The Issue Whether Petitioner, as a prevailing small business party in an adjudicatory proceeding initiated by a state agency, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Subsection 57.111(4)(a), Florida Statutes, in these two cases.
Findings Of Fact As to Both Cases Petitioner, Larry D. Thomas, M.D., is a licensed physician in the State of Florida, having been issued license number ME 036360. Respondent, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine, pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. This matter was filed pursuant to Section 57.111, Florida Statutes. The actions in AHCA Case Nos. 1994-12341 and 1999-57795 were initiated by the Agency, an agent for the Department of Health, a state agency, and neither the Agency nor the Department of Health was a nominal party to the underlying actions. The attorney's fees sought by Petitioner are reasonable in the amount up to $15,000 for each case, and the statutory cap of $15,000 applies to each case separately. Petitioner prevailed in the underlying action, and there are no special circumstances that exist that would make an award of attorney's fees and costs unjust in these cases. Petitioner is a small business party within the meaning of Section 57.111, Florida Statutes, because he is a sole proprietor of an unincorporated professional practice, whose principal office is in this state, who is domiciled in this state, whose professional practice is in this state, and whose professional practice had, at the time the action was initiated by the state agency, not more than 25 full-time employees or did not have a net worth of more than $2 million, including both personal and business investments. As to Case No. 02-4843F In 1994, pursuant to Section 455.225, Florida Statutes (currently renumbered as Section 456.073, Florida Statutes), Petitioner was notified of the investigation by the Agency and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, which included an expert opinion by William Yahr, M.D., and medical literature that discussed the risks of the procedure at issue in the case. The expert opinion of Dr. Yahr stated that Petitioner did not fall below the standard of care in this case and that the patient died of a predictable complication of the procedure at issue in the case. The Administrative Complaint in the underlying case, DOAH Case No. 01-4406PL (AHCA Case No. 1994-12341), was filed on May 10, 1999, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; by failing to treat Patient D.J.P.'s preoperative coagulopathy; and by failing to use an alternate vein that would have allowed visualization of the shunt placement, thereby reducing the risk of causing hemorrhage given the patient's preoperative history. As required by statute, the probable cause panel that considered this matter was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine. Present at the May 5, 1999, meeting of the South Probable Cause Panel of the Board of Medicine (Panel) were Panel members Margaret Skinner, M.D., Chairperson of the Panel; John Glasgoe, M.D.; and Becky Tierney. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Agency Investigations; Larry McPherson, Senior Attorney for the Agency; and Susan Drake, M.D., Medical Consultant for the Agency. Prior to the May 5, 1999, meeting, the members of the Panel received and reviewed the Agency's entire investigative file, including Petitioner's response and Dr. Yahr's opinion, and the expert opinions of Henry Black, M.D., and John Kilkenny, III, M.D. The expert opinions available to the Panel were those completed in 1997 and 1999, respectively. Dr. Black opined that Petitioner met the standard of care in the case, but admitted that he did not perform the procedure at issue in the case; Dr. Kilkenny, who did perform the procedure at issue in the case, opined that Petitioner failed to meet the standard of care in the case; and Dr. Yahr opined in 1994 that there was no evidence that Petitioner failed to meet the standard of care in the case, but did not state whether he performed the procedure at issue in the case. In addition, the Panel had access to the written response to the investigation prepared by counsel on behalf of Petitioner, which was submitted on October 13, 1994. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him. Mr. Grossman also advised the Panel that any questions they had regarding the materials that they received, the recommendations that had been made, or the investigation that had been conducted should be directed to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel discussed the complaint very briefly, asked no questions, and voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. The record in the underlying case does not demonstrate why there was an inordinate delay between the completion of the Agency's investigation in October 1994 and the Agency's retention of Dr. Black in 1997; why Dr. Kilkenny was retained in 1999 after Dr. Black had given his opinion on August 4, 1997, that there was no deviation from the standard of care by Petitioner; nor why Dr. Yahr's opinion was not given any consideration. While Dr. Black may not have had the appropriate qualifications to render an expert opinion in the case, both Dr. Kilkenny and Dr. Yahr did have sufficient qualifications to render an expert opinion in this matter. Further, there was no assertion by the prosecuting authority that any of the fact witnesses needed to prove this case were even available after five years of delay. Nor did the counsel for the Panel bring any special attention to the Panel members in regard to the possible proof problems with this case caused by the inordinate delay in bringing the case before the Panel. Finally, no explanation has been given for the delay in forwarding the Administrative Complaint, issued on May 10, 1999, to the Division of Administrative Hearings until October 15, 2001. As to Case No. 02-4844F The Administrative Complaint in the underlying case, DOAH Case No. 01-4407PL (AHCA Case No. 1999-57795) was filed on June 13, 2001, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances; by failing to adequately monitor Patient H.H. post-operatively given Patient H.H.'s high risk for distal emboli and/or due to evidence of tissue ischemia; by failing to clamp the arteries distally prior to manipulation of the aneurysm; and/or by failing to take adequate steps to prevent emboli, such as ensuring periodic monitoring of the patient's condition post-operatively for evidence of ischemia or other problems. Pursuant to Section 455.225, Florida Statutes (now at 456.073, Florida Statutes), Petitioner was notified of the investigation by Respondent by letter dated November 12, 1999, and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, denying that he violated the standard of care. The Investigative Report was issued on February 11, 2000. The probable cause panel that considered this matter met on June 8, 2001, and was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine, as required by statute. However, the consumer member of the Panel was unavailable to attend the Panel meeting that day. Present at the June 8, 2001, meeting of the Panel were Panel members Fued Ashkar, M.D., Chairperson of the Panel, and Gustavo Leon, M.D. Also present at the meeting were Lee Ann Gustafson, Acting Board Counsel, and Randy Collette, Senior Attorney for the Agency. Prior to the probable cause meeting, the members of the Panel received and reviewed what was purported to be the Agency's complete investigative file, including Petitioner's response, and the expert opinion of James Dennis, M.D. The expert opinion available to the Panel was that of James Dennis, M.D., a board-certified vascular surgeon, who performed the procedure at issue in the case. Dr. Dennis opined that Petitioner failed to meet the standard of care in the case. Prior to consideration of the case, Ms. Gustafson advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to her. Ms. Gustafson also advised the Panel that any questions they had regarding the materials that they received, the recommendations that have been made, or the investigation that has been conducted should be direct to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. Following the filing of the Administrative Complaint, Petitioner timely filed a request for a formal hearing. After probable cause was found in the underlying case, the matter was referred to the Division of Administrative Hearings, and shortly before the date of the scheduled formal hearing, the attorneys for Petitioner and Respondent discovered that Respondent's expert, Dr. Dennis had been retained by Petitioner's former attorneys, after probable cause had been found, to give an opinion on behalf of Petitioner in the underlying case. This resulted in the disqualification of Dr. Dennis' opinion. The formal hearing was continued, and Respondent retained another expert, Kenneth Begelman, M.D. He opined that Petitioner fell below the standard of care in the case, and his testimony was used at the formal hearing. No reference to the opinion of Dr. Dennis was made or used at the formal hearing. Dr. Begelman's opinion was also not available to the Panel at the time that probable cause was found against Petitioner, nor did Respondent seek to return jurisdiction to the Panel for their reconsideration. Any objection to this procedure was waived by the parties. At the formal hearing, a CT Scan of the patient in question and missing nurses' notes relating to Petitioner's postoperative monitoring were introduced into evidence. Upon review of this new evidence and under cross- examination, Respondent's expert, Dr. Begelman, could not conclusively determine whether Petitioner's surgical and post- surgical treatment of Patient H.H. fell below the standard of care. However, it is clear from the record in the underlying case that the evidence regarding Petitioner's performance of the procedure at issue in the case, as well as his postoperative care of the patient, was in dispute. The expert opinion of Dr. Dennis and Petitioner's response highlight this fact. The events involving Dr. Dennis, which occurred after the finding of probable cause by the Panel, and Respondent's subsequent use of Dr. Begelman at the formal hearing are not relevant to the determination of whether Respondent was substantially justified in finding probable cause against Petitioner in the underlying case. And, while the underlying case was ultimately resolved in Petitioner's favor, there were disputes of fact in this case and the Agency and Respondent clearly were substantially justified to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs, as to DOAH Case No. 02-4844F.
