The Issue The issue is whether Mr. Lamb, violated Subsection 106.07(1), Florida Statutes (2008), on two occasions.
Findings Of Fact The Commission is the state agency responsible for enforcing the campaign laws of the state. Mr. Lamb was served requests for admissions pursuant to Rule 1.370 of the Florida Rules of Civil Procedure. He did not timely respond to the Commission's requests for admissions. In fact, at the time the Second Amended Motion for Summary Final Order was filed, Mr. Lamb still had not responded. It is found that Mr. Lamb is not going to respond. The effect of this failure is to cause the matter elucidated in the following paragraphs to become the facts of this case. On or about August 23, 2007, Florida Homestead Fair Tax.com PAC of Florida Committee (Committee) filed its Statement of Organization of Political Committee. On August 23, 2007, the Committee filed its Florida Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations with the Division of Elections designating Kenneth E. Lamb as its chairman and treasurer. On August 23, 2007, the Committee filed its Registered Agent Statement of Appointment with the Division of Elections designating Kenneth E. Lamb as its registered agent. Mr. Lamb received a letter dated August 28, 2007, from Kristi Reid Bronson acknowledging receipt of the statement of Organization and Appointment of Campaign Treasurer for Florida Homestead Fair Tax.com PAC of Florida. Mr. Lamb received a letter dated January 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated January 18, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated July 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated April 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb received a letter dated April 25, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb received a letter dated July 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb's failure to file the Committee's 2007 Q4 Campaign Treasurer's Reports was willful. Mr. Lamb's failure to file the Committee's 2008 Q1 Campaign Treasurer's Reports was willful. As of May 18, 2009, Mr. Lamb has not filed the Committee's 2007 Q4 Report. As of May 18, 2009, Mr. Lamb has not filed the Committee's 2008 Q1 Report. Mr. Lamb's willful failure to file the Committee's 2007 Q4 Campaign Treasurer's Report is a violation of Subsection 106.07(1), Florida Statutes. Mr. Lamb's willful failure to file the Committee's 2008 Q1 Campaign Treasurer's Report is a violation of Subsection 106.07(1), Florida Statutes.
Other Judicial Opinions 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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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 appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether Petitioner, Kay McGinn, willfully violated Subsection 106.07(5), Florida Statutes (2001), when she certified the correctness of a campaign treasurer's report that was incorrect, false, or incomplete because it failed to disclose an in-kind contribution by Frank Furman for the use of telephones used by Petitioner and her campaign volunteers in offices that Mr. Furman owned.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the Mayor of Pompano Beach, Florida. She ran unsuccessfully for Pompano Beach City Commission in 1996. Her campaigns for the same office in 1998, 2000, and 2002 were successful. The alleged offense took place during the 2002 election campaign. Petitioner is an intelligent, conscientious public servant. She is familiar with the Florida election law and is sensitive to her obligation to follow the law and diligent in her attempt to do so. During the 2002 campaign, Frank Furman, a long-time Pompano Beach business man who enjoys an excellent reputation, offered the use of his business offices to Petitioner for campaign activities. Petitioner chose to use Furman's office on six to eight occasions to make campaign-related local telephone calls. Typically, Petitioner and five or six volunteers would spend about one hour in the early evening calling Pompano Beach voters encouraging them to vote for Petitioner. Mindful of the election law requiring the reporting of "in-kind" contributions, Petitioner asked Mr. Furman the value of the use of his telephones for reporting purposes. Furman advised Petitioner that the use of his telephones had "no value." In reporting "in-kind" contributions, Petitioner's practice was to ask the contributor to provide an invoice reflecting the "fair market value" of the "in-kind" contribution. Armed with the invoice, she would then report the "in-kind" contribution. "Fair market value" is an economic concept used most frequently in reported Florida cases when referring to the value of real property taken in condemnation actions or in determining restitution in criminal cases. Numerous definitions are found. Typically, the definitions involve "a willing buyer and a willing seller, fully informed as to the value of the object of the transaction, neither being under any compulsion to buy or sell." Respondent's Statement of Findings, which was analyzed by Petitioner's expert witness, offers an amortized cost to Mr. Furman for use by Petitioner and her volunteers of the telephones. This amortized cost is apparently advanced as evidence of "fair market value" or "attributable monetary value." Mr. Furman pays a