STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA ELECTIONS COMMISSION, )
)
Petitioner, )
)
vs. )
) DOUGLAS M. GUETZLOE AND THE ) GUETZLOE COMMUNICATIONS GROUP, ) INC., )
)
Respondents. )
Case No. 06-3643
)
RECOMMENDED ORDER
Pursuant to notice, this case was heard before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings (DOAH), on December 28, 2006, 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: Frederic B. O'Neal, Esquire
Post Office Box 842 Windermere, Florida 34786
STATEMENT OF THE ISSUE
Whether the Respondents willfully violated Subsections 106.071(1), 106.143(4)(b), and 106.19(1)(c), Florida Statutes,
(2003)1 as charged in Counts 5 through 12 of the Florida Elections Commission's Order of Probable Cause.
PRELIMINARY STATEMENT
On October 24, 2003, the Florida Elections Commission (the "Commission or Petitioner") received a sworn complaint alleging Respondents violated Florida's elections laws. That complaint was assigned case number FEC 03-260. On May 28, 2004, Petitioner found probable cause to believe that Respondents violated Subsections 106.071(1), 106.143(4)(b) (two counts), and 106.19(1)(c), Florida Statutes (2003).
On February 17, 2004, the Commission received a separate sworn complaint alleging violations of Florida's elections laws. That complaint was assigned case number FEC 04-040. Also, on May 28, 2004, Petitioner found probable cause to believe that Respondents violated three sections of the Florida Election Code: Subsections 106.071(1), 106.143(4)(b) (two counts),
and 106.19(1)(c), Florida Statutes. Respondents denied the allegations and requested a formal hearing. Petitioner denied the request and convened an informal hearing and subsequently entered a Final Order.
Respondents appealed Petitioner's Final Order in case numbers FEC 03-260 and 04-040, entered on December 3, 2004.
The district court reversed Petitioner's Final Order as to the disclaimer violation of Subsection 106.071(1), Florida Statutes,
affirmed as to the violation of Subsection 106.143(4)(b), Florida Statutes, and reversed and remanded the matter for a formal hearing on the issue of willfulness. Guetzloe v. Florida Elections Commission, 927 So. 2d 942 (Fla. 5th DCA 2006), rev. den.; Florida Elections Commission v. Guetzloe, 939 So. 2d 1058 (Fla. 2006). The case was referred to DOAH on September 21, 2006. Discovery ensued and following a continuance requested by both parties, the hearing was conducted by video-teleconference at sites in Tallahassee and Orlando, Florida.
At the formal hearing, Petitioner presented the oral testimony of Respondent, as an adverse witness, and Cindy Clark Fletcher, Orange County Senior Deputy Supervisor of Elections. Petitioner offered 38 exhibits, which had been marked for identification 1 through 21 and 23 through 38, which were received in evidence. Respondents presented the testimony of Douglas M. Guetzloe and offered two exhibits, which were admitted. Respondents' Exhibit 2 had been marked for identification as Petitioner's Exhibit 22. Upon agreement of the parties, the record was left open upon completion of the hearing on December 28, 2006, for Petitioner to take the deposition of Jennifer Thomas (Thomas) and submit the transcript in lieu of live testimony, and for Respondent to further testify by deposition at the close of Thomas' testimony.
Thomas' deposition was completed on January 11, 2007, and the Deposition Transcript was filed on March 6, 2007.
Guetzloe's follow-up deposition was completed on the same day, and the Transcript of his deposition was filed on March 26, 2007. The Transcript of the final hearing was filed on February 28, 2007. After granting an extension of time to file post-hearing submittals, both parties timely filed their Recommended Orders.
Both parties' submittals have been given careful consideration in the preparation of this Recommended Order.
FINDINGS OF FACT
Respondents are Douglas Guetzloe (Guetzloe), an Orlando-based political consultant, and Guetzloe Communications Group Inc., d/b/a, Advantage Consultants, a Florida Corporation (GCG). Guetzloe is president and principal of the firm.
