STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 05-2493

)

LORI PARRISH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on January 19 and 20, 2006, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles A. Finkel, General Counsel

Florida Elections Commission The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

For Respondent: Michael W. Moskowitz, Esquire

Moskowitz, Mandell, Salim & Simowitz, P.A.

800 Corporate Drive, Suite 500 Fort Lauderdale, Florida 33334

STATEMENT OF THE ISSUES

1. Whether the Order of Probable issued in the instant case should be dismissed because the statutory provisions it alleges that Respondent violated were not listed in the sworn citizen complaint upon which it was based.

2. If not, whether Respondent committed the violations alleged in the Order of Probable Cause.

3. In the event one or more violations were committed, what penalty or penalties should be imposed.

PRELIMINARY STATEMENT

On June 3, 2005, the Florida Elections Commission (Commission) issued an Order of Probable Cause against Respondent, which read as follows:

THIS CAUSE came on to be heard before the Florida Elections Commission at its meeting held on May 19 & 20, 2005, in Tallahassee, Florida.

Based on the complaint, Report of Investigation, Statement of Findings submitted by staff, written statements submitted by the Respondent, and any oral statements made at the probable cause hearing, the Commission finds that there is probable cause to charge the Respondent with the following violations:

Count 1:

On July 30, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of her 2004 F1 report that was incorrect, false, or incomplete, when she failed to report an in-

kind contribution from either Robert Bekoff or Water Taxi, Inc., for displaying her campaign signs on their boats.

Count 2:

On August 12, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of her 2004 F2 report that was incorrect, false, or incomplete, when she failed to report an in- kind contribution from either Robert Bekoff or Water Taxi, Inc., for displaying her campaign signs on their boats.

Count 3:

On August 30, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of her 2004 F3 report that was incorrect, false, or incomplete, when she failed to report an in- kind contribution from either Robert Bekoff or Water Taxi, Inc., for displaying her campaign signs on their boats.

Count 4:

On October 13, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of her amended 2004 F1 report that was incorrect, false, or incomplete, when she failed to report an in- kind contribution from either Robert Bekoff or Water Taxi, Inc., for displaying her campaign signs on their boats.

Count 5:

On October 13, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of her amended 2004 F2 report that was incorrect, false, or incomplete, when she failed to report an in- kind contribution from either Robert Bekoff or Water Taxi, Inc., for displaying her campaign signs on their boats.

Count 6:

On July 30, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of her amended 2004 F3 report that was incorrect, false, or incomplete, when she failed to report an in- kind contribution from either Robert Bekoff or Water Taxi, Inc., for displaying her campaign signs on their boats.

Count 7: During the period from approximately July 1, 2004 through

August 30, 2004, Respondent violated Section 106.19(1)(a), Florida Statutes, by accepting a contribution in excess of the legal limit, when Respondent accepted an in-kind contribution in the amount of $8,000 from either Robert Bekoff or Water Taxi, Inc., for displaying her campaign signs on their boats.

Pursuant to Respondent's request, the matter was referred to DOAH "for the assignment of an administrative law judge to conduct a formal hearing for the Commission" on the charges made in the June 3, 2005, Order of Probable Cause Order.

The final hearing in this case was originally scheduled for October 10 and 11, 2005, but was twice continued. It was ultimately rescheduled for January 19 and 20, 2006.

On January 9, 2006, the parties filed a Prehearing Joint Stipulation, in which they stated, among other things, that there were no facts that were "admitted and [would] require no proof at hearing."

On January 10, 2006, Respondent filed a Motion to Dismiss All Counts of the Commission's Order of Probable Cause Based on

a Lack of Jurisdiction (Respondent's Motion to Dismiss), arguing that dismissal was required under Section 106.25, Florida Statutes, because "the [c]omplaint [received by the Commission that resulted in the issuance of the Order of Probable Cause] did NOT allege violations of Fla. Stat. § 106.07(5) and § 106.19(1)(a)," the two statutory provisions she is alleged, in the Order of Probable Cause, to have violated.

On January 13, 2006, the undersigned issued an Order on Pending Motions, which provided as follows with respect to Respondent's Motion to Dismiss:

To the extent that Respondent’s Motion to Dismiss requests the entry of a prehearing order finding that all counts of the Commission’s Order of Probable Cause should be dismissed, it is denied. The undersigned, however, will give the parties the opportunity to present evidence at the final hearing in this case, and to thereafter present additional argument in their proposed recommended orders, on the issue of whether the Commission’s Order of Probable Cause should be dismissed on the grounds alleged by Respondent in her Motion to Dismiss, and the undersigned will address this issue in the Recommended Order that he will issue after the final hearing is held.

On January 17, 2006, the parties filed a Supplement to Pre- Hearing Joint Stipulation, which indicated that the parties had stipulated to the following facts:

1. The Complainant, Sandra Steen, is a former employee of Bill Markham.

2. Bill Markham held the position of Broward County Property Appraiser immediately prior to his death.

   
   

3. After Bill Markham died, Parrish became a candidate for Broward County Property Appraiser.

   
   

4. Parrish signed a Statement [of] Candidate Form dated April 14, 2004 in connection with her campaign for Broward County Property Appraiser.

   
   

5. Parrish won the November 2, 2004 general election for the position of Broward County Property Appraiser.

   
   

6. Parrish previously served as a Broward County Commissioner from November of 1988 through November of 2004.

   
   

7. Water Taxi, Inc. ("Water Taxi") is a company based in Fort Lauderdale, Florida which is in the business of providing water taxi transportation services along the intracoastal waterway in certain parts of Broward County.

   
   

8. At all times material, Robert Bekoff has been the President of Water Taxi.

   
   

9. Water Taxi contributed $500.00 to the Parrish campaign on April 8, 2003.

   
   

10. Mr. Bekoff has avowed, in his affidavit dated November 9, 2004, and in his affidavit dated March 9, 2005, that he displayed Parrish campaign signs on the sides of Water Taxi's boats without any request from or coordination with Parrish's campaign.

    
    

11. Parrish is charged with six (6) counts of violations of Fla. Stat. S. 106.07(5).

    
    

12. The Commission does not have any records indicating that Parrish has previously violated s. 106.07(5).

13. Parrish is charged with one (1) count of violating Fla. Stat. S. 106.19(1)(a).

    
    

14. The Commission does not have any records indicating that Parrish has previously violated s. 106.19(1)(a).

As noted above, the final hearing was held on January 19 and 20, 2006. Eight witnesses testified at the hearing: Thomas McDonald, Gregory Durden, Robert Bekoff, Robert McGrath, Judith Stern, Nancy Tucker, John Milledge, and Respondent. In addition, the following exhibits were offered and received into evidence: Petitioner's Exhibits 1 through 25, 27, 29 through

49, and 52 through 78, and Respondent's Exhibits 3, 6, 9 through

13, and 16 through 22.

At the close of the taking of evidence, the undersigned established (with input from the parties) a deadline (45 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.

The Transcript of the hearing (consisting of two volumes) was filed with DOAH on March 3, 2006.

On April 10, 2006, Respondent filed an unopposed motion requesting an extension of the deadline for filing proposed recommended orders. On April 11, 2006, the undersigned issued an order granting the motion and giving the parties until April 28, 2006, to file their proposed recommended orders.

The parties timely filed their Proposed Recommended Orders on April 28, 2006.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' January 17, 2006, Supplement to Pre-Hearing Joint Stipulation1:

1. Respondent is an experienced Broward County politician.

   
   

   Her first run for public office was in 1984, when she sought a seat on the Broward County School Board.

2. The next election for public office in which she participated as a candidate was the 1988 race for the District 5 seat on the Broward County Commission. She won that election and also won elections in 1992, 1996, and 2000 to keep the seat.

3. District 5, the district that Respondent represented on the Broward County Commission, is in the southwest portion of the county.

4. Water Taxi provides its waterborne, "transit-style" passenger transportation services in the eastern portion of the county, on the Intracoastal Waterway (from Oakland Park Boulevard to the 17th Street Causeway) and on the New River (to

   as far west as the River House Restaurant, which is west of Andrews Avenue).

5. At all times material to the instant case, Water Taxi sold advertising space on the sides of its boats. It charged, per advertisement, $200 per month per boat with a 12-month contract. A "premium" was charged for rentals of less than 12 months. Water Taxi did not rent all the advertising space available on the sides of its boats. It had "more empty space than anything else and more unpaid advertising than paid."

6. During the time that Respondent served on the Broward County Commission2 she voted (favorably) on matters that came before the commission involving Water Taxi and its sister company, Canal Boats, Inc. (which Robert Bekoff also owned and operated). These matters are described below.