fixed-rate of slightly less than $1,500.00 per month for the use of 32 to 33 telephone lines. This means that each line costs approximately $46.87 per month. Assuming 30 days per month, the daily cost per line is $1.56. Assuming 24-hour days, the hourly cost per line is $0.065. Further assuming that six volunteers used one telephone for one hour on eight different days, the result is 48 hours of line use. The resulting amortized use cost, given the known use by Petitioner and her campaign volunteers, is $3.12. Amortized use cost is not fair market value. Neither an "attributable monetary value" nor a "fair market value" of Petitioner's use of Mr. Furman's telephones was established. To the contrary, it was established that there was no "market" for access to six to eight telephones for one hour, one night per week. While it is assumed that Petitioner would benefit from telephone calls made by her supporters, whether made from their individual homes or from some group setting, the evidence failed to established that Petitioner's use of Mr. Furman's telephones had any "attributable monetary value" or "fair market value." Given that the use of the telephones by Petitioner was during non-working hours when the telephones would normally be idle, it is not surprising that Mr. Furman advised Petitioner that there was no cost associated with the use of his telephones. His monthly telephone bill would be the same whether Petitioner used his telephones or not. Nor is Petitioner to be faulted for relying on the contributor's assessment of the value of the "in-kind" contribution of the use of the telephones. The real value to Petitioner's campaign was the use of Mr. Furman's office as a meeting place. As a practical matter, each volunteer could have taken a list of the telephone numbers of Pompano Beach voters to their respective homes and made the telephone calls from their homes. This was not a professional "phone bank," sometimes used in political campaigns where trained callers use scripted messages designed to elicit voter preferences and where the candidates receives "feed-back" on salient issues. A "fair market value" can be easily established for such services as they are common in the market place. The evidence suggests that campaign volunteers making telephone calls to registered voters from their homes or from someone's office is a common practice in political campaigns in Florida. It is also suggested that this common practice is not reported as a campaign contribution.
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, Kay McGinn, did not violate Subsection 106.07(5), Florida Statutes, as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 13th day of January, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2004. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Stuart R. Michelson, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue The issues are whether Petitioner is entitled to attorney fees and costs pursuant to Section 120.595(3), Florida Statutes, and if so, in what amount.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 00-1600RX on one of two challenged rule provisions. In that case, the challenge to Rule 61K1-1.0011(3)(c), Florida Administrative Code, which required all contracts between a manager and a boxer to be filed with Respondent within seven days of execution, was dismissed on its merits. Rule 61K1- 1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, were found to be invalid exercises of delegated legislative authority to the following extent: (a) that Rule 61K1-1.0011(3)(c), Florida Administrative Code, deemed contacts between managers and boxers to contain all provisions set forth in Form BPR-0009451; and (b) that Form BRP- 0009451 deemed contracts between managers and boxers to be void if the managers were unlicensed on the date their contracts were executed or if the managers failed to file the contracts with Respondent within seven days of execution. Respondent presented no evidence, testimonial or documentary, in DOAH Case No. 00-1600RX or the instant case, showing that it had a reasonable basis in fact to promulgate Rule 61K1-1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, in 1985 or thereafter to amend, enforce, or defend said rule and form. Respondent admits that it has not maintained the pertinent rulemaking record required by Section 120.54(8), Florida Statutes. There is no competent evidence that Respondent in fact conducted the mandatory rule reviews required by Section 9 of Chapter 96-159, Laws of Florida, or Section 3 of Chapter 99-379, Laws of Florida. Respondent did not file post-hearing depositions showing that it ever conducted these rule reviews. Respondent admitted during the hearing of the instant case that it had no written documentation confirming that the rule reviews took place. There is no factual evidence showing the existence of special conditions that would make an award of attorney's fees and costs unjust in this case. There is no evidence showing how to allocate Petitioner's requested attorney's fees and costs between the two challenged rule provisions. The record in DOAH Case No. 00-1600RX does not indicate that the Intervenor Danny Santiago created duplicitous and unnecessary work for Petitioner and Respondent. Two of the depositions taken on December 5, 2000, at the instance of