Douglas M. Guetzloe has been a political consultant since 1984. GCG has, also, been in existence since 1984. Approximately ten to 20 percent of GCG's business is political consulting. Guetzloe and his wife own 100 percent of the stock in the company. Guetzloe works with all of the clients, and Guetzloe makes 100 percent of the decisions for the business.
On or about May 28, 2004, the Commission entered an Order of Probable Cause, in two cases, charging Respondents with four counts of violating Subsection 106.071(1), Florida
Statutes, for failing to include a proper disclaimer on an independent expenditure; three counts of violating Subsection 106.071(1), Florida Statutes, for failing to file independent expenditure reports; four violations of Subsection 106.143(4)(b), Florida Statutes, for failure to include a proper disclaimer on a political advertisement; and one count of violating Subsection 106.19(1)(c), Florida Statutes, for deliberately failing to report or falsely reporting information required by Chapter 106, Florida Statutes.
Respondents denied the allegations and requested a formal hearing. Respondents were denied a formal hearing, but were granted an informal hearing. On December 3, 2004, after an informal hearing, the Commission entered a Final Order finding that Respondents committed the violations alleged in the twelve counts listed in the Order of Probable Cause and imposed a civil penalty of $12,000.
Guetzloe appealed the Final Order to the Fifth District Court of Appeals.
In its opinion in Guetzloe et. al. v. Florida Elections Commission, 927 So. 2d 942, (Fla. 5th DCA 2006) rev. den. Florida Elections Commission v. Guetzloe, 939 So. 2d 1058 (Fla. 2006), the Fifth District Court of Appeal found the following facts:
In 2003, Guetzloe and GCG paid for political advertisements directed against Darlene Yordan ("Yordan"), a candidate for city commissioner in Daytona Beach. Each of the advertisements contained the words, "Paid political advertisement," and one contained the words, "Pd. Pol. Adv. Paid for personally by Doug Guetzloe, Chairman of Ax the Tax. Ax the Tax is an issues-only political committee and does not make political endorsements." Guetzloe, also, bought air time for two radio advertisements, which urged people to vote against Yordon. Both advertisements provided that they were paid for by "Douglas Guetzloe, Chairman of Ax the Tax," and one stated that Guetzloe had approved the advertisement. Guetzloe failed to provide a written statement informing the radio stations that advertisements had not been approved by any candidate. He also mailed a flyer that supported a number of candidates for public office, including the City Commission, which contained the words "Paid political advertisement, paid for by Doug Guetzloe, independent of any candidate or campaign."
Guetzloe did not file an expenditure report with the Daytona Beach City Clerk, but did file a memorandum with the Clerk that listed expenditures of $4,476.80 for radio advertisements, printing, postage, and telephone calls. However, the actual expenditures totaled $9,790.84. Yordan filed multiple complaints claiming that Guetzloe and GCG violated numerous campaign finance laws.
Following an investigation, the Commission found probable cause to conclude that Guetzloe and GCG violated section 106.071(1), Florida Statutes (2003) by failing to include disclaimer/disclosure language in the advertisements. Guetzloe requested a formal hearing, but the Commission denied the request after finding
that he had failed to identify the facts in dispute. Instead, the Commission set an informal hearing and subsequently entered a final order finding that Guetzloe and GCG violated:
Section 106.071(1) by failing to include the proper disclaimer on political advertisements paid for by independent expenditures;
Section 106.071(1) by failing to timely file periodic reports of independent expenditures of $100 or more, on three separate occasions;
Section 106.143(4)(b) by making independent expenditures for political advertisements submitted to radio stations for distribution and by failing to provide the station with a written statement that no candidate approved of the advertisements; and
Section 106.19(1)(c) by writing a memorandum to the clerk reporting expenditures totaling $4,476.80 and by failing to file any report of the actual expenditures of $9,790.84.
