STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on March 18, 2010, in Orlando, Florida.

APPEARANCES

For Petitioner: Joshua B. Moye, Esquire

Florida Elections Commission The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

For Respondent: Michael D. Jones, Esquire

Michael D. Jones and Associates, P.A. Post Office Box 196130

Winter Springs, Florida 32719-6130 STATEMENT OF THE ISSUES

Whether Respondent, Jean M. Hovey, willfully violated Subsection 106.143(1)(a), Florida Statutes (2008), as alleged in

the Order of Probable Cause dated August 26, 2009, and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On October 30, 2008, Petitioner, Florida Elections Commission, received a sworn complaint alleging that Respondent, Jean M. Hovey, had violated Florida's election laws. Subsequent to an investigation of the allegations, Petitioner, on

August 26, 2009, filed an Order of Probable Cause, finding probable cause to believe that Respondent had violated Subsection 106.143(1)(a), Florida Statutes (2008).

On September 28, 2009, Petitioner forwarded a request for formal administrative hearing in accordance with Subsection 106.25(5), Florida Statutes (2008). On September 29, 2009, the Division of Administrative Hearings received Petitioner's transmittal of the request for formal administrative hearing.

On the same day, an Initial Order was sent to both parties.

On November 13, 2009, the case was scheduled for final hearing in Orlando, Florida, on January 5, 2010. On

December 30, 2009, Petitioner requested a continuance, and the case was rescheduled for March 18, 2010. The final hearing took place as rescheduled.

Petitioner presented the testimony of Respondent, Robert S. Miller, and Denise Ryser. Respondent presented the same witnesses. The parties jointly stipulated to the admission of

ten exhibits marked as Petitioner's Exhibits 1 through 10. Respondent presented a packet of 32 exhibits which actually were

35 exhibits. They were numbered 1 through 5, 7 through 18, 18a, 18b, 19 through 22, 22a, 23 through 31, 32 and 32 (there were two 32s). These documents were admitted into evidence and marked accordingly.

By agreement, proposed final orders were due 21 working days after the filing of the transcript. The Transcript of Proceedings was filed on March 29, 2010. On April 13, 2010, the parties filed an Agreed Motion for Extension of Time to File Proposed Final Orders. An Order Granting Extension of Time was entered on April 13, 2010, giving the parties until May 3, 2010, to file proposed final orders. Both parties timely filed Proposed Final Orders.

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

FINDINGS OF FACT

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

1. Respondent was a candidate for Winter Springs, Florida, city commission in 2008.

2. Respondent was a first-time candidate for public office. She evidenced her decision to enter the city commission race by qualifying on August 28, 2008, one day prior to the

   deadline to qualify. A component of qualifying is the candidate's assertion that they have read and understand the requirements of Chapter 106, Florida Statutes. As a result of her late filing, Respondent had only five or six weeks to actively campaign.

3. Responding to the advice of volunteer advisors, on September 4, 2009, Respondent hired Denise Ryser to manage her campaign. Ms. Ryser had previously managed a successful city commission race and was managing two other Winter Springs city commission races. Ms. Ryser was qualified to manage a city commission campaign.

4. Ms. Ryser's initial focus was to prepare a campaign mailer. It was important that the mailer be presented to the voters as quickly as possible. Respondent provided the biographical information for the mailer; Ms. Ryser did the graphics, layout, color selection, and the "marketing" of the mailer.

5. Several layouts/mock-ups of the mailer were prepared by Ms. Ryser and submitted to Respondent for approval. Each layout/mock-up submitted to Respondent contained the

   statutorily-mandated disclaimer. Subsection 106.143(1)(a), Florida Statutes, requires that:

   Any political advertisement that is paid for by a candidate and that is published, displayed, or circulated prior to, or on the

   day of, any election must prominently state: "Political advertisement paid for and approved by (name of candidate), (party affiliation), for (office sought)."

   
   

6. After Respondent finally approved what she believed to be the final layout/mock-up, Ms. Ryser, on September 19, 2008, electronically forwarded a layout/mock-up to a printer in Miami. Inexplicably, the layout/mock-up forwarded by Ms. Ryser did not contain the statutorily-mandated disclaimer. This failure was attributed to a transmission error.

7. Because Ms. Ryser perceived a need for "handouts" to be distributed by Respondent at personal appearances, Ms. Ryser, on the same day, September 19, 2008, ordered 100 additional mailers from a local printer. These mailers contained the statutorily- mandated disclaimer.

8. When the Miami printer returned the mailers to

   
   

   Ms. Ryser, without further examining the mailers, she took them directly to a "mail-house" in Winter Park, Florida, to be mailed to 11,000 registered Winter Springs, Florida, voters. They were mailed on October 2, 2008. Respondent did not receive a mailer, as she was not on the mailing list.

9. Ms. Ryser received a mailer at her home on Saturday, October 3, 2008. It was not until Sunday, October 4, 2008, that she noticed the absence of the statutorily-mandated disclaimer.

10. Ms. Ryser immediately called Michael Ertel, Seminole County, Florida, supervisor of elections, and advised him of the error.