Intervenor Danny Santiago and over Respondent's objections, were filed in DOAH Case No. 00-1600RX, becoming part of the record in that case. Moreover, there is no evidence showing how to allocate a portion of Petitioner's requested attorney's fees and costs to work created exclusively by Intervenor Danny Santiago. Petitioner filed an Affidavit of Attorney Fees and Costs on March 19, 2001. Petitioner seeks to recover $13,235 in fees and costs. Petitioner presented competent evidence that the requested attorney's fees were reasonable based on the number of hours expended (66.175) and the rate charged per hour ($200). Petitioner also presented competent evidence that an expert witness fee in the amount of $1,000 is reasonable in this case. Respondent objected to Petitioner's requested attorney's fees as they relate to the following specific charges: (a) charges pertaining to an unrelated case in which Respondent sought to discipline Petitioner for violating Respondent's rules; (b) charges relating to Petitioner's Motion to Compel Discovery after Petitioner improperly served the original discovery requests and was required to serve the discovery requests a second time; and (c) charges relating to the preparation of the instant motion for fees and costs. Petitioner agreed to reduce his claim for fees and costs by the amount of the disputed charges if Respondent could provide the total amount. After much discussion, the parties agreed to file a post-hearing stipulation as to the amount to be deducted from Petitioner's claim. The parties never filed that stipulation. The undersigned has compared the record in DOAH Case No. 00-1600RX with the list of charges for fees and costs attached to Petitioner's Affidavit of Attorney Fees and Costs. The undersigned has also taken into consideration Respondent's objections to certain charges and Petitioner's acquiescence to those objections. The record reveals that Petitioner is not entitled to recover the following: (a) charges on April 13 and 27, 2000, in the amount of $100 that pertain to a request for and granting of oral argument that did not occur in the underlying case; (b) charges on July 6, 2000, and July 31, 2000, in the amount of $100, relating to review of an unidentified motion to compel and review of an order granting that motion, which did not occur in the underlying case; (c) charges on July 17 and 27, 2000, and August 14, 2000, in the total amount of $320, relating to Petitioner's improper motion to compel discovery after Petitioner incorrectly served the original discovery requests on the Attorney General and was required to serve the discovery requests a second time; (d) a charge on August 24, 2000, in the amount of $200 for attendance at court, which did not occur in the underlying case; (e) a charge on September 11, 2000, in the amount of $50 for review of an order dismissing with prejudice, which did not occur in the underlying case; (f) charges on February 23, 2001, in the amount of $80, relating to the preparation of the instant motion for fees and costs; and (g) charges on October 26, 2000, in the amount of $500 for travel to a deposition. The reduction amount for attorney's fee charges totals $1,350. There are no other identifiable disputes over amounts claimed by Petitioner as recoverable expenses or costs. Therefore, Petitioner is entitled to recover $11,885 in attorney's fees and costs incurred in DOAH Case No. 00-1600RX and an additional $1,000 for expert witness fees in the instant case, for a total recovery in the amount of $12,885. This amount is reasonable under the facts of this case. The record in DOAH Case No. 00-1600RX clearly reflects that Respondent had sufficient and timely notice of Petitioner's intent to seek attorney's fees and costs prior to the entry of the Final Order. In Respondent's meeting on December 6, 2000, Respondent's counsel advised Respondent several times that it would be liable for attorney's fees and costs if the challenged rules or portions thereof were found to lack statutory authority. Counsel for Petitioner and Intervenor Danny Santiago made appearances on behalf of their respective clients at that meeting. Petitioner made his first formal demand for attorney's fees and costs in his Proposed Final Order, which was filed in DOAH Case No. 00-1600RX on January 22, 2001. Respondent filed its Statement of Defenses to Petition for Attorney Fees in the instant case on March 19, 2001. Respondent raised the issue that Petitioner's demand for attorney's fees and cost was untimely for the first time in Respondent's Proposed Final Order filed in the instant case on May 11, 2001.
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 An administrative complaint dated April 22, 1993, and filed April 23, 1993, alleges these violations of Chapter 475, Florida Statutes, by the respondents: As to Karen Brown and Host Realty - false and deceptive advertising in violation of Rule 21V-10.025, Florida Administrative Code, and Sections 475.25(1)(c) and 475(1)(e), Florida Statutes; As to Karen Brown, Host Realty, Frank R. Trent, and Jo Marion Trent - fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust, etc. in violation of section 475.25(1)(b), Florida Statutes. The issue in this proceeding is whether the respondents committed these violations, and if so, what discipline is appropriate.