Id. at 943-944. In its opinion in Guetzloe, supra, the Fifth District Court of Appeal reversed the holding of Petitioner in its Final Order as to the disclaimer language required in Subsection 106.071(1), Florida Statutes. It held that the holdings of the Florida Supreme Court in Doe v. Mortham, 708 So. 2d 929 (Fla. 1998) and the U.S. Supreme Court in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) applied to this case. Doe struck the language in the prior version of Subsection 106.071(1), Florida Statutes, that
required advertisements to display the name and address of the person who paid for the advertisements, save for the words "Paid political advertisement." It held that any provision, which required further identification of the person placing the advertisement was an unconstitutional infringement on free speech. Guetzloe, supra, at 944-45. The Fifth District declined to extend the holding in Doe to include the provisions of Subsection 106.143(4)(b), Florida Statutes. Guetzloe, supra at 945. This resulted in the dismissal of Counts 1 through 4 of the Orders of Probable Cause, which related to the required disclaimer language contained in the last sentence of paragraph one of the statute.
When this matter was referred to DOAH, it proceeded on Counts 5 through 12 of the Orders of Probable Cause, specifically on the issue of "willfulness."
Guetzloe is a very experienced political consultant.
He has run for public office three times. In 1986, Guetzloe was a candidate for the Florida House of Representatives. In 1990, Guetzloe was a candidate for the Florida Senate from
District 14. When Guetzloe qualified as a candidate for the Florida Senate in 1986 and 1990, he received a copy of Chapter 106, Florida Statutes.
Guetzloe is also chairman and treasurer of Ax the Tax, a Florida-registered political committee. Ax the Tax first
registered as a local political committee in 1982. It registered again in 1986 and it has been, more or less, active ever since. Guetzloe is the only officer of Ax the Tax, and Guetzloe makes 100 percent of the decisions for Ax the Tax.
Guetzloe did not recall what was required to become a political committee at the time he re-registered Ax the Tax as a political committee in 1986. Guetzloe testified he probably checked with the Orange County Supervisor of Elections (SOE), where he filed his paperwork.
Guetzloe re-registered Ax the Tax in 2002 with the Orange County SOE. He did not recall receiving any resource materials at that time. He does not recall whether he received a copy of Chapter 106, Florida Statutes, or whether he received a copy of the Handbook for Committees, although he may have last received the Candidate Handbook in 2002.
Guetzloe received the Department of State Handbook for Committees (Handbook) through the years in connection with Ax the Tax. The Handbook contained information concerning independent expenditures. Guetzloe testified that when he received updates to the handbooks, from time to time, he possibly reviewed them.
Guetzloe has never read through the statutes to familiarize himself with the requirements imposed upon candidates for public office or on committees.
Guetzloe is aware that the election laws have changed dramatically through the years. Guetzloe has generally kept up with changes in the law relating to political disclaimers through notices sent by the Division of Elections. However, unless there was a notice specifically outlining changes, Guetzloe generally assumed that the law that had been in effect is still in effect. Guetzloe relies on receiving notice in the mail from the Division of Elections to determine if there were any changes to the election laws. Unless he receives such a notice, Guetzloe presumes that there are no changes. Guetzloe does not take affirmative steps on his own to determine if and how Florida's election laws may change from year to year. Over the years, Guetzloe did not contact any of the County SOE's, or local filing officers, to ask if there had been changes in the law, nor did he review the statutes for changes. However, if a question arose that he wanted answered, the Supervisor or the local filing officers would be Guetzloe's point of reference.
He availed himself of those resources many times over the years.
Guetzloe was involved in the 2003 City of Daytona Beach City Commission race. He made independent expenditures in excess of $100 in a Daytona Beach City Commission race in which Darlene Yordan was a candidate for re-election. Expenditures were paid for by withdrawing funds from GCG's bank account. Other than the City Clerk's Office, Guetzloe did not consult
with anyone about these expenditures prior to making them. The decision of where and when to make expenditures was his alone.
Guetzloe and GCG did not file an independent expenditure report with the Daytona Beach City Clerk, but did file a memorandum with the Clerk on October 24, 2003, that listed expenditures of $4,476.80. The actual expenditures totaled $9,780.84.
Respondents were required to file independent expenditure reports, on forms available from the Division of Elections, with the Daytona Beach City Clerk on October 17, 31, 2003, and a final report was due on February 2, 2004. No report was filed.
