STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION,

Petitioner,

vs.

JAMES JENNINGS,

Respondent.

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) Case No. 04-0006

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on April 7, 2004, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876

STATEMENT OF THE ISSUES

Whether Respondent, James Jennings, violated Subsections 106.021(3), 106.07(5), or 106.19(1)(b), Florida Statutes (2002),

as alleged in the Amended Order of Probable Cause dated February 20, 2004, and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On June 9, 2003, Petitioner, Florida Elections Commission, received a sworn complaint alleging that Respondent, James Jennings, had violated Florida's election laws. Subsequent to an investigation of the allegations, Petitioner, on November 21, 2003, filed an Order of Probable Cause, and, on February 20, 2004, an Amended Order of Probable Cause, finding probable cause to believe that Respondent had violated Subsections 106.021(3), 106.07(5), and 106.19(1)(b), Florida Statutes (2002).

Both the original Order of Probable Cause and Amended Order of Probable Cause contain 56 counts alleging specific violations. Respondent, on February 17, 2004, filed a Motion to Dismiss Counts 27-56 as Set Forth in the Order of Probable Cause.

A private citizen's sworn complaint, dated June 9, 2003, initiated Petitioner's first investigation. On June 12, 2003, Petitioner advised Respondent of the sworn complaint and that it would investigate violations of Subsections 106.07(5), 106.11(4), 106.19(1)(b), and 106.19(d), Florida Statutes (2002). On August 23, 2003, Petitioner advised Respondent that "during the Florida Elections Commission's investigation of the complaint filed against you, an additional alleged violation has

been discovered." This "additional alleged violation" (of Subsection 106.021(3), Florida Statutes (2002)) resulted in the inclusion of Counts 27-56, the counts sought to be dismissed by Respondent's motion.

Respondent's motion to dismiss was not ruled on prior to the final hearing. At the final hearing, Respondent urged the motion to dismiss; the undersigned Administrative Law Judge reserved ruling on the motion to dismiss, requesting that argument directed to the motion to dismiss be included in the parties' proposed recommended orders.

On December 23, 2003, Respondent filed his Petition for Formal Administrative Hearing with Petitioner. On January 5, 2004, the Division of Administrative Hearings received Petitioner's transmittal of the Petition for Formal Administrative Hearing. On the same day, an Initial Order was sent to both parties.

On January 16, 2004, the case was scheduled for final hearing in Fort Myers, Florida, on March 29, 2004. The final hearing took place as scheduled although it was continued to April 7, 2004, to allow the testimony of Keith Smith, an investigator for Petitioner, who was called as a witness for Respondent. Petitioner presented the testimony of Respondent, Pamela Smith, and Bernie Feliciano. In addition to Smith, Respondent testified on his own behalf. The parties jointly

stipulated to the admissibility of the facts recited in paragraph 27 (A through J) of the Joint Pre-hearing Stipulation filed March 24, 2004. The parties jointly stipulated to the admission of 25 joint exhibits, marked as Joint Exhibits 1 through 25. Respondent presented two additional exhibits which were admitted as Respondent's Exhibits 1 and 2. Proposed recommended orders were due 30 days after the filing of the last of the two transcripts. The last Transcript was filed on

June 2, 2004. On June 16, 2004, an Order Extending Time for Filing Proposed Recommended Orders was entered, extending the time for filing to July 9, 2004. On August 3, 2004, an Order Extending Time for Filing Memorandum was entered allowing Petitioner additional time to address the legal effect of the amendment of Subsection 106.25(2), Florida Statutes, by the 2004 Florida Legislature.

Both parties filed Proposed Recommended Orders on July 9, 2004. Petitioner filed Florida Election Commissions' Response to Respondent's Proposed Recommended Order on August 17, 2004.

Order Granting Petitioner's Motion to Dismiss Counts 27-56 as Set Forth in the Order of Probable Cause

The 2004 Florida Legislature amended Subsection 106.25(2), Florida Statutes, to read as follows:

The commission shall investigate all violations of this chapter and chapter 104, but only after having received either a

sworn complaint or information reported to it under this subsection by the Division of Elections. Any person, other than the division, having information of any violation of this chapter or chapter 104 shall file a sworn complaint with the commission. The commission shall investigate only those alleged violations specifically contained within the sworn complaint. If any complainant fails to allege all violations that arise from the facts or allegations alleged in a complaint, the commission shall be barred from investigating a subsequent complaint from such complainant that is based upon such facts or allegations that were raised or could have been raised in the first complaint. Such sworn complaint shall state whether a complaint of the same violation has been made to any state attorney. Within

5 days after receipt of a sworn complaint, the commission shall transmit a copy of the complaint to the alleged violator. All sworn complaints alleging violations of the Florida Election Code over which the commission has jurisdiction shall be filed with the commission within 2 years after the alleged violations. The period of limitations is tolled on the day a sworn complaint is filed with the commission. [emphasis added]

This change became effective July 1, 2004. Section 26 of Chapter 2004-252, Laws of Florida.

