The Issue Whether Florida Administrative Code Rule 1S-2.009(8) constitutes an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes (2007).1
Findings Of Fact Based on the Stipulation of Facts and on the joint exhibits received into evidence at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Parties FDF is a political committee registered pursuant to Section 106.03, Florida Statutes, to advocate a change in the way Florida draws legislative and congressional district lines. FDF is engaged in developing and implementing initiative petitions to place constitutional amendments on the ballot to provide standards by which state legislative and federal congressional district boundaries are drawn. The Division of Elections is a division within the Department of State, the head of which is the Secretary of State. § 20.10, Fla. Stat. The challenged rule, relevant statutes, and rule and legislative history Florida Administrative Code Rule 1S-2.009(8), which is the subject of this rule challenge, provides: “Bundling: No initiative petition form circulated for signature may be bundled with or attached to any other petition.” The rule was adopted on March 16, 2006, as part of a number of amendments to Florida Administrative Code Rules 1S- 2.0011, 1S-2.009, and 1S-2.0091. Fla. Admin. Weekly, Vol. 32, No. 10, Mar. 10, 2006, p. 1131. According to the Notice of Proposed Rule published November 23, 2005, "the proposed amendments reflect changes in practice and procedure and implement changes made during the 2005 Legislative Session in Chapter 2005-278, Laws of Florida, that pertain to the procedures governing submission and approval of initiative petitions and ballot position assignments for constitutional amendments" and "update the rule to reflect current practices, procedures, and legislative changes relating to the procedures governing the submission and approval of initiative petitions and ballot position assignments for constitutional amendments." Fla. Admin. Weekly, Vol. 31, No. 47, Nov. 23, 2005, pp. 4308 - 4312. The Department received no comments or objections from the public or from the Florida Legislature’s Joint Administrative Procedures Committee during the rulemaking process for Florida Administrative Code Rule 1S-2.009. The specific authority for Florida Administrative Code Rule 1S-2.009 is identified in the Florida Administrative Code as Sections 20.10(3), 97.012(1), 100.371(3), (7), and 101.161(2), Florida Statutes. The law implemented is identified as Sections 100.371 and 101.161, Florida Statutes. As noted above, the amendments to Florida Administrative Code Rule 1S-2.009 were enacted to implement Chapter 2005-278, Laws of Florida, which was effective January 1, 2006. This law revised the procedures by which constitutional amendments by initiative are placed on the ballot and included amendments to Section 100.371, Florida Statutes. Pertinent to this proceeding, one of the amendments deleted former Section 100.371(2), Florida Statutes (2005), and re-numbered former Section 100.371(3), Florida Statutes (2005), as Section 100.371(2), Florida Statutes (2006). No changes were made to the text of the newly re-numbered Section 100.371(2), Florida Statutes. Section 100.371(2), Florida Statutes, provides in pertinent part that "[t]he Secretary of State shall adopt rules pursuant to s. 120.54 prescribing the style and requirements of such form." This language has been in Section 100.371, Florida Statutes, since the statute’s inception in 1979. The only substantive change occurred in 2002 when the current term “adopt” replaced its predecessor term “promulgate” in the sentence. The amendments to Section 100.371, Florida Statutes, in Chapter 2005-278, Laws of Florida, did not address bundling of initiative petitions nor did the amendments provide any rulemaking authority to the Department regarding constitutional amendment initiative petition forms other than that already included in Section 100.371(2) and (7), Florida Statutes. During the 2006 legislative session, bills were introduced that would have amended Section 100.371(2), Florida Statutes, to include a provision that "[t]he form shall consist of a single card or sheet of paper unconnected with any other card or sheet of paper and must be circulated for signatures in this context." Pertinent to these proceedings, the Senate Staff Analysis and Economic Impact Statement for Committee Substitute for one of the bills introduced during the 2006 legislative session, Senate Bill 720, contained the following: During the 2004 election cycle, numerous stories appeared in newspapers concerning fraud in the petition process to place constitutional amendments on the ballot. Two petition gatherers were arrested in Santa Rosa County for over 40 counts each of uttering a forged document. Several other elections supervisors found petitions signed with the names of dead voters. The Florida Department of Law Enforcement (FDLE) issued a press release in October of 2004 indicating that it had received numerous complaints relating to voting irregularities, and had initiated several investigations. Specifically, the FDLE created regional elections task forces to address the issue of voter fraud in a statewide manner. While the FDLE did not reveal details of the investigations, it noted that the investigations focused on the following conduct: In some cases, persons who believed they were signing petitions later found out that their signatures or possible forged signatures were used to complete a fraudulent voter registration. In other instances, it appears that workers hired to obtain legitimate voter registrations filled in the information on the registration forms that should have been completed by the registrants. On several occasions, workers appear to have signed multiple voter registrations themselves using information obtained during the registration drive. In many of the situations complained about, the workers were being paid on the basis of each registration form submitted. (Footnotes omitted.) Similar language was contained in the House of Representatives Staff Analysis for Committee Substitute for the other bills, CS/HB 773. On April 19, 2006, the Senate Judiciary Committee voted unfavorably on the passage of Senate Bill 720, and the bill never made it to the Senate floor for consideration. CS/HB 773 was placed on the