Guetzloe did not recall how he learned about independent expenditures in Florida. He does not recall whether he knew what an independent expenditure was before he became involved in the 2003 City of Daytona Beach, City Commission election. Guetzloe could not recall, specifically, what was allowed under the statute, only that he had to file a report, if more that $100 was spent for an independent expenditure. He believes he learned this information from the City Clerk's Office.
Respondent sent a Fax Memo, on GCG letterhead, to the City Clerk of Daytona Beach, dated October 24, 2003, which stated in pertinent part:
To: City Clerk of Daytona Beach From: Doug Guetzloe
President
Date: October 24, 2003
Subject: Independent expenditures for Daytona Beach Mayor and City Commission
Please be advised that in accordance with Section 106.071 Florida Statutes that The Guetzloe Communications Group, Inc., d/b/a Advantage Consultants, 3101 Maguire Blvd., Suite 161, Orlando, Florida 32803 has made an independent expenditure on behalf of various candidates for Daytona Beach Mayor and City commission.
These expenditures were made independent of the candidates and without their knowledge, consultation or approval of any candidate or candidate committee.
All expenditures were made on or after October 3, 2003 and therefore will be disclosed on the next reporting period with your office.
The Guetzloe Communication Group, Inc d/b/a Advantage Consultants has produced two (2) mailings that included printing and postage. In addition, radio advertising has been purchased to support and oppose candidates for Mayor and City Commission.
* * *
Please advise me if you need any additional information or require any additional forms to be completed.
When questioned specifically about the language he used in the memo, Guetzloe opined that the language in the first paragraph of the Fax Memo was provided to him by the City Clerk's Office prior to his sending the Fax Memo to the Daytona
Beach City Clerk's Office. Guetzloe did not recall why he used a specific statute number or what he relied upon to determine that he was not required to use some type of form for the statement.
Guetzloe never reviewed or looked at the specific language of Section 106.071, Florida Statutes. He relied on the instructions that he stated were provided by the City Clerk's Office.
As stated in his October 24, 2003, Fax Memo filed with the City Clerk, Guetzloe knew he made additional independent expenditures, which had not yet been reported. Respondent could not satisfactorily explain why he did not file additional report(s) disclosing expenditures made after submitting his October 24, 2003, Fax Memo other than the fact that he was waiting on the City Clerk's Office to tell him that he was required to do so.
Jennifer L. Thomas is the City Clerk of Daytona Beach.
Her responsibilities include running the City of Daytona Beach elections. More specifically, she qualifies persons running for office and is the person with whom a candidate would interact when running for public office. Thomas is also the person in the Clerk's Office that registers committees, answers questions about committees, and fields any question regarding independent expenditures from the public.
Prior to January 11, 2007, Thomas had never met Guetzloe. Thomas denies having a conversation with Guetzloe during the 2003 election cycle. No one else in the clerk's Office could or would have answered an election-related question from Guetzloe during that time.
Independent expenditure report forms were available through the City Clerk's Office and are also available through the Florida Division of Elections website. But for the Fax Memo, Thomas did not receive any type of expenditure or contribution report from Guetzloe during the 2003 election cycle.
On or about October 2, 2003, Respondents made political expenditures for political advertisements submitted to several radio stations (four counts) for distribution and broadcast. Respondents failed to provide to radio stations or any of them, a written statement that no candidate approved of the advertisements, although the advertisements did identify Guetzloe personally as the person paying for the ad.
Guetzloe claimed that he did not willfully fail to provide documents to radio stations stating that no candidate approved his radio spot advertisements. He did claim to have sent a fax memo to the stations, which contained the required language. However, this claim is not credible.
Guetzloe made no efforts to read or study the Florida Election Code, specifically related to independent expenditures, campaign financing reporting or disclosure statements, at any time during the 2003 election cycle.
It is a candidate's or committee's responsibility to educate themselves about the requirements of the law. Reminder cards or personal contacts from the SOE and/or the City Clerk's Office, regarding reports being due, are done as a service of the office. It is not a statutory or other legal requirement.
It is Guetzloe's responsibility to prepare and submit the proper paper work as it is related to his independent expenditures.
Guetzloe, also, failed to disclose information about independent expenditures he made through his company, GCG.