The Issue The issue presented for decision in this case is whether Respondent committed the violations of Sections 106.07(5) and 106.19(1)(c), Florida Statutes (1995), as set forth in the Order of Probable Cause and accompanying Statement of Findings issued by the Florida Elections Commission on August 13, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent John Morroni is a member of the Florida House of Representatives, representing District 50. He was first elected in 1992, and has been reelected subsequently. In 1995, Representative Morroni was serving his second term and beginning his reelection campaign for 1996. Representative Morroni appointed Robert P. Symanski, a certified public accountant, as his campaign treasurer. Representative Morroni designated himself as deputy treasurer for the campaign. Prior to the commencement of each campaign, Representative Morroni signed a "Statement of Candidate" form, attesting that "I have received, read, and understand the requirements of Chapter 106, Florida Statutes." Thomas Carey is a trial lawyer from Clearwater. Representative Morroni had known Mr. Carey before 1992. After Representative Morroni was elected, Mr. Carey served as the liaison between the Florida Academy of Trial Lawyers and Representative Morroni. Mr. Carey is nationally known as a leader in efforts to prevent drunk driving, having served as a local and a national officer of Mothers Against Drunk Driving. Mr. Carey had worked with Representative Morroni in connection with drunk-driving issues. Representative Morroni was reelected without opposition in 1994. After that election, Mr. Carey approached Representative Morroni and offered to throw a kick-off party for his next campaign, telling Representative Morroni to let him know when the time was right to plan such a function. At some point in the summer of 1995, Representative Morroni called Mr. Carey and told him the time was right to plan the kick-off party for the 1996 campaign. Mr. Carey told Representative Morroni that his home could not be used for the party, but that his sister’s house would be ideal for the party. Mr. Carey and Representative Morroni decided that the party would be held on the last week of August. Mr. Carey obtained the consent of his sister, Patricia Rowan, and her husband, Dr. Patrick Rowan, to use their home on Clearwater Beach for the party. The Rowans also agreed to contribute $500 each as an in-kind contribution to defray the costs of the party. In July 1995, Mr. Carey was in the midst of a large jury trial, and did not have the time to oversee the details of the party. At this time, Mr. Sandy Golden was working as a volunteer for Mr. Carey on drunk driving issues, and was beginning to take on some paid personal duties for Mr. Carey. Mr. Carey delegated the planning of the party to Mr. Golden and his friend, Marilyn Curtis. Mr. Golden testified that he had nothing to do with the planning of the party, beyond getting his friend Ms. Curtis involved. Mr. Golden testified that he found Ms. Curtis and that Mr. Carey hired her to coordinate the party. Mr. Carey testified that he had no recollection of "hiring" Ms. Curtis. He testified that he believed Ms. Curtis was volunteering her services, and that it was only after the fact that he agreed to pay her, at the urging of Mr. Golden. Ms. Curtis testified that she had no discussions with Mr. Carey concerning payment for her services. She testified that Mr. Golden assured her that she would be paid. Mr. Carey testified that at the outset he established a budget of $1,500 for the party, and that he based this number on the fact that he and each of the Rowans could lawfully provide $500 as in-kind contributions to the Morroni campaign. Neither Mr. Golden nor Ms. Curtis remembered a firm dollar amount being established before the party. Ms. Curtis telephoned Representative Morroni to obtain a list of invitees and other information for the party. Representative Morroni testified that he knew Ms. Curtis had planned major events for corporate clients, including the president of Outback Steakhouse, and he was concerned that his campaign kickoff party not be too ostentatious. Representative Morroni cautioned Ms. Curtis that this was not a fundraiser, but a party for his campaign co-chairs and friends, and that a "fancy" party was not required or wanted. Ms. Curtis designed and mailed the invitations. She was reimbursed for the printing and mailing of the invitations by personal check from Mr. Carey, in the amount of $106.44, dated August 16, 1995. The party was held at the Rowans’ house on August 26, 1995. Mr. Carey testified that he arrived early and was presented with invoices from the various vendors who provided goods and services for the party. It is undisputed that Mr. Carey paid the following amounts by personal checks dated August 26, 1995: $52.50 for valet parking services; $296.80 for bartending services; and $900 for catering services and dinner buffet; $100 for photography services. By check dated September 13, 1995, Mr. Carey paid an invoice of $79.18 for floral arrangements. At Mr. Golden’s urging, Mr. Carey wrote a check for $300 to Ms. Curtis to compensate her for 15 hours' work on the party, at a rate of $20 per hour. This check was written on August 27, 1995, the day after the party. Thus, Mr. Carey wrote checks totaling $1834.92 to cover expenses for the party, including the $300 payment to Ms. Curtis and the late payment of $79.18 to the florist. There was some dispute at the hearing as to how Mr. Carey came to write these checks and whether he was reimbursed for his outlay of all the expenses for the party. Representative Morroni testified that it was obvious the party cost more than the $500 an individual is allowed by law to contribute, and that he remembered a passing conversation in which he complimented Mr. Carey on the party and expressed the hope that someone was sharing the expenses with him. Representative Morroni testified that a more detailed discussion as to the division of expenses would have been improper, given that this was a party and there were 28 other campaign people present. He also considered Mr. Carey to be knowledgeable and experienced in political matters, and thus not in need of a lecture about contribution limits. Mr. Golden testified that he was present during the brief conversation between Mr. Carey and Representative Morroni. Mr. Golden’s recollection was similar to that of Representative Morroni. Mr. Golden recalled Representative Morroni complimenting Mr. Carey on the party, then reminding Mr. Carey of the $500 limitation and telling Mr. Carey to be sure he "split out" the costs of the party. Mr. Carey testified that a more detailed conversation took place. As noted above, Mr. Carey testified that he had established a $1,500 budget for the party, based on $500 contributions from him and from each of the Rowans. As the invoices rolled-in during the party, Mr. Carey became concerned that the $1,500 budget was going to be exceeded, and concerned as to the logistics of paying the invoices. Mr. Carey testified that he discussed these matters with Representative Morroni in the presence of Mr. Golden and Mrs. Rowan. One option discussed was for Mr. Carey and the Rowans to write $500 checks to the Morroni campaign, which would in turn pay the invoices. Another option was to divide each invoice three ways and write three separate checks to cover each one. Mr. Carey testified that Representative Morroni suggested that, because Mr. Carey had already paid some of the invoices, he keep writing his personal checks to cover them, then have the Rowans reimburse him. Mr. Carey thought this the most workable option, and so continued paying the invoices by personal check. Mr. Carey testified that the group still had to deal with the contingency of the expenses exceeding the $1,500 budget. Mr. Carey testified that, at Representative Morroni’s suggestion, Mr. Golden agreed that any amount over $1,500 would be attributed to him, and that Mr. Golden would reimburse Mr. Carey by working for him without pay on drunk-driving issues. Mr. Golden flatly denied ever agreeing to such an arrangement or agreeing to make a contribution of any kind to the Morroni campaign. As noted above, Representative Morroni testified that he had no recollection of this detailed conversation taking place, let alone suggesting the payment/reimbursement plan outlined by Mr. Carey. Representative Morroni’s testimony, as corroborated by Mr. Golden's, is credited on this point. Representative Morroni testified that he had a difficult time getting hold of Mr. Carey to obtain the contribution details for inclusion in his campaign finance report. As the reporting deadline approached, Representative Morroni made several telephone calls to Mr. Carey. At length, he reached Mr. Carey, who gave him the needed information over the telephone. Representative Morroni relayed the information to Mr. Symanski, his campaign treasurer, who in turn included the information in the campaign treasurer’s report for the period July 1, 1995 through September 30, 1995, filed October 10, 1995. Mr. Carey testified that he had no clear recollection of providing the numbers to Representative Morroni, and that he believed Mr. Golden had provided the information to the Morroni campaign. Mr. Carey testified that if he did call Representative Morroni with the information, he simply would have been relaying information provided to him by Mr. Golden. Representative Morroni’s testimony is credited, and it is found that Mr. Carey provided the numbers to Representative Morroni. It was undisputed that the figures included in the referenced treasurer’s report accurately reflected Mr. Carey’s oral report to Representative Morroni. The relevant figures related to the kick-off party were as follows, all listed as "in-kind contributions" and dated August 26, 1995: Name Amount Description Dr. Patrick Rowan $500 Kick-off Party Expenses Mrs. Patrick Rowan $500 Kick-off Party Expenses Mr. Tom Carey $500 Kick-off Party Expenses Ms. Marilyn S. Curtis $79.26 Kick-off Party Expenses Mr. Sandy Golden $300 Kick-off Party Expenses Thus, the total reported expenses for the party were $1,879.26, as compared to $1,834.92 in actual paid invoices. Representative Morroni testified that he took these figures from Mr. Carey at face value, seeing no reason to question their accuracy or completeness. He knew that all the individuals listed as contributors were present at the party and were involved in its organization. Representative Morroni