STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 06-3956

)

MICHELLE SPENCE-JONES, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

On January 16, 2007, Michelle Spence-Jones filed a Motion to Dismiss Proceeding for Lack of Jurisdiction or for Summary Final Order, together with one exhibit. The undersigned has authority only to make a recommendation to the Florida Elections Commission and, therefore, the motion is considered a motion for a recommended order of dismissal.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

For Respondent: Carlos L. de Zayas, Esquire

Lydecker, Lee, Behar, Berga & de Zayas, L.L.C.

1201 Brickell Avenue, Suite 200

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue for determination is whether Ms. Spence-Jones committed the offenses set forth in the Order of Probable Cause, filed September 1, 2006, and, if so, what action should be taken.

PRELIMINARY STATEMENT

The Florida Elections Commission (FEC) received a sworn complaint against Ms. Spence-Jones from Richard Dunn on or about January 20, 2006, involving an election for a seat on the Miami City Commission in the November 2005 election. Mr. Dunn’s sworn complaint was investigated by an investigator of the FEC. The staff of the FEC made a Staff Recommendation, recommending probable cause for the following: two counts of violating Section 106.12(3), Florida Statutes; three counts of violating Section 106.143(1)(a), Florida Statutes; two counts of violating Section 106.1439(1), Florida Statutes; and one count of violating Section 106.19(1)(d), Florida Statutes. The Staff Recommendation also recommended no probable cause for the following: violating Sections 104.061(2), 104.271(2), and 106.15(3), Florida Statutes. The FEC issued an Order of Probable Cause on the following violations: Counts 1 and 2— violating Section 106.12(3), Florida Statutes; Counts 3, 4, and 5—violating Section 106.143(1)(a), Florida Statutes; Counts 6 and 7—violating Section 106.1439(1), Florida Statutes; and Count

8—violating Section 106.19(1)(d), Florida Statutes. Further, in the Order of Probable Cause, the FEC stated that no probable cause was found on the following statutory provisions: Sections 104.061(2), 104.271(2), and 106.15(3), Florida Statutes.

Ms. Spence-Jones disputed the Order of Probable Cause and requested a hearing. On October 12, 2006, this matter was referred to the Division of Administrative Hearings.

This matter is scheduled for hearing to be held on February 28 through March 2, 2007. On January 16, 2007,

Ms. Spence-Jones filed a Motion to Dismiss Proceeding for Lack of Jurisdiction or for Summary Final Order, together with one exhibit. On January 24, 2007, FEC filed a Response in Opposition, together with five exhibits.1

Ms. Spence-Jones’ Motion to Dismiss Proceeding for Lack of Jurisdiction or For Summary Final Order is considered a motion for a recommended order of dismissal. Essentially,

Ms. Spence-Jones seeks dismissal of this matter on the basis that FEC found probable cause on violations that were not asserted in the sworn complaint, that FEC’s enabling statute prohibits FEC from finding probable cause and seeking penalties on violations not asserted in a sworn complaint, and that, therefore, this proceeding should be dismissed for lack of jurisdiction. The record in this matter is considered in resolving this motion.

A basic tenant of law is that in addressing motions to dismiss, allegations of a complaint must be accepted as true and in the light most favorable to the complainant. Fox v.

Professional Wrecker Operators of Florida, Inc., 801 So. 2d 175,

178 (Fla. 5th DCA 2001); City of Gainesville v. State Department

of Transportation, 778 So. 2d 519, 522 (Fla. 1st DCA 2001). Consequently, the allegations in FEC’s Order of Probable Cause must be taken as true and in the light most favorable to FEC.

FINDINGS OF FACT

1. FEC received a sworn complaint against Ms. Spence-Jones from Mr. Dunn on or about January 20, 2006.

2. Mr. Dunn alleged the following in his sworn complaint:

   
   

   Michelle Spence-Jones violated F.S. 104.271 with false and malicious charges against and about me on November 26, 27, 28, & 29th [sic] with thousands of campaign literature distributed to residents in the City of Miami, District 5. Along with a radio commercial with slander on radio stations

   . . . in Miami on November 29th election day by her campaign manager/advisor . . .

