The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to recover attorney's fees and costs incurred as a result of prevailing in the underlying case of Florida Elections Commission vs. Catherine King, Case No. 98-1256, Final Order entered December 11, 1998, based on the authority of Section 57.111, Florida Statutes.
Findings Of Fact This proceeding commenced when the Respondent entered an Order of Probable Cause on November 7, 1997. The Petitioner herein requested a formal hearing on the allegations upon which the agency had found probable cause. The formal hearing was held in the above-referenced underlying case (98-1256) on July 10, 1998. A Recommended Order was thereafter entered finding that the Petitioner had not committed any of the election law violations that Respondent herein had alleged in its order of probable cause. Thereafter, on December 11, 1998, the Respondent entered a Final Order by which it adopted the Recommended Order in Case No. 98-1256, in its entirety. In that Final Order, the Respondent "accepted the Findings of Fact, Conclusions of Law and Recommendation" of the Administrative Law Judge. The Petitioner, Catherine King, was the prevailing party (Respondent) in the underlying action which had been initiated by the Florida Elections Commission, the Respondent in this proceeding. Neither party has appealed the Respondent's Final Order in Ms. King's favor and indeed it is undisputed that she is a "prevailing party." The Respondent was not merely a nominal party in that underlying case. There are no existing circumstances which would make an award of attorney's fees and costs unjust in this action and indeed the Respondent herein has agreed that that is the case. The attorney's fees and costs which the Petitioner incurred in the underlying proceeding total $8,109.20. There is no dispute that they are reasonable. The Petitioner actually expended that amount for fees and costs. The attorney's fees incurred by the Petitioner in this proceeding through April 9, 1999, are in the amount of $1,440.00. Those fees are shown to be reasonable. The Petitioner has paid some of the fees but has not yet been billed for all of the fees incurred during the month of April, 1999. The Petitioner was the sole proprietor of an unincorporated business located in Walton County, Florida, and she herself was domiciled in Walton County, Florida, at the time the underlying action was initiated by the Respondent agency. Her business is known as "Quick Retrieval." It is unincorporated and had less than twenty-five employees and a net worth of less than two million dollars including both the Petitioner's business and personal investments at the time the action was initiated by the Respondent. Indeed its only employee is the Petitioner. It has not been established that the Petitioner is a "small business party" for purposes of Section 57.111(3)(d)1.a. and b., Florida Statutes, however. Although proof offered by the Petitioner at hearing established that she has a "small business" and, as found above, it meets the employee compliment and net worth threshold requirements in order to recover attorney's fees under the Florida Equal Access to Justice Act (Section 57.111, Florida Statutes), it has not been demonstrated that the Petitioner is a prevailing small business party. Although the Petitioner demonstrated that she had an unincorporated business of which she is the sole proprietor, the Petitioner's proof does not establish that the action initiated by the agency, from which she seeks to recover fees and costs, was initiated against her as the proprietor of a small business. Rather, that action, the probable cause order issued by the Respondent, Florida Elections Commission, was against her in her personal capacity as an office holder or one seeking to hold office as Clerk of the Court in Walton County. The action was the agency's attempt to re-dress what it had alleged was an election law violation by the Petitioner personally. The action initiated by the agency in the underlying case had nothing to do with the Petitioner's capacity as the proprietor of a small business. For instance, no license of that business was in jeopardy by the Respondent agency's action and none of the facets of the operation of the Petitioner's business was in any way jeopardized or subjected to any potential fine, penalty or sanction by the action initiated by the agency in the underlying case. The Petitioner's business was not a party to nor in anyway related to the subject matter of the underlying proceeding pertaining hereto. The Petitioner offered no evidence to indicate that her participation in the underlying proceeding was as the sole proprietor of an unincorporated business party to the subject action. That is, it was not the activities of the business which were in question. Thus, that element necessary to recovery of an attorney's fee, pursuant to Section 57.111, Florida Statutes, has not been proven. 1/