7. At its June 12, 2001, meeting, the commission considered the following agenda item concerning a "sole source agreement" between the county and Canal Boats, Inc.:

   MOTION TO APPROVE sole source agreement between Broward County and Canal Boats, Inc. for the purchase of eight hybrid-electric ferry boats and ADA improvements at landings in the amount of $2,021,700 ($237,500 for each of the eight ferry boats delivered, plus $121,700 for ADA improvements at landings) and authorize the Chair and Clerk to execute same. The agreement shall start on date of execution and shall terminate one year from that date.

   Respondent moved the agenda item, saying:

   
   

   I am so excited to see this. I think that-- well, I think most of the benefit will certainly be in Fort Lauderdale and perhaps the other coastal communities as it moves up. I think you know that most of us have lived here for a very long time, and we think the City of Fort Lauderdale slogan rather was the Venice of America. I think this is so clever. I think it's cost efficient. I think it helps with the congestion on our roads, and it's so subtropical South Florida that I'm delighted. And I think it's just a great idea, just a great idea. Real pleased and excited.

   
   

   The motion passed.

   
   

8. At its September 25, 2001, meeting, the commission considered the following agenda item concerning a "sole source agreement" between the county and Water Taxi:

   MOTION TO APPROVE AND AWARD sole source agreement between Broward County and Water Taxi, Inc. (Water Taxi) for the lease of eight wheelchair accessible, passenger ferries by Broward County to Water Taxi for the operation of ferry services in Broward County at a cost of $10.00 per ferry per year, and authorize the Chair and Clerk to execute same. The term of this agreement shall begin on the date of execution and shall remain in effect for a period of three years, with options to renew for two years and a five year term upon written approval of the contract administrator.

   
   

   The motion passed, and the agreement was executed by the county. Among the agreement's provisions were the following:

   2.2.3 WATER TAXI shall use the ferries to provide ferry service on a fixed route basis

   as set forth herein and for no other purpose of whatsoever kind; provided, however, WATER TAXI, may provide substitute vessels of the same quality and service capability with prior approval of the Contract Administrator. WATER TAXI convenants that it shall not permit the ferries to be used by any person, firm, entity or corporation other than WATER TAXI and its agents.

   
   

   8.22 ADVERTISING

   
   

   WATER TAXI may display advertising provided such advertising shall be of a reputable character, shall conform to recognized commercial standards and shall not conflict with the laws of the United States or the State of Florida or any political subdivision thereof, and shall generally conform to the aesthetics and display environment in which the advertising is promoted.[3] COUNTY reserves the right to approve all proposed advertising to ensure that advertisements placed pursuant this Agreement are in good taste, are displayed in a safe, satisfactory, and professional manner, and do not detract from or impair the public image and reputation of COUNTY.[4] Advertisements objectionable to COUNTY shall at the request of COUNTY, be immediately removed (within 24 hours of notice to WATER TAXI by the CONTRACT ADMINISTRATOR) at WATER

   TAXI'S own expense. In the event WATER TAXI fails to remove such material promptly, COUNTY may remove it or cause it to be removed, and WATER TAXI shall reimburse COUNTY for all costs of removing it, and of storing or otherwise disposing of it.

   COUNTY shall not in any way be held liable or responsible for any damages to the material resulting from its removal, stowage, or disposal pursuant to this provision.

9. At its December 4, 2001, meeting, the Commission considered and approved the following agenda item pertaining to Water Taxi:

   1. MOTION TO ADOPT a Resolution of the Board of County Commissioners of Broward County, Florida authorizing the Commission Chair and Clerk to execute and file a Joint Participation Agreement with the Florida Department of Transportation (FDOT) in the amount of $300,000 to provide assistance to Broward County to offset the marketing and advertising expenses of providing ferry transit services in Broward County; and providing for an effective date.

      
      

   2. MOTION TO ADOPT an unanticipated revenue resolution within the Capital Grant Fund (4510) for the Mass Transit Division, in the amount of $300,000 ($150,000-FDOT and

      $150,000-Water Taxi, Inc. (Water Taxi)), providing for marketing, advertising, and signage for ferry/water bus service in Broward County.

      
      

   3. MOTION TO APPROVE Amendment to Agreement between Broward County and Water Taxi, Inc. for ferry service in Broward County, to provide for Small Disadvantaged Business Enterprise (SDBE) Action Program Goals as related to Water Taxi's marketing Plan; and authorize the Chair and Clerk to execute same. All terms and conditions of the original agreement remain unchanged.

      
      

10. At its January 27, 2004, meeting, the commission considered the following agenda item affecting Water Taxi:

    1. MOTION TO ADOPT Resolution 2004-41 of the Board of County Commissioners of Broward County, Florida, authorizing the Mayor and Clerk to execute and file a Joint Participation Agreement (JPA) with the Florida Department of Transportation (FDOT),

       District 4, in the amount of $259,000 to provide funding to offset the costs of increasing the frequency on the scheduled Water Bus service; and providing for an effective date.

       
       

    2. MOTION TO ADOPT unanticipated revenue Resolution 2004-43 to increase the Capital Grant Fund (4510) for the Mass Transit Division, in the amount of $259,000 providing operating assistance to Broward County for increasing frequency on the Water Bus service.

       
       

       The agenda item was approved "with the caveat that the vendor w[ould] specify the Water Bus service schedule." The minutes of the meeting reflect that, to start the commission's discussion of the agenda item, Respondent spoke in flattering terms about the "water bus becom[ing] part of [the county's] mass transit system" and that she subsequently engaged in a public colloquy with Mr. Bekoff, who was present at the meeting, concerning the agenda item.

11. At its June 15, 2004, meeting, the commission considered and approved the following agenda item involving "sole source agreements" with Canal Boats, Inc., and Water Taxi:

    1. MOTION TO APPROVE sole source determination and agreement between Broward County and Canal Boats, Inc. (Canal Boats), limited solely to reimbursement, for the purchase and installation of 18 Americans with Disabilities Act (ADA)-compliant landings, up to a maximum amount not to exceed $720,000, for the Mass Transit Division; and authorize the Mayor and Clerk to execute same. The contract period shall

       start on date of execution and end no later than 24 months from that date. . . .

       
       

    2. MOTION TO APPROVE sole source determination and second amendment to an agreement between Broward County and Water Taxi, Inc. (Water Taxi) for Ferry Service in Broward County; providing for the lease and maintenance of 22 ADA-compliant landings by Water Taxi at $10 each per year for use in the Water Bus/Ferry service; providing for the option by Water Taxi to purchase the 22 landings at fair market value at the end of the ten-year term; providing for the purchase of the passenger ferries by Water Taxi at the termination of the original

       five-year term and five-year option at fair market value; extending the term of the agreement for an additional two years; and authorize the Mayor and Clerk to execute same . . . .

       
       

       At this same meeting, the commission considered and approved the following additional agenda item Respondent had sponsored:

       1. MOTION TO ADOPT Resolution 2004-566 of the Board of County Commissioners of Broward County, Florida authorizing the Mayor and Clerk to execute a Joint Participation Agreement (JPA) with the Florida Department of Transportation (FDOT), District 4, in the amount of $1,010,000; to provide funding for the purchase/construction of four hybrid- electric biodiesel water bus vessels; and providing for an effective date. The term of this JPA is effective from date of execution through June 30, 2005. (No County matching funds are being expended on this project. Canal Boats, Inc. is providing the 50.5% cash match of $510,000; as required by FDOT.)(Commission Districts 4 and 7)(Commissioner Parrish)

          
          

       2. MOTION TO ADOPT unanticipated revenue Resolution 2004-567 to increase the Capital Fund (4501) for the Mass Transit Division,

          in the amount of $500,000; to fund the purchase/construction of four hybrid- electric , biodiesel water bus vessels (Commissioner Parrish)

          
          

       3. MOTION TO APPROVE agreement among Broward County, Water Taxi, Inc., and Canal Boats, Inc. for the purchase of water buses (two of which shall be titled to the County and two to Water Taxi) in the total amount of $1,010,000, commencing on the date of execution by all parties and terminating 12 months from that date; and authorize the Mayor and Clerk to execute same. (Commission Districts 4 and 7)(Commissioner Parrish)

          
          

       4. MOTION TO APPROVE third amendment to agreement between Broward County and Water Taxi, Inc. (Water Taxi) for ferry service in Broward County; providing for the lease by County of two water buses and the dedication of two water buses by Water Taxi, at $10 each per year, for use in the operation of the ferry service; providing for the option by Water Taxi to purchase from the County the two water buses based on fair market value as determined by the County; and authorize the Mayor and Clerk to execute same. (Commission Districts 4 and 7)(Commissioner Parrish)

       
       

       The "third amendment to [the] agreement between Broward County and Water Taxi, Inc. (Water Taxi) for ferry service in Broward County" referred to in this agenda item was executed by the county on June 15, 2004. This "third amendment" amended Sections 2.2.1 and 2.2.8 of the original agreement and further provided that, as did the prior amendments, that "[e]xcept as otherwise set forth herein, the terms and conditions of the

       Agreement remain unchanged and in full force and effect between the parties."