House Calendar on April 11, 2006, but it died on the House Calendar on May 5, 2006. No legislation providing that “[t]he form [of an initiative petition] shall consist of a single card or sheet of paper unconnected with any other card or sheet of paper and must be circulated for signatures in this context” was enacted into law during the 2006 Legislative session or in any subsequent session of the Legislature. Since the 2006 regular legislative session, the Florida Legislature has met in regular session and in four special sessions in 2007. In 2007, the Legislature made several amendments to Section 100.371, Florida Statutes, but no amendments to Section 100.371(2), Florida Statutes, were enacted. See Ch. 2007-30, § 25, at 19-21, Laws of Fla. Florida Administrative Code Rule 1S-2.009 was amended on October 15, 2007, but Florida Administrative Code Rule 1S- 2.009(8) remained unchanged. The Department received no comments or objections from the public or the Florida Legislature’s Joint Administrative Procedures Committee during the rulemaking process for Florida Administrative Code Rule 1S- 2.009 when it was amended on October 15, 2007. Definitions The following terms have the definitions as stated: Bundle: "A group of things fastened together for convenient handling." Merriam Webster Online Dictionary. "Several objects or a quantity of material gathered or bound together." Random House Webster’s College Dictionary (2d ed. 1999). Attached: "Joined, connected, bound." Random House Webster’s College Dictionary (2d ed. 1999). Style: "A particular manner or technique by which something is done, created, or performed." Merriam Webster Online Dictionary. "A particular type or sort, with reference to form, appearance, or character."; "To design or arrange in accordance with a given or new style."; "To bring into conformity with a specific style." Random House Webster’s College Dictionary (2d ed. 1999). Requirement: "Something required." Merriam Webster Online Dictionary. "Something required."; "A requirement is some quality or performance demanded of a person in accordance with certain fixed regulations." Random House Webster’s College Dictionary (2d ed. 1999). Substantial effect of rule on FDF In a letter hand-delivered on October 31, 2006, Mr. Ben Wilcox, Chairman of Floridians for Fair Elections, submitted to the Department four initiative petitions concerning legislative and congressional district boundaries for approval as to format. Mr. Wilcox stated in the letter that Floridians for Fair Elections intended "to bundle these proposals as a package for gathering signatures." In a letter dated November 2, 2006, the Department informed Mr. Wilcox that the four petition forms did not meet the format requirements of Florida Administrative Code Rule 1S- 2.009 and the Form DS-DE 19 incorporated into the rule. The Department's letter also stated that the rule "provides that no initiative petition form circulated for signature may be bundled with or attached to any other petition form." In a letter hand-delivered to the Department on August 7, 2007, Barry Richard, on behalf of Floridians for Fair Elections, submitted four constitutional amendment initiative petition forms concerning legislative and congressional district boundaries. The letter stated: The box in the upper left-hand corner for insertion of the voter’s identifying information will be carbon treated so that the voter only has to fill it out one time for all four petitions. However, the signatures will not copy from one form to another and each signature line can be seen only by lifting the preceding page. This has been done to avoid the fraud potential that was inherent in the bundled forms used in the past and now prohibited by your rules. On behalf of Floridians for Fair Elections, Mr. Richard sought the Department's approval to use NCR paper to print and circulate the proposed initiative petitions. The petitions were not attached to one another. Rather, they were presented as separate pages with three holes punched, to be placed in a loose-leaf, three-ring binder notebook for signature. The loose-leaf notebook design would permit the elector to fill-in identifying information on the top petition, and that information would be transferred by carbon to the petitions underneath the top petition. The signature line was not carbon treated and no signature could be transferred to any of the petitions underneath. The top petition would be shorter in length than the other three petitions; however, the signature line on the other three petition forms was not visible without lifting the preceding petition form. The elector would be able to review the text of the petition by lifting the preceding petition form. In an e-mail dated August 14, 2007, the Department informed Mr. Richard that the information he orally provided the Department regarding the manner in which the petitions would be presented to the voters, that is, fastened in a three ring binder, would fall within the rule’s prohibition against being "bundled with or attached to any other petition form." In a letter dated September 17, 2007, Mr. Richard submitted to the Department on behalf of Floridians for Fair Elections two constitutional amendment initiative petition forms relating to legislative and congressional redistricting. Nothing was stated about bundling these petitions and each was on regular, letter-sized paper. In a letter dated September 19, 2007, hand-delivered to Department on September 20, 2007, Floridians for Fair Elections notified the Department that it had changed its name to FairDistrictsFlorida.org. The Department acknowledged the name change in a letter dated September 24, 2007. In an e-mail dated September 25, 2007, FDF re- submitted the two petition forms to correct format mistakes on the petitions that Mr. Richard had presented on behalf of FDF's predecessor, Floridians for Fair Elections. After making further corrections, FDF re-submitted for approval the two initiative petitions via e-mail on September 27, 2007. In letters dated September 28, 2007, the Department notified FDF that the format of its two initiative petitions was approved and that they had been assigned serial numbers 07-15 and 07-16. (A scrivener’s error exists on Petition 07-15 -- the "Date Approved" at the bottom of the form should read "9/28/07," not "7/28/07.").
