mr. Carroll, of which the Pasquales were intended third party beneficiaries, to dismiss the complaints against the Pasquales upon Mr. Shaw's receiving these invoices from Mr. Carroll, such an agreement would be unenforceable against the Commission because Mr. Shaw had no authority to contract away the Commission's enforcement powers. Once a complaint is received by the Commission, it may be dismissed only by the Commission itself, acting in accordance with the provisions of Chapter 106, Florida Statutes. See Martin County v. Indiantown Enterprises, Inc., 658 So. 2d 1144, 1146 (Fla. 4th DCA 1995)("Courts usually shrink from finding an estoppel against a governmental entity where the actions of the official are unauthorized or unlawful."); Santa Rosa County v. Gulf Power Company, 635 So. 2d 96, 102 (Fla. 1st DCA 1994)("[C]ounties cannot be estopped from denying the validity of acts that exceeded their delegated powers."); P.C.B. Partnership V. City of Largo, 549 So. 2d 738, 741 (Fla. 2d DCA 1989)("With regard to the City's contractual liability, we agree with the position taken by the City that the subject contract is ultra vires and therefore unenforceable. . . . The City does not have the authority to enter into such a contract, which effectively contracts away the exercise of police powers."); Corona Properties of Florida, Inc. v. Monroe County, 485 So. 2d 1314, 1317 (Fla. 3d DCA 1986)("Ordinarily, a governmental entity may

not be estopped from the enforcement of its ordinances by an illegally issued permit.").

3 Mrs. Pasquale's November 25, 1996, letter, along with her November 2, 1996, Statement to the Press, were offered into evidence as Petitioner's Exhibit 4. The Pasquales objected to the admission of this exhibit, as well as to other evidence of statements made by Mrs. Pasquale, on the ground that the Commission obtained these statements in violation of Mrs. Pasquale's constitutional rights inasmuch as Mrs. Pasquale was not advised, before giving the statements to the Commission, of her right to remain silent and her right to counsel. Because it appeared that Mrs. Pasquale voluntarily provided the statements to the Commission and that she was at no time under arrest, in custody, or otherwise deprived of freedom of action, the undersigned overruled the Pasquales' objections and admitted Petitioner's Exhibit 4 and the other challenged evidence. See Abbelaez v. State, 626 So. 2d 169, 175 (Fla. 1993)("Miranda warnings are not required outside the context of custodial interrogation . . . ."); State v, Burns, 661 So. 2d 842, 844 (Fla. 5th DCA 1995)("Miranda warnings are required only when a defendant is subjected to custodial interrogation."); Bunse v. State, 661 So. 2d 389, 393 (Fla. 5th DCA 1995)("Miranda warnings are only necessary where there is a custodial interrogation."); Department of State, Division of Licensing v. Berry, Case No. 92- 4294 (DOAH November 2, 1993)(Recommended Order)("Respondent's contention that statements made by Respondent to the investigator are inadmissible because he was not given a Miranda warning is without merit. Respondent was not under arrest and the investigator had no authority to arrest him."); Department of Professional Regulation v. Alexander, Case No. 89-6093 (DOAH August 7, 1990)(Recommended Order)("After review of the memoranda, it is determined that the Respondent is entitled to exercise the privilege against self-incrimination during professional disciplinary investigations conducted by the Department if the refusal to testify is based on a reasonable fear of criminal prosecution. . . . However, under the facts set forth in Findings of Fact, paragraph 3, Respondent was never subjected to custodial interrogation and therefore there was no requirement to recite Miranda warnings to Respondent. Therefore, the statements made by Respondent during noncustodial interrogations are admissible regardless of the interviewer's subjective intent to elicit culpable statements."). It should be noted, however, that these statements fall within the "admissions" exception to the hearsay rule (found in Section 90.803(18), Florida Statutes) only as to Mrs. Pasquale (and not as to Mr. Pasquale). Accordingly, these statements, standing alone, are insufficient to support findings of fact in the case against Mr. Pasquale. See Adams v. School Board of Brevard County, 470 So. 2d 760, 762 (Fla. 5th DCA 1985)("The evidence in

these cases consisted primarily of statements the students made to the administrative deans at the high school. The students did not testify at the hearing. The administrative deans testified the students' statements were made to them voluntarily, and without promises of lenience. As to each child, his or her own statement was admissible as an 'admission,' Sec. 90.803(18), Fla. Stat. (1983), although as applied to the other students, it was hearsay, Sec. 90.801(1)(c), Fla. Stat. (1983). However, hearsay is admissible at administrative hearings, and it is sufficient to bolster a fact-finding conclusion, so long as there is other competent evidence.").

4 In a letter dated October 22, 1996, that she had written to the Commission regarding an earlier complaint that Commissioner Henderson had filed concerning the Publication, Mrs. Pasquale had likewise stated that, in her "political flier[s]," she had "included extra back issues of the FACTSS Publication . . . (which [had been] made available to [her] free of charge)."

5 It appears that these "editorial endorsements" would not constitute "contributions" even under the construction of Section 106.011(3), Florida Statutes, urged by the Commission because they were made by a "recognized news medium," the Publication, which, since January of 1996, had been providing its readers in the City of Stuart with information and commentary regarding their city government. See Florida Elections Commission v. Horne, Case No. 94-0803 (DOAH September 27, 1994)(Recommended Order). Moreover, inasmuch as the expenditures made by Mr. Carroll in connection with these "editorial endorsements"(which exceeded $100.00) were not controlled by, coordinated with, or made upon consultation with any one else, including Mrs. Pasquale or any agent acting on her behalf, they would constitute, even assuming that the "editorial endorsements" were in fact "political advertisements," as that term is used in Chapter 106, Florida Statutes, "independent expenditures," as defined in Section 106.011(5), Florida Statutes, that Mr. Carroll, the person making the expenditures, not Mr. Pasquale, would be responsible for reporting pursuant to Section 106.071(1), Florida Statutes.

6 Neither Mrs. Pasquale, nor her husband, testified at the final hearing.

7 Section 120.57(1)(c), Florida Statutes, provides that "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence , but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."

8 That is not to say, however, that there was no evidence supporting such a assertion. The evidence upon which the Commission relies, in the view of the undersigned, is simply insufficient to outweigh the evidence to the contrary (most significantly, the testimony of Mr. Carroll concerning his Publication, which the undersigned has credited).

Docket for Case No: 98-001543

Orders for Case No: 98-001543