testified that he took down the figures and reported them directly to Mr. Symanski. Mr. Symanski testified that he had no previous experience serving as a campaign treasurer, and felt that it was not his position to "challenge" someone who claimed to have made an in-kind contribution. His practice was to refer any questions regarding in-kind contributions to Representative Morroni. Mr. Symanski testified that $1,800 "seemed like a lot more than what we would have spent, but if that’s what they said they spent, that’s what I recorded." He testified that the $500 allocations for the party did not raise concerns in his mind, because he knew beforehand that the costs of the party would have to be split up in some fashion. Both Representative Morroni and Mr. Symanski testified that, as a general matter, they reported in-kind contributions based upon the word of the contributor. They did not ask for receipts or other verification of the amount claimed by the contributor, provided those amounts seemed reasonable. Neither man was aware of any legal requirement that a candidate or campaign obtain documentation of the value of in-kind contributions. Other factual issues were raised by the parties that are ultimately tangential to the resolution of this case but nonetheless require resolution to complete the record. First, the Commission questions the veracity of Mrs. Rowan’s testimony regarding the $500 contributions made by her and her husband, because Dr. and Mrs. Rowan initially executed affidavits, on forms sent by the Commission’s investigator, attesting that they made no contributions to the Morroni campaign. Mrs. Rowan’s explanation of this seeming contradiction is credited. She testified that her husband has been extremely ill, having been diagnosed with a brain tumor in January 1998. In fact, as of the date of the hearing, Dr. Rowan had already outlived his initial prognosis of one year. The Rowans learned of Dr. Rowan’s condition at roughly the same time they executed the original affidavits. Mrs. Rowan testified that under the circumstances neither she nor Dr. Rowan paid much attention to the affidavits. Mrs. Rowan testified that someone later mentioned to her a newspaper article listing her as a contributor to the Morroni campaign. The article jogged her memory regarding the party and caused her to execute a corrected affidavit reflecting her $500 in-kind contribution. She had no explanation as to why the corrected affidavit was not provided to the Commission until the date of the hearing. On the date of the kick-off party, Mrs. Rowan wrote a check to her brother, Mr. Carey, in the amount of $4,200. She testified that $1,000 of this amount was the contribution of her and her husband to the party expenses, and the remainder was payment for legal services performed by Mr. Carey. Her testimony is credited on this point. Respondent presented testimony regarding a subsequent falling-out between Mr. Carey and Mr. Golden over tactics in the crusade against drunk driving, as well as testimony regarding Mr. Golden’s feeling that Representative Morroni had "sold out" on the drunk-driving issue. Respondent’s purpose was to provide an ulterior motive for Mr. Golden’s filing the confidential complaint in this matter some two years after the events occurred, and to at least imply that Mr. Golden is mentally unstable and unreliable as a witness. It is found that the facts concerning the Carey/Golden feud, all of which occurred after the events here at issue, are irrelevant to this proceeding, except as they provide some indicia that both Mr. Carey and Mr. Golden have reasons, rational or otherwise, to make each other look as bad as possible. Mr. Golden’s motive in filing the confidential complaint is irrelevant. As to Mr. Golden’s reliability as a witness, the only relevant point on which his testimony is contradicted concerns whether he agreed to have the party expenses exceeding the purported $1,500 budget attributed to him, to be "worked off" at a later time. For the reasons set forth in the Conclusions of Law below, it makes no difference to the resolution of this case whether Mr. Golden or Mr. Carey is credited as to whether this arrangement was made. The relevant point is whether Representative Morroni was aware of any such arrangement, such that he could be found to have willfully signed a false or incorrect report. Representative Morroni’s testimony that he was not aware of such an arrangement is credited.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Elections Commission enter a final order dismissing the charges against the Respondent, Representative John Morroni. DONE AND ENTERED this 28th day of April, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 28th day of April, 1999. COPIES FURNISHED: Michael T. McGuckin Assistant General Counsel Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Chris Haughee, Esquire Greene, Donnelly & Schermer 102 West Whiting, Suite 201 Tampa, Florida 33602-1480 Barbara Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Steven Christensen, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue The issue presented is whether Petitioner is entitled to recover from Respondent his attorney's fees and costs, pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact On October 24, 2007, Respondent Department of Business and Professional Regulation, Division of Real Estate, received a complaint against Petitioner Elbert Cecil Wright, III, a certified residential appraiser holding license numbered 219. The complaint was assigned to an investigator, Judy S. Smith, who has some level of training regarding real estate appraisals but no personal experience or licensure in the field. The complaint letter was written by Kathleen Tesi, who lives in Virginia and represents herself to have no expertise in real estate appraisal. At the urging of a personal friend in 2005, she purchased a vacant lot, sight unseen, in Bella Collina West, Montverde, Florida, for $655,900. Tesi understood that she would be buying the lot with her friend with the expectation that they would hold title for some time period and then sell it for a profit. The two of them had done this together in the past. The entire transaction, including the closing, was done by mail, and multiple documents and multiple versions of those documents were exchanged. It appears that Tesi and her friend are both named on the mortgage, although Tesi questions her friend's signature. The mortgage note, however, was executed only by Tesi. The contract for purchase of the lot, however, was in the name of her friend and a third party, whom Tesi does not know, and Tesi is not reflected as a purchaser of the lot. Respondent's investigative file does not contain a copy of the deed to the lot, so it is unknown whether Tesi has an ownership interest in the lot or just the financial obligation to pay for it. Tesi's potential mortgage company, SunTrust Mortgage, Inc., contracted with Petitioner to prepare an appraisal of the property for SunTrust. Petitioner prepared and submitted an appraisal to SunTrust, his client, which reflected that the property was valued at the purchase price. In 2007, when property values fell sharply and Tesi's friend advised her that she would no longer help Tesi with the mortgage payments, Tesi began seeking and gathering copies of the purchase agreement and closing documents from the title company and SunTrust. She then filed a complaint with the Georgia Banking Commission against SunTrust for, essentially, loaning her more money than she could pay back; against the title company for, essentially, inconsistent names throughout the paperwork involved in the closing and transfer of title; and the complaint with Respondent against Petitioner for producing an inferior appraisal. Her complaint regarding Petitioner's appraisal of the property raises three concerns: Petitioner did not use appropriate comparables, Petitioner overvalued her property, and Petitioner misrepresented the size of the lot. In her complaint to the Georgia Banking Commission, she suggests that the incorrect lot size on Petitioner's appraisal should invalidate the appraisal and, therefore, invalidate the loan she obtained from SunTrust. Smith forwarded Tesi's complaint to Petitioner, who responded by letter dated November 30, 2007. He explained that at the time of his appraisal, Lake County had not yet uploaded records on the new subdivision Bella Collina West concerning plats or sales. He, therefore, obtained such information from the on-site sales staff and named the sales manager who advised him that there were not yet any closed sales in the subdivision and who gave Petitioner the dimensions of Tesi's lot. The letter explained in detail why Petitioner chose comparables in the earlier-developed phase of Bella Collina and how he made adjustments in value for those recent closed sales of much- larger lot sizes because they were not on the golf course as was Tesi's lot. Investigator Smith interviewed Petitioner on January 31, 2008. He explained to her again why he chose the comparables that he chose, how he computed the value of the lot in question, and that he obtained the lot dimensions from the on-site sales staff for the subdivision. Smith also interviewed a sales person at the developer's sales office at the subdivision. He explained to her that the lots in the subdivision were in such high demand in 2005 that the developer resorted to a lottery system to determine who would even be able to buy a lot. Smith did not speak to the sales person Petitioner said he had obtained information from when he prepared his appraisal of Tesi's lot. Smith went to Bella Collina West and Bella Collina, an earlier phase of the development. She saw that the comparables utilized by Petitioner were much-larger lots than Tesi's but that Tesi's was on the golf course. She did no further investigation. Specifically, she did nothing to verify the information Petitioner gave her relating to the issues raised by Tesi. For example, she did not verify Petitioner's statements to her that there were 14 sales of vacant lots the same size as Tesi's lot that sold for the same price as Tesi's at the same time. She did not consult with an expert to determine if there were any statutory violations committed by Petitioner regarding that appraisal or if there were professional standards violated. Smith completed her investigative report which, basically, included Tesi's complaint and Petitioner's response. That report was forwarded to the Florida Real Estate Appraisal Board, along with