The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violations of numerous provisions of Chapter 493, Florida Statutes, regarding the several licenses held by the Respondent.
Findings Of Fact During October of 1990, Respondent's Class "B" Security Agency License was in a suspended status due to his failure to pay an administrative fine imposed by the Department of State. His Class "B" license expired July 10, 1991, and has not been renewed. At all times pertinent hereto, Respondent held a valid Class "D" Security Officer License and a Class "G" Statewide Firearm License issued pursuant to Chapter 493, Florida Statutes. Respondent's Class "M" Manager License was issued in July of 1985 and expired in July of 1987. He did not possess a valid Class "M" license in October of 1990. On approximately October 1, 1990, Respondent changed his business location from 2950 Northwest 214 Street, Opa Locka, Florida, to 4623 Forest Hill Boulevard, West Palm Beach, Florida. Respondent did not notify the Department of his address change within ten days of moving. The Department was notified of the address change sometime in May of 1991. On October 18, 1990, May Weiser, an employee of Respondent, appeared at the Department of State, Division of Licensing, West Palm Beach Regional Office to obtain applications for licensure. Ms. Weiser was wearing a security officer badge depicting a replica or facsimile of the Great Seal of the State of Florida. The badge was issued to her by Respondent. On October 19, 1990, Investigator Frank Bedingfield of the Division of Licensing inspected Respondent's business address at 4623 Forest Hill Boulevard in West Palm Beach, Florida. At that time it was determined that Respondent did not possess or have on display a valid Class "B" Security Agency License, an agency disclosure notice, a manager's license, or the required city and county occupational licenses. On that occasion, Respondent was dressed in a security guard uniform and was wearing a .357 caliber model 686 Smith & Wesson revolver loaded with three rounds of .357 caliber steel jacket ammunition and three rounds of .38 special hollow point ammunition. Respondent was also wearing a badge that depicted a facsimile of the Great Seal of the State of Florida. On October 19, 1990, Respondent was unable to provide Mr. Bedingfield with a current list of security agency employees or any business records including hiring and termination notices, and informed the investigator that records were not available due to his recent move. However, he agreed to meet with Mr. Bedingfield again on October 22, 1990, to provide the records. On October 19, 1990, Respondent was providing security guard services to four Miami churches. At the same time he was soliciting business and mailing advertisements in West Palm Beach. Respondent's Class "B" Security Agency License was issued February 23, 1990, was suspended for nonpayment of a fine on September 13, 1990, and was due for renewal on July 10, 1991. Respondent informed Mr. Bedingfield that the fine would be paid by October 22, 1990, in the Miami Regional Office of the Division of Licensing. On October 24, 1990, Mr. Bedingfield returned to Respondent's business location at 4623 Forest Hill Boulevard in West Palm Beach, Florida. Respondent was again wearing a .357 revolver even though he had been notified of the violation during Mr. Bedingfield's previous visit on October 19, 1990. Respondent told Mr. Bedingfield that he had requested a waiver from the Division of Licensing to carry other than a .38 revolver, but could not produce a copy of his request or an approval of such request. The Division of Licensing never received a waiver request from Respondent. Mr. Bedingfield's return visit also revealed that Respondent was again wearing a security badge with the Great Seal of the State of Florida. Respondent did not have a Palm Beach County occupational license and could not provide any evidence that he had notified the Division of Licensing of his change of business address. He could not provide Mr. Bedingfield with a current list of employees, copies of his agency security guard contracts, personnel files for the previous two years, or records of all terminations and new employments. Nor could Respondent produce evidence of current general comprehensive liability insurance. He did provide Mr. Bedingfield with approximately 73 employment applications of current and previous employees. Using these records Mr. Bedingfield compiled a list of guards and produced computer printouts of each current and previous employee. As of October 24, 1990, Respondent had failed to notify the agency of the hiring or termination of 43 employees. Respondent's insurance had been cancelled for non- payment of the premium in August of 1990. At the time of the events described in the foregoing findings of fact, Respondent had overlooked, or was not aware of, a number of the statutory requirements such as the requirements that he notify the Department when he changed business locations, that he display an agency disclosure notice, and that he not use the Great Seal of the State of Florida on his badges. He has since painted over the Great Seal on the badges. For reasons not clarified on the record in this case, Respondent's manager's license states that it is "non-expiring," notwithstanding the statutory provision that all licenses issued under Chapter 493, Florida Statutes, shall be valid for two years.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Department of State issue a Final Order in this case to the following effect: (a) Concluding that Count V of the Administrative Complaint should be dismissed for insufficient proof; (b) Concluding that the Respondent committed all of the other violations alleged in the Administrative Complaint; and (c) Imposing the following administrative penalties: A suspension of the Respondent's Class "D" Security Officer License for a period of one year; A suspension of the Respondent's Class "G" Statewide Firearm License for a period of one year; and An administrative fine in the total amount of one thousand ($1,000.00) dollars. