STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION,

Petitioner,

vs.

FREDA SHERMAN STEVENS,

Respondent.

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) Case No. 11-6185

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FINAL ORDER

Pursuant to notice, a formal administrative hearing was conducted in this case on July 10 and 19, 2012, by teleconference and telephone conference at sites in Fort Lauderdale and Tallahassee, Florida, before Administrative Law Judge (ALJ) Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Eric Lipman, Esquire

Florida Elections Commission The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399

For Respondent: Freda Sherman Stevens, pro se

Suite 406

4611 South University Drive Davie, Florida 33328

STATEMENT OF THE ISSUE

Whether Freda Sherman Stevens (Respondent), a candidate in the 2008 primary for a seat in the Florida House of Representatives, willfully violated section 106.07(5), Florida Statutes (2008), by certifying that six of her campaign reports were true, correct, and complete when they were not. Whether Respondent willfully violated section 106.19(1)(c), Florida by falsely reporting, or deliberately failing to report information required to be reported by chapter 106, Florida Statutes (2008).1/

PRELIMINARY STATEMENT

Following the receipt of a sworn complaint and an investigation, the Florida Elections Commission (the Commission) found probable cause to believe that Respondent violated the provisions of section 106.07(5), Florida Statutes (2008), when she filed her original report on August 22, 2008 (Count 1); her first amended report on August 23 (Count 2); her second amended report on August 30 (Count 3); and her third, fourth, and fifth amended reports on November 24 (Counts 4, 5, and 6). Counts 1-6 are identical except for the date of the report. Count 1 is as follows:

On or about August 22, 2008, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness

of 2008 F3 Report that was incorrect, false, or incomplete, when she failed to report

$13,812.50 and $680.00 in-kind contributions from Green Apple Association of Christian Schools and failed to report that the

$680.00 was payment to WPLG-TV for television political advertising.

The Commission also found probable cause that Respondent violated section 106.19(1)(c) by filing each report referenced in Counts 1-6. Counts 7-12 are identical except for the date of the report. Count 7 is as follows:

On or about August 22, 2008, Respondent violated Section 109.19(1)(c), Florida Statutes, by falsely reporting or deliberately failing to include information required by Chapter 106, when Respondent deliberately failed to report a $13,812.50 in-kind contribution from Green Apple Association of Christian Schools to WPLG-TV on her 2008 F3 campaign report.

Respondent timely requested a formal hearing before the Commission. On October 7, 2011, the Respondent and counsel for the parties entered into a consent judgment that was subject to approval by the Commission. The consent judgment was subsequently rejected by the Commission, the matter was referred to DOAH, and this proceeding followed.

At the final hearing, the Commission presented the testimony of Genevieve Anderson (records custodian for Wells Fargo Bank), Myra Dennis (records custodian for Citibank), Kristi Reid Bronson (Bureau Chief of elections records, Department of State, Division of Elections), Tamara McCraw (a

process server), Respondent, and Jamie Leon (business manager for WPLG-TV). Petitioner's pre-marked Exhibits 1-7, 9-16, and 20-37 were admitted into evidence. Respondent did not present any other testimony or exhibits.

A Transcript, consisting of three volumes, was filed

July 27, 2012. The Proposed Final Orders filed by the parties have been duly considered by the undersigned in the preparation of this Final Order.

FINDINGS OF FACT

1. Respondent was a candidate for the House of Representatives, District 100, in the August 26, 2008, primary election.

2. As a candidate for the Florida Legislature, the Division of Elections of the Florida Department of State (the Division), was Respondent's filing office, and Respondent was required to file all her reports electronically.

3. On October 30, 2007, Respondent filed with the Division her Appointment of Campaign Treasurer and Designation of Campaign Depository form listing herself as treasurer for her 2008 campaign.

4. On November 1, 2007, Ms. Bronson sent Respondent a letter acknowledging that Respondent had been placed on the 2008 active candidate list. The letter advised Respondent that all candidates filing reports with the Division were required to use

   
   

   the electronic filing system (EFS) and provided Respondent with a personal identification number (PIN) and initial password to grant access to the EFS. The user was expected to change the initial password after logging on for the first time.

5. Ms. Bronson's letter included the following information:

   You, your campaign treasurer, and deputy treasurers are responsible for protecting these passwords from disclosure and are responsible for all filings using these credentials, unless the Division is notified that your credentials have been compromised.