The predicate for Respondent's motion to dismiss is the fact that Counts 27 through 56 of the orders of probable cause are based on purported violations that were not the subject of the original sworn complaint, but were discovered in the course of the initial investigation. This is acknowledged in Petitioner's letter of August 23, 2003, directed to Respondent.

The above-cited statutory change specifically limits Petitioner's investigation to matters alleged in the sworn complaint. Therefore, the amended law prohibits broadening an investigation to include matters not raised in the sworn complaint. The controlling issue here then becomes . . . "is the new law substantive or procedural, is the new law applied prospectively or retrospectively?"

Petitioner is statutorily charged with the responsibility of considering all sworn complaints alleging election laws violations and determining whether violations of Chapters 104 and 106, Florida Statutes, have occurred. § 106.26, Fla. Stat. (2004). In discharging this responsibility, Petitioner must act within the parameters established by the legislature through legislative enactments. It may not exceed the authority expressly delegated to it by statute. City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d 493, 495-96 (Fla. 1973) ("All administrative bodies created by the Legislature are not constitutional bodies, but, rather, simply mere creatures of statute. This, of course, includes the Public Service Commission. . . . As such, the Commission's powers, duties and authority are those and only those that are conferred expressly or impliedly by statute of the State. . . . Any reasonable doubt as to the lawful existence of a particular power that is being exercised by the Commission must be resolved against the

exercise thereof, . . . and the further exercise of the power should be arrested."); Schiffman v. Department of Professional

Regulation, Board of Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) ("An administrative agency has only the authority that the legislature has conferred it by statute."); Lewis Oil Co., Inc. v. Alachua County, 496 So. 2d 184, 189 (Fla. 1st DCA 1986) ("Administrative agencies have only the powers delegated by statute.").

"'The general rule [of statutory construction] is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.' Additionally, '[s]tatutes that relate only to procedure or remedy generally apply to all pending cases.' Substantive statutes either 'create[] or impose[] a new obligation or duty,' or 'impair or destroy existing rights.' Procedural statutes, on the other hand, 'concern[] the means and methods to apply and enforce those duties and rights,' and 'no one has a vested interest in any given mode of procedure.'" Life Care Centers of America, Inc. v. Sawgrass Care Center, Inc., 683 So. 2d 609, 613 (Fla. 1st DCA 1996) (citations omitted).

For purposes of the rule that substantive statutes are presumed to operate prospectively and that procedural or remedial statutes are to be applied retrospectively,

"substantive law" prescribes duties and rights, and "procedural law" concerns means and methods to apply and enforce those duties and rights. Procedural or remedial statutes are to be applied retrospectively and are to be applied to pending cases. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994). Statutes which prescribe how an agency must go about proving the necessary factual predicate to justify the exercise of agency authority and which forbid the agency from relying on certain methods of proof, such as statistical sampling, to establish such justification are examples of "procedural statutes." Shaps

1. Provident Life & Accident Insurance Co., 826 So. 2d 250, 254 (Fla. 2002).

   "[A] remedial statute is one that neither establishes a new [substantive] right nor impairs a vested [substantive] right

   . . . ." Kugler v. Department of Management Services, Case No. 02-2578, 2003 WL 150810 (Fla. DOAH 2003). Rather, it

   "confers or changes a remedy; a remedy is the means employed in enforcing a right or in redressing an injury." St. John's

   Village I, Ltd. v. Department of State, Division of Corporations, 497 So. 2d 990, 993 (Fla. 5th DCA 1986). It has also been said that a "remedial statute is [one] 'designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good." Adams v. Wright, 403 So. 2d 391, 394 (Fla. 1981).

