STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORGAN VELEZ-ROSARIO,

Petitioner,

vs.

POLK COUNTY SUPERVISOR OF ELECTIONS,

Respondent.

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) Case No. 09-4300

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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 October 1, 2009, in Bartow, Florida.

APPEARANCES

For Petitioner: No appearance For Respondent: Lori Edwards

Polk County Supervisor of Elections

250 South Broadway Post Office Box 1460

Bartow, Florida 33831-1460 STATEMENT OF ISSUE

Whether it is appropriate for Respondent to remove Petitioner from the rolls of eligible voters in Polk County, Florida.

PRELIMINARY STATEMENT

On or about July 31, 2009, Respondent, Lori Edwards, Supervisor of Elections, Polk County, Florida, authored a letter that advised Petitioner, Morgan Velez-Rosario, that she had received information from the State of Florida that he had been convicted of a felony and that his civil rights had not been restored.

Petitioner was advised that he had 30 days to respond to the letter and advise Respondent as to the accuracy of the information, provide additional corrective documentation, or request a hearing. Failure to respond may have resulted in the removal of Petitioner's name from the voter registration rolls and made him ineligible to vote.

Petitioner made a timely response and requested a hearing that was received by Respondent on August 7, 2009. On

August 10, 2009, Petitioner referred the case to the Division of Administrative Hearings requesting an administrative hearing in accordance with Subsection 98.075(7), Florida Statutes (2008).

On August 13, 2009, an Initial Order was sent to both parties requesting mutually-convenient dates for the final hearing. Based on the response to the Initial Order, the final hearing was scheduled for October 1, 2009, in Bartow, Florida.

The final hearing was conducted, as scheduled. Petitioner did not personally appear. Sara Reyes, Esquire, of the Office of the Tenth Judicial Circuit Public Defender's Office was present, but did not file an appearance; she had represented Petitioner in a criminal matter. Respondent presented one witness: Theresa Garcia, Elections Specialist III.

Respondent offered two exhibits that were received into evidence and marked Respondent's Exhibits 1 and 2.

No transcript was ordered. There were no post-hearing submittals.

All statutory references are to Florida Statutes (2008), unless otherwise noted.

FINDINGS OF FACT

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

1. Petitioner is a registered voter in Polk County, Florida.

2. Respondent is the elected public official in Polk County, who ensures that all voter registration and list maintenance procedures in Polk County are conducted in compliance with any applicable requirements of the Statewide Voter Registration System and acts as the official custodian of documents received related to the registration of electors and changes in voter registration status of electors in Polk County.

3. On or about July 28, 2009, Respondent received notice from the Florida Department of State that Petitioner was a registered voter who was potentially ineligible to vote due to a felony conviction.

4. On June 26, 2006, Respondent was convicted of a felony: Section 784.021, Florida Statutes--Aggravated Assault with a Deadly Weapon.

5. The State of Florida, Office of Executive Clemency, has not restored Respondent's civil rights for his conviction for the felony listed in paragraph 4.

6. Petitioner did not present any evidence that the information relative to his felony conviction was inaccurate or that he had been granted clemency and had his civil rights restored.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of these proceedings. § 120.65, Fla. Stat. (2009).

8. Respondent has the burden of proof and must establish by a preponderance of the evidence that Petitioner is ineligible to vote and that his name should be removed from the voter registration rolls. § 98.075(7)(b)1, Fla. Stat.

9. Section 98.075, Florida Statutes, reads, in pertinent part, as follows:

   (5) FELONY CONVICTION.--The department shall identify those registered voters who have been convicted of a felony and whose rights have not been restored by comparing information received from, but not limited to, a clerk of the circuit court, the Board of Executive Clemency, the Department of Corrections, the Department of Law Enforcement, or a United States Attorney's Office, as provided in s. 98.093. The department shall review such information and make an initial determination as to whether the information is credible and reliable.

   If the department determines that the information is credible and reliable, the department shall notify the supervisor and provide a copy of the supporting documentation indicating the potential ineligibility of the voter to be registered. Upon receipt of the notice that the department has made a determination of initial credibility and reliability, the supervisor shall adhere to the procedures set forth in subsection (7) prior to the removal of a registered voter's name from the statewide voter registration system.

   
   

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   (7) PROCEDURES FOR REMOVAL.--

   
   

   (a) If the supervisor receives notice or information pursuant to subsections (4)-(6), the supervisor of the county in which the voter is registered shall:

   
   

   1. Notify the registered voter of his or her potential ineligibility by mail

      within 7 days after receipt of notice or information. The notice shall include:

      
      

      1. A statement of the basis for the registered voter's potential ineligibility and a copy of any documentation upon which the potential ineligibility is based.

      2. A statement that failure to respond within 30 days after receipt of the notice may result in a determination of ineligibility and in removal of the registered voter's name from the statewide voter registration system.

         
         

      3. A return form that requires the registered voter to admit or deny the accuracy of the information underlying the potential ineligibility for purposes of a final determination by the supervisor.

         
         

      4. A statement that, if the voter is denying the accuracy of the information underlying the potential ineligibility, the voter has a right to request a hearing for the purpose of determining eligibility.

         
         

      5. Instructions for the registered voter to contact the supervisor of elections of the county in which the voter is registered if assistance is needed in resolving the matter.

         
         

      6. Instructions for seeking restoration of civil rights following a felony conviction, if applicable.

   
   

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   5. If a registered voter responds to the notice issued pursuant to subparagraph 1. or subparagraph 2. and denies the accuracy of the information underlying the potential ineligibility but does not request a hearing, the supervisor shall review the evidence and make a final determination of eligibility. If such registered voter requests a hearing, the supervisor shall send notice to the registered voter to attend a hearing at a time and place specified in the notice.

   
   

10. Respondent has proved by a preponderance of the evidence that Petitioner has been convicted of a felony and has

not had his civil rights restored. Respondent has proved by a preponderance of the evidence that Petitioner is ineligible to vote due to his felony conviction.

RECOMMENDATION

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

RECOMMENDED that Respondent, Polk County Supervisor of Elections, make a final determination that Petitioner, Morgan Valez-Rosario, is ineligible to vote in the State of Florida and remove his name from the voter registration rolls.

DONE AND ENTERED this 19th day of October, 2009, 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

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2009.

COPIES FURNISHED:

Lori Edwards

Polk County Supervisor of Elections

250 South Broadway Post Office Box 1460

Bartow, Florida 33831-1460

Morgan Velez-Rosario 3644 East Johnson Avenue

Haines City, Florida 33844

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: 09-004300

Orders for Case No: 09-004300