   
   

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   Each campaign treasurer's report filed by means of the EFS is considered to be under oath by the candidate and campaign treasurer and such persons are subject to the provisions of Section 106.075(5), Florida Statutes.

   
   

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   An online guide is available to you on the EFS to assist with navigation, data entry, and submission of reports. The Division of Elections will also provide assistance to all users by contacting the EFS Help Desk at (850) 245-6240.

   
   

   All of the Division's publications and reporting forms are available on the Division of Election's web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapters

   104 and 106, Florida Statutes; Candidate and Campaign Treasurer Handbook (September 2007

   
   

   edition); 2007-2008 Calendar of Reporting Dates; and Rule 1S-2.017, Florida Administrative Code.

   
   

6. When a campaign report is submitted electronically through the EFS, both the candidate and treasurer's PINs must be entered into the website. Though it is possible for either the candidate or the treasurer to give their PINs to another individual to enter the report on their behalf, the candidate remains responsible for the PINs and the filed reports.

7. Respondent did little to educate herself as to her responsibilities as a candidate and as the treasurer for her campaign. She could not even remember whether she read

   Ms. Bronson's letter, and she did not remember whether she had read the handbook referred to by Ms. Bronson. Respondent did not attend any candidate trainings offered by the Broward County Supervisor of Elections Office.

8. On November 21, 2007, Respondent resigned as treasurer and appointed her mother, Clementine Sherman, as her new treasurer. On December 5, 2007, Ms. Bronson sent a letter to Ms. Sherman, with a copy to Respondent, acknowledging

   Ms. Sherman's appointment as treasurer and providing the same information contained in Ms. Bronson's letter to Respondent dated November 1, 2007 (and discussed above).

9. On January 29, 2008, the Division accepted Respondent's appointment of herself as her deputy treasurer.

   
   

10. Respondent did not have a system for keeping track of campaign contributions or expenditures.

11. Pursuant to section 106.07, Florida Statutes (2008), Respondent was required to file periodic reports listing "all contributions received, and all expenditures made, by or on behalf of her candidacy."

12. At all times relevant to this proceeding, Respondent has been the owner of Prodigal S & D Corporation, which does business as Green Apple Association of Christian Schools (Green Apple). Respondent was authorized to issue and sign checks on the bank account owned by Green Apple.

13. In August 2008, shortly before the primary election, Respondent placed an order with WPLG-TV for airtime to disseminate political advertisement for her campaign.

14. The script used in the advertisement aired on WPLG included the following: "Please vote Freda Stevens for State Representative District 100 on August 26. Thank you."2/

15. On August 6, 2008, Respondent signed two checks made payable to WPLG. Both checks were drawn on the same bank account owned by Green Apple. Check 1050 was in the amount of

    $13,812.50. Check 1051 was in the amount of $680.00. Both checks were made payable to WPLG in payment for political advertising that Respondent had purchased from WPLG. When Respondent signed those checks to WPLG, she knew, or should have

    
    

    known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the checks.

16. On August 15, 2008, Respondent signed check number 1053 payable to WPLG that was drawn on the same bank account owned by Green Apple as checks 1050 and 1051. Check number 1053 was in the amount of $7,161.25 and was used to pay for political advertising that Respondent bought from WPLG prior to the primary election. When Respondent signed check numbered 1053 to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the check.

17. Check numbered 1050 and 1051 were returned to WPLG for non-sufficient funds. WPLG did not deposit check numbered 1053.

18. Respondent filed an original and five amended 2008 F3 Reports. Respondent certified that each report was true, correct, and complete. All reports were filed electronically utilizing the PIN number given to Respondent by Ms. Bronson.

19. On August 22, 2008, Respondent filed her "Original Report." That report listed no campaign contribution from Green Apple, and it failed to list campaign expenditures to WPLG or other media. Because of those omissions, the report was not accurate, and it was not complete.