The Issue Whether Respondent, Arlene Schwartz, willfully violated Subsection 104.31(1)(a), Florida Statutes, which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office, or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, entire Transcript of Proceedings, and the facts admitted in the Joint Pre-hearing Stipulation, the following findings of fact are made: Respondent, Arlene Schwartz, as Mayor of the City of Margate, Florida, was a municipal officer on October 27, 2000, when she wrote a letter signed by her as Mayor, Margate, Florida, on official City of Margate stationery, endorsing Howard Forman for Clerk of Court, Broward County, Florida. Respondent has 10 years of experience as a candidate, elected official or member of municipal boards. Eugene Steinfeld was City Attorney, City of Margate, for 24 years; as such he gave advice to the Mayor and Commissioners of the City of Margate about their responsibilities under the Florida Ethics Code and Elections Laws. In 1994, in his capacity as City Attorney, Mr. Steinfeld authored a City of Margate Resolution which authorized the Mayor, Vice Mayor and City Commissioners "to use a facsimile of the official seal of the City of Margate in correspondence, promotion, or advertising when they are promoting the City of Margate. " On January 24, 2000, in his capacity as City Attorney, Mr. Steinfeld sent an inter-office memorandum to Respondent and others advising "there is no prohibition for endorsing a candidate for City Commission by another candidate for City Commission . . . ; it is only where a candidate expends money for another candidate or contributes things of value to another candidate that is prohibited, pursuant to FS. 104.071." In September 2000, Mr. Steinfeld had a conversation with Respondent wherein she asked if she would be permitted to endorse a candidate for a board position in a development district. In advising her that she could, he recalled saying, "You do not lose your freedom of speech when you become an elected official." On October 23, 2000, Respondent attended a meeting of the Margate Democratic Club where Howard Forman, a candidate for Clerk of Court, Broward County, spoke. As a State Senator, Mr. Forman had assisted the City of Margate even though Margate was not in his Senate District. Respondent orally endorsed Mr. Forman at the meeting and offered her assistance. On October 25, 2000, Respondent's office received a telephone call from Iris Siple who worked in Mr. Forman's campaign. Respondent returned the call on October 26, 2000, and was asked to write a letter endorsing Mr. Forman on city stationery. The letter was written on October 27, 2000, and later faxed to Mr. Forman's campaign headquarters. Mr. Forman's campaign reproduced the letter and mailed approximately 700 copies to potential voters. Respondent received no remuneration or benefit for writing the endorsement letter. Respondent acknowledged that she had no specific discussion with the City Attorney regarding the appropriateness of using city stationery in the endorsement letter. Nevertheless, she believed that writing the endorsement letter was something that she could do without violating the law. Based on the evidence presented, including the resolution allowing the use of the seal in correspondence promoting the city, the memorandum and advice given by the City Attorney, and her reliance on the request made by Mr. Forman's campaign office for a letter on city stationery, the undersigned finds that Respondent's belief that she had done nothing inappropriate in writing the endorsement letter to be credible.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, Arlene Schwartz, did not violate Subsection 104.31(1)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: J. David Bogenschutz, Esquire Bogenschutz & Dutko 600 South Andrews Avenue Suite 500 Fort Lauderdale, Florida 33301-2802 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue The issue presented is whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority."
Findings Of Fact The following facts have been stipulated by the parties: Petitioner, Brian L. Blair, is a Respondent in a case before DOAH styled, Florida Elections Commission v. Brian L. Blair, Case No. 09-2069, wherein the Florida Elections Commission ("Commission") has charged Mr. Blair with two counts of willfully accepting campaign contributions in excess of $500.00 in violation of Subsection 106.19(1)(a), Florida Statutes. Petitioner filed a Petition to Determine Invalidity of Existing Rule on August 28, 2009, wherein he alleges that the Commission Rule, Florida Administrative Code Rule 2B-1.002, constitutes an invalid exercise of delegated legislative authority. As a person subject to Chapter 106, Florida Statutes, and accused of willfully violating one of its prohibitions, Mr. Blair is substantially affected by the Commission's application of Florida Administrative Code Rule 2B-1.002 to his case and, therefore, has the requisite standing to bring this action. 