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of May 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-1015 The following are my specific rulings on all proposed findings of fact submitted by all parties in this case. Findings submitted by the Petitioner: All of the findings of fact proposed by the Petitioner have been accepted in substance. Findings submitted by the Respondent: The Respondent's proposed recommended order consists of nine unnumbered paragraphs, none of which are specifically identified as proposed findings of act, but most of which contain factual assertions. All of the factual assertions in the Respondent's proposed recommended order have been treated as if they were proposed findings of fact and are specifically addressed below. First paragraph: The first sentence of this paragraph is rejected as contrary to the greater weight of the evidence. The second sentence is rejected as irrelevant or as constituting subordinate and unnecessary details. The last sentence is rejected as constituting argument, rather than proposed facts. Second Paragraph: First two sentences accepted in substance. Last sentence rejected as irrelevant to the issues in this case. Third Paragraph: Accepted. Fourth Paragraph: First two sentences rejected as not supported by persuasive competent substantial evidence and as, in any event, irrelevant. Last sentence accepted. Fifth Paragraph: First paragraph rejected as contrary to the greater weight of the evidence; there were other reasons the licenses were not on display. Second sentence is accepted. The last two sentences are rejected as irrelevant or as constituting subordinate and unnecessary details. Sixth Paragraph: First sentence accepted in substance. The remainder of this paragraph is rejected as subordinate and unnecessary details. Seventh Paragraph: Rejected as subordinate and unnecessary details because other evidence establishes that at the time in question the Respondent was conducting and advertising the business of a security agency. Eighth Paragraph: Rejected as constituting comment on a subordinate matter, rather than a proposed finding of fact. Ninth Paragraph: This paragraph consists of a suggested disposition of the case, rather than proposed findings of fact. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Mr. Dave Burgess, Jr. Post Office Box 552590 Miami, Florida 33055 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact Petitioner and the Florida Elections Commission are responsible for enforcing Chapter 106, Florida Statutes. In 1993, Respondent qualified as a candidate for re- election to Seat Five of the Tallahassee City Commission. She was defeated for this office in the general election on February 22, 1994. On December 27, 1993, Respondent signed a Statement of Candidate indicating that she had received, read and understood the requirements of Chapter 106, Florida Statutes, as required by Section 106.023, Florida Statutes. Respondent has run for public office on four different occasions. Respondent's 1994 campaign staff was made up of volunteers. Some of these volunteers were supporters who had worked in her prior campaigns. Others were supporters who were participating in a political campaign for the first time. In the early days of the campaign, Respondent met with her supporters at weekly campaign committee meetings. As time went on, Respondent's employment and campaign schedule prevented her from attending these meetings. She also found it increasingly difficult to spend much time at her campaign headquarters. In 1994, Respondent used the same system she had used in prior campaigns for registering the names, addresses and telephone numbers of supporters for purposes of organizing the campaign. These cards included a check-list of jobs for which a campaign worker could volunteer. The cards also had a signature line for volunteers who were willing to publicly support Respondent. The cards did not contain a place to indicate the date of the signature. Respondent's campaign headquarters was initially staffed entirely by part-time volunteers including, but not limited to, Vivian Pelham. As a result, the card filing system became disorganized. In many instances, there were duplicate cards for campaign supporters. Some of the cards were misplaced or lost as they were in constant use for campaign work in the neighborhood. In mid-January, Chuck Cyrus began working at Respondent's campaign headquarters on a full-time basis. He unsuccessfully attempted to organize the card filing system. At the conclusion of the campaign, all of the cards that could be located were stored along with other campaign records. On or before January 6, 1994, Respondent's staff decided to prepare a flyer for circulation at a Council of Neighborhood Associations (CONA) meeting. Respondent's husband, Jim Crews, instructed Vivian Pelham and other part-time workers to make telephone calls to people to verify approval of the use of their names on the flyer prior to its distribution. Ms. Pelham did not search for signature cards before she called people because she did not think about it. In retrospect, Ms. Pelham knew it was necessary to have signatures of people willing to publicly support Respondent. However, Ms. Pelham did not know that endorsers had to sign cards at any particular time. She was not aware of a difference between "written" and "verbal" approval before a candidate may use a person's name in a campaign advertisement. Rather, Ms. Pelham thought specific "verbal" approval was better than "written" approval as long as an endorser signed a card at some point in time. One of the people Respondent's staff contacted by phone was Dennis Murphy. Mr. Murphy refused to allow the use of his name on the flyer. Consequently, Respondent's staff did not include him as an endorser on the campaign advertisement. The flyer ultimately contained the names of twenty-two "neighborhood leaders" who endorsed Respondent's candidacy. The flyer listed