20. On August 23, 2008, Respondent filed a first "Amended Report." That report listed five in-kind contributions from

    
    

    Respondent with the descriptor "media" under each contribution. The amounts of the in-kind contributions were $13,812.50;

    $680.00; $3,185.85; $7,161.25; and $3,187.00. That report was inaccurate because the in-kind contributor for three of the in- kind contributions ($13,812.50; $680.00; and $7,161.25) was Green Apple, not the Respondent.3/

21. Respondent lost the primary election. After the election, on August 30, 2008, Respondent filed a second "Amended Report." The five in-kind contributions from Respondent with the descriptor "media" that had been on the first "Amended Report" were deleted from the report and were replaced with the following four in-kind contributions with the reported date of the contribution in parentheses: $13,812.50 (August 6);

    $3,187.50 (August 20); $3,128.85 (August 18); and $680.00 (August 6). That report was inaccurate because the in-kind contributor was Green Apple, not the Respondent. That report also failed to report the check in the amount of $7,161.25 that Green Apple had issued to WPLG on August 15.

22. On November 24, 2008, Respondent filed a third "Amended Report", a fourth "Amended Report", and a fifth "Amended Report." The third "Amended Report" deleted the in- kind contribution from Respondent dated August 6, in the amount of $13,812.50, and with the descriptor "media." The fourth "Amended Report" and the fifth "Amended Report" reflected no

    
    

    contributions, only expenditures, none of which was for media. These "Amended Reports" were incomplete and inaccurate.

23. WPLG attempted to collect the monies owed by Respondent's campaign. Clementine Sherman remitted a payment (by cashier's check) in the amount of $6,000.00 on August 27, 2008.4/ Respondent remitted three money orders that were deposited September 28, October 15, and December 22, 2009, respectively. These money orders were in the amounts of

    $200.00, $200.00, and $680.00. These payments were not reflected on any report filed by Respondent.

    CONCLUSIONS OF LAW

    
    

24. DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569, 120.57(1), and 106.24(5), Florida Statutes (2012).

25. This proceeding seeks to impose discipline against Respondents and is, consequently, penal in nature. State ex

    rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Department must prove the charges against Respondents by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. &

    Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med., 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

    
    

26. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:

    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 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.

    
    

    Id. The Florida Supreme Court later adopted the Slomowitz court's description of clear and convincing evidence. See In re

    Davey, 645 So. 2d 398, 404 (Fla. 1994).

    
    

27. Counts 1-6 allege that Respondent violated the following provisions of section 106.07(5), Florida Statutes (2008):

    (5) 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.

    
    

28. Counts 7-12 allege that Respondent violated the following provisions of section 106.19(1)(c), Florida Statutes (2008):

    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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       (c) Falsely reports or deliberately fails to include any information required by this chapter; or

       
       

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

       
       

29. Section 106.25, Florida Statutes (2008), provides, in relevant part, as follows:

    1. Jurisdiction to investigate and determine violations of this chapter and chapter 104 is vested in the Florida Elections Commission . . .

       
       

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       (3) 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. Willfulness is a determination of fact; however, at the request of the respondent, willfulness may be considered and determined in an informal hearing before the commission.

       
       

30. Florida Administrative Code Rule 2B-1.002 sets forth the following definitions:

    1. For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S., the following definitions apply:

       1. A person acts "willful" or "willfully" when he or she knew that, or showed reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or 106, F.S.

       2. "Knew" means that the person was aware of a provision of Chapter 104 or 106, F.S., understood the meaning of the provision, and then performed an act prohibited by the provision or failed to perform an act required by the provision.

       3. "Reckless disregard" means that the person disregarded the requirements of Chapter 104 or 106, F.S., or was plainly indifferent to its requirements, by failing to make any reasonable effort to determine whether his or her acts were prohibited by Chapter 104 or 106, F.S., or whether he or she failed to perform an act required by Chapter 104 or 106, F.S.

    
    

31. Chapter 2011-40, Section 70, Laws of Florida, amended section 106.25 by adding the following language:

    The commission may not by rule determine what constitutes willfulness or further define the term "willful" for purposes of this chapter or chapter 104.

    
    

32. In this proceeding, it is not necessary to discuss the impact of the foregoing amendment on the rule because there is no meaningful argument that Respondent's actions were not willful. Respondent's actions in misreporting the in-kind contributions at issue in this proceeding were voluntary and intentional. Respondent knew she was required to report in-kind contributions, and she knew how to report in-kind contributions. Respondent negotiated with WPLG for the purchase of airtime for her campaign, and she signed the checks written on the Green Apple account supposedly in payment for the airtime. Respondent knowingly misrepresented the source of the in-kind contribution in disregard for the law. The Commission met its burden of proof in this proceeding. Compare Fugate v. Fla. Elections

    Comm., 924, So. 2d 74 (Fla. 1st DCA 2006).