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. That section was repealed by CS/HB 537 (Section 51, Chapter 2007-30, Laws of Florida), effective January 1, 2008. Contemporaneous with the repeal of Section 106.37, Florida Statutes, the same legislation amended Subsection 106.25(3), Florida Statutes, to provide that willfulness is "a determination of fact." (§ 48, Chap. 2007-30, Laws of Florida, effective January 1, 2008). 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.) The 2007 Legislative Session ended on May 4, 2007; CS/HB 537 was signed and approved by the Governor on May 22, 2007. On May 24 and 25, 2007, Barbara Linthicum, executive director of the Commission at the time, engaged in the following exchange via email with the Commission's attorney, Edward A. Tellechea, counsel of record in this case, regarding Florida Administrative Code Rule 2B-1.002: Ms. Linthicum: "Do you think we have authority to add chapter 106 to the willfulness rule?" Mr. Tellechea: ". . . Someone will challenge it[,] but what the heck[,] I'm game." Ms. Linthicum: "But, if you are game, I think we should definitely go ahead before January 1 comes along. You certainly do have a good track record defending our rules" The amendment of Florida Administrative Code Rule 2B-1.002 was effective December 25, 2007. The repeal of the definition of "willfulness" in Section 106.37, Florida Statutes, became effective January 1, 2008. The proposed rule amendment to Florida Administrative Code Rule 2B-1.002 that is the subject of this proceeding was reviewed in 2007 by the Joint Administrative Procedures Committee of the Florida Legislature, pursuant to Section 120.545, Florida Statutes, prior to its adoption, and the Committee made no written comments or filed any written objections. In order to determine whether willful violations of Chapter 106, Florida Statutes, have occurred, the Commission employs the definition of "willful" contained in Florida Administrative Code Rule 2B-1.002, when making the factual determination of willfulness.
Findings Of Fact ae On June 11, 2009, the staff of the Commission issued a Staff Recommendation, recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. 2. On September 1, 2009, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: Respondent violated Section 106.07(2)(b)1., Florida Statutes, when the Respondent failed to file with the candidate’s filing officer an addendum to the candidate’s 2008 Q1 incomplete campaign report due on April 10, 2008, after receiving notice from the filing officer. 3. On September 3, 2009, the Respondent was served by certified mail with a copy of the Order of Probable Cause. 4. The Respondent and the staff stipulate to the following facts: C_0 045 (12/08) 1 Consent Order at its next available meeting. 10. | The Respondent voluntarily waives the right to any further proceedings under Chapters 104, 106, and 120, Florida Statutes, and the right to appeal the Consent Order. 11. This Consent Order is enforceable under Sections 106.265 and 120.69, Florida Statutes. The Respondent expressly waives any venue privileges and agrees that if enforcement of this Consent Order is necessary, venue shall be in Leon County, Florida, and Respondent shall be responsible for all fees and costs associated with enforcement. 12. If the Commission does not receive the signed Consent Order within 20 days of the date Respondent receives this order, the staff withdraws this offer of settlement and will proceed with the case. 13. Payment of the civil penalty is a condition precedent to the Commission’s consideration of the Consent Order. PENALTY WHEREFORE, based upon the foregoing facts and conclusions of law, the Commission finds that the Respondent has violated Section 106.07(2)(b)1., Florida Statutes, and imposes a fine of $500 for the violation. Therefore it is ORDERED that the Respondent shall remit to the Commission a civil penalty in the amount of $500 inclusive of fees’ and costs. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida, 32399-1050, The Respondent hereby agrees and consents to the terms of this Order on , 2009. C_o 045 (12/08) 3 a. The Respondent was a candidate for the Florida House of Representatives- District 115 in the 2008 election. b. Section 106.07(2)(b)1., Florida Statutes, requires a candidate to file an addendum to an incomplete campaign report within three days after receiving notice from the filing officer. c. Respondent filed his 2008 QI campaign treasurer’s report listing campaign contributions and expenditures between January 1, 2008 and March 31, 2008 on April 11, 2008. The report was incomplete, and the filing officer requested the Respondent to file an addendum to his report d. Respondent did not file an addendum to his 2008 QI report within three days.