11. Mr. Ertel did not testify. However, the parties stipulated that he would have testified that he advised

    Ms. Ryser to remail the mailer with the proper disclaimer and destroy the remaining mailers without the disclaimer. On Monday, October 6, 2008, Ms. Ryser discarded the mailers in her possession. At Ms. Ryser's direction and paid for by her, the mail-house printed the appropriate disclaimer on the remaining 3,000 mailers in its possession and mailed them to voters.

12. On Tuesday, October 7, 2008, Respondent attended a candidates' night at Highland's in Winter Springs, and mailers were available to the public at this event. Unrefuted testimony indicates that Respondent's mailers, without the statutorily- mandated disclaimer, were available to the public at this meeting.

13. Respondent did not learn that the mailers did not have the statutorily-mandated disclaimer until October 8, 2008, when she and her volunteer campaign advisors confronted Ms. Ryser about the error.

14. Ms. Ryser acknowledged that the failure to include the statutorily-mandated disclaimer was her error and that Respondent was unaware of the error until October 8, 2008.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. §§ 106.25(5), 120.57(1), and 120.569, Fla. Stat. (2009).

16. In 2007, the Florida Legislature repealed Section 106.37, Florida Statutes (2006), which contained a definition of "willfulness" for purposes of Chapter 106, Florida Statutes.

17. Contemporaneous with the repeal of Section 106.37, Florida Statutes (2006), the same legislation amended Subsection 106.25(3), Florida Statutes, to provide that willfulness is "a determination of fact." Subsection 106.25(3), Florida Statutes, currently provides:

    (3) For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or chapter 104 or the willful failure to perform an act required by this chapter or chapter 104. Willfulness is a determination of fact; however, at the request of the respondent, willfulness may be considered and determined in an informal hearing before the commission. (Emphasis added.)

    
    

18. Florida Administrative Code Rule 2B-1.002,1 which provides:

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

    
    

    1. A person acts "willful" or "willfully" when he or she knew that, or showed reckless disregard for whether his or

       her conduct was prohibited or required by Chapter 104 or 106, F.S.

       
       

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

       
       

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

       
       

19. In its Order of Probable Cause dated August 26, 2009, Petitioner charged Respondent with the following violations of Chapter 106, Florida Statutes:

    Count 1:

    
    

    On or about October 3, 2008, Respondent violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement that she paid for and published with the correct disclaimer, when she published a palm card mailer entitled "Jean Hovey A Lifetime of Leadership" that failed to contain the following disclaimer: "Political advertisement paid for and approved by Jean Hovey, for Winter Springs City Commission."

    
    

    Count 2:

    
    

    On or about October 7, 2008, Respondent violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement that she paid for and published with the correct disclaimer,

    when she distributed a palm card at the Highlands Homeowners Association entitled "Jean Hovey A Lifetime of Leadership" that failed to contain the following disclaimer: "Political advertisement paid for and approved by Jean Hovey, for Winter Springs City Commission."

    
    

20. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Petitioner has the burden of proof. Department of Banking and Finance v. Osborne Stern and Company, 670. So. 2d 932, 934 (Fla. 1996); Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

21. The standard of proof imposed on Petitioner is to establish the essential elements of a violation by clear and convincing evidence. Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d 913 (Fla. 3rd DCA 2003). Petitioner must establish by clear and convincing evidence that Respondent willfully violated the particular statute alleged.

22. As noted by the Florida Supreme Court:

    
    

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in mind of the trier of fact a firm belief or

    conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re: Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

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

    Any political advertisement that is paid for by a candidate and that is published, displayed, or circulated prior to, or on the day of, any election must prominently state: "Political advertisement paid for and approved by (name of candidate), (party affiliation), for (office sought)."

    
    

24. Respondent's campaign, in the person of the campaign manager, Ms. Ryser, published a mailer that failed to contain the statutorily-mandated disclaimer. Ms. Ryser had the requisite experience in managing city commission campaigns. Respondent cannot be faulted for relying on her.

25. In addition, Respondent reviewed what she thought was the final proof of the mailer which contained the statutorily- mandated disclaimer. Respondent, once she places an experienced person in a position of responsibility in the campaign, cannot be expected to double-check on all the work performed by that individual. Diaz de la Portilla v. Florida Elections Commission, supra.

26. The evidence presented clearly indicates that Respondent was not aware that the mailer did not have the

    statutorily-mandated disclaimer until several days after the publication.

27. Respondent did not willfully violate Subsection 106.143(1)(a), Florida Statutes, as alleged. She did not knowingly perform any act prohibited by the statute, nor was her conduct in any way reckless as it relates to the publication of the offending mailer.

ORDER

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

ORDERED that Respondent, Jean M. Hovey, has not violated Chapter 106, Florida Statutes, as alleged in Petitioner's Order of Probable Cause.

DONE AND ORDERED this 1st day of June, 2010, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2010.

ENDNOTE

1/ This Rule was in effect at the time of the alleged impropriety, but has since been declared invalid.

COPIES FURNISHED:

Eric M. Lipman, Acting Executive Director Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Patricia Rushing, Clerk Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Michael D. Jones, Esquire

Michael D. Jones and Associates, P.A. Post Office Box 196130

Winter Springs, Florida 32719-6130

Joshua B. Moye, Esquire Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Administrative Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Administrative Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 09-005319

Orders for Case No: 09-005319