a draft administrative complaint. The report contains no explanation concerning the professional standards or statutes Petitioner allegedly violated. The report simply recites what each of the three individuals Smith interviewed said to her. The Probable Cause Panel of the Board considered the investigative report on April 9, 2008. The Transcript of the meeting reflects the presence of 12 persons, only two of whom were members of the probable cause panel. The remainder of those present were attorneys or staff members for the Board or the Department. Of the two probable cause panel members, Michael Rogers was physically present, and Clay Ketcham attended the meeting by telephone. No evidence was offered in this proceeding as to whether they were licensees of the Board or lay persons, although Respondent's attorney asserted during argument in this proceeding that both gentlemen are state certified general appraisers. The entire consideration of the charges against Petitioner is less than three transcript pages long. First, the prosecutor erroneously described the size of Tesi's vacant lot, the date of the appraisal, and the county in which the lot was located. She then mentioned that the comparables Petitioner used were larger, and he made adjustments for size, location, and view. She then advised that Petitioner had two prior disciplinary actions and recommended the Board approve the draft six-count administrative complaint. Panel member Ketcham asked whether prior disciplinary action could constitute a charge in an administrative complaint. His question was answered, and the two panel members then found probable cause to file the administrative complaint. There was no discussion regarding any of Tesi's allegations, the explanations Petitioner had given, why Petitioner's choice of comparables or the offset he used were incorrect, the alleged statutory violations Petitioner was charged with committing, or the professional standards Petitioner was charged with violating. It is clear that the two panel members simply "rubber-stamped" the prosecutor's recommendation. After the administrative complaint was issued, Petitioner requested an administrative hearing, and the matter was referred to the Division of Administrative Hearings and assigned DOAH Case No. 08-4720PL. The final hearing in that case, the underlying proceeding, was conducted on January 22, 2009. At the final hearing, the Department's only expert to testify agreed with Petitioner that the erroneous lot size Petitioner used in his appraisal had no impact on the value of the lot. Although the Department's expert disagreed with the comparables used and the adjustments in value Petitioner made, there was no suggestion as to what the "correct" appraised value of the lot should have been. On April 1, 2009, the undersigned entered a Recommended Order finding that the Department of Business and Professional Regulation, Division of Real Estate, had failed to prove any of the six counts contained in the administrative complaint and recommending that a final order be entered finding Petitioner not guilty and dismissing the administrative complaint. On September 18, 2009, the Florida Real Estate Appraisal Board entered a Final Order adopting that Recommended Order and dismissing the administrative complaint against Petitioner. On November 16, 2009, Petitioner filed his motion for attorney's fees and costs, seeking to be reimbursed for those amounts expended in defending the underlying action. His motion was assigned DOAH Case No. 09-6338F. That motion seeks an award of attorney's fees in the amount of $9,720.00 and costs in the amount of $1,206.95, for a total of $10,926.95. Petitioner prevailed in the underlying proceeding and is a small business party. His net worth, including both personal and business investments, is less than $2,000,000. Respondent was not substantially justified in initiating the underlying proceeding against Petitioner.
The Issue The issue is whether Petitioner is entitled to reasonable attorney's fees and costs (fees and costs), pursuant to Section 57.111, Florida Statutes (2003), as the prevailing party in DOAH Case No. 02-1659.
Findings Of Fact Sometime in February 2002, Respondent filed an Administrative Complaint against Petitioner. Petitioner requested an administrative hearing, and DOAH Case No. 02-1659 ensued (the underlying case). Respondent admits that Petitioner was the prevailing party in the underlying case. The Recommended Order in the underlying case recommended that the agency enter a Final Order finding the facility not guilty of the violation alleged in the Administrative Complaint. The Final Order adopted the findings and conclusions in the Recommended Order. Respondent does not contest that fees and costs in the amount of $10,889.00 are reasonable. Petitioner incurred fees of $6,890.00 and $3,760.00, respectively, in the underlying case and in this proceeding. Petitioner incurred costs of $239.00 in the underlying case. Petitioner submitted the only evidence concerning the amount of fees and costs and the reasonableness of that amount. Respondent defends the request for fees and costs on two grounds. Respondent contends that Petitioner is not a small business party and that the agency had substantial justification for initiating the underlying case. Petitioner is a small business party within the meaning of Section 57.111, Florida Statutes (2003). Petitioner is a closely held corporation with its principal office in the state. The record in this proceeding and that in the underlying case clearly show that Petitioner has only one place of business. When the agency initiated the underlying case, the facility operated by Petitioner had no more than 25 full-time employees and had a net worth of less than $2 million. The facility contained 34 beds and 17 residents in 2002. The fair market value on May 1, 2003, was $1,840,000. Thereafter, the facility expanded by eight rooms and 16 beds and has a projected fair market value of $2,150,000 in May 2004. Contrary to the assertion in Respondent's PFO, the testimony of the sole shareholder is not the only evidence of the net worth of the facility. Documentary evidence includes two written appraisals and a federal income tax return for the 2002 tax year. The tax return reports total assets and liabilities, respectively, of $1,295,010 and $501,088. Respondent was substantially justified in initiating the underlying case. Respondent had a solid basis in fact for the position that it took in the underlying case. On June 27, 2002, the facility transferred a resident to a hospital for a urinary tract infection. The hospital treated the resident intravenously for five days with an antibiotic identified in the record as Tequin, until the resident was asymptomatic, and discharged the resident to the facility. The discharge summary directed the resident to continue Tequin orally, but the hospital did not issue a prescription slip for Tequin. The facility did not administer Tequin to the resident, the infection recurred, and the hospital readmitted the resident. The allegations in the Administrative Complaint and survey findings did not state a legally correct basis for initiating the underlying case. The Administrative Complaint alleged, in relevant part, that the facility violated Florida Administrative Code Rule 58A-5.0185(7)(f) by failing to ensure that prescriptions are "refilled." It was undisputed in the underlying case that a prescription for Tequin did not exist before the date of discharge from the hospital. The agency alleged that the facility failed to "refill" the prescription either by overlooking the prescription slip provided by the hospital or by failing to review the discharge summary to determine that the hospital had failed to include a prescription slip for Tequin. The agency alleged that in either event the facility failed to "refill" an existing prescription. The agency never produced the prescription slip for Tequin that the agency alleges the hospital included with other prescriptions on the date of discharge. The facility "filled" or "refilled" the other prescriptions provided by the hospital. The absence of a prescription slip for Tequin raises an issue of whether the facility received adequate notice of its duty to "fill" or "refill" a prescription for Tequin. The agency's proposed resolution of the notice issue was legally incorrect. The agency alleged that the facility failed to note "either the Resident's discharge instructions or the prescription slip." In the absence of a prescription slip, the failure to note the discharge instructions may have violated a rule of the agency, but the failure to note the discharge summary did not violate the rule requiring Petitioner to take appropriate steps to "refill" a prescription. Respondent's expert witness in this proceeding contradicted the charge in the underlying case that distinguished discharge instructions from a prescription slip. Respondent's expert testified that the agency was substantially justified in initiating the administrative action because the hospital "discharge instructions" constituted a "prescription." Respondent's expert attempted to explicate his administrative interpretation of the relevant rule by stating that the pharmacist would need to telephone the prescribing physician to "verify the prescription" in the discharge summary, but would not need to do so if the hospital had issued a prescription slip. The testimony of Respondent's expert conflicts with the statutory definition of a prescription in Section 893.02(20), Florida Statutes (2003), and is neither credible nor persuasive. The statute defines a prescription, in relevant part, to include a physician's order for drugs that is transmitted by telephone. A pharmacist that telephoned a physician to "verify a discharge summary" notation would actually fill the order for medication that the physician transmitted by telephone to the pharmacist. For reasons stated in Findings 8 and 9, the agency was substantially justified in initiating the administrative action. However, the agency charged the facility with committing acts that, if proven, did not violate the rule cited in the Administrative Complaint. For reasons stated in the Recommended Order in the underlying case, an agency cannot charge the facility with violating one rule and prove that the facility violated a rule not cited in the Administrative Complaint. To do so, would violate fundamental principles of due process as well as essential requirements of the Administrative Procedure Act.