The Issue Whether Petitioner willfully violated Section 106.021(3), Florida Statutes, which prohibits a candidate from making an expenditure except through the campaign treasurer on 66 separate occasions, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the testimony, documentary evidence, entire record of the proceedings, and facts admitted to in the Joint Pre-Hearing Stipulation, the following Findings of Fact are made: Petitioner, Alan Schreiber, was the incumbent candidate for Public Defender, 17th Judicial Circuit, in the 2000 election. Petitioner was unopposed for reelection when qualifying ended on July 21, 2000. Petitioner is an experienced politician serving his seventh term as Public Defender. During the 2000 campaign qualifying period, Petitioner made sixty-six expenditures for which he submitted receipts and received reimbursement from his campaign account. The expenditures for which Petitioner was reimbursed are as follows: Date Merchant Amount 05-01-00 Andrew's Tallahassee $261.00 04-04-00 Andrew's Tallahassee $225.61 12-13-99 Bar Amici/ Cathode Ray $50.40 10-29-99 Bar at Embassy Suite $51.41 06-30-00 Big Louie's $265.01 06-20-00 Big Louie's $145.72 06-27-00 Bimini Boatyard $64.82 05-31-00 Bimini Boatyard $316.49 05-21-00 Bimini Boatyard $70.08 05-18-00 Bimini Boatyard $43.26 12-08-99 Bimini Boatyard $71.66 10-20-99 Bimini Boatyard $47.92 05-04-00 Bravo Italiano $63.86 02-24-00 Bravo Italiano $232.43 02-15-00 Bravo Italiano $52.79 01-31-00 Bravo Italiano $62.86 01-27-00 Bravo Italiano $86.83 06-19-00 Café de Paris $113.34 05-24-00 Café de Paris $70.04 05-16-00 Café de Paris $154.99 05-12-00 Café de Paris $160.94 05-06-00 Café de Paris $136.11 04-13-00 Café de Paris $146.65 03-18-00 Café de Paris $113.09 03-04-00 Café de Paris $144.47 02-23-00 Café de Paris $280.10 02-07-00 Café de Paris $73.27 01-17-00 Café de Paris $193.51 12-27-99 Café de Paris $66.47 11-29-99 Café de Paris $145.60 11-26-99 Café de Paris $230.51 11-24-99 Café de Paris $133.57 11-15-99 Café de Paris $183.97 10-31-99 Café de Paris $105.68 10-22-99 Café de Paris $99.43 10-19-99 Café de Paris $130.76 03-31-00 Café de Paris $182.64 03-15-00 Costco Wholesale $140.96 12-14-99 Costco Wholesale $267.61 10-27-99 Costco Wholesale $231.02 Costco Wholesale $256.87 05-23-00 French Quarter $499.24 11-09-99 French Quarter $81.25 11-09-99 French Quarter $85.02 06-08-00 Georgio's Food and Spirits $193.14 05-11-00 Greek Islands $89.73 06-03-00 Greek Islands $75.25 01-04-00 Greek Islands $70.49 10-29-99 Heavenly Ham $349.66 03-22-00 Houston's $75.54 10-28-99 Mayhue's Liquors $70.02 06-14-00 Mezzanot $102.02 12-01-99 Padrino's Restaurant $61.21 03-17-00 Publix $235.32 12-16-99 Publix $235.32 10-29-99 Publix $212.00 Publix $149.41 05-07-00 Restaurante Botin $146.39 01-04-00 Sage $79.85 12-28-99 Sage $107.89 10-29-99 Salute-Embassy Suites $211.26 03-01-00 TGI Fridays $47.08 05-25-00 Things Remembered $79.49 05-24-00 Things Remembered $296.69 05-21-00 Things Remembered $386.22 01-03-00 Wolfgang Puck Café $138.87 While Petitioner's personal decision to "wine and dine potential donors, supporters and campaign volunteers" at upscale restaurants may have been the genesis of the complaint that caused the Commission's investigation, no evidence was offered that suggested this to be an inappropriate expenditure of campaign funds. Sixteen checks were written by the campaign treasurer from the campaign account to Petitioner to reimburse him for the above expenditures. The campaign treasurer acknowledged that he had misdated one of the sixteen checks. Each check was written on the campaign accounts, was dated, was made payable to Petitioner, and each check listed that the purpose of the expenditure was to reimburse for non- specific campaign expense(s) as follows: Date Check No. Purpose Amount 10-29-99 1003 Reimb.-Campaign party expenses 11-02-99 1004 Reimb.-misc. campaign lunches 11-16-99 1005 Reimb.-misc. campaign lunches $968.38 $536.68 $350.24 11-30-99 1006 Reimb.-misc. campaign dinners 01-06-00 1008 Reimb.-camp. party expenses $509.68 $502.93 01-07-00 1009 Reimb.-misc. camp. dinners $496.50 03-03-00 1015 Reimb.-misc. camp. dinners $566.81 04-04-00 1019 Reimb.-camp. meeting expenses $565.32 04-11-00 1020 Reimb.-camp. party exp. $376.28 04-27-00 1021 Reimb.-misc. camp. dinners $799.23 5-16-00 1023 Reimb.-misc. camp. dinners $679.69 5-18-00 1024 Reimb.- misc. camp. lunches $462.58 5-22-00 1025 Reimb.-novelty items $368.22 5-24-00 1051 Reimb.-misc. camp. lunches $612.58 5-26-16 1054 Reimb.-camp. novelty items $376.16 06-09-00 1055 Reimb.-camp. meals/lunches $386.53 Each of the above-noted reimbursements to Petitioner was listed as an expenditure on Petitioner's campaign treasurer's reports filed with the Division of Elections as follows: Date Name and Address of Purpose Amount Person Receiving Reimbursement 10-29-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $968.38 11-02-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $536.68 11-16-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $320.24 11-30-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $509.68 01-06-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $502.93 01-07-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $496.50 03-03-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $566.81 04-04-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign meeting expenses $565.32 04-11-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $376.28 