12. Respondent originally intended to run for re-election in 2004 for her District 5 seat on the Broward County Commission. On April 3, 2003, she filed with the Broward County Supervisor of Elections a completed and signed Statement of Candidate form, which read as follows:

    I, Lori Nance Parrish, candidate for the office of Broward County Commission, Dist #5, have received, read and understand the requirements of Chapter 106, Florida Statutes.

    
    

13. Respondent was provided by the Supervisor of Elections with a Handbook for Candidates prepared by the Florida Division of Elections. The handbook provided the following information regarding in-kind contributions:

    Definition

    
    

    An in-kind contribution is anything of value made for the purpose of influencing the results of an election (Rule 1S-3.004, F.A.C.).

    
    

    Exceptions

    
    

    • Money;

      
      

    • Personal services provided without compensation by individual volunteers; or

      
      

    • Independent expenditures, as defined in section 106.011(5), F.S.

    • Endorsements of three or more candidates by political committees or political parties.

    
    

    In-kind contributions are subject to contribution limitations.

    
    

    Valuation of In-Kind Contributions

    
    

    Any person who makes an in-kind contribution to a candidate, at the time of making the contribution, must advise the candidate of the fair market value of the contribution.

    
    

    Reporting of In-Kind Contributions

    
    

    The campaign treasurer must report the value of all in-kind contributions on the campaign treasurer's report. The campaign treasurer must also report the sum of all in-kind contributions during each reporting period in the space provided on the report.

    
    

    The handbook also stated the following regarding "[c]ontribution [l]imits to [c]andidates":

    A candidate may not accept contributions until he or she files the Appointment of Campaign Treasurer and Designation of Campaign Depository (Form DS-DE 9) with the filing officer before whom the candidate qualifies.

    
    

    For the purposes of accepting a contribution, the primary election and general election are considered separate elections.

    
    

    A candidate may not accept a contribution in excess of $500 from any one person per election, provided the candidate is an opposed candidate and the contribution received is within the timeframe applicable to each election.

14. At all times material to the instant case, Respondent was fully aware that, as the handbook indicated, Florida law required that "the value of all in-kind contributions [be reported] on the campaign treasurer's report," and it prohibited an opposed candidate from "accept[ing] a contribution in excess of $500 from any one person per election."

15. In April of 2004, Respondent decided that, instead of running for re-election, she would seek election to the county- wide office of Broward County Property Appraiser (that had been held by Bill Markham until his death).5

16. On April 14, 2004, Respondent filed with the Broward County Supervisor of Elections a completed and signed Statement of Candidate form, which read as follows:

    I, Lori Nance Parrish, candidate for the office of Broward County Property Appraiser, have received, read and understand the requirements of Chapter 106, Florida Statutes.

    
    

17. That same day, Respondent filed with the Broward County Supervisor of Elections paperwork effectuating the appointment of Robert McGrath, CPA, as treasurer, and herself, Roberta Young, CPA, and Anthony DeMeo, as deputy treasurers, for Respondent's campaign for Broward County Property Appraiser.

18. In addition to Mr. McGrath, Ms. Young, and Mr. DeMeo, there were numerous other people who helped Respondent in her

    campaign for Broward County Property Appraiser. The vast majority were volunteers who were not paid for their services.

19. The campaign had an unusually large network of volunteers (by Broward County standards), numbering in the hundreds. Among these volunteers were Mr. McGrath; Gregory Durden and John Milledge (both of whom were involved the campaign's sign placement and erection efforts); Neil Sterling (the campaign chair); and Ron Gunsberger and Barbara Miller (both of whom were responsible for "polling, message production, [and] mail"). Other volunteers included, among others, a "volunteer campaign manager for strategy" and "two volunteers who coordinated the [other] volunteers."

20. Those campaign workers who were paid included Judith Stern (a local political consultant); Larry Griswold (a political consultant from California); and Wally Eccelston, Elliott Silverstein, Pam Hackett, Jasmine Barnaby, and Kelly Brown (all of whom were "paid coordinators" "in charge of supplies and calling volunteers to get coverage for events").

    In addition, there was one "paid staffer," Yvonne Brown. Yvonne Brown was (and still is) Respondent's daughter-in-law. She was responsible for, among other things, purchasing supplies and taking care of Respondent's campaign correspondence, including preparing and sending out thank you notes to campaign contributors. She spent a considerable amount of time

    performing these services. For her work, she was paid $15 an hour plus expenses.

21. Notwithstanding all of the assistance she received, Respondent played an active role in the day-to-day management of her campaign for Broward County Property Appraiser. She made final decisions and "coordinate[ed] the [campaign's] various activities."

22. Respondent wrote 90 to 95 percent of the checks drawn on the campaign account.

23. She was also involved in the receipt of campaign contributions (both in-kind and monetary).

24. Whenever she was made aware that an in-kind contribution had been made to the campaign, Respondent asked the contributor for the contributor's name, address, and occupation and further asked the contributor to place a value on the contribution. She would then provide (in written form) the information she had received from the contributor to Mr. McGrath (so that he would be able to include it in the campaign treasurer's report that needed to be filed) and to Yvonne Brown (so that she would be able to prepare and send out an appropriate thank you note to the contributor).

25. Respondent also provided to Mr. McGrath and Yvonne Brown written information concerning monetary contributions made to the campaign of which she was aware.

26. Mr. McGrath would "have somebody input th[e] information [Respondent gave him regarding in-kind and monetary contributions made to the campaign] into a computer program" that produced a campaign treasurer's report.

27. Respondent's campaign used campaign signs, bumper stickers, and car magnets in an effort to increase her name recognition and the "visibility" of her candidacy.

28. Her campaign signs could be found throughout the county. They were placed in yards and windows and on private land, buildings, storefronts, cars, trucks, trailers, and boats, among other places.

29. There were approximately 5,000 "yard signs," 10,000 bumper stickers, and several "large banner type signs . . . made out of plastic material" available for distribution.

30. In addition, 500 2' x 8' signs were ordered for the campaign. They were ordered from Artype, Inc., on or about May 17, 2004, by Ms. Stern, with Respondent's verbal authorization. Respondent issued a check in the amount of

    $5,955 from her campaign account to pay for these signs.

    
    

31. Pursuant to arrangements that Ms. Stern had made with Thomas McDonald, the president of the civil engineering firm of Craven, Thompson & Associates (Craven), the 500 2' x 8' signs ordered by Ms. Stern were delivered to and stored at a Fort Lauderdale warehouse owned by Craven.

32. Mr. McDonald gave a campaign volunteer, Mr. Milledge, a key to the warehouse. Mr. Milledge made a copy of the key, which he gave to another campaign volunteer, Mr. Durden. Copies of the key may also have been given to others working on Respondent's campaign.

33. A key was not needed to gain access to the warehouse during Craven's business hours. Campaign workers and others who wanted to get into the warehouse to obtain a sign needed only to "knock on the [warehouse] door" and they would be let in by a Craven employee.

34. The campaign did not have a "sign manager" who was in charge of the distribution of signs.

35. Anyone who wanted a 2' x 8' sign could simply go to the warehouse and pick one up.

36. There was no record or log of any kind kept regarding the signs that were picked up and removed from the warehouse.

37. Respondent never went to the warehouse to obtain a sign or for any other purpose.

38. Mr. Bekoff wanted to display Respondent's campaign signs on the sides of Water Taxi's boats (where paid advertising was placed) to express his support of Respondent's candidacy.

39. He did not go to the warehouse to obtain the signs; rather, while in a "group situation," he asked "somebody" whom he believed "would be able to provide them" to get them for him.

40. The record evidence does not clearly and convincingly establish the identity of the person to whom this request was made, nor the connection, if any, this person had to Respondent's campaign (although the record evidence does establish that the person in question was not Respondent,

    Ms. Stern, Mr. McDonald, Mr. Durden, or Mr. Milledge).

    
    

41. The record evidence does not clearly and convincingly establish that Mr. Bekoff told this person that it was his intention to display the signs on the sides of Water Taxi's boats.