   
   

   The Michelle Spence-Jones campaign paid for individuals to vote for Michelle

   Spence-Jones $50 per vote! . . . F.S.

   104.061. The City of Miami, Manager . . . violated F.S. 104.31 as documented in the Miami New Times article attached.

   
   

   Affidavits, campaign literature, and photograph were attached to the sworn complaint.

3. Mr. Dunn’s sworn complaint asserted factually specific violations that Ms. Spence-Jones, in her campaign literature that was distributed on dates certain, made false and malicious charges against and about him; that, on election day, radio commercials by her campaign manager/advisor contained slander; that her campaign paid individuals to vote for her; and that the City of Miami’s Manager violated a specified statutory provision as documented in a news article, attached to his sworn complaint. Further, his sworn complaint cited statutorily specific violations for the factually specific violations— Sections 104.271, 104.061, and 104.31, Florida Statutes.

4. An investigator with FEC investigated Mr. Dunn’s sworn complaint. After the investigation, a Staff Recommendation was prepared.

5. The Staff Recommendation was submitted to FEC. The Staff Recommendation recommended that probable cause be found for the following: two counts for violating Sections 106.12(3), Florida Statutes; three counts for violating Section 106.143(1)(a), Florida Statutes; two counts for violating Section 106.1439(1), Florida Statutes; and one count for violating Section 106.19(1)(d), Florida Statutes. Further, the Staff Recommendation recommended that no probable cause be found for the following: violating Sections 104.061(2),104.271(2), and 106.15(3), Florida Statutes.

6. On September 1, 2006, FEC filed an Order of Probable Cause finding probable cause to charge Ms. Spence-Jones with the following:

   Count 1:

   On or about November 28, 2005, [she] violated Section 106.12(3), Florida Statutes, prohibiting a person from spending petty cash on unauthorized items, when [she] spent $22,910 to pay campaign workers with cash.

   
   

   Count 2:

   On or about November 28, 2005, [she] violated Section 106.12(3), Florida Statutes, prohibiting a person from spending petty cash on unauthorized items, when [she] spent $1,090.75 cash for food and other supplies to several vendors.

   
   

   Count 3:

   Between November 23 and November 29, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the ad “Will a man rob God?” on the radio without the proper disclaimer.

   
   

   Count 4:

   Between November 23 and November 29, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the ad “Michelle Spence-Jones is a strong black woman...” on the radio without the proper disclaimer.

   
   

   Count 5:

   On or about November 26, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the flyer

   “Don’t Gamble on Rev. Richard Dunn” without the proper disclaimer. (Exhibit 15 attached to Report of Investigation).

   
   

   Count 6:

   Between November 23 and November 29, 2005, [she] violated Section 106.1439(1), Florida Statutes, by failing to mark prominently the electioneering communication with the correct disclaimer, when she published the ad stating, “... Again, I’m Michelle Spence- Jones, candidate for City of Miami Commission District Five. Happy Thanksgiving. May God continue to bless you and keep you well...” without any disclaimer.

   
   

   Count 7:

   Between November 23 and November 29, 2005, [she] violated Section 106.1439(1), Florida Statutes, by failing to mark prominently the electioneering communication with the correct disclaimer, when she published the ad stating, “...I’m Michelle Spence-Jones, candidate for City of Miami Commission District Five. As we recover from this year’s hurricane season, we were encouraged by the kindness of others who have given to their neighbors in their time of need...” without any disclaimer.