   The change to Subsection 106.25(2), Florida Statutes (2004), is a procedural enactment designed to limit the breadth of Petitioner's investigation of violations advanced by sworn complaints. As such, it applies to all cases pending as of its effective date, July 1, 2004, inasmuch as there is no language in the enactment clearly and unambiguously providing otherwise. Gupton v. Village Key & Saw Shop, Inc., 656 So. 2d 475, 477 (Fla. 1995) ("Statutes that relate only to procedure or remedy generally apply to all pending cases."); Young v. Altenhaus, 472 So. 2d 1152, 1154 (Fla. 1985) ("[S]tatutes which relate only to the procedure or remedy are generally held applicable to all pending cases.").

   Based on the foregoing, Respondent's motion to dismiss Counts 27 through 56 is granted.

   FINDINGS OF FACT

   
   

   Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made:

   1. Respondent has taught in the public schools of Lee County, Florida, for 31 years. He has a bachelor of science degree.

   2. Respondent was a first-time candidate for public office, although he had limited political experience as a precinct committeeman and president of the Sanibel-Captiva

      Republican Club. He had not been actively engaged in any previous campaign as a campaign treasurer or deputy.

   3. Incidental to becoming a candidate he met with appropriate municipal and county election officials and received a campaign handbook which included the following:

      1. A Compilation of The Election Laws of the State of Florida (2001), published by the Department of State;

      2. 2002 Handbook for Candidates, published by the Department of State;

      3. 2002 Handbook for Treasurers, published by the Department of State;

      4. Chapter 106, Florida Statutes, published by the Department of State;

      5. various Sanibel municipal ordinances related to city elections;

      6. a calendar listing important dates for filing campaign documents.

         
         

   4. Respondent signed a Statement of Candidate which advised that he had received a copy of Chapter 106, Florida Statutes, and that he had read and understood same. It is apparent that Respondent did not understand the Florida Election Law as embodied in Chapter 106, Florida Statutes.

   5. Respondent designated a campaign treasurer and a deputy campaign treasurer. Notwithstanding the fact that Subsection 106.021(3), Florida Statutes (2002), clearly states that no campaign expenditure shall be made except through the duly- appointed campaign treasurer, Respondent personally signed 30 campaign checks. In fact, he signed all campaign checks with the exception of one check. On that particular check he

      directed his wife, the deputy campaign treasurer, who was statutorily authorized to sign the campaign check as deputy campaign treasurer, to sign his name.

   6. Inexplicably, Respondent believed that he, personally, was obligated to sign all campaign checks because he was the candidate.

   7. Respondent prepared his own Campaign Treasurer's Reports. It is suggested that he received some limited assistance from his wife.

   8. On February 28, 2003, Respondent was required to file a Campaign Treasurer's Report for the reporting period of February 8, 2003, through February 27, 2003. Two previous Campaign Treasurer's Reports for periods January 1, 2003, through January 24, 2003, and January 25, 2003, through February 7, 2003, had reporting dates which were seven days after the reporting period ended (January 31, 2003, and February 14, 2003).

   9. Respondent believed that the Campaign Treasurer's Report due on February 28, 2003, covered the period from February 8, 2003, through February 21, 2003. The campaign calendar presented by a city elections official clearly indicated the accurate reporting period.

   10. On February 28, 2003, immediately prior to filing the subject Campaign Treasurer's Report, Respondent discovered that the report should have included activity through

       February 27, 2003. He did not include appropriate information for February 21, 2003, through February 27, 2003, because he did not have time to return to his home, obtain the additional information, make appropriate inclusions, and file the report before 5:00 p.m. at the Sanibel City Hall. He merely changed the end of the reporting period on the Campaign Treasurer's Report from February 21, 2003, to February 27, 2003, knowing that it was inaccurate. The Campaign Treasurer's Report failed to include 24 contributions that should have been reported.

   11. During the telephone conversation in which he discovered the actual reporting period, he testified that he was advised by a Lee County elections official to file the report even though it was inaccurate, and then immediately file an accurate amended report. This is not credible. February 28, 2003, was a Friday. Respondent filed an Amended Campaign Treasurer's Report on Wednesday, March 5, 2003. The election was on Tuesday, March 4, 2003.

   12. Unfortunately, the Amended Campaign Treasurer's Report was not accurate. On June 2, 2003, Respondent filed a Second Amended Campaign Treasurer's Report, which included seven previously unreported contributions. This particular inaccuracy

       was attributed to the fact that two pages in the spiral notebook used to record contributions had stuck together for some unknown reason concealing these seven contributions.