42. Sometime after Mr. Bekoff made his request, ten 2' x 8' signs were delivered to Water Taxi's offices, and they were subsequently installed on the sides of Water Taxi's boats.

43. The signs were displayed on Water Taxi's boats for a period of six to eight weeks during the months of July and August of 2004. They were removed from the boats following the primary election, which Respondent won.

44. Mr. Bekoff was not asked by anyone to display Respondent's signs on Water Taxi's boats. It was his own idea.

45. This was not the first time that Mr. Bekoff had displayed, "of [his] own choice" without being asked to do so, the campaign signs of a candidate he supported on Water Taxi's boats. He had done so on "a lot" of occasions.

46. Consistent with his prior practice, Mr. Bekoff did not provide Respondent's campaign with any notice that the signs were being displayed on Water Taxi's boats, nor did he provide the campaign with an estimate of the value of the use of the boats for this purpose.

47. Respondent's campaign treasurer's reports covering the period from July 1, 2004, to August 26, 2004, including amendments thereto (which will be referred to collectively hereinafter as the "Questioned Reports") make no reference to any contributions or expenditures relating to the use of Water Taxi's boats to display Respondent's campaign signs.

48. Respondent's F1 Campaign Treasurer's Report covering the period from July 1, 2004, though July 23, 2004, was filed with the Supervisor of Elections on July 30, 2004. It included a list of itemized contributions and itemized expenditures. No in-kind contributions, nor any contributions from, or expenditures to, either Mr. Bekoff or Water Taxi were listed. The report contained the following certification signed by both Mr. McGrath and Respondent:

    I certify that I have examined this report and it is true, correct and complete.

    
    

49. Respondent's F2 Campaign Treasurer's Report covering the period from July 24, 2004, though August 6, 2004, was filed with the Supervisor of Elections on August 12, 2004. It

    included a list of itemized contributions and itemized expenditures. No in-kind contributions, nor any contributions from, or expenditures to, either Mr. Bekoff or Water Taxi were listed. The report contained the following certification signed by both Mr. McGrath and Respondent:

    I certify that I have examined this report and it is true, correct and complete.

    
    

50. Respondent's F3 Campaign Treasurer's Report covering the period from August 6, 2004, though August 26, 2004, was filed with the Supervisor of Elections on August 30, 2004. It included a list of itemized contributions and itemized expenditures. No in-kind contributions, nor any contributions from, or expenditures to, either Mr. Bekoff or Water Taxi were listed. The report contained the following certification signed by both Mr. McGrath and Respondent:

    I certify that I have examined this report and it is true, correct and complete.

    
    

51. An Amendment to Respondent's F1 Campaign Treasurer's Report, an Amendment to Respondent's F2 Campaign Treasurer's Report, and an Amendment to Respondent's F3 Campaign Treasurer's Report were subsequently filed. No mention was made in these amendments to either Mr. Bekoff, Water Taxi, or any in-kind contribution made by Mr. Bekoff or Water Taxi. Like the original reports, the amendments each contained the following certification signed by both Mr. McGrath and Respondent:

    I certify that I have examined this report and it is true, correct and complete.

    
    

52. At the time she signed the certifications on the Questioned Reports, Respondent believed, in good faith, that the Questioned Reports were "true, correct and complete."

53. On September 23, 2004, Sandra Steen filed with the Commission a "confidential complaint" against Respondent (Steen Complaint). The complaint was submitted on one of the Commission's pre-printed complaint forms. Section 3. of the form read as follows:

    Please state on this form or on additional sheets, the specific facts and actions that you believe are a violation of a provision of Chapters 104, 106, or Section 105.071, Florida Statutes. The Commission has no jurisdiction to investigate other sections of the Florida Elections Code.[6] Also, please include:

    
    

    -the specific section or subsection that you believe was violated,

    -the names, addresses, and telephone numbers of persons you believe may be witnesses, and

    -a copy or picture of all political advertisements you mention in your statement or any other evidence that supports your statement.

    
    

    In this section of the form, Ms. Steen typed in the following:

    
    

    Item One. Mrs. Parrish accepted in-kind contributions in excess of $500 from Water Taxi, Inc. This company contributed $500 to her campaign on April 8, 2003. See attached page from her reports. Water Taxi, Inc. runs 13 boats called the Water Bus. The company sells advertising on the Water Bus for $200 per month per boat sign. Beginning

    in July, 2004 through the election on August 31, 2004, Water Taxi, Inc. had "People for Parrish" signs on each side of at least ten boats. See attached disk containing photographs taken on August 27 and 28 at Water Taxi's home base and at various locations underway. The value of this in kind contribution is 10 boats x 2 signs x 2 months x $200 or $8,000.

    Candidate Parrish's reports do not show th[ese] contributions. Mrs. Parrish must have known about this because of an article in New Times dated August 5, 2004.

    Mrs. Parrish's reports do not show expenditures to Water Taxi, Inc. This violates Section 106.07(4)(a)5 and 106.08(1).

    
    

    Item Two. Mrs. Parrish sent an advertisement stating that her opponent: "MARKHAM JR. is using a GOP-financed dirty tricks committee to LIE about Lori Parrish's record." This accuses Mr. Markham of making expenditur[e]s for his campaign other than through his treasurer contra Sec.

    106.021(3); 104.271.

    
    

54. Respondent did not know or suspect at any time prior to receiving a copy of the Steen Complaint that her campaign signs had been displayed on Water Taxi's boats or that Water Taxi sold advertising space on its boats.

55. In the latter part of July of 2004, Respondent had had a brief telephone conversation about her infant granddaughter, Kaylee, with her daughter-in-law, Yvonne Brown, Kaylee's mother, during which Ms. Brown had related to Respondent that Kaylee had apparently seen one of Respondent's campaign signs on a "little boat" in the Intracoastal Waterway in Fort Lauderdale and that

    Kaylee had reacted by repeatedly saying "nonny," which was what Kaylee had been taught to call Respondent. During this telephone conversation with Respondent, Ms. Brown had not used the words "Water Taxi," nor had she said anything to lead Respondent to believe that "the little boat" that Kaylee had seen was one of Water Taxi's boats.7

56. Some time after receiving a copy of the Steen Complaint, Respondent commenced a thorough and time-consuming investigation of her own into the allegations made in item 1 of the complaint. She did not remember having any forewarning or knowledge concerning the display of her campaign signs on Water Taxi's boats, but she wanted to "dig through everything [she] had," including e-mails and written correspondence, and to speak with campaign workers before unequivocally denying that she had such forewarning or knowledge.8

57. Upon the completion of her investigation, Respondent was confident that, before receiving a copy of the Steen Complaint, she had not known anything about her campaign signs being displayed on Water Taxi's boats and had not engaged in any wrongdoing in connection with such display.

58. The Commission, however, determined that there was probable cause to believe otherwise, and, on June 3, 2005, issued the Order of Probable Cause described above.

59. Ms. Steen had also filed a complaint with the

    Commission against Water Taxi. The complaint was filed on November 15, 2004, and on June 3, 2005, the Commission issued an Order of Probable Cause finding that there was probable cause to charge Water Taxi with the following violations:

    Count 1:

    
    

    During the period from approximately July 1, 2004 through August 30, 2004, Respondent violated Section 106.055, Florida Statutes, by making an in-kind contribution and failing to place a value on the in-kind contribution equal to its fair market value at the time of making such contribution, when Respondent displayed Lori Parrish's campaign signs on its boats.

    
    

    Count 2:

    
    

    During the period from approximately July 1, 2004 through August 30, 2004, Respondent violated Section 106.08(1), Florida Statutes, by making a contribution to a candidate in excess of $500 for each election, when Respondent made an in-kind contribution in the amount of $8,000 by displaying Lori Parrish's campaign signs on its boats.

    
    

60. The case against Water Taxi was resolved by consent order signed by Mr. Bekoff on June 24, 2005, and approved by the Commission on August 26, 2005. The consent order provided that "[t]he Commission staff and Respondent [had] stipulate[d] that all elements of the offenses charged in the Order of Probable Cause c[ould] be proven by clear and convincing evidence," and it contained the following "penalty":

    PENALTY

    
    

    WHEREFORE, based upon the foregoing facts and conclusions of law, the Commission finds that the Respondent has violated the following provisions of Chapter 106, Florida Statutes, and imposes the following fines:

    
    

    1. Respondent has violated Sections 106.055, Florida Statutes, on one occasion by making an in-kind contribution and failing to place a value on the in-kind contribution equal to its fair market value at the time of making such contribution, when Respondent displayed Lori Parrish's campaign signs on its boats. Respondent is fined $500 for Count 1.