04-27-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $799.23 05-16-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $697.69 05-18-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $462.58 05-22-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign novelty items $386.22 05-24-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $612.58 05-26-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign novelty dinners $376.16 06-09-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $386.53 While the campaign treasurer's report accurately reports reimbursements to Petitioner, because the reimbursements are non-specific and aggregated, it is impossible to determine the actual expense for which reimbursement is made. Stephen Michaelson served as the campaign treasurer for Petitioner's 2000 reelection campaign and had served as deputy treasurer of Petitioner's 1996 campaign. Mr. Michaelson has served a number of candidates in a similar fashion. Prior to filing papers to open the 2000 reelection campaign account, Mr. Michaelson and Petitioner discussed whether it was permissible under Florida law for a candidate to be reimbursed from his campaign account for legitimate, campaign-related expenditures made by him personally in the course of the campaign. Petitioner had experienced difficulty writing campaign checks at restaurants during the 1996 campaign. After the 1996 campaign, Mr. Michaelson had researched the issue and informed Petitioner that he had discovered a "reimbursement statute." Mr. Michaelson also found a 1994 Division of Elections opinion that he believed "to be right on all fours," i.e., the opinion dealt specifically with the issue. The 1994 Division of Elections opinion [DE 94-07] referred to by Mr. Michaelson provides, in pertinent part, as follows: It is also permissible for a candidate to make a purchase with his own personal check or currency if the candidate intends to seek reimbursement from his campaign. However, the purchase does not become a campaign expenditure until such time as the reimbursement is made by campaign check or petty cash through the candidate's campaign treasurer. In 1999, prior to opening his campaign account, Petitioner and Mr. Michaelson again discussed the "reimbursement issue." Mr. Michaelson checked Chapter 106, Florida Statutes, that had been in effect when the 1994 Division of Elections opinion [DE 94-07] had been issued and noted no changes in the statute. In addition, he did a computer search on Florida Statutes Annotated of District and Supreme Court cases and found nothing dealing with the subject that, in his opinion, would warrant a change in the Division of Elections opinion. He checked the Division of Elections website to see if the 1994 opinion was still there and concluded that it was. He did a computer check to see if there were any subsequent Division of Elections opinions that referred to expenditures; finding none, he concluded that the 1994 opinion was still in effect. Based on his review, he advised Petitioner that Petitioner could seek reimbursement from the campaign account for legitimate campaign expenditures that he paid with personal funds. Mr. Michaelson has been a campaign treasurer or deputy campaign treasurer on seven occasions, has, himself, been a candidate, is a lawyer who has practiced criminal defense law for 23 years, and, during his testimony at this formal hearing, demonstrated competency and understanding of the Florida election law/campaign financing law. He gave Petitioner advice on Florida election law/campaign financing law knowing that Petitioner would rely on his advice. Petitioner's reliance on Mr. Micahelson's advice was warranted. In the same general time period during which he opened his reelection campaign account, Petitioner spoke to David Bogenschutz, an attorney in Fort Lauderdale, and asked whether a candidate could incur campaign expenses and then seek reimbursement from his campaign account. Mr. Bogenschutz is a lawyer who has known Petitioner since 1971, whose practice is devoted largely to criminal defense, who had previously advised and represented candidates and public officials in proceedings related to the Florida's election law/campaign financing law, had himself been a candidate, and was believed by Petitioner to be knowledgeable regarding Florida election law/campaign financing law. While Mr. Bogenschutz was reluctant to acknowledge that he was an "expert" in Florida election law, his testimony at this formal hearing demonstrated a satisfactory working knowledge of Florida election law/campaign financing law; it was appropriate for Petitioner to seek his counsel and to be guided by his advice. Mr. Boganschutz advised Petitioner that he saw nothing wrong with his reimbursing himself from his campaign treasury for authorized campaign expenses. He further advised that he would research the matter and advise if he saw anything wrong. Mr. Boganschutz reviewed Section 106.021(3) and Subsection 106.07(4)(a)7, Florida Statutes, and Florida Statutes Annotated. He concluded that Subsection 106.07(4)(a)7, Florida