Guetzloe failed to make any reasonable effort to comply with the election laws by submitting a proper report disclosing the expenditures or a follow up report, as required by law.
The evidence is clear and convincing that Guetzloe's actions in this matter, in regard to his obligation to file independent expenditure reports properly, timely, and accurately, were "willful" as that term is defined by Section 106.37, Florida Statutes. Guetzloe showed reckless disregard in failing to comply with requirements of the law.
Although, Respondent could give no credible explanation as to why he failed to provide the radio stations with a proper disclaimer statement, it is not clear and convincing that Guetzloe's failure to provide the radio statements with a written disclaimer was "willful." It appears to have been negligent.
In determining the appropriate amount of civil penalty the Commission may impose, the following is considered:
In case number FEC 93-66, the Commission imposed a civil penalty against Guetzloe in the amount of $3,000 for violations of Subsections 106.07(5), 106.19(1)(b), and 106.19(1)(c), Florida Statutes. On appeal, the First District Court of Appeal affirmed the Commission's Final Order. The Commission sought to enforce its Final Order in case number FEC 93-66 in Leon County Circuit Court. On September 3, 1996, the Leon County Circuit Court entered a Final Judgment against
Mr. Guetzloe in the amount of $4,478.50. The Final Judgment has not been satisfied. Respondent has indicated that he does not intend to satisfy the judgment.
Guetzloe estimates his 2004 salary from Guetzloe Communications, Inc., d/b/a, Advantage Consulting to be between
$100,000 and $150,000. Guetzloe estimates his 2005 and 2006 annual salary to be in the $150,000 range. Guetzloe estimates the value of his home to be $575,000, and he has approximately
$175,000 equity in the property. He has a small retirement fund. Guetzloe Communications pays Guetzloe's wife a $50,000 annual salary. Therefore, Respondent is capable of paying a civil penalty.
Respondents provided no mitigating circumstance for their actions.
Guetzloe's failure to file complete and accurate independent expenditure reports is severe. Florida's public policy, as reflected through its elections statutory scheme, is for complete financial disclosure of all finances in Florida elections. However, Guetzloe could not provide a credible explanation why he failed to include complete information regarding expenditures listed on his Fax Memo, or why he failed to file complete, accurate, and timely reports.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this proceeding and these parties, pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
The Florida Elections Commission has jurisdiction to enforce the provisions of Chapter 106, Florida Statutes.
In a case of this nature, the burden of proof is on the party asserting the affirmative of an issue. Florida
Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
The standard of proof imposed on Petitioner is to establish the essential elements of each violation by clear and convincing evidence. Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d 913, 917 (Fla. 3d DCA 2003). Therefore, Petitioner must establish by clear and convincing evidence that Respondents willfully violated the statutes, as alleged in Counts 5 through 12 in its orders of probable cause. As noted by the Florida Supreme Court:
Clear 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 weigh that is 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).
The determination of willfulness is a question of fact to be determined by the trier of fact. Guetzloe v. Florida
Elections Commission, 927 So. 2d 942, 945 (Fla. 5th DCA 2006).
Section 106.071, Florida Statutes, related to campaign financing provides, in pertinent part:
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.
Section 106.143, Florida Statutes, provides in pertinent part:
(4)(b) Any 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. The advertisement must also contain a statement that no candidate has approved the advertisement.
Section 106.19, Florida Statutes, provides in pertinent part:
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:
* * *
(c) Falsely reports or deliberately fails to include any information required by this chapter;
* * *
is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Section 106.37, Florida Statutes, provides 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.
Section 106.265, Florida Statutes, provides in pertinent part:
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:
The gravity of the act or omission;
Any previous history of similar acts or omissions;
The appropriateness of such penalty to the financial resources of the person, political committee, committee of continuous existence, or political party; and
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.
Petitioner, Florida Elections Commission has met its burden of proving clearly and convincingly that Respondents', Guetzloe and GCG, actions in regard to the improper reporting of independent expenditures were willful, by showing reckless disregard for whether the act is prohibited or is required under the Florida Election Code. Respondents did not make a reasonable effort to determine whether their actions or inactions would constitute a violation.