       
       

    2. Respondent has violated Section[] 106.08(1), Florida Statutes, on one occasion by making a contribution to a candidate in excess of $500 for each election, when Respondent made an in-kind contribution in the amount of $8,000 by displaying Lori Parrish's campaign signs on its boats. Respondent is fined $1,000 for Count 2.

       
       

61. The charges against Respondent remain unresolved and are the subject of this administrative proceeding.

    CONCLUSIONS OF LAW

    
    

62. Chapter 106, Florida Statutes, contains Florida's "campaign financing" law.

63. "The key features of the campaign financing law are:

    
    

    (1) The candidate shall appoint a campaign treasurer and campaign depository; (2) All contributions and expenditures must go through the campaign depository; and (3) The campaign must file public reports of the contributions and expenditures at the

    times provided by law." Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d 913, 918 (Fla. 3d DCA 2003).

64. "Jurisdiction to investigate and determine violations of . . . [C]hapter [106, Florida Statutes] is vested in the Florida Elections Commission." § 106.25(1), Fla. Stat. The Commission has the authority to impose fines for such violations pursuant to Section 106.265(1), Florida Statutes, which provides as follows:

    The commission is authorized upon the finding of a violation of this chapter 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.

    
    

65. "For the purposes of [C]ommission jurisdiction, a violation [is] the willful performance of an act prohibited

    by . . . [C]hapter [106, Florida Statutes] or the willful failure

    to perform an act required by . . . [C]hapter [106, Florida Statutes]." § 106.25(3), Fla. Stat. "Willful violations" are described in Section 106.37, Florida Statutes, 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.

    
    

    Accordingly, "[n]o fine can be imposed for an inadvertent violation [of Chapter 106, Florida Statutes], nor can any fine be imposed where the defending party was negligent, that is, where the defending party failed 'to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstance . . . .'" Diaz de la Portilla, 857 So. 2d at 917; cf. Harte-Hanks Communications v. Connaughton, 491 U.S.

    657, 688 (1989)("A 'reckless disregard' for the truth, however, requires more than a departure from reasonably prudent conduct. 'There must be sufficient evidence to permit the conclusion that

    the defendant in fact entertained serious doubts as to the truth of his publication.' The standard is a subjective one -- there must be sufficient evidence to permit the conclusion that the defendant actually had a 'high degree of awareness of . . . probable falsity.' As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.")(citations omitted); and Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 342 (3d Cir.

    2005)("Mere negligence does not rise to the level of actual malice, which requires a showing of knowledge or reckless disregard of the publication's falsity.").

66. "There is no vicarious liability under [C]hapter

106. . . . . [A] candidate is not vicariously liable for the acts of the campaign treasurer. In order to impose a fine on the candidate, there must be a determination that the candidate himself is guilty of a willful violation as defined by the statute." Diaz de la Portilla, 857 So. 2d at 917-918. "Willfulness is a question of fact, not law." Guetzloe v. Florida Elections Commission, No. 5D05-4, 2006 Fla. App. LEXIS 3474 *8 (Fla. 5th DCA March 10, 2006). "The execution and filing of [a] statement of candidate [certifying that the candidate has read and understands the requirements of Chapter 106] does not in and of itself create a presumption that any

violation of th[at] chapter . . . is a willful violation as defined in s. 106.37." § 106.23(2), Fla. Stat.

1. The Commission may investigate suspected violations of Chapter 106, Florida Statutes, "only after having received either a sworn complaint or information reported to it by the Division of Elections." § 106.25(2), Fla. Stat. Section 106.25(2), Florida Statutes, further limits the Commission's investigatory authority by providing as follows:

   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.

   
   

   In construing this language used by the Legislature in describing the boundaries of the Commission's investigatory authority, to the extent that there is any ambiguity, it must be resolved against the exercise of such power. See 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.").

2. Section 106.25(4), Florida Statutes, describes what the Commission must do when it receives a sworn complaint or a referral from the Division of Elections. It provides as follows:

   The commission shall undertake a preliminary investigation to determine if the facts alleged in a sworn complaint or a matter initiated by the division constitute probable cause to believe that a violation has occurred. Upon completion of the preliminary investigation, the commission shall, by written report, find probable cause or no probable cause to believe that this chapter or s. 104.271 has been violated.

   
   

   1. If no probable cause is found, the commission shall dismiss the case and the case shall become a matter of public record, except as otherwise provided in this section, together with a written statement of the findings of the preliminary investigation and a summary of the facts which the commission shall send to the complainant and the alleged violator.

      
      

   2. If probable cause is found, the commission shall so notify the complainant and the alleged violator in writing. All documents made or received in the disposition of the complaint shall become public records upon a finding by the commission.

      
      

      In a case where probable cause is found, the commission shall make a preliminary determination to consider the matter or to refer the matter to the state attorney for the judicial circuit in which the alleged violation occurred.

      
      

3. The Legislature has authorized the Commission to adopt rules, consistent with the provisions of Chapter 106, Florida Statutes,9 to carry out the Commission's statutory responsibility to "consider all sworn complaints filed with it and all matters reported to it by the Division of Elections." § 106.26(1), Fla. Stat.

4. Among the rules the Commission has adopted are Florida Administrative Code Rule 2B-1.0025 (which deals with the filing of sworn complaints and the determination of their "legal sufficiency") and Florida Administrative Code Rule 2B-1.0027 (which deals with the investigation of complaints found to be "legally sufficient" for the purpose of determining "probable cause or no probable cause"). These rules provide, in pertinent part, as follows:

   2B-1.0025 Complaints

   
   

   1. Any complaint alleging violations of the Florida Election Code over which the Florida Elections Commission has jurisdiction shall be filed with the Commission. . . .

      
      

   2. Within five working days of receipt of a sworn complaint, the executive director shall send a copy of the complaint to the

      person against whom the complaint was made, the respondent.

      
      

   3. Upon receipt of a complaint, the executive director shall determine whether the complaint is legally sufficient . . . .

      
      

   4. A complaint is legally sufficient if it meets the following criteria.

      
      

      1. The complaint alleges a violation of Chapter 104 or 106 or Section 98.122 or 105.071, Florida Statutes;

         
         

      2. The complaint was made under oath in the presence of a notary public or other person authorized by law to administer oaths;

         
         

      3. The complaint contains the original signature of the complainant;

         
         

      4. The complaint contains specific facts upon which the complainant bases the allegation of a violation of law; and

         
         

      5. The complaint alleges a violation that occurred within two years of the date the complaint is filed with the Commission.

         
         

   5. A complaint is not required to list every section of the Election Code that a respondent could have violated or to specify facts that support every element of the violations alleged.

      
      

   6. If a person files a second complaint against the same person, the executive director shall determine that the second complaint is legally insufficient, if the second complaint alleges violations that are based upon the same facts or allegations that were raised or could have been raised in the first complaint.

      
      

   7. In determining the legal sufficiency of a complaint, the executive director shall

   consider any document referred to in the complaint and any material Commission staff has obtained in prior Commission investigations. In determining the legal sufficiency of a complaint alleging a violation of the campaign finance laws, the executive director shall also consider documents on file with the filing officer.

   
   

   * * *

   
   

   2B-1.0027 Investigation of Complaints; Staff Recommendations; and Probable Cause Determinations.

   
   

   (1) If a complaint is legally sufficient, it shall be investigated by Commission staff. The staff shall investigate all violations specifically alleged in the sworn complaint.

   
   

   * * *

   
   

   1. The individual conducting the investigation shall prepare a report of the results of the investigation, including relevant documents or other evidence gathered during the investigation.

      
      

   2. The staff of the Commission shall make a recommendation of whether there is probable cause or no probable cause in each case.

      
      

   3. All staff recommendations shall be reviewed by the executive director.

   
   

   * * *

   
   

   1. The respondent, the complainant, and their respective counsels shall be permitted to attend the hearing at which the Commission determines probable cause.

      Notice of the hearing shall be sent to the respondent and the complainant at least 14 days before the date of the hearing. The respondent and his or her counsel shall be

      permitted to make a brief oral statement in the nature of oral argument to the Commission before the Commission determines probable cause.

      
      

   2. The Commission's determination of probable cause shall be based upon the complaint, report of investigation, staff recommendations, any written statements submitted by the respondent, and any oral statements made at the probable cause hearing. After the hearing, the Commission shall:

      
      

      1. Issue an order finding probable cause to believe that specific sections of the law have been violated;

         
         

      2. Issue an order finding no probable cause to believe a violation has occurred; or

         
         

      3. Return the matter to Commission staff for additional investigation.

         
         

   3. The Commission clerk shall send a copy of the Commissioner's order determining probable cause or no probable cause to the complainant and the respondent.