Findings Of Fact Karen Brown is, and was at all times material, a licensed real estate broker in the State of Florida. She was licensed and operated as a qualifying broker and officer of Host Realty, Inc., which corporation is registered as a real estate broker in the State of Florida, in Melbourne, Florida. Frank R. Trent and Jo Marion Trent are and, at all times material, were licensed real estate salespersons in the State of Florida with licenses issued c/o Host Realty, Inc. in Melbourne, Florida. Respondents Brown and Host Realty solicited business with advertising that stated, among other claims, that Host Realty was "Appointed Management Broker for the Veterans' Administration, managing all inventory of the Government Homes in Brevard County." (Petitioner's exhibit #1) Host Realty has been a Veterans' Administration (VA) property management broker for about ten years, in Brevard County only. It has also in the past been a U.S. Department of Housing and Urban Development (HUD) property manager in Brevard County. Host does not have an exclusive right to sell government property. Its function with regard to the governmental property it manages is to secure the property, do foreclosures, conduct inspection reports, visit the property, investigate complaints and perform similar tasks, until it is notified the property has sold. It has a fiduciary relationship with the governmental agency. Host does not manage all inventory of government homes but all the homes it manages are in Brevard County. Although she had no intent to mislead anyone, Karen Brown can understand now why someone could think the advertisement was misleading and the "all inventory" statement no longer appears. Leonard Beltle is a state licensed private investigator who was retained by a competing real estate broker to investigate the practises of Host Realty in selling VA property. Some time in late October and early November 1992, Leonard Beltle contacted Host Realty about some houses on the VA property list. He spoke with Roy Trent, the son of Frank and Jo Marion Trent, who told him that the properties would be available for bid on November 13, 1992. He went by the properties and later went back to the Host Realty office to talk with Frank and Jo Marion Trent about what was needed. He claims that he was given a key to the houses after he asked for an opportunity to show them to his wife. He claims he returned the key, but at hearing was not clear when he returned it, either the next day or a week later. Host Realty does not have a policy of giving out keys to prospective buyers and Karen Brown denies that Beltle was given a key. The VA does not prohibit this practice, but rather encourages whatever is reasonably necessary to sell the property. On or about November 23, 1992, Beltle returned to Host Realty to present a bid on a house at 1190 Grapefruit Street in Palm Bay. He asked Jo Marion Trent what he needed to bid. She told him, "Go $10,000 over the opening bid," or "I would bid $10,000 over the 'asking price'", or something similar to those terms. He completed the paperwork, including signing his wife's name, and offered $82,721--$10,000 over the VA-advertised minimum bid. Beltle's executed offer to purchase and contract of sale reflects an earnest money deposit of $500. In fact, when Frank Trent asked him for the deposit, Beltle said he did not have his checkbook with him, so Frank Trent told him to bring it in the next day. Beltle never returned with the deposit. The bid was due at the VA the next day, and Beltle's paperwork was submitted with approximately 60-70 contracts in a batch. Karen Brown discovered the error the next morning when she was reviewing the contracts and learned that Beltle did not bring the deposit check. She immediately faxed a withdrawal to the VA. It is not Host Realty's practice to accept offers without a deposit and Karen Brown has a system of checking to assure there is a deposit and the funds are in escrow. Notices of the availability of government properties include a minimum bid price. VA has a computer bulletin board with information on its property statewide. Karen Brown downloads the information and can determine trends in sales. From this, and her experience, she could reasonably estimate that $10,000 over the "asking" or minimum bid would typically be a successful offer. There is no way that she or anyone at Host Realty would, or even could, reveal the highest bid to prospective purchasers, since other realtors are submitting bids for the same property. Advising a prospective purchaser of trends or the "$10,000 over the asking price" does not violate VA policy or any fiduciary duty.