Guetzloe has made his living in the political arena for over 20 years. Over the years he has received several copies of Florida's election laws as well as handbooks published and distributed by the Florida Division of Elections. Guetzloe is a long-time political operative who has earned his living, in
part, by providing political advice to candidates for over 20 years. Nevertheless, Guetzloe does not take it upon himself to read the election laws himself or keep up to date on changes in the laws, despite his own admission that election laws have changed dramatically over the years. Rather, Guetzloe has attempted to push off his legal responsibility onto others to inform him of changes in the law, or to instruct him on unfamiliar provisions of the law.
Moreover, Guetzloe's testimony that he knew nothing about independent expenditures, until he was told about them when he and his company decided to participate in the 2003 City of Daytona Beach elections, is not persuasive. It is difficult to reconcile Guetzloe's inability to recall facts about the specifics of the case, except for his statement that he knows he followed the clerk's directions, despite not remembering what they were, and testifying that he was 90 percent sure that he probably spoke with Thomas based upon hearing her voice a second time nearly three and one-half years later.
Guetzloe's Fax Memo specifically states that he made additional expenditures for which he would file a subsequent report. Guetzloe failed to file any other reports. Guetzloe knew what was required to achieve full disclosure, yet he failed to do so with the information he submitted on his Fax Memo.
In regard to his failure to file proper financial reports, Guetzloe knew or should have known what the law required him to do in this case. Respondent was either reckless in failing to find out what the law required of him, or he simply disregarded the requirements of the law.
In regard to the improper disclosure statements provided to the radio stations, which failed to provide a written statement that "no candidate approved of the advertisements," this omission does not rise to the level of "reckless disregard." It is nevertheless, careless and negligent, since he placed such language on some of his fliers.
Respondents can not be found guilty or a fine imposed for an inadvertent violation, nor can Respondents be found guilty and fined when they are negligent. The Third District Court of Appeal so held in Diaz de la Portilla, 857 So. 2d at 917, where it stated no fine can be imposed "where the defending party failed 'to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstance
. . .' (Black's Law Dictionary 1058 (7th edition 1999)(defining 'negligent')."
Guetzloe's argument that his actions and inactions were neither knowing, nor reckless, in regard to the financial reporting requirements, because he talked to someone in the City Clerk's Office and, supposedly, completely relied on the
instructions received, is unpersuasive. Talking to someone, who may be knowledgeable in the area, does not absolve Respondent from at least making some effort to find out what the law actually required him to do by reading it for himself.
Requiring this minimum effort, followed up by asking specific questions, if Respondent was confused by the statutory language, does not impose on Respondent a "strict liability" standard of "willfulness," nor does it infringe on his First Amendment rights of free speech. Section 106.37, Florida Statutes; Diaz de la Portilla, 857 So. 2d at 916-17; Cf. Pasquale v. Florida
Elections Commission, 759 So. 2d 23, 25-26 (Fla. 4th DCA 2000).
Respondent, Guetzloe Communications Group, Inc., d/b/a, Advantage Consultants, is wholly owned by Douglas Guetzloe and his wife. Essentially, Douglas Guetzloe is Guetzloe Communications Group and Advantage Consultants. Guetzloe works with 100 percent of the clients, makes 100 percent of the decisions, and is the only member of the board of directors of Guetzloe Communications Group, Inc. Because a corporation acts through its board of directors, Guetzloe's actions as the only director on the board are the same as Guetzloe Communications Group, Inc.'s actions.
Having spent more than $100 on independent expenditures in the Darlene Yordan campaign during the 2003 City of Daytona Beach elections, Respondents were required to
file independent expenditure reports with the Daytona Beach City Clerk on October 17 and 31, 2003, and a final report was due on February 2, 2004. This, they failed to do. Guetzloe's
October 24, 2003, Fax Memo does not qualify as an independent expenditure report. By failing to file an accurate independent expenditure report, Respondents failed to report information required to be reported by Subsection 106.19(1)(c), Florida Statutes.