the neighborhood of each person under their name. The following disclaimer was located at the bottom of the flyer: The above individuals are current or past officers in their neighborhood associations. This document does not represent an endorsement by the Council of Neighborhood Associations nor any individual neighborhood group. This is a paid political advertisement paid for by the campaign treasurer. There is no competent persuasive evidence that the flyer, read in its entirety, misrepresented the personal endorsement of the people named therein as an endorsement by a particular neighborhood group. The only names included on the flyer which are at issue here are Sterling and Rosemarie Bryant and Dorothy Rose. Mr. and Mrs. Bryant were long- time supporters of Respondent. They worked in Respondent's 1994 and previous campaigns. Ms. Rose supported Respondent in 1994 but was not actively involved in the campaign. At the time Respondent circulated the subject flyer, neither the Bryants nor Ms. Rose had signed a 1994 campaign card stating that they were willing to publicly endorse Respondent. Mr. Bryant did not remember receiving a call about the flyer prior to January 6, 1995. However, Ms. Rose did receive such a call. On the evening of January 6, 1994, Respondent arrived at the CONA meeting just before it convened where she reviewed the flyer for the first time. Respondent recognized the name of each person listed on the flyer as a past and/or current supporter. She had no reason to doubt whether the people listed had signed a 1994 campaign card prior to her staff's preparation of the flyer. The document was circulated at the meeting to about thirty-five (35) people, many of whom were listed on the campaign advertisement. Dennis Murphy was present at the January 6, 1994, CONA meeting. He did not see the flyer at that time. Days later Mr. Murphy became aware of the flyer. He went to Respondent's campaign headquarters and got a copy of it. On January 14, 1995, Mr. Murphy filed a sworn complaint with Petitioner alleging that Respondent had violated Section 106.143(3), Florida Statutes. He filed the complaint because he thought Respondent failed to get proper authorization to use the names of the people listed on the flyer. Soon thereafter, Respondent's staff learned about the complaint informally. Jim Crews instructed Vivian Pelham and other campaign workers to locate signature cards for each person listed on the flyer. If a card could not be located, the workers were to call the people and get a duplicate. No one on Respondent's staff advised her about the rumored complaint. Several campaign workers began looking for signature cards. Vivian Pelham could not find a card for Sterling Bryant and called him. Because the Bryants were elderly, Ms. Pelham went to their home where Mr. and Mrs. Bryant signed a card. Ms. Pelham's testimony that she specifically requested the Bryants' signature relative to the flyer and not a subsequent newspaper advertisement is more persuasive than Mr. Bryant's testimony to the contrary. The subsequent newspaper advertisement, published on January 27, 1994, included a picture of Respondent with several neighborhood leaders, including the Bryants. Petitioner sent a letter dated January 19, 1994, to Mr. Murphy informing him that it had initiated an investigation of his complaint. Petitioner's letter to Mr. Murphy also requested information concerning the issue of "willfulness." That same day, Petitioner sent Respondent a letter, by regular United States Mail, enclosing a copy of the complaint. This letter gave Respondent the opportunity to submit a response in the form of a sworn statement. Respondent's staff received the letter on her behalf but did not bring it to her attention or respond to it in any way because they thought cards were available for each of the people listed on the flyer. Petitioner sent Respondent a second letter dated February 21, 1994. This letter was sent certified mail, return receipt requested. Respondent was in her headquarters when the letter arrived on February 23, 1994. She learned about the complaint for the first time when she signed for the letter. Respondent immediately located Petitioner's first letter and initiated a search of her records for the cards in question. Respondent was able to locate a card for everyone listed on the flyer except Dorothy Rose. Consequently, Respondent called Ms. Rose and went to her home where she obtained Ms. Rose's signature on a card. Respondent thought she was obtaining a duplicate card for Ms. Rose. During her 1994 campaign, Respondent continued to work as Mayor and City Commissioner of Tallahassee, Florida. She also worked full-time for Florida State University School in various administrative positions. Because of the demands of her schedule, she relied on her family, friends and volunteers to run her campaign. On the day before the primary, Respondent became ill and was hospitalized due to the intense stress of the campaign and pressure associated with her employment. In a letter to Petitioner dated February 24, 1995, Respondent denied the allegations in the complaint and enclosed copies of signature cards for the people listed in the flyer. The cards did not have dates to indicate when Respondent's supporters signed them. By letter dated June 28, 1994, Petitioner requested Respondent to furnish dates for the signatures and the names of the campaign workers who solicited the signatures. Respondent was unable to furnish this information because it was unavailable. With the exception of Ms. Rose's signature card, Respondent did not know when the cards were signed or which of the cards in her possession might have been duplicates of lost or misplaced cards. She was still under the impression that Ms. Rose's card was a duplicate. C. L. Ivey investigated the complaint for Petitioner. He randomly selected approximately twelve (12) people from the list of names on the flyer and contacted as many of them as he could reach. Most of them could not remember when they signed the