   13. Petitioner failed to present evidence in testimony or stipulated facts as to the amount of unreported contributions. Respondent acknowledged his failure to report 24 contributions, but not the amount of each contribution or of a total amount of unreported contributions. While the orders of probable cause contain specific reference to the amount of each unreported contribution, this is not evidence. It may be possible to sift through the Campaign Treasurer's Reports and estimate the unreported amounts by comparing each report. An examination of the various Campaign Treasurer's Reports suggests that obtaining an accurate figure would be problematic and not exact. I find that there is no basis for an administrative fine predicated on the amount of unreported contributions.

   14. Respondent's attempts at campaign bookkeeping mirrored his understanding of the election laws. He, at first, attempted to keep contributions and expenditures in a checkbook register. When this proved inadequate, he started recording contributions and expenditures in a spiral notebook and on lined paper. These records were received into evidence. After a cursory examination of these documents, it is easy to understand why

       there was confusion. Respondent's campaign bookkeeping lacked basic organization.

   15. There does not appear to be any ulterior motive for Respondent's glaring errors, in particular his lack of basic understanding as to who should sign campaign checks. No one was deceived by the candidate's signing his name to the campaign checks. Equally as baffling and disappointing is his failure to understand the reporting periods and his response to his discovery of the error in the time covered by the reporting period in question.

   16. While it is argued that the voting public is deceived by Respondent's failure to disclose contributions, it is unlikely that any voters were waiting to examine the Campaign Treasurer's Report on the Monday before a Tuesday election.

   17. Clearly, Respondent did not comply with Subsection 106.021(3), Florida Statutes (2002), when he signed 30 campaign checks. This failure is obviated by granting the motion to dismiss the counts related to this violation. He also certified the correctness of the Campaign Treasurer's Report for the February 8, 2003, through February 27, 2003, reporting period knowing that the report was inaccurate and did not accurately reflect contributions. The March 5, 2003, Amended Campaign Treasurer's Report was similarly inaccurate.

   18. The real issue regarding Respondent's filing inaccurate Campaign Treasurer's Reports is whether or not these activities were "willful" as defined by Section 106.37, Florida Statutes (2002).

   19. Notwithstanding his written assertion that he understood the Florida Election Law, he did not. This is demonstrated by the fact that he clearly did not understand the law regarding who could sign campaign checks. The fact that he directed his wife to sign his name to a campaign check when she was a deputy campaign treasurer and an statutorily authorized signer, demonstrates that he just did not understand the law.

   20. Signing a Campaign Treasurer's Report, knowing it did not accurately reflect required reportable activity, clearly violates the law, and cannot be attributed to misunderstanding the law. Even if it is believed that he was advised to file an inaccurate report and file an immediate amended report, which is not credible, Respondent knowingly violated the law. He filed an inaccurate report and certified that it was true and correct when it was not. He should have waited until the following Monday, filed an accurate report, and suffered the fine and potential attendant political repercussions.

   21. The Amended Campaign Treasurer's Report filed March 5, 2003, failed to report seven campaign contributions that were ultimately reported on the Second Amended Campaign Treasurer's

       Report filed on June 2, 2003; this inaccuracy was not done knowingly; however, it does reflect reckless disregard for the law. Respondent's excuse that the pages were stuck together by fruit juice is unacceptable. Respondent did an inexcusably sophomoric job in his campaign record keeping; this failure as a record keeper rises to the level of recklessly filing an inaccurate Campaign Treasurer's Report.

   22. Respondent's Statement of Financial Interests (CE Form 1) for the 2002 calendar year reflects an annual income of

       $51,279, from the Lee County School Board, joint-residential home ownership, modest tax sheltered annuities, and typical debt. This is the only financial information presented. In addition, Respondent has no previous history of involvement with Petitioner and was fully cooperative with the investigation.

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. §§ 106.25(5), 120.57(1), and 120.569, Fla. Stat. (2002).

   24. Subsection 106.25(3), Florida Statutes (2002), reads as follows:

       For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or chapter 104 or the willful failure to perform an act required by this chapter or chapter 104.

   25. Section 106.37, Florida Statutes (2002), reads 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.

       
       

       The determination of "willfulness" is a question of fact. McGann v. Florida Elections Commission, 803 So. 2d 763, 764 (Fla. 2001).

   26. Subsection 106.265(1), Florida Statutes (2002), reads as follows:

       (1) The commission is authorized upon the finding of a violation of this chapter or chapter 104 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 commission 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 or chapter 104.