Respondents violated Subsections 106.071(1) and 106.19(1)(c), Florida Statutes, when they failed to file reports disclosing complete and accurate independent expenditures made in opposing the candidacy of Darlene Yordan, in 2003. Respondents' actions were willful, as that term is defined in Section 106.37, Florida Statutes. Respondents showed reckless disregard for the requirement to file complete and accurate independent expenditure reports in a timely manner. Respondents knew that the Division of Elections, Supervisor of Elections, and local municipal clerks were a resource if needed. Guetzloe received multiple copies of Chapter 106 and various handbooks throughout his 20 years in the political arena. Moreover, Guetzloe was able to clearly articulate Florida's public policy for the requirement of full and complete financial disclosure in Florida campaigns.
Respondents cannot be found to have violated Subsection 106.143(4)(b), Florida Statutes. Although, Respondents failed to provide several radio stations with statements that no candidate approved their political advertisements that were going to be aired on the radio. This inaction was "negligent," but not "reckless disregard."
Application of the facts in the case to the factors enumerated in Section 106.265, Florida Statutes, reveals that:
The gravity of Respondents' acts and omissions are severe. Respondents spent nearly $10,000 in a municipal election without accurately disclosing his expenditures to the public. Respondents failed to abide by the campaign disclosure regulations when they knew or should have known of the necessity to file independent expenditure reports disclosing all their expenditures.
Guetzloe has a history of failing to properly report information required to be reported by Chapter 106, Florida Statutes. The Commission has previously found Guetzloe violated Subsection 106.19(1)(b), Florida Statutes (failure to report a contribution), Subsection 106.19(1)(c), Florida Statutes, (certifying that report disclosing contributions and expenditures by a campaign or committee are true, correct and complete when they are not). Guetzloe's failure to comply with Florida's laws regarding full and complete disclosure dates back over 13 years.
Respondents are financially able to pay the maximum fine permitted by law for the violations in this case. See: Celestin v. Florida Elections Commission, 858 So. 2d 382, 383-384 (Fla. 3rd DCA 2003).
Respondents have shown little, if any, good faith efforts to comply with the provisions of Chapter 106. Respondents have repeatedly failed to fully and accurately disclose all campaign information required by law. Guetzloe's disregard for his legal duty to review the law himself and make an effort to understand it demonstrates Guetzloe's lack of a good faith attempt to comply with the law.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
Recommended that:
The Florida Elections Commission enter a final order finding as follows:
Finding Respondents violated Subsection 106.071(1), Florida Statutes, on three occasions, for failing to file a timely periodic report of the independent expenditures of $100 or more (Counts 5, 6, and 7) and imposing a fine of $1,000 for each of the counts for a total of $3,000;
Finding Respondents did not violate Subsection 106.143(4)(b), Florida Statutes, on four occasions, and dismissing Counts 8, 9, 10, and 11.
3 Finding Respondents violated Subsection 106.19(1)(c), Florida Statutes, for failing to file any report of their actual expenditures of $9,790.84 and imposing a $1,000 fine for this count.
DONE AND ENTERED this 11th day of June, 2007, in Tallahassee, Leon County, Florida.
S
DANIEL M. KILBRIDE
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 11th day of June, 2007.
ENDNOTE
1/ All references to Florida Statutes are to Florida Statutes (2003), unless otherwise indicated.
COPIES FURNISHED:
Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224
107 West Gaines Street Tallahassee, Florida 32399-1050
Frederic B. O'Neal, Esquire Post Office Box 842 Windermere, Florida 34786
Barbara M. Linthicum, Executive Director Florida Elections Commission
The Collins Building, Suite 224
107 West Gaines Street Tallahassee, Florida 32399-1050
Patsy Rushing, Clerk
Florida Elections Commission The Collins Building, Suite 224
107 West Gaines Street 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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 16, 2008 | Mandate | |
| Sep. 29, 2008 | Opinion | |
| Dec. 12, 2007 | Agency Final Order | |
| Jun. 11, 2007 | Recommended Order | Respondent made independent expenditures during the city commission election in 2003. Radio ads that omitted the required disclosure statements were not a willful violation. Failing to report financial statements and expenditures are willfull. |