   
   

   Count 8:

   On or about November 28, 2005, [she] violated Section 106.19(1)(d), Florida Statutes, by making or authorizing an expenditure prohibited by Chapter 106, Florida Statutes, when [she] authorized her campaign treasurer to spend $24,000 to pay campaign workers and to purchase food with cash and subsequently ratified those cash expenditures by signing the 2005 termination report.

7. Further, the Order of Probable Cause found no probable cause to charge Ms. Spence-Jones with the following:

   Section 104.061(2), Florida Statutes, prohibiting a person from giving or promising anything of value to a person intending to buy that person’s or another’s vote or to corruptly influence that person or another in casting his vote;

   
   

   Section 104.271(2), Florida Statutes, prohibiting a candidate from making false and defamatory factual statements with malice about an opposing candidate; and

   
   

   Section 106.15(3), Florida Statutes, prohibiting a candidate from using the services or any municipal officer or employee during working hours for furthering her candidacy for nomination or election to public office.

   
   

8. Ms. Spence-Jones disputed the Order of Probable Cause and requested a hearing before the Division of Administrative Hearings.

9. On January 16, 2007, Ms. Spence-Jones filed a Motion to Dismiss Proceeding for Lack of Jurisdiction or for Summary Final Order, together with one exhibit. On January 24, 2007, FEC filed a Response in Opposition, together with five exhibits.

   CONCLUSIONS OF LAW

   
   

10. Ms. Spence-Jones’ Motion to Dismiss Proceeding for Lack of Jurisdiction or For Summary Final Order is considered a motion for a recommended order of dismissal.

11. Section 106.25(2), Florida Statutes (2005), is applicable in the instant case and provides:

    1. The commission shall investigate all violations of this chapter and chapter 104, but only after having received either a sworn complaint or information reported to it under this subsection by the Division of Elections. Any person, other than the division, having information of any violation of this chapter or chapter 104 shall file a sworn complaint with the commission. 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. Such sworn complaint shall state whether a complaint of the same violation has been made to any state attorney. Within

       5 days after receipt of a sworn complaint, the commission shall transmit a copy of the complaint to the alleged violator. All sworn complaints alleging violations of the Florida Election Code over which the commission has jurisdiction shall be filed with the commission within 2 years after the alleged violations. The period of limitations is tolled on the day a sworn complaint is filed with the commission.

       
       

12. Section 106.25(2), Florida Statutes (2005), contains an express restriction on FEC’s ability to investigate a sworn complaint—to investigate “only those alleged violations specifically contained within the sworn complaint.” In 2004,

    the Florida Legislature amended Section 106.25, Florida Statutes, to add this restriction.

13. The Second District Court of Appeal in Jennings v.

    
    

    Florida Elections Commission, 932 So. 2d 609 (Fla. 2nd DCA 2006) addressed the new restriction in Section 106.25(2), Florida Statutes (2004), added by the Florida Legislature. The undersigned will address only those aspects of Jennings, supra, that are pertinent to the case at hand. As background, a sworn complaint was filed against Jennings, who was a candidate, for alleged violations of the Florida campaign finance laws. FEC filed an Order of Probable Cause and subsequently, an Amended Order of Probable Cause finding probable cause for several violations asserted and not asserted in the sworn complaint, resulting in 56 counts of violations. Jennings requested a hearing before the Division of Administrative Hearings. Before the hearing, he moved for dismissal of several of the 56 counts arguing that the allegations did not arise out of the sworn complaint and that FEC lacked authority to investigate those allegations not asserted in the sworn complaint. The administrative law judge (ALJ) reserved ruling on Jennings’ motion and held a hearing. After the hearing, but before the ALJ issued a recommended order, the Florida Legislature amended Section 106.25, Florida Statutes, adding the restrictive language. The ALJ issued a Recommended Order granting the

    motion to dismiss on the counts indicated in the motion and made no findings on the factual question as to whether Jennings was guilty of the violations alleged in the dismissed counts; and finding that FEC had proven the remaining counts. In its Final Order, FEC concluded that the ALJ had erred in granting Jennings’ motion to dismiss the counts indicated in the motion; reinstated the counts; and found that Jennings had violated all of the 56 counts. Jennings appealed FEC’s Final Order.