      
      

   4. An order of no probable cause shall constitute final agency action.

      
      

   5. Any order of probable cause entered by the Commission shall advise the respondent of the right to a hearing pursuant to Chapter 120, Florida Statutes, and the provisions of Rule 2B-1.004, F.A.C., which allow the Commission to designate a Commissioner or Commissioners to hold hearings involving disputed issues of material fact and hearings not involving disputed issues of material fact.

   
   

   The foregoing rule provisions have the effect of law, and they are not subject to invalidation in this Section 120.57

   substantial interest proceeding. See State v. Jenkins, 469 So. 2d 733, 734 (Fla. 1985)("We note that agency rules and regulations, duly promulgated under the authority of law, have the effect of law."); City of Palm Bay v. Department of

   Transportation, 588 So. 2d 624, 628 (Fla. 1st DCA 1991)("The same principle applies to duly promulgated agency rules, which will be treated as presumptively valid until invalidated in a section 120.56 rule challenge."); and Graham v. Swift, 480 So. 2d 124, 125 (Fla. 3d DCA 1985)("[A] valid rule or regulation of an administrative agency has the force and effect of law.").

5. "When there are disputed issues of material fact in a proceeding conducted under ss. 120.569 and 120.57, a person alleged by the Elections Commission to have committed a violation of [Chapter 106, Florida Statutes] may elect, within

   30 days after the date of the filing of the [C]ommission's allegations, to have a hearing conducted by an administrative law judge in the Division of Administrative Hearings." § 106.25(5), Fla. Stat.

6. If the respondent requests a "hearing pursuant to Chapter 120, Florida Statutes," proof greater than a mere preponderance of the evidence must be submitted at the hearing in order for the Commission to be able to levy a fine against the respondent. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and

   Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine deprives the person fined of substantial rights in property. Administrative fines . . . are generally punitive in nature. . . . Because the imposition of administrative fines . . . are penal in nature and implicate significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted."); Diaz de la Portilla, 857 So. 2d at 917 ("We agree with the administrative law judge that the standard of proof in a case seeking fines under chapter 106 is clear and convincing evidence."); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal . . . proceedings ").

7. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

8. Any fine imposed by the Commission may be based only upon those violations specifically alleged in the order of probable cause served on the alleged violator. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

9. The Commission must not only, as a threshold requirement, prove by clear and convincing evidence each element of the violation alleged (including any scienter element), it must, in addition, clearly and convincingly establish that the violation was a "willful" one, as described in Section 106.37, Florida Statutes (which requires a showing that the violator committed the violation "knowing that, or showing reckless disregard for whether, the act [constituting the violation] [was] prohibited").

10. In determining whether the alleged violator's conduct constituted a violation of Chapter 106, Florida Statutes, as alleged in the Commission's order of probable cause, it must be remembered that, because Chapter 106, Florida Statutes, "is a civil statute of a penal nature, any ambiguity in the

    substantive statute must be construed in favor of the defending party and against the Commission." Diaz de la Portilla, 857 So. 2d at 917.

11. In the Order of Probable Cause issued in the instant case, the Commission alleged that, during her 2004 campaign for Broward County Property Appraiser, Respondent violated Section 106.07(5), Florida Statutes, on six separate occasions "by certifying to the correctness of [six campaign treasurer] report[s] that w[ere] incorrect, false, or incomplete, when she failed to report an in-kind contribution from either Robert Bekoff or Water Taxi, Inc., for displaying her campaign signs on their boats"; and she also "violated Section 106.19(1)(a), Florida Statutes, [on a single occasion] by accepting a contribution in excess of the legal limit, when [she] accepted an in-kind contribution in the amount of $8,000 from either Robert Bekoff or Water Taxi, Inc. for displaying her campaign signs on their boats."

12. It is true, as Respondent has pointed out in seeking dismissal of these charges, that "neither of the statutory [provisions] cited in the Order of Probable Cause [Section 106.07(5), Florida Statutes, and Section 106.19(1)(a), Florida Statutes] are alleged as having been violated in Ms Steen's Complaint as related to Water Taxi's display of [Respondent's] campaign signs on its boats." That Ms. Steen did not specify

    these statutory provisions in her complaint is not fatal to the instant prosecution. Ms. Steen's complaint met the requirements of "legal sufficiency" set forth in Florida Administrative Code Rule 2B-1.0025, and therefore the Commission was acting within the authority delegated to it in Section 106.25, Florida Statutes (which the Commission has interpreted and implemented in Florida Administrative Code Rule 2B-1.0025) in investigating the factual allegations made in the complaint and issuing an Order of Probable Cause based on its investigation. Cf. B. H. v. State, 645 So. 2d 987, 996 (Fla. 1994)("We agree with the district court below that an erroneous reference to a statute in a charging instrument is not fatal to the conviction if the necessary elements of the offense otherwise are properly alleged."); Foss v. State, 834 So. 2d 404, 405 (Fla. 5th DCA 2003)("An erroneous reference to a statute in the information is not fatal to a conviction if the information properly pleads the necessary elements of the offense."); Mosely v. State, 688 So.

    2d 999, 999-1000 (Fla. 2d DCA 1997)("An erroneous reference to the statute in the information is not fatal to conviction if the information properly pleads the necessary elements of the offense."); and Danzy v. State, 603 So. 2d 1320, 1322 (Fla. 1st DCA 1992)("When allegations of fact in an information are sufficient to allege all the elements of an offense, such allegations of fact will ordinarily control over an erroneous

    reference to a statute, so that the reference to section 944.40 in the instant case should be treated as a scrivener's error."). Respondent's dismissal request, therefore, should be denied.

13. "Section 106.07(1), Florida Statutes, requires candidates to file regular reports [prepared by the campaign treasurer] of contributions [received and accepted] and expenditures [made]" by them or their campaigns.10 Shin v. Florida Elections Commission, No. 4D05-123, 2006 Fla. App. LEXIS 2235 *2 (Fla. 4th DCA February 22, 2006).

14. The first sentence of Section 106.07(5), Florida Statutes, which reads as follows, indicates that a candidate is responsible for any inaccuracy in the candidate's report:

    The candidate and his or her campaign treasurer . . . 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.

    
    

    The second sentence of Section 106.07(5), Florida Statutes, "sets forth a substantive offense." It makes it a first degree misdemeanor for a candidate or campaign treasurer to "willfully certif[y] the correctness of any report while knowing that such report is incorrect, false, or incomplete."11 McCarty v. Florida Elections Commission, Nos. 02-3613 and 02-4672, 2003 Fla. Div.

    Adm. Hear. LEXIS 297 *27 (Fla. DOAH May 1, 2003)(Recommended Order). "[I]t is the duty of the candidate to read the

    treasurer's report before signing it, and be alert for any errors which, based on the candidate's own knowledge, appear on the face of the report. Failure to do so results in a violation of subsection 106.07(5) by the filing of an incorrect treasurer's report." Diaz de la Portilla, 857 So. 2d at 921. A candidate, however, does not violate Section 106.07(5), Florida Statutes, by merely failing to "audit" or "double check all of the work of the treasurer" reflected in the report. Id.

15. Section 106.19(1)(a) and (2), Florida Statutes, provide 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:

       
       

       1. Accepts a contribution in excess of the limits prescribed by s. 106.08;

          
          

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

          
          

    2. Any candidate, campaign treasurer, or deputy treasurer; any chair, vice chair, or other officer of any political committee; any agent or person acting on behalf of any candidate or political committee; or any other person who violates paragraph (1)(a), paragraph (1)(b), or paragraph (1)(d) shall be subject to a civil penalty equal to three times the amount involved in the illegal act. Such penalty may be in addition to the penalties provided by subsection (1) and

    shall be paid into the General Revenue Fund of this state.

    
    

    The applicable cap on contributions "prescribed by s. 106.08" (referenced in Section 106.19(1)(a)) is $500. See § 106.08(1)(a), Fla. Stat. ("Except for political parties, no person, political committee, or committee of continuous existence may, in any election, make contributions in excess of

    $500 to any candidate for election to . . . office . . . ."). A candidate cannot be found to "have violated Section 106.19(1)(a), Florida Statutes, without evidence that [the candidate] actually accepted, or was aware that another individual accepted, excessive contributions on behalf of the [candidate]." McCarty v. Florida Elections Commission, No. 01- 195, slip op. at 11-12 (Fla. Elections Commission August 22, 2003)(Final Order).