Findings Of Fact After serving 32 years as Tax Collector for Walton County, Jack Little decided to retire in 1992. There were several Democratic candidates and one Republican candidate who ran for Tax Collector. Among the Democratic candidates was Sue Carter who had been employed in the Walton County Tax Collector's office prior to resigning to run for tax collector. The first Democratic primary was held in September, 1992, resulting in a runoff primary between Sue Carter and Sue Rushing in October, 1992. Ms. Carter defeated Ms. Rushing. In November 1992, Sue Carter won the general election. Respondent, Patty Lynch (Lynch), was employed in the tax collector's office in 1992 as a title clerk. As title clerk, Lynch dealt with the public in issuing vehicle license renewals, registering titles for vehicles, and issuing handicap parking permits. Pat Pollard, Teresa Gomillion, Tammy Day and Sylvia Rushing were also employed in the tax collector's office during the 1992 election campaign. Ms. Gomillion and Lynch supported Ms. Carter. Ms. Day did not support Ms. Carter. Ms. Rushing was related to Sue Rushing, Ms. Carter's opponent. Ms. Pollard did not support anyone for the office of Tax Collector. Pat Pollard was a title clerk, and her work station was located about ten feet away from Lynch's work station. Before the first and second Democratic primaries, Ms. Pollard heard Lynch discuss politics with customers. Lynch would encourage nonregistered voters to register to vote and to vote for Carter. She saw Lynch hand out palm cards for Carter to customers during office hours. Palm cards are used by political candidates to advertise their candidacy. The cards are usually small and may feature a picture of the candidate and information concerning the qualifications of the candidate. Pamela Dyess has been employed at a car dealership in DeFuniak Springs for 16 years. During 1992, her job responsibilities required her to go to the tax collector's office to handle the tag and title work for the dealership. Between the first and second primaries, Ms. Dyess went to the tax collector's office and while she was there the subject of the first primary was discussed. Ms. Dyess stated that she had voted for Harley Henderson. Ms. Gomillion joined in the conversation. Later Lynch joined in the conversation and told Ms. Dyess that she needed to vote for Carter. Ms. Dyess was upset by Ms. Gomillion's and Lynch's comments and felt that they were telling her how to cast her vote. Sylvia Burke, a lifelong resident of DeFuniak Springs, supported Sue Rushing in the race for tax collector. During the runoff, Ms. Burke went to the tax collector's office to renew her car tag. She teased Lynch saying that she was going to politick for Ms. Rushing. Her remark set off an argument between Lynch and Ms. Burke on the candidates for tax collector. Rodney Ryals has been an employee for the City of DeFuniak Springs for the last ten years. During 1992, Mr. Ryals spent a great deal of time at the tax collectors's office taking care of city business and visiting with his friend Ms. Pollard. While at the tax collector's office, Ryals saw Lynch hand out campaign cards for Carter depicting Carter's picture and listing Carter's qualifications. Lynch tried to give Mr. Ryals campaign literature. Mr. Ryals did not support Carter in the tax collector's race. During Ryals' visits to the tax collector's office, Lynch would tell him, "You better vote for Sue Carter, she's the only qualified candidate." Mr. Ryals advised Lynch that she should not politick on the job and she responded that she had to politick on the job because she might lose her job if anyone else got elected. Sherry Sylvester sold merchandise for House of Lloyd as a side line. She would get persons to hostess demonstration parties or silent parties. The customers would place orders with the hostess of the party, who in turn would transmit the orders to Ms. Sylvester and receive free merchandise for being a hostess. Lynch had given several House of Lloyd parties for Ms. Sylvester. Either before or after the first primary, Ms. Sylvester went to the tax collector's office to see Lynch concerning House of Lloyd business. While Ms. Sylvester was at the tax collector's office, Lynch, aware that Ms. Sylvester supported Ms. Rushing, tried to get Ms. Sylvester to switch to supporting Carter. Lynch tried to give Ms. Sylvester one of Carter's palm cards. Mr. Little had advised his employees that they should not politick during office hours. Ms. Carter had also warned Lynch about campaigning in the office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a final order finding that Patty Lynch violated Section 112.313(6) and recommending a civil penalty of $500 and a public censure and reprimand. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2068EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. (Revised Proposed Recommended Order) Paragraphs 1-5: Accepted in substance. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted except as to the distance between Ms. Pollard's work station and Ms. Lynch's work station. The greater weight of the evidence demonstrated that the work stations were located about ten feet apart. Paragraph 7: Accepted in substance. Paragraphs 8-11: Rejected to the extent that they are not findings of fact but rather recitation of testimony. Paragraph 12: Accepted in substance. Ms. Pollard did not support any candidate for Walton County Tax Collector. Paragraphs 13-16: Rejected to the extent that they are not findings of fact but rather recitation of testimony. Paragraph 17: The second sentence is accepted in substance. The remainder of the paragraph is rejected to the extent that they are not findings of fact but rather recitation of testimony. Paragraphs 18-19: Rejected to the extent that they are not findings of fact but rather recitation of testimony. Paragraph 20: The first sentence is rejected as not constituting a finding of fact but rather recitation of testimony. The second sentence is rejected as constituting argument. Paragraph 21: The first three sentences are accepted in substance. The remainder of the paragraph is rejected as constituting recitation of testimony. Paragraph 22: Rejected as constituting recitation of testimony. Paragraph 23: The first sentence is accepted in substance. The second sentence is rejected as constituting recitation of testimony. Paragraph 24: Rejected as constituting recitation of testimony. Paragraph 25: The first sentence is rejected as constituting argument. The second sentence is rejected as constituting recitation of testimony. Paragraphs 26-33: Rejected as recitation of testimony. Paragraph 34: Rejected as unnecessary. Paragraphs 35-41: Rejected as recitation of testimony. Paragraph 42: The first sentence is rejected as unnecessary. The last sentence is rejected as recitation of testimony. Respondent's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraphs 4-7: Rejected as constituting recitation of testimony. Paragraph 8: Rejected as constituting argument. Paragraph 9: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as subordinate to the facts actually found. Paragraphs 10-14: Rejected as constituting recitation of testimony. Paragraph 15: Rejected as constituting argument. Paragraph 16: The first sentence is rejected as constituting recitation of testimony. The second sentence is rejected as constituting argument. Paragraph 17: The first sentence is rejected as constituting recitation of testimony. The remainder of the paragraph is accepted in substance. Paragraphs 18-20: Rejected as constituting recitation of testimony. Paragraph 21: The first sentence is rejected as unnecessary. The remainder is rejected as constituting recitation of testimony. Paragraphs 22-23: Rejected as constituting recitation of testimony. Paragraph 24: The first sentence is rejected as constituting argument. The second sentence is rejected as constituting recitation of testimony. The remainder of the paragraph is rejected as unnecessary. Paragraphs 25-26: Rejected as constituting recitation of testimony. Paragraph 27: Rejected as unnecessary. Paragraphs 28-29: Rejected as recitation of testimony. Paragraph 30: The first sentence is rejected as recitation of testimony. The second sentence is rejected as subordinate to the facts actually found. Paragraph 31: The first sentence is rejected as unnecessary. The remainder of the sentence is rejected as constituting recitation of testimony. Paragraph 32: The first sentence is rejected as subordinate to the facts actually found. The second sentence is accepted in substance. Paragraph 33: The last sentence is rejected as constituting argument. The remainder of the paragraph is rejected as recitation of testimony. Paragraph 34: The first sentence is rejected as unnecessary. The last sentence is rejected as constituting recitation of testimony. Paragraph 35: The first part of the sentence is accepted in substance. The second part of the sentence is rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Michael E. Ingram Assistant Attorney General Department of Legal Affairs, PL-01 The Capitol Tallahassee, Florida 32399 Allan Ramey, Esquire Post Office Box 369 Defuniak Springs, Florida 32433-0369 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.
