STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRANT MALOY,

Petitioner,

vs.

FLORIDA ELECTIONS COMMISSION,

Respondent.

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) Case No. 01-2572

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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 formal hearing in this case on September 4, 2001, in Orlando, Florida.

APPEARANCES

For Petitioner: Frederick Nelson, Esquire

The Law Offices of Frederick H. Nelson 1110 Douglas Avenue, Suite 1002 Altamonte Springs, Florida 32714

For Respondent: Eric M. Lipman, Esquire

Florida Elections Commission The Capitol, Room 2002

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner, Grant Maloy, willfully violated Subsection 106.143(4)(a), Florida Statutes.

PRELIMINARY STATEMENT

On May 22, 2001, the Florida Elections Commission ("Respondent") entered an Order of Probable Cause in this matter alleging that Seminole County Commissioner Grant Maloy willfully violated Subsection 106.143(4)(a), Florida Statutes, by not including a political disclaimer on a candidate endorsement letter dated September 11, 2000. On June 25, 2001, Petitioner filed a Petition for Request for Formal Hearing. The case was forwarded to Division Of Administrative Hearings on June 29, 2001; on July 10, 2001, the case was set for hearing on September 4, 2001, in Orlando Florida.

At the hearing, Respondent presented the testimony of Keith Smith, Respondent's investigator; Mrs. Phyllis Hampton, Respondent's General Counsel, who was qualified as an expert witness on Florida Elections Commission procedure and its interpretation of Florida election law; and Commissioner Daryl McLain. Respondent offered six exhibits, Respondent's Exhibits 1-6, which were received into evidence. Petitioner presented the testimony of Bob West and himself. Petitioner offered ten exhibits, Petitioner's Exhibits 1-10, which were received into evidence. CT EX 1, FORM 6 FULL AND PUBLIC DISCLOSURE FORM OF

FINANCIAL INTERESTS 1999, was received into evidence to comply with Subsection 106.265(1)(c), Florida Statutes.

No transcript of the proceedings was ordered. Both parties filed Proposed Recommended Orders on September 28, 2001.

Petitioner also filed a Motion for Attorney's Fees on the same date which will be dealt with in a separate order.

FINDINGS OF FACTS

1. Petitioner, Grant Maloy, is a Seminole County Commissioner. In September 2000, as an incumbent Republican, he won the Republican primary for his commission district which, in Seminole County, is tantamount to election. In November 2000, he was reelected in the general election.

2. In the same September 2000, primary election, Bob West ("West") was the top vote-getter in a three-way primary for Commission District 5 which included incumbent Commissioner Daryl McLain, who finished second. West did not have a majority of the votes; consequently, he and Daryl McLain were in an October second primary.

3. West sought Petitioner's endorsement and, as a result, Petitioner authored a letter endorsing West over the incumbent Commissioner Daryl McLain, seeking campaign contributions for West. Petitioner's endorsement letter stated, in part, "Enclosed is a letter from Bob [West] and a return envelope for your contribution."

4. The endorsement letter was typed by Petitioner's wife, Althea Maloy, on a personal computer. She created a letterhead

   similar to the Maloy campaign letterhead and, with the permission of Petitioner, signed "Grant" to the endorsement letter. The endorsement letter also contained the following political disclaimer: "PD POL ADV PAID FOR AND APPROVED BY THE GRANT MALOY CAMPAIGN FOR SEMINOLE COUNTY COMMISSION DIST 1, REPUBLICAN."

5. West paid for all paper, envelopes and postage for the endorsement letter mailing. Althea Maloy and other campaign volunteers "stuffed" the endorsement letter and an undated letter from West into the envelopes provided by West. Petitioner's wife, Althea Maloy, was acting as a West campaign volunteer as it relates to her activities regarding the endorsement letter.

6. The undated letter sent by West stated, in part,

   
   

   " . . . Commissioner Grant Maloy would like to join together with me to ask for your financial support in my bid to defeat Daryl McLain." This letter also contained the following political disclaimer: "Pd. pol. adv. approved by Bob West, Paid for by the campaign account of Bob West for County Commissioner, Dist 5, Rep."

7. During the investigation, Respondent requested the envelope in which the endorsement letter and West's undated letter were mailed. The complainant faxed the envelope to the

   Respondent. The facsimile of the envelope received by Respondent did not contain a political disclaimer.

8. West is a computer software consultant. He testified that every envelope used in his campaign was programmed to have an appropriate political disclaimer on its face; he testified that the envelope used for the endorsement mailing was a oversized envelope. He opined that the facsimile copy of the envelope received by Respondent was too large for the fax machine and, therefore, the political disclaimer did not copy or was turned under to allow transmission and, as a result, was not copied. This testimony is accepted as credible.

9. Mrs. Phyllis Hampton, General Counsel, Florida Elections Commission, was qualified as an expert witness on Florida elections law.

10. Mrs. Hampton opined that Subsection 106.143(4)(a), Florida Statutes, would be satisfied if either the envelope in which the letters were sent contained the appropriate political disclaimer or the September 11, 2000, endorsement letter was sent with another letter which contained the appropriate political disclaimer. Her testimony is accepted as credible.

11. Other than his support, as reflected in the endorsement letter, Petitioner contributed nothing of value to the West campaign.