Statutes, permitted a candidate to be reimbursed for authorized campaign expenditures from the campaign account and so advised Petitioner. In giving his advise, he did not review Division of Elections Opinion DE 94-07 or a later opinion, DE 97-06, because, while other Division of Elections opinions are found in Florida Statutes Annotated, neither of the referenced opinions is listed in Florida Statutes Annotated. In addition, he felt that the statute regarding reimbursement was so clear that there was no need to do further research. In addition to his discussions with Mr. Michaelson and Mr Bogenschutz, Petitioner conducted his own research and concluded that it was appropriate to pay vendors personally for campaign-related expenses and then be reimbursed from his campaign account for those campaign-related expenses. The qualifying period ended on July 21, 2000, with Petitioner having drawn no opposition. At about the same time, a local newspaper article questioned Petitioner's campaign spending habits and quoted a Division of Elections official saying Petitioner should have been using campaign checks. After reading the newspaper article, Mr. Michaelson called the local Supervisor of Elections who advised him that Division of Elections opinion DE 94-07 had been rescinded by Division of Elections opinion DE 97-06. This caused Mr. Michaelson obvious concern; the qualifying period had ended and, for Petitioner, the election was over. It appeared that he had incorrectly advised Petitioner regarding the propriety of paying campaign-related expenses personally and then seeking reimbursement. Mr. Michaelson then checked his research in an effort to understand how he had missed the rescission of Division of Elections opinion DE 94-07 and discovered that the Division of Elections website did not indicate that opinion DE 94-07 had been rescinded. The Division of Elections, Department of State, maintains a website which includes "Formal Opinions of the Division of Elections." This website lists all opinions from 1987-2000. Intermittently throughout the list of opinions is the notation "rescinded" in highlighted type, indicating that the particular opinion has been rescinded. No such notation appeared in reference to opinion DE 94-07. The 1997 Division of Elections opinion DE 97-06 indicates "Rescinding DE 76-16, 78-2, 88-32, 90-16, and 94-7." This is presented in the same type as the rest of the text and is not highlighted. Mr. Michaelson then used his web browser to search the Division of Elections website that lists these advisory opinions for the words "expenditure" or "reimbursement," the website did not direct him to the 1997 opinion DE 97-06. Division of Elections opinion DE 97-06, which, in part, rescinds Division of Elections opinion DE 94-07, provides in pertinent part, as follows: We held that candidates could make unlimited purchases by personal check as long as they intended for such expenditures to be reported as in-kind contributions. The opinion also stated that the "candidate cannot make such purchases as a campaign expenditure except by means of a campaign check . . . made through the candidate's campaign treasurer." This reasoning has resulted in some confusion as to when and under what circumstances a campaign expenditure or in-kind contribution occurs. Therefore, we rescind DE 94-07. Except for petty cash expenditures allowed under section 106.12, Florida statutes (1995), the only way that a candidate may make a campaign expenditure is by means of bank check drawn on the primary campaign depository, pursuant to section 106.11(1), Florida Statutes (1995). Having said this, we recognize the applicability of section 106.07(4)(a)7, Florida Statutes (1995), which requires that candidates report any reimbursements of authorized expenses from the campaign accounts to themselves. We believe that the purpose of this provision is to cover rare occurrences where the campaign must make an expenditure, but the campaign check book is not available. Such a situation could occur when a bill must be paid and the campaign has not received its first order of checks from the bank, or where, during the course of campaign travel, tolls or other miscellaneous expenses must be paid in cash and the candidate has failed to take the money out of his petty cash fund for such purposes. During the 2000 campaign, Mr. Michaelson maintained possession of the campaign checkbook which was usually kept at his home. On occasion, he would have one or two campaign checks on his person. If Petitioner asked for a campaign check, and Mr. Michaelson had one on his person, he would give it to Petitioner. On occasion, Petitioner would return a campaign check to Mr. Michaelson, indicating that the check was not accepted by a particular vendor. Most of the reimbursements at issue are a result of Petitioner's not having a campaign check with him at the time of a transaction or the vendor's unwillingness to accept a check or campaign check. In most instances the transaction involved purchases by Petitioner at restaurants. TGI