The Issue Whether or not Petitioner, James P. Appleman, "willfully" violated Subsections 106.021(3), 106.07(5), and Section 106.1405, Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause; and whether or not Petitioner, James P. Appleman, "knowingly and willfully" violated Subsections 106.19(1)(c) and (d), Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, record of proceedings, and the facts agreed to by the parties in the Joint Pre-hearing Stipulation, the following Findings of Fact are made: In 2000, Petitioner was reelected to the office of State Attorney, Fourteenth Judicial Circuit. Prior to his reelection in 2000, Petitioner had been elected to the same office in 1980, 1984, 1988, 1992, and 1996. Petitioner, on February 1, 1999, signed a Statement of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes. During the 2000 campaign, Petitioner made the following purchases using his personal funds in the form of cash, check or charge upon his personal credit card: a. Purchase 1: 7/12/99 Down payment/purchase of vehicle- $525.00 b. Purchase 2: 7/12/99 Purchase of vehicle/tax and title-$602.85 c. Purchase 3: 1/07/00 Bay Pointe Properties-$100.35 d. Purchase 4: 1/13/00 Delchamps Liquors-$58.50 e. Purchase 5: 1/22/00 Delchamps Liquors-$135.10 f. Purchase 6: 1/22/00 Cafe? Thirty A-$144.11 g. Purchase 7: 1/30/00 Pineapple Willy's-$17.45 h. Purchase 8: 5/05/00 Skirt/Jones of New York-$104.00- blouse/Jones of New York-$63.00 i. Purchase 9: 5/09/00 Tie/Dillards-$30.00-tie/Dillards- $40.00-misc. Big & Tall/Dillards- $8.75 j. Purchase 10: 5/23/00 Blazer/Polo Store-$199.99-short sleeve shirt/Polo Store-$39.99- short sleeve shirt/Polo Store- $39.99-short sleeve shirt/Polo Store-$39.99-shorts/Polo Store- $29.99 k. Purchase 11: 5/05/00 Casual bottoms/Brooks Brothers- $34.90-casual bottoms/Brooks Brothers-$34.90 casual bottoms/Brooks Brothers-$34.90 l. Purchase 12: 5/05/00 Shorts/Geoffrey Beene-$24.99- shorts/Geoffrey Beene-$24.99 m. Purchase 13: 5/05/00 Sport coat/Dillards-$195.00 n. Purchase 14: Telephone expense-$23.49 o. Purchase 15: 8/11/00 Tie down/Wal-Mart-$19.96-security chain/Wal-Mart-$19.26 p. Purchase 16: 8/11/00 Trailer hitch ball-$16.99 q. Purchase 17: 8/12/00 Event admission-$60.00 r. Purchase 18: 8/23/00 Liquor purchase/Delchamps-$37.41 s. Purchase 19: 8/30/00 Gas purchase/Shop a Snack-$20.00 t. Purchase 20: 8/30/00 Event admission-$40.00 u. Purchase 21: 8/30/00 Event admission/DEC-$15.00 v. Purchase 22: 8/26/00 Sign charge-$20.64 w. Purchase 23: 8/30/00 Auto insurance charge-$100.00 x. Purchase 24: 9/02/00 Gas purchase/Happy Stores-$34.00 y. Purchase 25: 9/02/00 Campaign staff/meal/food-$140.00 z. Purchase 26: 9/04/00 Ice purchase/Winn Dixie-$6.36 aa. Purchase 27: 9/05/00 Gas purchase/Swifty Store-$25.00 bb. Purchase 28: 9/06/00 Meal purchase/ St. Andrews Seafood House-$27.52 cc. Purchase 29: 9/08/00 Posthole digger-$42.90 dd. Purchase 30: 9/08/00 Lunch for sign crew-$20.14 None of these purchases were individually listed on Petitioner's Campaign Treasurer's Reports. Petitioner was reimbursed for each of the above- referenced expenditures by a check written on the campaign account, which 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 Person Receiving Reimbursement Purpose Amount 07-17-99 Appleman, Jim PO Box 28116 Panama City, FL 32411 02-11-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Vehicle Expenses Reimb. Cmpgn. Expenses $1,127.85 $830.81 06-10-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 08-07-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Expenses Reimburse vehicle & Phone exp. $1,000.00 $400.00 08-30-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 09-08-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimbursement/ Campaign Expense Reimbursement Camp. Expense $670.51 $295.92 On July 18, 2000, a campaign check for $140.99 was written to Winn Dixie. This check was reported on Petitioner's Campaign Treasurer's Report with the purpose listed as being "Campaign Social Supplies." The Winn Dixie purchase included the following items: A cat pan liner. 4 cans of cat food. A box of dryer sheets. A package of kitty litter. f. A jug of laundry detergent. The total cost of these items was $33.88. Petitioner signed all of his Campaign Treasurer's Reports, certifying as to their accuracy. The July 18, 2000, purchases at Winn Dixie were made by Mrs. Appleman, Petitioner's wife, and were a result of an inadvertent error. Immediately realizing that she had purchased personal items with campaign funds, she brought the matter to Petitioner's attention. Petitioner took possession of the Winn Dixie cash register receipt for the purchases; on the receipt he circled the inappropriate purchases with a pen, noted the total amount of inappropriate purchases on the receipt adding his initials, submitted the cash register receipt to his campaign treasurer, and several days later wrote a check reimbursing the campaign for the inappropriate purchases. During the campaign, Petitioner made 30 purchases listed in paragraph 3, supra, with personal funds, i.e., cash, personal check, or personal credit card, for which he provided receipts, and sought and received reimbursement from campaign funds by campaign check. These 30 purchases were not individually reported as expenditures on Campaign Treasurer's Reports during the reporting periods during which the purchases were made, but were reported as reimbursements as reflected in paragraph 4, supra. No evidence was presented that suggested that Purchases 3-7, Purchase 14, Purchases 17-22, or Purchases 24-30 listed in paragraph 3, supra, were not for campaign-related purposes. During the April 1 through June 30, 2000, campaign reporting period, Petitioner purchased 16 items of clothing (listed in paragraph 3, supra, as Purchases 8-13) for which he received reimbursement from campaign funds by campaign check. Petitioner and his wife testified that these items of clothing were used exclusively for campaign functions and purposes. Admittedly, each of the items of clothing could be used for non- campaign functions and purposes. However, the Campaign Treasurer's Reports reflect that in excess of $1,100 of "campaign shirts" were purchased during the campaign, supporting Petitioner's contention that he, his wife and campaign workers were all attired, while campaigning, in a color-coordinated "uniform of the day": red shirts, and tan/khaki trousers or walking shorts. This is further supported by photographs admitted into evidence. I find credible and accept the testimony of Petitioner and his wife that the items of clothing in the questioned purchases were used exclusively for campaign functions and purposes and not to "defray normal living expenses." During the August 12 through August 31, 2000, campaign reporting period, Petitioner purchased the following items for which he received reimbursement from campaign funds by campaign check: trailer hitch ball, trailer security chain, and sign tie-downs (listed in paragraph 3, supra, as Purchases 15 and 16). These three items were clearly used for campaign purposes and not to "defray normal living expenses." On August 30, 2001, Petitioner received a campaign check from the campaign treasurer reimbursing him for several campaign expenses he had paid. Among these campaign expenses, Petitioner sought reimbursement for $100 for "auto insurance" (listed in paragraph 3, supra, as Purchase 23). From the onset of his campaign, Petitioner had consistently either paid his automobile liability insurer, United Services Automobile Association, directly with a campaign check or sought reimbursement for payments he personally made for liability insurance on his personal vehicle or the "campaign Jeep" for automobile liability insurance cost attributable to the use of the motor vehicles in the campaign. Automobile liability insurance expense is a legitimate campaign expense and can reasonably be considered an actual transportation expense exempt from the statutory prohibition against payments made to "defray normal living expenses." On July 12, 1999, Petitioner purchased a 1997 Jeep to be used as a campaign vehicle (the down payment, tax and tag are listed in paragraph 3, supra, as Purchases 1 and 2); thereafter, loan payments to Tyndall Federal Credit Union and automobile liability insurance payments to United Services Automobile Association for the campaign vehicle were paid by the campaign treasury. On December 7, 1999, the 1997 Jeep was sold/traded to a third party for a 1999 Honda which was not used as a campaign vehicle. The Tyndall Federal Credit Union lien was transferred to the 1999 Honda. After December 7, 1999, the 1999 Honda was driven by Petitioner's adult stepdaughter. At the time of the transfer of the vehicles, Petitioner and his wife agreed that she would reimburse the campaign $800 which was determined to be the value lost by the campaign when the 1997 Jeep was traded. Petitioner later determined that he should reimburse the campaign an additional $525, the amount of the down payment paid when the 1997 Jeep was purchased in July 1999. On June 2, 2000, Petitioner's wife tendered a personal check drawn on her personal account to the campaign account for $800, which was reported under an entry date of June 5, 2000, on the Campaign Treasurer's Report for the period ending June 30, 2000, as a "REF" made by Petitioner. On March 14, 2001, Petitioner tendered a personal check to the campaign account for $617. This included $525 for the 1999 Jeep down payment reimbursement and an automobile liability insurance refund. Prior to the June 5, 2000, "REF" entry on the Campaign Treasurer's Report, there had been no report reflecting the sale of the campaign vehicle. The sale of the 1999 Jeep should have been reported on the Campaign Treasurer's Report for the period ending December 31, 1999; it was not. Petitioner certified that he had examined the subject Campaign Treasurer's Report and that it was "true, correct and complete" when, in fact, it was not as it did not reflect the sale of the campaign vehicle or the failure of Petitioner to pay the campaign treasury either $800 or $1,325, the amount Petitioner ultimately determined the campaign treasury should have been reimbursed as reflected by his late reimbursements.