Recommendation Based on the foregoing, it is RECOMMENDED that the administrative complaint in this case be dismissed. DONE AND ENTERED this 29th day of August 1995 in Tallahassee, Leon County, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August 1995. APPENDIX The following constitute specific rulings on the parties' proposed findings of fact as required by Section 120.59(2), F.S.: Petitioner's Proposals 1. Rejected as unnecessary. 2, 5 and 6. Adopted in paragraph 1. 3 and 4. Adopted in paragraph 2. 7 and 8. Adopted in paragraph 3. Rejected as contrary to the evidence that they also managed HUD property for a time. Adopted in paragraph 4. 11 - 14. Adopted in substance in paragraph 7, except that it was not "clearly and convincingly" established that he was given a key. 15 - 17. Adopted in substance in paragraph 9. Adopted in substance in paragraph 10. Adopted in substance in paragraph 11. Respondents' Proposals 1 - 4. These are arguments and commentary on the evidence, rather than simple findings of fact. As reflected in the findings by the Hearing Officer and recommended disposition, Respondents' evidence is substantially adopted as fact, most of which evidence was uncontroverted. COPIES FURNISHED: Steven W. Johnson, Esquire Division of Real Estate Hurston North Tower, No. 308A 400 West Robinson Street Orlando, Florida 32801 William C. Potter, Esquire McClelland, Marks & Healy, P.A. Post Office Box 2523 Melbourne, Florida 32902 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions For Petitioners: Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Tallahassee, FL 323999-1050 For Respondent: Robin Gibson, Esquire Gibson, Valenti & Ashley 212 East Stuart Avenue Lake Wales, Florida 33853 THE FEC STAFF’S EXCEPTIONS 1. Staff Exception #1 is approved. As the FEC has consistently held, FEC v. Morroni, Case No. FEC 97-060; FEC v. Bosezar, Case No. FEC 95-053; Division of Elections v. 2the FEC has reviewed the entire record and heard arguments of counsel. De La Portilla, Case No. FEC 93-045; FEC v. Harris, Case No. FEC 98-087; FEC v. De La Portilla, Case No. FEC 00-006; FEC v. Proctor, Case No. FEC 99-065; the burden of proof in cases involving alleged violations of Chapter 106 is by a “preponderance of the evidence.” For this reason, the FEC rejects the ALJ's characterization (COL @ § 17) of the burden as being “clear and convincing.” That being said, the Commission finds that the facts as found by the ALJ support the conclusions in the Recommended Order as modified by the FEC’s conclusions herein under either burden. 2. The Commission rejects Staff Exception #2. The FEC fully supports the Division of Elections’ position that parties required to submit information to the Division should do so using the appropriate forms. However, the evidence as found by the ALJ showed that Respondents did notify the Division that a new Deputy Treasurer for the political committee involved had been appointed prior to the submission of the Quarterly Report at issue even though the form used was that designated for candidates not for committees. Given the facts of this case, the Commission cannot say that the Respondents’ use of the incorrect form made their Quarterly Report so inaccurate as to make their certification of the Report “inaccurate or untrue” in violation of Section 106.07(5), Fla. Stat. While the FEC does not agree with the ALJ’s conclusion (COL @ 4§ 23-25) that using an incorrect form cannot form the underlying basis of a finding that a report violates Section 106.07(5), it agrees with his conclusion that no violation occurred here. . WHEREFORE, based upon the foregoing and as amended by the Commission’s rulings on the exceptions filed herein, the FEC hereby accepts the Findings of Fact, Conclusions of Law and Recommendation of the ALJ and DISMISSES the charges against the Respondents. nd > DONE and ORDERED this Q2 day of Cgurt 2003. Chanee Qnroins Chance Irvine, Chairman Florida Elections Commission CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to counsel for Respondents, Robin Gibson, Esquire, Gibson, Valenti & Ashley, 212 East Stuart Avenue, Lake Wales, Florida, 33853, by U.S. mail, and by hand delivery to Clerk, Florida Elections Commission, 107 West Gaines nd Street, Suite 224, Tallahassee mail this 22 day of — luge 2003. y; by
Appeal For This Case This order is final agency action. Any party who is adversely affected by this order has the right to seek judicial review pursuant to Section 120.68, Florida Statutes, by filing a notice of administrative appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Florida Elections Commission at 107 West Gaines Street, Suite 224, Collins Building, Tallahassee, Florida 32399-1050 and by filing a copy of the notice of appeal with the appropriate district court of appeal. The party must attach to the notice of appeal a copy of this order and include with the notice of appeal filed with the district court of appeal the applicable filing fees. The notice of administrative appeal must be filed within 30 days of the date of this order is filed with the Commission. The date this order was filed appears in the upper right-hand corner of the first page of the order. ; Copies furnished to: Eric M. Lipman Assistant General Counsel Eric Ruiz, Respondent (certified mail) Division of Elections, Filing Officer