14. Pertinent to the case at hand, the Second District Court of Appeal in Jennings, supra, determined that the “amendment effectively restricted the jurisdiction of the Commission [FEC]. By its use of the word ‘investigate’ in the amendment, the legislature did not refer merely to a discrete aspect of a Commission [FEC] proceeding; rather, the term was employed in a broader sense, addressing the Commission’s power to act in any way in respect to a violation that is not asserted in a complaint. This must be so because it is self-evident that the Commission [FEC] cannot proceed on any violation without first investigating it.” Id. at 612. The Second District Court of Appeal held, among other things, that FEC lost jurisdiction to proceed with the counts indicated in Jennings’ motion to dismiss at the effective date of the amendment.

15. In the instant case, the only violations asserted in Mr. Dunn’s sworn complaint are violations of Sections 104.061(2), 104.271(2), and 106.15(3), Florida Statutes (2005).

16. Section 104.061, Florida Statutes (2005), provides in pertinent part:

    1. No person shall directly or indirectly give or promise anything of value to another intending thereby to buy that person's or another's vote or to corruptly influence that person or another in casting his or her vote. . . .

       
       

17. Section 104.271, Florida Statutes (2005), provides in pertinent part:

    1. Any candidate who, in a primary election or other election, with actual malice makes or causes to be made any statement about an opposing candidate which is false is guilty of a violation of this code. An aggrieved candidate may file a complaint with the Florida Elections Commission pursuant to s. 106.25. . . .

       
       

18. Section 106.15, Florida Statutes (2005), provides in pertinent part:

    (3) A candidate may not, in the furtherance of his or her candidacy for nomination or election to public office in any election, use the services of any state, county, municipal, or district officer or employee during working hours.

    
    

19. FEC determined in its Order of Probable Cause that no probable cause existed to charge Ms. Spence-Jones with violating

    Sections 104.061(2), 104.271(2), and 106.15(3), Florida Statutes

    
    

    (2005).

    
    

20. FEC found probable cause for violations that were not asserted in Mr. Dunn’s sworn complaint. Consequently, in accordance with Jennings, supra, FEC had no jurisdiction for any other violations because no other violations were asserted in Mr. Dunn’s sworn complaint. § 106.25(2), Fla. Stat. (2005).

21. Further, unlike Jennings, supra, where the Amended Order of Probable Cause found probable cause for violations both asserted and not asserted in the sworn complaint and the ALJ held a hearing and afterwards issued a Recommended Order, among other things, dismissing the violations not asserted in the sworn complaint, in the instant case, the Order of Probable Cause found no probable cause for the violations asserted in the sworn complaint. Therefore, to conduct a hearing and, subsequently, determine that this proceeding should be dismissed would not serve a useful purpose, would be a waste of the resources of all concerned and would not be economically prudent.

22. The hearing scheduled for February 28 through March 2, 2007 is canceled.

RECOMMENDATION

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

RECOMMENDED that the Florida Elections Commission enter a final order dismissing the Order of Probable Cause, Counts one through eight, for lack of jurisdiction.

DONE AND ENTERED this 21st day of February, 2007, in

Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 21st day of February, 2007.

ENDNOTE

1/ FEC’s Response in Opposition included a response to

Ms. Spence-Jones’ motion for protective order. The motion for protective order was ruled upon by separate order.

COPIES FURNISHED:

Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Carlos L. de Zayas, Esquire Lydecker, Lee, Behar,

Berga & de Zayas, L.L.C.

1201 Brickell Avenue, Suite 200

Miami, Florida 33131

Barbara M. Linthicum, Executive Director Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Pasty Rush, Agency Clerk Florida Elections Commission 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: 06-003956

Orders for Case No: 06-003956