Friday's located in Plantation, Florida, does not accept checks. Petitioner made one campaign-related purchase at TGI Friday's for which he was reimbursed from the campaign account. Bimini Boatyard does not generally permit patrons to pay with checks, although exceptions have been made. Petitioner made six campaign related-purchases at Bimini Boatyard for which he was reimbursed from the campaign account. During his 1996 campaign, Petitioner wrote 15 checks directly to Bimini Boatyard for campaign expenditures from the campaign account. Café de Paris and French Quarter have a policy of not accepting checks except when personally approved by the owner or for a special party. The owner indicated he would not accept a campaign check. Petitioner made 20 campaign related-purchases at Café de Paris and three campaign-related purchases at French Quarter for which he was reimbursed from the campaign account. The Sage Restaurant accepts only cash, MasterCard and Visa from restaurant patrons; checks are accepted for catering. The owner opined that had Petitioner called ahead and advised that campaign laws required him to pay by campaign check, she would accept that form of payment. Petitioner made two campaign-related purchases at Sage Restaurant for which he was reimbursed from the campaign account. Bar Amici and Cathode Ray do not accept checks; however, if a candidate advised that the law required payment by campaign check, a check would be reluctantly accepted. Petitioner made one campaign-related purchase at Bar Amici and Cathode Ray for which he was reimbursed from the campaign account. Greek Island Taverna does not accept checks. Petitioner sought reimbursement for three campaign-related expenditures at Greek Island Taverna for which he was reimbursed from the campaign account. Padrino's Restaurant does not accept checks. The owner, who is seldom at the restaurant, indicated that he would accept Petitioner's check. Petitioner made one campaign-related purchase at the Padrino's Restaurant for which he was reimbursed from the campaign account. Andrew's, a Tallahassee restaurant, does not accept checks from restaurant patrons. The manager opined that, if prior arrangements were made, a campaign check might possibly be accepted, but an out-of-town campaign check made it more problematic. Petitioner made two campaign-related expenditures at Andrew's for which he was reimbursed from the campaign account. Connie Evans, Chief, Bureau of Election Records, Division of Elections, Department of State, who has been employed by Division of Elections for 22 years and a bureau chief for five years, was qualified as an expert witness "in the area of Chapter 106 of Florida Statutes," without objection. She opined that Chapter 106, Florida Statutes, requires full disclosure of all contributions and expenditures for the public benefit. Ms. Evans further opined that Division of Elections advisory opinions are only binding on the candidate or organization who sought the opinion. Ms. Evans further opined that the Division of Elections, in applying Division of Elections opinion DE 97-06, considers that it is appropriate for a candidate to seek reimbursement for personal payment of a campaign-related expense at a restaurant when the restaurant refuses to take a check, but that the candidate should not return to the same restaurant knowing that the restaurant will not accept a campaign check in payment. She acknowledged that there is no statutory authority in Chapter 106, Florida Statutes, for this opinion. Ms. Evans further acknowledged that Division of Elections opinion DE 97-06 refers to Subsection 106.07(4)(a)(7), Florida Statutes (which allows reimbursement for campaign- related expenses), and that both DE 97-06 and DE 94-07 advise that it is permissible for candidate to reimburse himself for campaign-related expenses. Ms. Evans opined that the Division of Elections website should have indicated that Division of Elections opinion DE 94-07 had been rescinded in bold type, as is done with the other rescinded opinions. Ms. Evans further opined that, if a candidate were to reimburse himself or another person for authorized campaign- related expenses, it is the position of the Division of Elections that the reimbursement must be made by a campaign check, must be reported on the campaign treasurer's report as an expenditure, and the amount, date, and the purpose of the expenditure must be reported.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Alan Schreiber, did not violate the Florida Campaign Financing Law as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2001. COPIES FURNISHED: Mark Herron, Esquire Mark Herron, P.A. Post Office Box 1701 Tallahassee, Florida 32301-1701 Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondents, individually or collectively, constitute an employer as defined in Section 760.02(7), Florida Statutes (2005), for purposes of conferring jurisdiction on the Florida Commission on Human Relations (FCHR) to consider the Employment Charge of Discrimination filed by Petitioner against Respondents.