16. "Contribution," as that term is used in Sections

    
    

    1. and 106.19, Florida Statutes, and elsewhere in Chapter 106, Florida Statutes, is defined in Section 106.011(3), Florida Statutes, as follows:

       "Contribution" means:

       
       

       1. A gift, subscription, conveyance, deposit, loan, payment, or distribution of money or anything of value,[12] including contributions in kind having an attributable monetary value in any form, made for the purpose of influencing the results of an election or making an electioneering communication.

          
          

       2. A transfer of funds between political committees, between committees of continuous existence, or between a political committee and a committee of continuous existence.

          
          

       3. The payment, by any person other than a candidate or political committee, of compensation for the personal services of another person which are rendered to a candidate or political committee without charge to the candidate or committee for such services.

          
          

       4. The transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, and the term includes any interest earned on such account or certificate.

    
    

    Notwithstanding the foregoing meanings of "contribution," the word shall not be construed to include services, including, but not limited to, legal and accounting services, provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or political committee. This definition shall not be construed to include editorial endorsements.

    
    

    An "editorial endorsement," as used in Section 106.011(3), is an unpaid expression of opinion by the person or entity responsible for the publication or broadcast in question (which need not be a "newspaper, radio or television station, or other recognized news medium"13) regarding the candidacy of another. It is to be

    distinguished from a "political advertisement," which is defined in Section 106.011(17), Florida Statutes, as follows:

    "Political advertisement" means a paid expression in any communications media prescribed in subsection (13), whether radio, television, newspaper, magazine, periodical, campaign literature, direct mail, or display or by means other than the spoken word in direct conversation, which expressly advocates the election or defeat of a candidate or the approval or rejection of an issue. However, political advertisement does not include:

    
    

    1. A statement by an organization, in existence prior to the time during which a candidate qualifies or an issue is placed on the ballot for that election, in support of or opposition to a candidate or issue, in that organization's newsletter, which newsletter is distributed only to the members of that organization.

       
       

    2. Editorial endorsements by any newspaper, radio or television station, or other recognized news medium.

    
    

17. "[W]hen a candidate is offered [and accepts] something of value other than money or its equivalent, the initial question the candidate must ask is whether the [accepted] in- kind donation has an 'attributable monetary value in any form.' If so, the candidate must then determine whether the donation is offered for the 'purpose of influencing the results of an election.' If both questions are answered in the affirmative, then the donation is a reportable in-kind contribution under the provisions of Section 106.07, Florida Statutes, and is subject

    to the contribution limits found in Section 106.08, Florida Statutes." Florida Elections Commission v. McGinn, No. 03-001, slip op. at 4 (Fla. Elections Commission August 18, 2004)(Final Order).

18. "Before making an in-kind contribution, an additional statutory obligation is placed upon the contributor. Section 106.055, Florida Statutes, requires that '[a]ny person who makes an in-kind contribution shall, at the time of making such contribution, place a value on such contribution, which valuation shall be the fair market value of such contribution.' The clear implication of this requirement is that until the contributor places a fair market value upon an in-kind contribution, the acceptance of such 'contribution' would place the candidate, at a minimum, in violation of Section 106.07(4)(a)5., Florida Statutes [which requires that the candidate's report contain, among other things, the total amount of in-kind contributions received during the reporting period]. Without a fair market valuation, the candidate would be unable to report the value of the in-kind contribution as required."

    Id. at 4-5. Accordingly, it has been held that "a candidate cannot accept an in-kind contribution unless and until the contributor places a value on the contribution." Id. at 8.

19. The value a contributor assigns an in-kind contribution "must be based upon some reasonable theory of fair

    market value. [A] candidate cannot turn a blind eye to an unreasonably erroneous valuation placed upon a contribution by the contributor. No candidate may knowingly or recklessly participate in any scheme that would violate the provisions of Chapter 106." Id. at 7-8.

20. "A candidate does not have a duty to independently investigate or second-guess an apparently reasonable value placed upon an in-kind contribution by a contributor. Nonetheless, a candidate does have the duty to decline to participate in any scheme that would result in the misreporting of the value of a contribution by accepting the contributor's unreasonable value of the in-kind contribution and the reporting such a value on his campaign report." Id. at 8.

21. A "contribution," as defined in Section 106.011(3), Florida Statutes, is to be distinguished from an "independent expenditure," which is defined in Section 106.011(5), Florida Statutes, as "an expenditure by a person for the purpose of expressly advocating the election or defeat of a candidate or the approval or rejection of an issue, which expenditure is not controlled by, coordinated with, or made upon consultation with, any candidate, political committee, or agent of such candidate or committee."14

22. While, as noted above, it is the responsibility of the candidate (through the candidate's campaign treasurer) to report

    "contributions" received and accepted, the candidate is not responsible, under Chapter 106, Florida Statutes, for reporting any "independent expenditures," regardless of amount, made in support of the candidate's candidacy. Rather, it is the person making the "independent expenditure" who, pursuant to Section 106.071(1), Florida Statutes,15 bears the responsibility of reporting the expenditure (provided, the "expenditure, in the aggregate, is in the amount of $100 or more"; otherwise, there is no duty to report). Furthermore, although, as also noted above, Section 106.08(1)(a), Florida Statutes, limits the amount of "contributions" a candidate can receive and accept from any one person, there is no provision in Chapter 106 imposing a similar restriction on the amount of "independent expenditures" a person can make with respect to a particular candidate.

23. As part of its burden of proof in this matter, the Commission was required, at the final hearing, to show by clear and convincing evidence that the "displaying [of Respondent's] campaign signs on [advertising space on Water Taxi's] boats" constituted "in-kind contribution[s] from either Robert Bekoff or Water Taxi, Inc.," that were "reportable . . . under the provisions of Section 106.07, Florida Statutes" and "subject to the contribution limits found in Section 106.08, Florida Statutes." To have been so, an offer to display the signs on Water Taxi's boats must have been made to and accepted by

    Respondent or by someone acting on her behalf. The record, however, lacks clear and convincing evidence that there was such an offer and acceptance.

24. Mr. Bekoff, Water Taxi's president and owner, whose unilateral decision it was to display the signs, did not treat the use of Water Taxi's boats for that purpose as a donation of advertising space to Respondent's campaign. He provided no notice of valuation (of the type described in Section 106.055, Florida Statutes) to the campaign, nor did he in any other way notify the campaign that he wanted to donate to it advertising space on Water Taxi's boats. Not having done so, Mr. Bekoff never provided the campaign with an opportunity to accept or reject such a donation.

25. Even if the record evidence was considered to be sufficient to establish that the "displaying [of Respondent's] campaign signs on [advertising space on Water Taxi's] boats" constituted "in-kind contribution[s] from either Robert Bekoff or Water Taxi, Inc.," that had been received and accepted by Respondent's campaign, it still could not be said that the allegations made in the Order of Probable Cause that Respondent violated Section 106.07(5), Florida Statutes (on six separate occasions) and Section 106.19(1)(a), Florida Statutes (on one occasion) are supported by clear and convincing record evidence. That is because Respondent affirmatively established, through

    her own credible testimony, along with the corroborating testimony of other witnesses, that at no time prior to receiving a copy of the Steen Complaint did she know or even suspect that her campaign signs were being displayed on Water Taxi's boats.

    Accordingly, even if the displaying of these signs constituted "in-kind contribution[s] from either Robert Bekoff or Water Taxi, Inc.," that were "reportable . . . under the provisions of Section 106.07, Florida Statutes" and "subject to the contribution limits found in Section 106.08, Florida Statutes," Respondent still would not be guilty of violating either Section 106.07(5), as alleged in the first six counts of the Order of Probable Cause, or Section 106.19(1)(a), as alleged in the seventh and final count, inasmuch as she did not have the scienter required to find that she committed these violations.

26. As to the alleged violations of Section 106.07(5), Florida Statutes, Respondent had no knowledge, at the time that she certified the Questioned Reports, that they were incorrect, false, or incomplete. Given this lack of knowledge on Respondent's part, no violation of Section 106.07(5) can be found.

27. As to the alleged violation of Section 106.19(1)(a), Florida Statutes, at all times material to the instant case, Respondent had no knowledge that anyone acting on her behalf had accepted from Mr. Bekoff or Water Taxi in-kind contributions in

    excess of the limits prescribed by Section 106.08, Florida Statutes. Given this lack of knowledge on Respondent's part, no violation of Section 106.19(1)(a) can be found.

28. In view of the foregoing, all counts of the Order of Probable Cause should be dismissed.

RECOMMENDATION

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

RECOMMENDED that the Commission issue a final order dismissing all counts of the Order of Probable Cause.