cards. No one expressed an objection to Respondent's use of their name. Mr. Ivey subsequently deposed several of Respondent's supporters including Sterling Bryant and Dorothy Rose. The only cards they remembered signing in 1994 were executed after January 6, 1994. Mr. Bryant had not seen the subject flyer before Petitioner deposed him. He would have preferred to see a stronger disclaimer than the one at the bottom of the flyer. In 1994, Mr. Bryant was president of his neighborhood association and did not want to give the impression that the association endorsed a particular candidate. However, he did not object to Respondent publicly representing that he personally endorsed her candidacy. Respondent did not willfully violate Section 106.143(3), Florida Statutes. Neither she nor her campaign staff were aware that the Bryants and Ms. Rose had not signed a card prior to distribution of the flyer. To the contrary, Respondent and her staff knew that each of the people listed on the flyer were Respondent's past and/or current supporters. Their failure to ensure that they had a signature card on file for each person was at most simple negligence. The actions of Respondent and her staff after they learned about the complaint were not motivated by a desire to circumvent the election code. At all times, Respondent and her staff attempted to conduct themselves within the letter of the law. After the election, it was not reasonable to expect Respondent to know when the endorsers signed the cards because they were not dated. There is no competent persuasive evidence that Respondent received an unfair advantage by publishing the flyer without the prior written approval of the Bryants and Ms. Rose. Moreover, there is no competent persuasive evidence that distribution of the flyer resulted in harm to any person. The Bryants and Ms. Rose continue to espouse their friendship and support for Respondent. It did not become clear that the Bryants and Ms. Rose had not timely signed a signature card until after Petitioner completed its investigation. By then, Respondent had no effective means to remedy the situation.
Recommendation Based on the above referenced findings of fact and conclusions of law, the undersigned recommends that the Florida Elections Commission enter a Final Order finding that the Respondent did not willfully violate Section 106.143(3), Florida Statutes and dismissing the charges against her. RECOMMENDED this 14th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 14th day of June, 1995. APPENDIX The following constitutes the undersigned's specific rulings on the parties' proposed findings of fact pursuant to Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings of Fact Accepted in Findings of Facts (FOF) number 1. Accepted in FOF number 2. Accepted in FOF number 13. Accepted in FOF numbers 12-13. Accepted in FOF numbers 10 and 14 as modified therein. Accepted in FOF numbers 17-18. Accepted in FOF numbers 5 and 21. Accepted in FOF number 22. Accepted in FOF numbers 23-24. Accepted as modified in FOF 6 & 15. Accepted in FOF numbers 12, 16, and 24-25. Rejected. See FOF numbers 16 and 25. Accepted as modified in FOF numbers 12 and 19. Accepted in FOF 3-4. Respondent's Proposed Findings of Fact Respondent did not number her proposed findings of facts. They are included in her proposed recommended order on page 1 through the first whole paragraph of page 6. The undersigned accepts all of Respondent's proposed findings of facts in substance as modified in FOF numbers 1-29 of this Recommended Order except: Mr. Murphy's political opposition to Respondent is not relevant; (2) Reference to any conversation between Mr. Murphy and a Mr. Fulford is uncorroborated hearsay; (3) Mr. Murphy's reason for not reporting the alleged violation to the Leon County Supervisor of Elections is not relevant; and (4) Reference to any newspaper articles that Petitioner's investigator relied upon is not relevant and uncorroborated hearsay. COPIES FURNISHED: David R. Westcott, Esq. The Capitol, Room 2002 Tallahassee, FL 32399-0250 Robert Augustus Harper, Esq. P. O. Box 10132 Tallahassee, FL 32302-2132 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. Dept. of State The Capitol, PL-02 Tallahassee, FL 32399-0250
The Issue Whether the Petitioner's application for licensure as a yacht and ship salesman should be approved or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency responsible for licensing and regulating yacht and ship brokers and salespersons in Florida. Section 326.003, Florida Statutes (1997). On July 28, 1998, the Division received an application for a yacht and ship salesperson's license from Richard Badolato. Question 13 on the application solicits information of the applicant's criminal history as follows: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. After Question 15 of the application, the following statement appears in bold type: "If your answer to question 13, 14, or 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." Mr. Badolato answered Question 13 in the affirmative, and he signed the application, thereby certifying that "the foregoing information is true and correct to the best of my knowledge and belief." Mr. Badolato did not provide the statement of particulars which must be submitted by those answering Question 13 in the affirmative. In a letter dated July 28, 1998, the Division notified Mr. Badolato that his application was incomplete and that he should, among other things, provide a complete written explanation of his criminal history. In response to this letter, Mr. Badolato provided a signed statement in which he stated: "I was arrested and charged with possession of marj. in 1981." Mr. Badolato also provided a telephone number on the statement, indicating that he could be contacted at that number if the Division had any questions. Pursuant to the provisions of Section 326.004(15), the Division issued a 90-day temporary license to Mr. Badolato, pending completion of the criminal history analysis that is done on all applicants by the Florida