    
    

33. Respondent willfully and intentionally disregarded reporting requirements in violation of section 106.19(1)(c), Florida Statutes (2008), as alleged in Counts 7-12.

34. Respondent willfully and intentionally certified as being true and complete reports she knew to be inaccurate in violation of section 106.07(5), Florida Statutes (2008), as alleged in Counts 1-6.

35. Section 106.265, Florida Statutes (2012), provides, in relevant part, as follows:

    
    

    1. The commission or, in cases referred to the Division of Administrative Hearings pursuant to s. 106.25(5), the administrative law judge 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, or, if applicable, to impose a civil penalty as provided in s. 104.271 or s. 106.19.

    2. In determining the amount of such civil penalties, the commission or administrative law judge 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 . . .

       
       

36. In its Proposed Final Order, the Commission seeks to impose a fine against Respondent in the amount of $1,000.00 per count for a total of $12,000.00. Such fines for the violations at issue in this proceeding are excessive. In considering the factors set forth in section 106.265(2)(a) and (b), the undersigned concludes that Respondent should be fined in the

amounts set forth below.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDERED:

Freda Sherman Stevens is guilty of the violations of Section 106.075(5), Florida Statutes (2008) alleged in Counts 1-

6. Administrative fines pursuant to the provisions of section 106.265, Florida Statutes (2012) are hereby imposed against Freda Sherman Stevens: $1,000.00 for the violation in Count 1;

$100.00 for Count 2; $100.00 for Count 3; $100.00 for Count 4;

$100 for Count 5; and $100.00 for Count 6.

Freda Sherman Stevens is guilty of the violations of Section 106.19(1)(c), Florida Statutes (2008) alleged in Counts 7-12. Administrative fines pursuant to the provisions of section 106.265, Florida Statutes (2012) are hereby imposed against Freda Sherman Stevens: $1,000.00 for the violation in Count 7; $100.00 for Count 8; $100.00 for Count 9; $100.00 for Count 10; $100.00 for Count 11; and $100.00 for Count 12.

Freda Sherman Stevens shall pay to the Florida Elections Commission a fine in the form of a civil penalty in the total amount of $3,000.00 within 30 days of this Final Order becoming final. The civil penalty shall be paid to the Florida Elections Commission, either by cashier's check, money order, or attorney's trust check, and sent to 107 West Gaines Street, Collins Building, Suite 224, Tallahassee, Florida 32399-1050.

DONE AND ORDERED this 26th day of September, 2012, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 26th day of September, 2012.

ENDNOTES

1/ These campaign reports were referred to by the parties as "F3 reports."

2/ The political advertisement Respondent ran on WPLG was not an "electioneering communication" as that term is defined by section 106.011(18(a), Florida Statutes (2008), and Green Apple was not a registered electioneering communication organization within the meaning of section 106.03(b), Florida Statutes (2008).

3/ Petitioner asserted that Respondent should have listed the in-kind contribution as being to WPLG instead of using the term "media." Petitioner has presented no authority for that assertion. Consequently, Respondent should not be faulted for that aspect of the first "Amended Report."

4/ In its Proposed Final Order, the Commission discusses that Respondent received campaign contributions in excess of the maximum of $500.00 (allowed by section 106.08(1)(a), Florida Statutes (2008)) from Green Apple and from Ms. Sherman. While

the issue as to the receipt of excess contributions was briefly mentioned in the "Amended Staff Recommendation Following Investigation", there was no finding of probable cause as to that issue. Consequently, no findings are made as to whether Respondent received excessive contributions from Green Apple or Ms. Sherman.

COPIES FURNISHED:

Freda Sherman Stevens Suite 406

4611 South University Drive Davie, Florida 33328 freda@fredastevens.com

Jaakan Ammiel Williams, Esquire Florida Elections Commission

107 West Gaines Street Tallahassee, Florida 32399-1050 jaakan.williams@myfloridalegal.com

Donna Malphurs, Agency Clerk Florida Elections Commission The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399

Rosanna Catalano, Executive Director Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 11-006185

Orders for Case No: 11-006185