12. On April 28, 1999, Petitioner signed a Statement Of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes.

13. Petitioner knew his endorsement letter would be mailed with a West letter as reflected by the reference to the West letter in the endorsement letter and, therefore, believed that the sponsor of the letter would be clear to the recipient.

14. Petitioner believed that West would ensure compliance with in Chapter 106, Florida Statutes, and had a "good faith" belief that Chapter 106, Florida Statutes, had been complied with.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Sections 106.25(5), 120.569 and 120.57(1), Florida Statutes.

16. The Commission in its Order of Probable Cause asserts that: "Respondent violated Section 106.143(4)(a), Florida Statutes, failure of a person to state on a political advertisement on behalf of a candidate that the content of the advertisement was approved by the candidate and the identity of the person who paid for the advertisement on one occasion."

17. Subsection 106.143(4)(a), Florida Statutes, reads as

    
    

    follows:

    
    

    (4)(a) Any political advertisement, including those paid for by a political party, other than an independent expenditure, offered by or on behalf of a candidate must be approved in advance by the candidate. Such political advertisement must expressly state that the content of the advertisement was approved by the candidate and must state who paid for the advertisement. The candidate shall provide a written statement of authorization to the newspaper, radio station, television station, or other medium for each such advertisement submitted for publication, display, broadcast, or other distribution.

    
    

18. Subsection 106.265(1), Florida Statutes, 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.

       
       

19. Subsection 106.143(1), Florida Statutes, reads, as follows:

    1. Any political advertisement and any campaign literature published, displayed, or circulated prior to, or on the day of, any election shall:

       
       

       1. Be marked "paid political advertisement" or with the abbreviation "pd. pol. adv."

          
          

       2. Identify the persons or organizations sponsoring the advertisement.

          
          

       3. 1.a. State whether the advertisement and the cost of production is [sic] paid for or provided in kind by or at the expense of the entity publishing, displaying, broadcasting, or circulating the political advertisement; or

          
          

          b. State who provided or paid for the advertisement and cost of production, if different from the source of sponsorship.

          
          

          2. This paragraph shall not apply if the source of the sponsorship is patently clear from the content or format of the political advertisement or campaign literature.

          
          

          This subsection does not apply to campaign messages used by a candidate and the candidate's supporters if those messages are designed to be worn by a person.

          
          

20. Section 106.37, Florida Statutes, 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.

    
    

21. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. 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).

22. While Subsection 106.265(1), Florida Statutes, authorizes a $1000 civil penalty per "count," the Order of Probable Cause, which is the charging document in this case, does not contain "counts." Instead, it contains a single paragraph which alleges that there is probable cause to believe that Petitioner violated Subsection 106.143(4)(a), Florida Statutes, on one occasion. Therefore, Petitioner faces a potential civil penalty of $1,000 if the Commission proves its

    case. In addition to the civil penalty, the ruinous effect of a determination that a candidate has violated the Florida elections law has on an individual's reputation for personal integrity makes the penalty in this case punitive and penal in nature.

23. Subsection 120.57(1)(j), Florida Statutes, reads as follows:

    (j) Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.

    
    

    In addition, existing case law establishes that the Commission has the burden of proving by clear and convincing evidence that Petitioner willfully violated Subsection 106.021(3), Florida Statutes. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); and Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987); Latham v. Florida

    
    

    Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

    
    

24. 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 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).

    
    

25. Petitioner's sole contribution to the West campaign was the authorship of a September 11, 2000, endorsement letter. Petitioner made no other contribution.

26. The endorsement letter contained a clear reference to an accompanying West letter which contained an appropriate political disclaimer as did the envelope in which both letters were mailed.

27. Respondent's expert witness testified that Subsection 106.143(4)(a), Florida Statutes, would be satisfied if either the envelope containing the letter contained an appropriate political disclaimer or the endorsement letter contained a reference to an accompanying letter which contained an appropriate political disclaimer. The evidence, by any standard, reveals that both the envelope and the accompanying letter contained the appropriate political disclaimer.

28. No violation of Subsection 106.143(4)(a), Florida Statutes, has occurred in this case.

29. Assuming, arguendo, that there was some evidence of a

violation, there is no demonstration of knowledgeable or reckless commission of an act prohibited or required by the

Florida election laws. Petitioner clearly had a "good faith" belief that the sponsor of the letter was clear by his reference to the accompanying West letter and, as a result, believed that the exception in Subsection 106.143(1)(c)2, Florida Statutes, was applicable. In addition, Petitioner was relying on another candidate, West, to ensure compliance with the Florida election laws.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Grant Maloy, did not violate Subsection 106.143(4)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause.

DONE AND ENTERED this 4th day of October, 2001, in Tallahassee, Leon County, Florida.

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 4th day of October, 2001.

COPIES FURNISHED:

Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002

Tallahassee, Florida 32399-1050

Frederick Nelson, Esquire

The Law Offices of Frederick H. Nelson 1110 Douglas Avenue, Suite 1002 Altamonte Springs, Florida 32714

Barbara M. Linthicum, Executive Director Florida Elections Commission

The Capitol, Room 2002 Tallahassee, Florida 32399-1050

Patsy Rushing, Clerk

Florida Elections Commission The Capitol, Room 2002 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: 01-002572

Orders for Case No: 01-002572