Department of Law Enforcement. The Division subsequently received a report from the Federal Bureau of Investigation which revealed that Mr. Badolato had three drug-related felony convictions, as well as an arrest on June 22, 1977, which resulted in a charge of possession of marijuana with intent to distribute. On August 24, 1981, Mr. Badolato was convicted in federal district court in Brunswick, Georgia, of conspiracy to smuggle marijuana; he was sentenced to ten years in prison and ordered to pay a $30,000 fine. On October 23, 1981, Mr. Badolato was convicted in federal district court in Miami, Florida, of conspiracy to distribute cocaine; he was sentenced to thirty months in prison, to run consecutively with the ten-year sentence in the Georgia case. On January 31, 1989, Mr. Badolato was convicted in federal district court in Maryland of conspiracy to distribute marijuana; he was sentenced to thirty-six months in prison, to run concurrently with any sentence imposed for a violation of parole. Mr. Badolato was released from prison in 1991 and successfully completed parole in December 1996 with respect to the 1989 conviction. In late 1997, Mr. Badolato received a letter advising him that he might be eligible for clemency. An attorney acting on behalf of Mr. Badolato filed an application for clemency with the Florida Parole Commission. Although Mr. Badolato has never seen this application, he assumes that the file developed during review of the application contains complete information regarding his criminal history.2 When the Division received the Federal Bureau of Investigation report, Peter Butler, head of the Division's general enforcement section, contacted Mr. Badolato by telephone, read to him the statement in the application quoted in paragraph 4 above, and asked him if he wanted to amend his application. Because he could not remember the exact dates of his three felony convictions, Mr. Badolato responded by referring Mr. Butler to the Clemency Board if Mr. Butler wanted to obtain further information about Mr. Badolato's criminal history. Mr. Badolato acknowledged in his testimony that he should have been more thorough in completing his application for licensure, that he was lazy and stupid for not being more forthcoming in the application, and that he did not intend to mislead the Division. He believed that, by answering "Yes" to Question 13 and admitting that he was arrested and charged with possession of marijuana in 1981, he had provided enough information to alert the Division that he had a criminal history. He also assumed that it would be very easy for the Division to obtain complete information about his background merely by running a computer check and by reviewing the information in his clemency application file. From 1991, when he was released from prison, until December 1998, Mr. Badolato was involved in the restaurant business in a managerial capacity, and, as part of his duties, he handled large sums of money. No money in his care was ever found missing, and no adverse employment actions were taken against him during this time. In addition, during the time he was on parole, Mr. Badolato periodically submitted to random drug-testing and never failed a test. The evidence presented by Mr. Badolato is not sufficient to establish that he is of good moral character. He admitted in his answer to Question 13 on the application that he had been convicted of a felony, yet he included in the statement which he filed as part of the application a vague, incomplete, misleading, and inaccurate reference to an arrest and charge of possession of marijuana in 1981.3 Furthermore, Mr. Badolato certified by his signature on the application form that the information he provided was "true and correct to the best of [his] knowledge and belief," when he was certainly fully aware that he had three separate felony convictions. Mr. Badolato presented evidence of his good employment history subsequent to his release from prison in 1991, his successful termination of probation, and his faithful payments on the $30,000 fine imposed in 1981, all of which tend to show rehabilitation and good moral character. However, Mr. Badolato's failure to include in his application complete and accurate information regarding his criminal history tends to show lack of rehabilitation and lack of good moral character. On balance, Mr. Badolato's failure to disclose in his application his complete criminal history outweighs the evidence he presented to show rehabilitation and good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes, enter a final order denying Richard Badolato's application for licensure as a yacht and ship salesperson. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
Findings Of Fact At all times pertinent hereto, Respondent held a valid Class "W" Concealed Weapon or Firearm License issued by the Petitioner. Petitioner alleges that Respondent was convicted of Assault with Intent to Murder on June 8, 1960 in the State of Georgia and his civil rights have not been restored. A person by the name of John P. Piner was sentenced by the Superior Court of Richmond County, Georgia, on June 8, 1960, to serve a term of imprisonment at hard labor for a period of not less than three (3) years and not more that four (4) years for the crime of Assault with Intent to Murder. The sentence was suspended and the Defendant was placed on probation and fined. Respondent, John P. Piner, during all relevant times was on active duty with the United States Army and remained so until his honorable separation from the service on June 23, 1969, after more than twenty years of service. The evidence failed to show that the person named in the Sentencing document found in the records of Richmond County, Georgia was the same person as the Respondent named in the Administrative Complaint. The evidence failed to show that the Respondent, John P. Piner, was adjudicated guilty of the felony of Assault with Intent to Murder in the State of Georgia by a court of competent jurisdiction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Respondent be DISMISSED and that Petitioner's application for renewal of his concealed weapon or firearm license be GRANTED. DONE and ENTERED this 30th day of November, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 Rejected as against the greater weight of evidence: paragraphs 2, 3, 4. Proposed findings of fact submitted by Respondent. Accepted in substance: Section 1. COPIES FURNISHED: Richard R. Whidden, Jr. Assistant General Counsel Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Donald R. Henderson, Esquire Mateer Harbert & Bates Post Office Box 2854 Orlando, Florida 32802-2854 Honorable Jim Smith, Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Whether Respondent appropriately removed Petitioner from the rolls of eligible voters in Polk County, Florida.