Findings Of Fact Petitioner is a licensed real estate agent. Sometime in 1999, Petitioner began working in Panama City, Florida, for Florida Media Group, Inc. Mr. Pace and Edward Hines own Florida Media Group, Inc., a full-service marketing company that is located in Tallahassee, Florida. Mr. Pace hired Petitioner to promote the real estate sales in Bay County, Florida, of Palm Cove, a land development company. Petitioner received a United States Internal Revenue Service (IRS) Form 1099 from Florida Media Group, Inc. in 2001. From 2002 through April 2004, Petitioner worked directly for Palm Cove selling real estate in Palm Cove’s single-family housing subdivision in Bay County, Florida. Mr. Pace owns 25 percent of Palm Cove. The other three owners are Gary Wakstein, Hubert Green, and Edward Hines. Petitioner received an IRS Form 1099 in 2002, 2003, and 2004 from Palm Cove for commissions she earned by selling real estate for the developer. On or about April 27, 2004, Palm Group Realty was incorporated. Palm Group Realty is owned by Ms. Reed, Mr. Pace, Mr. Hines, Mr. Green, and Mr. Wakstein. In September 2004, Ms. Reed became the designated real estate broker for Palm Group Realty. Petitioner began working for Palm Group Realty soon after it was incorporated. She worked for the real estate agency until September 30, 2004. Petitioner received an IRS Form 1099 from Palm Group Realty in 2004 based on her commissions. Some of the commissions must not have been paid until 2005 because Palm Group Realty provided Petitioner with an IRS Form 1099 in 2005. The relevant time period here is November 1, 2003, through September 30, 2004. Regarding that time period, Petitioner sold real estate for Palm Cove from November 1, 2003, through April 27, 2004, and for Palm Group Realty from April 27, 2004, through September 30, 2004. Palm Cove and Palm Group Realty have the same address and overlapping but not precisely the same ownership. However, there is no evidence that Palm Cove, as the land developer, and Palm Group Realty, as the real estate agency, had overlapping operations after Palm Group Realty was incorporated. Since April 2004, Palm Cove’s business has been limited to land development and home construction on a contracting basis. Palm Group Realty’s business is limited to real estate transactions. There is no evidence that Palm Cove has ever had employees who received a salary and IRS Form W-2. Palm Cove has provided two real estate agents, one of which was Petitioner, with an IRS Form 1099. During the relevant time period, Palm Group Realty had four employees who received an IRS Form W-2: Rachel Housler, Brandi Long, Beverly Wakstein, and Katherine Wilson. Palm Group Realty provided three people with IRS Form 1099: Andrew Sullivan, Harriette Reed, and Petitioner. Palm Group Realty provided the following people with an IRS Forms 1099 and W-2: Jon-Aric Long, Martha Osborne, and David Oswalt. Apparently Florida Media Group, Inc., continues to handle some of the marketing aspects of the land development project for Palm Cove. At the most, Florida Media Group, Inc., has three employees. Management Information Systems (MIS) is a bookkeeping company with approximately 20 independent clients, including Palm Cove and Palm Group Realty. There is no competent evidence regarding the ownership or the number of employees of MIS. The most credible evidence indicates that operations of MIS are separate and distinct from Palm Group Realty and Palm Cove. Palm Group Realty, Palm Cove, and Florida Media Group, Inc., had a total of 14 salaried employees and/or independent contactors receiving commissions during the relevant period. It is impossible to determine from the record whether all 14 persons were working for one of the companies at the same time. Mr. Pace and Ms. Reed testified that they personally did not have any employees during the relevant time period. Petitioner did not present any persuasive evidence to dispute their testimony. The companies referenced here did not have overlapping/integrated operations such that they could be considered a solitary employer. Petitioner’s testimony to the contrary is not credible, as it is, for the most part, based on hearsay or uncorroborated by properly authenticated documentary evidence, which would constitute the best evidence of the contested facts.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That FCHR enter a final order finding that it is without jurisdiction to proceed in these cases based upon Petitioner's failure to show that Respondents constitute "an employer" as defined in Section 760.02(7), Florida Statutes. DONE AND ENTERED this 29th day of December, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 29th day of December, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Harriette Reed Palm Group Realty, LLC 11812 Cabana Court Panama City, Florida 32407 B. R. Hutto, Esquire Post Office Box 2528 620 McKenzie Avenue Panama City, Florida 32402-2528 Kathryn Whaley 3509 Brooke Lane Panama City, Florida 32404