DONE AND ENTERED this 12th day of May, 2006, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 12th day of May, 2006.

ENDNOTES

1/ The undersigned has accepted these factual stipulations. See Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative,

52 So. 2d 670, 673 (Fla. 1951)("When a case is tried upon

stipulated facts the stipulation is conclusive upon both the trial and appellate courts in respect to matters which may validly be made the subject of stipulation. Indeed, on appeal neither party will be heard to suggest that the facts were other than as stipulated or that any material facts w[ere] omitted"); Schrimsher v. School Board of Palm Beach County, 694 So. 2d 856, 863 (Fla. 4th DCA 1997)("The hearing officer is bound by the parties' stipulations."); and Palm Beach Community College v.

Department of Administration, Division of Retirement, 579 So. 2d 300, 302 (Fla. 4th DCA 1991)("When the parties agree that a case is to be tried upon stipulated facts, the stipulation is binding not only upon the parties but also upon the trial and reviewing courts. In addition, no other or different facts will be presumed to exist.").

2 Her final term on the commission expired midnight the third Tuesday in November of 2004.

3 The agreement did not specify whether this authorization to "display advertising" applied only to advertising by Water Taxi or, rather, extended to advertising by others, including paid advertisements.

4 The record does not reveal any instance where Water Taxi sought the commission's approval of any "proposed advertising."

5 There were approximately 1,000,000 registered voters in the county (out of a total population of 1,900,000).

6 In her Proposed Recommended Order, Respondent contends that "Section three (3) of the form complaint utilized by individuals to commence proceedings with the Commission claiming violations of election laws requires the complainant to allege the specific statutes and/or sub-divisions thereof allegedly violated and specifically states that the Commission does not have jurisdiction to investigate any other sections of the Florida Election Code." The undersigned disagrees with this latter observation. In the undersigned's view, the Commission is stating that it "has no jurisdiction to investigate other sections of the Florida Elections Code" (which, according to Section 97.011, Florida Statutes, is comprised of "Chapters 97-

1. inclusive") aside from those in "Chapters 104, 106, or Section 105.071, Florida Statutes." The Commission is not stating that it "has no jurisdiction to investigate other sections of the Florida Elections Code" aside from those specifically alleged in the complaint.

   
   

   7 There was nothing reckless or irresponsible about Respondent's not having tried, prior to receiving a copy of the Steen Complaint, to obtain a better description of or find more information about the "little boat" Yvonne Brown had mentioned during their conversation. Ms. Brown had called Respondent, not in her capacity as a "paid [campaign] staffer," but rather to tell Respondent that her youngest granddaughter, Ms. Brown's daughter Kaylee, had uttered "nonny" in an apparent response to seeing one of Respondent's campaign signs. That the sign happened to be on a "little boat" was an insignificant detail of no moment.

   
   

   8 Because of her busy schedule, at the time she signed the Affidavit of Background Information that she provided to the Commission in connection with the Steen Complaint (on January 21, 2005), Respondent had not yet completed her investigation. Accordingly, in her affidavit, in response to the question of whether Water Taxi had "communicate[d] or discussed [its] plans with [her] prior to displaying the campaign signs at issue," she gave the equivocal answer that she "may have known that Water Taxi was going to place some signs on [its] boats."

   
   

   Although she had not completed her investigation, she had had an opportunity (as part of her investigation) to speak with Yvonne Brown. After speaking with Ms. Brown, based on what Ms. Brown had told her, Respondent was under the impression that the "little boat" with the campaign sign on it that Ms. Brown had mentioned in her July 2004, telephone conversation with Respondent had been a Water Taxi boat. In her Affidavit of Background Information, Respondent stated that, "[s]ometime in the summer of 2004, [Respondent's] daughter-in-law told [Respondent] she saw one of the [Respondent's campaign] signs on the Water Taxi boat." As she credibly explained at hearing, what Respondent meant by this was that, "[s]ometime in the summer of 2004, [Respondent's] daughter-in-law told [Respondent] she saw one of the [Respondent's campaign] signs" on a boat, which boat, Respondent subsequently learned (in a post-Steen Complaint conversation with her daughter-in-law), was part of Water Taxi's fleet.

   
   

   9 See Cataract Surgery Center v. Health Care Cost Containment Board, 581 So. 2d 1359, 1361 (Fla. 1st DCA 1991)("An agency may not enlarge, modify, or contravene legislative pronouncements.").

   10 Section 106.07(1), Florida Statutes, provides, in pertinent part, that "[e]ach campaign treasurer designated by a candidate . . . pursuant to s. 106.021 shall file regular reports of all contributions received, and all expenditures made, by or on behalf of such candidate "

   
   

   11 Although the Commission is without authority to impose criminal penalties, it is empowered "to impose civil penalties in the form of fines" for willful violations of Chapter 106, Florida Statutes, including conduct, such as that described in the second sentence of Section 106.07(5), Florida Statutes, that also subjects the perpetrator to criminal liability.

   § 106.265(1), Fla. Stat.

   
   

   12 Whether an item is something "of value," within the meaning of Section 106.011(3), Florida Statutes, is measured from the perspective of the candidate, not the contributor. If the item has worth to the candidate, it is something "of value," regardless of whether it has any value to the contributor. See Pasquale v. Florida Elections Commission, 759 So. 2d 23, 25 (Fla. 4th DCA 2000)("We agree with the Commission that the receipt of the copies had to be reported. If Mrs. Pasquale had obtained only one copy of the newsletter and had to print the additional copies herself, that would have resulted in an expense to her campaign. Her campaign did not have to bear that expense because Mr. Carroll contributed the copies to the campaign. They were accordingly something 'of value.'").

   
   

   13 See Pasquale, 759 So. 2d at 26, wherein the Fourth District Court of Appeal stated the following:

   
   

   As to the editorial endorsement itself, the Commission disagreed with the ALJ on the issue of whether the recommendation in the newsletter was exempt. The Commission relied on a different part of the statute, section § 106.011(17), which defines "political advertisement" and excludes "editorial endorsements by any newspaper, radio or television station, or other recognized news medium." The Commission applied the "recognized news medium" language in the political advertisement section of the statute so as to narrow the exclusion in the definition of contributions, which simply excludes all

   "editorial endorsements." Utilizing that narrower definition, the Commission then concluded that Mr. Carroll's newsletter was not "any newspaper, radio or television station, or other recognized news medium."

   
   

   The Commission's use of the "recognized news medium" language in one section of the statute, in order to interpret a different section of the statute which does not contain that language, runs afoul of Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (1995), in which our supreme court stated:

   
   

   "When the legislature has used a term, as it has here, in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded."

   
   

   It would have been a simple matter for the legislature to have worded the exclusions for editorial endorsements identically, but it did not. This differentiation must be assumed to be intentional. Myers v.

   Hawkins, 362 So. 2d 926 (Fla. 1978). Our lenity statute, section 775.021(1), provides that "offenses" defined by any Florida statutes must be construed most favorably to the offender if the language is susceptible of different meanings. Accordingly, any ambiguity in the meaning of "editorial endorsement" in this penal statute must be construed in favor of Mr. Pasquale.

   Whitaker v. Department of Ins., 680 So. 2d

   528 (Fla. 1st DCA 1996). Applying that principle we agree with Mr. Pasquale that the recommendation in the newsletter was an "editorial endorsement," under section 106.011(3)(a), and that there was no violation in that regard.

   
   

   14 "[T]he United States Supreme Court has also recognized clear distinctions between contributions and independent expenditures." Doe v. Mortham, 708 So. 2d 929, 936 (Fla.

   1998)(Harding, J., dissenting), citing Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-60 (1986) and Buckley v. Valeo, 424 U.S. 1, 20-22

   (1976).

   
   

   15 Section 106.071(1), Florida Statutes, provides as follows:

   
   

   Each person who makes an independent expenditure with respect to any candidate or issue, and each individual who makes an expenditure for an electioneering communication which is not otherwise reported pursuant to this chapter, 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, subject to the same penalties, 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 the person making the expenditure; 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; the issue to which the expenditure relates; and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made.

   
   

   COPIES FURNISHED:

   
   

   Charles A. Finkel, General Counsel Florida Elections Commission Collins Building, Suite 224

2. West Gaines Street Tallahassee, Florida 32399-1050

Michael W. Moskowitz, Esquire

Moskowitz, Mandell, Salim & Simowitz, P.A. 800 Corporate Drive, Suite 500

Fort Lauderdale, Florida 33334

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.

Docket for Case No: 05-002493

Orders for Case No: 05-002493