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a registered voter in Polk County, Florida. Respondent is the elected public official in Polk County, Florida, who ensures that all voter registration and list maintenance procedures in Polk County are conducted in compliance with any applicable requirements of the Statewide Voter Registration System and acts as the official custodian of documents received related to the registration of electors and changes in voter registration status of electors in Polk County. On or about April 30, 2009, Respondent received notice from the Florida Department of State that Petitioner was a registered voter who was potentially ineligible to vote due to a felony conviction. On November 16, 1990, Respondent was convicted of three felonies: (1) Section 843.01, Florida Statutes-–Resisting officer with violence to his or her person; (2) Section 784.07, Florida Statutes-–Assault or battery of law enforcement officer, firefighter, . . . or other specified officers; and (3) Section 806.01, Florida Statutes-–Arson. The State of Florida, Office of Executive Clemency, has not restored Respondent's civil rights for his convictions for the felonies listed in paragraph 4. Petitioner did not present any evidence that the information relative to his felony convictions was inaccurate or that he had been granted clemency and had his civil rights restored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Polk County Supervisor of Elections, make a final determination that Petitioner, John H. Knighten, is ineligible to vote in the State of Florida and remove his name from the voter registration rolls. DONE AND ENTERED this 31st day of August, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2009. COPIES FURNISHED: John H. Knighten Post Office Box 706 Babson Park, Florida 33827 Lori Edwards, Supervisor of Elections Polk County, Florida 250 South Broadway Post Office Box 1460 Bartow, Florida 33831-1460
The Issue Whether it is appropriate for Respondent to remove Petitioner from the rolls of eligible voters in Polk County, Florida.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a registered voter in Polk County, Florida. Respondent is the elected public official in Polk County, who ensures that all voter registration and list maintenance procedures in Polk County are conducted in compliance with any applicable requirements of the Statewide Voter Registration System and acts as the official custodian of documents received related to the registration of electors and changes in voter registration status of electors in Polk County. On or about July 28, 2009, Respondent received notice from the Florida Department of State that Petitioner was a registered voter who was potentially ineligible to vote due to a felony conviction. On June 26, 2006, Respondent was convicted of a felony: Section 784.021, Florida Statutes--Aggravated Assault with a Deadly Weapon. The State of Florida, Office of Executive Clemency, has not restored Respondent's civil rights for his conviction for the felony listed in paragraph 4. Petitioner did not present any evidence that the information relative to his felony conviction was inaccurate or that he had been granted clemency and had his civil rights restored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Polk County Supervisor of Elections, make a final determination that Petitioner, Morgan Valez-Rosario, is ineligible to vote in the State of Florida and remove his name from the voter registration rolls. DONE AND ENTERED this 19th day of October, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2009. COPIES FURNISHED: Lori Edwards Polk County Supervisor of Elections 250 South Broadway Post Office Box 1460 Bartow, Florida 33831-1460 Morgan Velez-Rosario 3644 East Johnson Avenue Haines City, Florida 33844
Findings Of Fact During the past two years the Petitioner has twice been convicted of the crimes Intoxication and Resisting Arrest. On each occasion he pled guilty and was fined. These two convictions are the only blemishes on the Petitioner's record, other than a Driving While Intoxicated arrest in the 1960's. The Petitioner's wife died approximately three years ago, and it appears that he had some difficulty adjusting to his loss. The Petitioner has been working now for several months as a guard for the Wackenhut Corporation, and has performed admirably. He has received excellent evaluations from his employer. The Petitioner is in all other respects qualified for licensure as an unarmed guard. The fact that the convictions for Intoxication and Resisting Arrest are fairly recent would weigh very strongly against issuance of a gun permit.
Findings Of Fact The Petitioner was convicted of unarmed robbery before the courts of the State of Massachusetts in 1960. The Petitioner has applied for a pardon so that his civil rights can be restored, and it is probable that his civil rights will be restored. Apparently the process for accomplishing a restoration of civil rights is time consuming in the State of Massachusetts. The Petitioner failed to reflect on his application that he was arrested for robbery in 1962. He was not convicted of that crime. It does not appear that the Petitioner deliberately falsified his application.