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, James P. Appleman, violated Subsection 106.07(5), Florida Statutes, on one occasion and Subsection 106.19(1)(c), Florida Statutes, on one occasion and assess a civil penalty of $1,000 for the violation of Subsection 106.07(5), Florida Statutes, and a civil penalty of $2,400 for violation of Subsection 106.19(1)(c), Florida Statutes; and dismissing the remaining alleged violations of Chapter 106, Florida Statutes, against him as asserted in the Order of Probable Cause. DONE AND ENTERED this 15th day of April, 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 15th day of April, 2002. COPIES FURNISHED: David F. Chester, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello and Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
The Issue Whether Petitioner violated the Florida Election Code as alleged in the Order of Probable Cause entered November 25, 2002.
Findings Of Fact Chapters 97 through 106 comprise the Florida Election Code (Code). Pursuant to the Code, the Commission is specifically empowered to enforce the provisions of Chapters 104 and 106, Florida Statutes. Mr. Smith is a principal in Smith Brothers Paint and Body Shop and runs the daily operations of the business. In addition to painting and repairing motor vehicles, he has a wrecker service. He ran for county commission in Escambia County in 1996 but was not elected. He ran again in 2000 and was successful. Allegations of impropriety surrounding the 2000 race caused the Commission to conduct an investigation into Mr. Smith's campaign practices. When Mr. Smith ran for the position of county commissioner in 1996, his campaign treasurer was Lance Simmons. Mr. Simmons was a certified public accountant and Mr. Smith's friend. Mr. Simmons provided this service at no charge. The campaign financing reports prepared by Mr. Simmons were correct and professional. Lynn Kowalchyk, Assistant Supervisor of Elections in Escambia County, who has worked for the Supervisor of Elections in Escambia County for 25 years, opined that the submissions for that campaign were some of the best the Supervisor of Elections has received. Because Mr. Smith lost the election, he felt too embarrassed to ask Mr. Simmons to serve as his campaign treasurer for the 2000 race. He decided that he would serve as his own treasurer. Mr. Smith ran for county commissioner in District 5, which is the largest district in Escambia County, Florida. The district comprised the northern part of the county, which is more sparsely settled than the other districts in the county. In fact, District 5 comprises about 70 percent of the landmass of Escambia County. A great distance must be traveled to get from Mr. Smith's business to most places in the district and from place to place in the district. Mr. Smith decided that it was more important to engage in person-to-person campaigning in his large district than to spend time doing the detailed work of learning the complexities of the election laws, complying with the laws, and submitting correct reports. Mr. Smith received the 2000 edition of the "Candidate Handbook on Campaign Financing," which was published by the Florida Department of State. He had previously received the 1996 handbook. He signed statements in 1995 and 1999 certifying that he had read and that he understood the material presented in the handbooks. His testimony that he did not read either of them is accepted as fact. Mr. Smith had worked on one of his own campaigns and on other campaigns and felt as though he already knew all he needed to know about election laws. He concluded that if he needed additional information, he could get it from staff in the Supervisor of Elections Office. Mr. Smith first filed as a candidate for the 2000 election on October 20, 1999. Subsequent to filing he received at least ten notices from the Supervisor of Elections Office that members of the office staff were available to advise him with regard to the rules governing elections. Mr. Smith's routine during the campaign was to work at his place of business in the morning and then to go to his district and conduct his campaign. He gave documentation recording contributions and expenditures to his elderly mother, a widow of 65 years. His mother kept notes on a legal pad and organized the documents so that they could be reported. Mr. Smith's mother had cancer, heart problems, and arthritis and this may have affected her accuracy in preparing reports. Mr. Smith was unaware of the serious nature of her illnesses during the time she was working on the campaign. Mr. Smith's mother died December 11, 2002. Mr. Smith's brother also helped with the campaign records. He was a schoolteacher, and each evening during the campaign he would help Mr. Smith. His brother died one week after Mr. Smith's electoral victory. Counts 1-4. Allegations involving Section 106.021(3) prohibiting expenditures from other than the campaign treasury (Counts 1-4). (Count 1). On October 10, 2000, Mr. Smith purchased stamps from the U. S. Post Office. A check in the amount of $495 was presented in payment. The check was drawn on the checking account of a company titled Environmentally Friendly Chemicals (EFC), of which Mr. Smith is a part owner. This occurred because Mr. Smith inadvertently picked up the EFC checkbook instead of the campaign checkbook. Mr. Smith's inattention was the cause of the error. The campaign subsequently reimbursed EFC. (Count 2). Campaign check 2088 was written to Frankie Peters in the amount of $50 to reimburse Ms. Peters who had paid for a sign at the Tate High School ballpark. Mr. Smith permitted this because the sign could not have been timely purchased if it had been paid with a check from the campaign treasury. (Count 3). Someone named Nacie Smith paid for postage in the amount of $150 on behalf of the campaign during October 2000. Campaign check number 2115 was used to reimburse Ms. Smith, and Mr. Smith signed this check. (Count 4). Mr. Smith had printing done for the campaign by a firm named Pengraphix pursuant to an order placed October 31, 2000. This order was placed immediately prior to the election. Part of the order was paid from the campaign account in the amount of $852.97. The balance was in dispute but was eventually compromised in the amount of $1,884.92. This amount was paid not from the campaign account, but rather, directly to Pengraphix by a friend named Donald "Mike" Murphy. The payment by Mr. Murphy was effected after the campaign had concluded. Mr. Murphy was a person to whom Mr. Smith had provided a loan several years prior to 2000. These four transactions are expenditures that were not paid from the campaign treasury. However, as will be discussed in the Conclusions of Law in more detail below, the accidental use of the EFC checkbook in Count 1, did not demonstrate willfulness. Count 5. Allegation involving Section 106.021(3) prohibiting a candidate from receiving contributions except through the campaign treasurer. This allegation is supported by the evidence recited above regarding Mr. Murphy, if one concludes that the money provided to Pengraphix represented a contribution as that term is defined in Chapter 106, Florida Statutes. Whether or not the facts support a finding that the cited statute prohibited this transaction is discussed in the Conclusions of Law, below. Counts 6-29. Allegations involving Section 106.05 requiring funds received to be deposited within five days of receipt. Mr. Smith reported 20 contributions on his Campaign Treasurer's Report (CTR), which covered the period October 20, 1999 through December 31, 1999. One of the contributions described by Mr. Smith as being a $500 check, was later reported, in an amended CTR, to be five separate $100 cash contributions. The campaign bank account was not opened until January 7, 2000, and the last contribution reported on the CTR was November 29, 1999. Therefore, 24 contributions were received but not deposited in the campaign account until more than five days subsequent to receipt. Mr. Smith was unaware of the statutory requirement that contributions must be deposited in the campaign treasury within five days of receipt. However, his willful ignorance of the requirement translates into willful violations. Counts 30-79. Allegations involving Section 106.07(5) prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete. Mr. Smith filed original CTRs for the following periods: (Count 30) October 20, 2000 to December 31, 1999. (Count 31) January 1, 2000 to March 31, 2000. (Count 32) April 1, 2000 to June 30, 2000. d. (Count 33) July 1, 2000 to July 31, 2000. (Count 34) July 29, 2000 to August 11, 2000. (Count 35) August 12, 2000 to August 31, 2000. (Count 36) September 1, 2000 to September 8, 2000. (Count 37) September 9, 2000 to September 28, 2000. (Count 38) September 29, 2000 to October 13, 2000. (Count 39) October 14, 2000 to November 2, 2000. (Count 40) November 2, 2000 to December 31, 2000. He filed amended CTR's on January 12, 2000 (Count 41), April 19, 2000 (Count 42), and August 16, 2000 (Count 43). When a complaint that Mr. Smith had violated the laws governing campaign financing was filed against him in September 2001, he became motivated to try to correct CTR's that he had filed. He filed amended CTRs on September 24, 2001, October 18, 2001, April 2, 2002, April 24, 2002, and June 5, 2002 (Counts 44-79). He filed a total of 11 CTRs and 39 amendments. The parties stipulated, and it is found as a fact, that all of the original CTRs he filed, and all of the amendments he filed, were incomplete or incorrect. Mr. Smith worked diligently with Ms. Kowalchyk to correct the reports, once he discovered in September 2001, that he had been accused of wrongdoing. Ms. Kowalchyk worked on Mr. Smith's CTRs on her own time. Even Bonnie Jones, the Supervisor of Elections, attempted to correct his CTRs, but all were frustrated in the attempt. His reports were in complete disarray. Ms. Jones suggested in a letter dated October 8, 2001, that Mr. Smith refer this matter to his accountant, believing that an accountant might bring order to the chaotic records. He did not act on this advice. As noted above, Mr. Smith relied on his mother and his