       
       

   27. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Petitioner has the burden of proof. Department of Banking and Finance v. Osborne Stern and Company, 670. So. 2d 932, 934 (Fla. 1996); Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

   28. The standard of proof imposed on Petitioner is to establish the essential elements of a violation by clear and convincing evidence. Diaz de la Portilla v. Florida Elections

       Commission, 857 So. 2d 913 (Fla. 3rd DCA 2003). Petitioner must establish by clear and convincing evidence that Respondent willfully violated the particular statute alleged.

   29. As noted by the Florida Supreme Court:

       
       

       [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 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 Slomowitz

       
       

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

       
       

   30. Counts 1` and 2 of the Amended Order of Probable Cause allege that Respondent violated Subsection 106.07(5), Florida Statutes (2002).

   31. Subsection 106.07(5), Florida Statutes (2002), reads as follows:

       The candidate and his or her campaign treasurer, in the case of a candidate, or the political committee chair and campaign treasurer of the committee, in the case of a political committee, 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, or political committee chair 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.

       
       

   32. Confronted with the knowledge that he had misunderstood the reporting dates on a Campaign Treasurer's Report due February 28, 2003, Respondent changed February "21"

       to February "27" and willfully certified that the report was correct while knowing full well that he had not included contributions made during the period covered by his change of dates. In fact, the names of 24 contributors were not included in this report. His failure to know the reporting dates does not excuse this clear and cavalier violation of the law.

       Respondent has proved this count clearly and convincingly.

       
       

   33. Respondent's conscious election to violate the law by filing an inaccurate Campaign Treasurer's Report on February 28, 2003, is compounded by another inaccurate report filed for the same reporting period on March 5, 2003, which failed to include the names of seven contributors. One would think that having knowingly filed the first inaccurate Campaign Treasurer's Report, Respondent would be absolutely certain that the Amended Campaign Treasurer's Report would be accurate. The inaccuracy of the Amended Campaign Treasurer's Report reflects a reckless disregard for the law and Respondent's obligation to comply with it. As such, Respondent's acts are willful. Respondent has proved this count clearly and convincingly.

   34. Counts 3 through 26 of the Amended Order of Probable Cause allege that Respondent violated Subsection 106.19(1)(b), Florida Statutes (2002).

   35. Subsection 106.19(1)(b), Florida Statutes (2002), reads as follows:

       (1) Any candidate; campaign manager, campaign treasurer, or deputy treasurer of 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:

       
       

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

       
       

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       is guilty of a misdemeanor of the first degree, punishable as provided in

       s. 775.082 or s. 775.083.

       
       

   36. Counts 3 through 26 list 24 specific allegations of Respondent's failure to report campaign contributions. Respondent acknowledged this in his testimony. As mentioned hereinabove, his confusion about the reporting period is no excuse for submitting a Campaign Treasurer's Report that he knew was inaccurate. Petitioner has proved these counts clearly and convincingly.

   37. Counts 27 through 56 of the Amended Order of Probable Cause allege that Respondent violated Subsection 106.021(3), Florida Statutes (2002).1 Subsection 106.021(3), Florida Statutes (2002), reads, in pertinent part, as follows:

       No contribution or expenditure, including contributions or expenditures of a candidate or of the candidate's family, shall be directly or indirectly made or received in furtherance of the candidacy of any person

       for nomination or election to political office in the state or on behalf of any political committee except through the duly appointed campaign treasurer of the candidate or political committee, . . .

       
       

   38. Further consideration of these counts is obviated by the Order Granting Respondent's Motion to Dismiss Counts 27-56 as Set Forth in the Order of Probable Cause hereinabove.

   39. Giving full consideration to the aggravating and mitigation factors cited in Subsection 106.265(1), Florida Statutes (2002), the following fines are appropriate:

a. Count 1 - $1,000

1. Count 2 - $500

   
   

2. Counts 3 through 26 - $100 x 24

RECOMMENDATION

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

RECOMMENDED that Respondent be found to have violated Subsections 106.07(5) and 106.19(1)(b), Florida Statutes (2002), and fined $3,900.

DONE AND ENTERED this 24th day of September, 2004, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2004.

ENDNOTE

1/ The 2004 Florida Legislature amended this subsection and specifically indicated that the amendments were to be applied retrospectively to July 1, 2002. None of the changes are germane.

COPIES FURNISHED:

Mark Herron, Esquire

Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876

Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Barbara M. Linthicum, Executive Director Florida Elections Commission

The Collins Building, Suite 224 Tallahassee, Florida 32399-1050

Patsy Rushing, Clerk

Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050

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.

Docket for Case No: 04-000006

Orders for Case No: 04-000006