brother, and perhaps other family members to prepare accurate reports. Nevertheless, he was the campaign treasurer and he personally signed each CTR beneath bold face type which recited, "It is a first degree misdemeanor for any person to falsify a public record (ss.839.13 F.S.)" and despite the words over the signature line, where he placed his signature, which stated, "I certify that I have examined this report and it is true, correct and complete." It is specifically found that Mr. Smith's submission of incorrect CTRs was not motivated by an intention to hide any wrongdoing. His dereliction was due, rather, to a cavalier attitude with regard to complying with the technical aspects of the laws addressing campaign financing. This attitude continued until a complaint was filed. For reasons more fully explained in the Conclusions of Law, it is found as a fact that Mr. Smith is guilty of Counts 30-43, and not guilty of Counts 44-79. Counts 80-81. Allegations involving Section 106.11(3) prohibiting a candidate from incurring an expense for the purchase of goods or services without sufficient funds on deposit in the primary campaign depository. Although the Order of Probable Cause indicates that Mr. Smith was charged under Section 106.11(4), he should have been charged under Section 106.11(3) the Code in effect during the alleged misconduct. The wording of Section 106.11(4), Florida Statutes (2002), is identical to that found in Section 106.11(3). Because all parties understood the nature of the charge, the citation to a later version of the Florida Statutes does not mean that Mr. Smith may not be found to be in violation of it. Reference to the Statement of Findings reveals that the two counts alleged refer to services provided by Pengraphix, which is a printing house. The CTR for the period November 2, 2000 to December 31, 2000, reported two expenditures made to Pengraphix. One was for $864.49 and the other was for $1844.19, and both were reported on the CTR to have been made December 1, 2000. Subsequently, an amended CTR was filed September 24, 2001, which reported only an expenditure of $864.49 to Pengraphix. On June 5, 2002, in the fifth amendment to the termination CTR, Mr. Smith reported an expenditure on December 1, 2000, of an additional $1844.19, to Pengraphix. It is concluded from these reports that two obligations of $864.49 and $1844.19, for a total of $2708.68, were incurred in favor of Pengraphix. Because the bank records of the campaign account subsequent to December 1, 2000, reflect no expenditure in either individual amount, or in the aggregate amount, it may be concluded that the debt was not paid from the campaign account at all. The bank statement for the campaign treasury for the months of December 2000 and January 2001 never had a balance greater than $613.97 in it, so there was no money available from that source to pay the two expenditures. Mr. Smith addressed the foregoing by stating that there was a disputed bill from Pengraphix in the amount of about $2,600, and that he spent almost three months attempting to reach a settlement. The amount was compromised at $1,850. Mr. Smith further stated that when the printing was ordered the cost was not revealed. It must be concluded that until the amount was liquidated, Mr. Smith could not pay the bill. However, Mr. Smith must have known by December 1, 2000, that the liquidated amounts for the two jobs were $864.49 and $1844.19. At the time the jobs were ordered, which cannot be determined from the evidence, funds sufficient to pay the invoices may have been available. The evidence was insufficient to demonstrate with any certainty that the funds were not available. Accordingly, is not found by clear and convincing evidence that the money due and owing Pengraphix was not available in the campaign treasury at the time the debt was incurred. Accordingly, Mr. Smith is not guilty of Counts 80 and 81. Counts 82-83. Allegations involving Section 106.11(3), requiring a candidate to pay for previously incurred expenses for the purchase of goods and services upon delivery and acceptance of the goods and services. Reference to the Statement of Findings reveals that these two counts address the two orders for printed matter placed at Pengraphix. It is clear that these purchases were not paid at the time of delivery and acceptance. However, the proof adduced at the hearing failed to demonstrate when the amounts were liquidated. It is clear, however, that at some point prior to December 1, 2000, the amounts were known, or at least discoverable, and therefore payable. It is found by clear and convincing evidence that Mr. Smith violated the charged portion of Section 106.11(3). Accordingly, he is guilty of Counts 82-83. Count 84. Allegation involving Section 106.141(1) condemning the failure of a candidate to properly dispose of surplus campaign funds subsequent to being elected. The general election that resulted in Mr. White's victory was held November 7, 2000. The ending balance shown on the campaign treasury bank statement on November 30, 2000, was $613.97. The ending balance shown on the campaign treasury bank statement on December 29, 2000, was $597.97. The ending balance shown on the campaign treasury bank statement on January 31, 2001, was $4.78. The imposition of bank fees on February 9, 2001, resulted in a zero balance in the account that was reflected on the February 2001 statement. The ninetieth day following Mr. Smith's election was February 5, 2001. Though de minimis, a violation of the statute occurred, and he is guilty of Count 84. Counts 85-87. Allegations involving Section 106.141(1) prohibiting a candidate from accepting a contribution subsequent to being elected. Bank records of the campaign treasury indicate that a deposit to the account was made on January 2, 2001, in the amount of $187, and on January 3, 2001, in the amount of $100, almost two months after the election. An amendment to the CTR for the period November 2, 2000 to December 31, 2000, which was filed April 24, 2002, indicates that the candidate loaned the campaign $287. Mr. Smith explained that the two deposits were made so that a campaign debt could be paid. The sum of the two contributions plus the amount remaining in the account, $597.97, totaled $884.97 that was sufficient to cover a check for $864.19, which was, in Mr. Smith's words, ". . .payment of the substantial debt, $864.19." To what substantial debt he refers cannot be determined from the evidence of record but it is within 30 cents of the amount of the smaller of the two Pengraphix amounts reported as expenditures on December 1, 2000. In January 2001, a sum of money remained to be paid to Pengraphix. As noted above, this debt was compromised in the amount of $1,850. Mr. Smith did not have personal funds available to pay that amount, or money in the campaign treasury sufficient to pay that amount, so he prevailed upon his friend, Mr. Murphy, to pay the amount for him, and promised to repay Mr. Murphy with interest. Mr. Murphy did in fact pay Pengraphix $1884.92 to settle the debt owed by Mr. Smith. The difference between $1850 and the $1884.92 actually paid, most likely represents accrued interest. This payment was made, according to the Stipulation, on January 11, 2001. Mr. Smith repaid Mr. Murphy, by check in February 2002 in the amount of $1990. The exact day in February was not written on the date line on the check, but it cleared the bank on February 25, 2002. Whether or not these allegations of Counts 85-87 are supported by the cited statute, will be discussed in the Conclusions of Law, below. Count 88. Allegation involving Section 106.19(1)(a), prohibiting a candidate from accepting a contribution in excess of $500. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. Whether or not the cited statute supports these allegations will be discussed in the Conclusions of Law, below. Count 89. Allegation involving Section 106.19(1)(b), condemning the failure of a candidate to report a contribution. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. The transaction was not reported on any CTR with Mr. Murphy's name connected to it. Whether or not the cited statute supports these allegations will be discussed in the Conclusions of Law, below. Count 90. Allegation involving Section 106.19(1)(c), condemning the failure of a candidate to report a contribution. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. The transaction was not reported on any CTR. Whether or not these allegations are supported by the cited statute will be discussed in the Conclusions of Law, below. Counts 91-94. Allegations involving Section 106.19(1)(d), prohibiting a candidate from making an expenditure prohibited by Chapter 106. These counts address the same facts pertinent to the events discussed in paragraphs 11-15, above. These facts support three violations of Section 106.021(3), as well as the three violations of Section 106.19(1)(d), as alleged. They are, however, multiplicious with three of the allegations recited as Counts 2-4. Mr. Smith's assets. Mr. Smith reported a net worth of $707,609, on his "Full and Public Disclosure of Financial Interests 1999." He testified that as a result of criminal charges and the current litigation, his net worth has decreased since 1999. He currently owns two parcels of real property worth more than $200,000 that is subject to mortgages in an unknown amount. He owns several vehicles including a 1995 Chevrolet Tahoe that he drives, and a new Chevrolet Yukon that his wife drives. He also owns a tow truck that is used in his business. His net worth cannot be determined by the evidence before the Administrative Law Judge. However, it is determined that he is not impecunious.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Mr. Smith committed 44 of the violations alleged in the Order of Probable Cause and that he should be assessed a civil penalty of $5,000. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 25th day of June, 2003. COPIES FURNISHED: Robert R. Kimmel, Esquire Kimmel & Batson Post Office Box 12266 Pensacola, Florida 32581-2266 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Ruching, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
