The Issue Whether Florida Administrative Code Rule 18-2.031(7)} is an invalid exercise of delegated legislative authority under Subsection 120.56(3), Florida Statutes (2004).
Findings Of Fact 1. Petitioner ACLU-FL is a public interest organization with approximately 22,000 members in Florida. The great, majority of. the ACLU-FL. members are registered Florida, voters. ACLU-FL has an interest .in advancing civil liberty principles, including fair, accurate, .and reliable electoral. processes. 2. As part of its.activities, ACLU-FL is. involved. in litigation concerning voting issues. ; Following the,.2000 presidential. election, .ACLU-FL filed an, amicus. curiae. brief,in, Bush v. Gore.. .In.Siegel v. \LePore, ACLU-FL, intervened, ...,, challenging the butterfly ballot. More recently,,, ACLU-Fb, filed an amieus curiae brief in.litigation filed by Congressman Wexler concerning the manual, xecgynt, of votes. cast.on touchscreen. voting, systems. In. Florida Caucus. of Black. State.. egislators,. Inc. v. Crosby, __ DCA July 14, 2004), ACLU-FL -was, successful. in getting, a,writ of. Mandamus issued against the Department of Corrections, to, require . the Department to provide to. offenders, prior. to their. ,. discharge, an application form and other forms necessary ,to obtain the Governor's review for restoration, of their civil vights and to advise. the offenders that the Department. will assist in the preparation of the forms.at the offenders.' request. 3. ACLU-FL attempts to advance confidence in the voting ) system and the electoral process. The organization strives to ensure that the voting systems used’ in ‘Plorida are ‘aéeurate, reliable, and capable of providing for recounts and audits. 4. CCF is a government reform’ ddvodacy’ gzoup with’a basic interest in good go¥ernmént, including “issués such as campaign finance reform, ethics, reapportionment, and élé¢tion reform. Its members believe that’ éach votes balist- stiduia be cdtatéd as cast and it is impdértant to Be! abié to:verify ‘one's vote’ and have a record of each vote “as cast. CCF had apprd:cimately 90,000 members in: Florida: “ “5. BSCLC is an érgatization founded by the late Dr. “Martin 5 Luther King, ar} 'Raiph Abernathy; and Reverend. K: ‘Steele: ° This organization has:an“interest in election issues ‘and was: instrumental in the: pa#eage’ of the Voting Rights Act in’the 1960's. It is concerned with having: the’ vote of each voter counted as cast." 0°" bebe os “ 6. PFAWF is a civil: rights “and civil libétties ~~ 07 organization, which promotes constitutional rights: and the-.value of the vote. It ‘has“numerous voter registration projects, including the ‘Election Protection Project, which came about as a result of the 2000 presidential election.” ‘The Election Protection Project in Florida involves educating citizens on 2 their rights, the process of voting, and their legal recourse in the event of election irregularities. 7. No evidence was presented concerning the standing of the FVL to bring this rule challenge. . -8. . After the 2000 presidential election, the Committee on. Ethics and Elections prepared a report for the Florida Senate entitled .Review of the Voting Irregularities.of the 2000 ‘Presidential Election (the Report). -Among.other things, the Report generally.discusséd the types of voting .systems, including the Direct .Recording Electronic (DRE) systems and, the optical scan systems., At the time.of the Report,,..the DRE systems, sometimes .called touchscreen. | stems, were not used. in Florida. beter ee mM wo 7 9. In the optical scan systems, , the voter marks a paper ballot, which is fed into .an optical scanning.device which - "reads" the ballot and tabulates.the. results. The, paper ballot is preserved. In a, DRE, system, the voter. indicates his, or, her. choice by the use -of a touchscreen, .pushbuttons, or similar. devices, rather than a paper ballot. The Report, indicated that . most of the DRE systems,do no offer a paper. trail as backup for the vote cast. The evidence presented at. the, final. hearing. established that there. are DRE systems which gan, provide ‘a. paper trail by printing a picture of the screen as, it. appears to the voter when the voter indicates that his voting is completed or “by storing the screen image on microfilm. -However, the DRE -) systems currently certified by Respondent for use in Florida do not provide a paper trail. Ta PGs 10. It is clear from the evidencé at the ‘final hearing, that the -DRE systems do not allow for an-dvervoté: An overvote occurs ‘when a votér designates more namés than there are ‘persons to be elected to an office or designates Moré than oie answer to- a ballot question. ““s 97.021(20), Fla. ‘stat. (2004) DRE ‘systems either yéequiré the voter to Uiseléct a ‘pteviousty a designated ¢andidatebéfore voting for ‘andthér ‘candidate or automatically default“t6 the last candidate seléctéd: “ai. There G4 bean undetvoté using ‘thé’ DRE systems. Aa ~ ) undervote occurs when a voter does not properly designate any ‘ choice for an‘ office or a ballot question? ‘§"$7J021(93)', Fla. Stat. (2004). “pogptniient ‘requires that thé DRE “systems “it certifies mast “provide a notification’ te'the’voter‘of ‘an’ undervote before the voter casts his 6r “her‘Ballot. 12. After the difficult expétieiices "Witli'Ehe 2000 presidential election, the following 15 counties in Florida switched to a touchscreen Voting system: “Broward, Charlotte, Collier, Hillsborough; Indian River, Lake, Lee, Martin, “Miami- Dade, Nassau, Palm’ Beach, Pasco, Pinellas; Sarasota; “and Sumter. The aggregate voting population of the above-listed counties comprises slightly more than 50 percent of Florida's registered voters. Petitioners, ACLU-FL, CCF, and FSCLC, and Intervenor PFAWF have members who are registered voters in all 15 counties _ with touchscreen .voting systems. . 13. Respondent has the statutory responsibility to set the minimum standards for the hardware and software for electronic” ‘and electromechanical voting systems, which include touchscreen. , voting systems. .§ 101.015(1), Fla. Stat., (2004). Respondent must approve electronic .and'electromechanical -voting systems ‘prior to their use in.Florida. §§,101.015 and 101.5605, Fla. Stat. (2004). One of the requirements for approval of an electronic or electromechanical voting .system is, that the system "must immediately reject a.ballot where,..the number. of votes for. an office .or measure exceeds the number, of votes which the voter. -is entitled. to cast.or where the tabulating equipment reads the o “ballot as:-a ballot with no votes cast...". §.101.5606(3), Fla. Stat.. (2004). .If. the,system uses a,paper ballot,, the system must be capable ‘of accepting a ballot rejected pursuant. to. Subsection 101.5606 (3), Florida Statutes. (2004),. and recording a- no vote for any office that has been overvoted or undervoted. 14. Florida law;provides for recounts of votes. in certain situations. -If the margin of victory. for a, candidate or measure ‘in the first.set:of. unofficial returns is one-half of a percent . or less, a recount. of the votes cast is to be ordered by the | board certifying the results on that race or measure. § 102.141(6), Fla. Stat. (2004). If paper ballots are used, the paper ballots are put through the automatic tabulating equipment, and a determination is made whether the returns ; correctly reflect the votes cast. § 102.-147°(6) (a) j Fla. Stat. . (2004). . If no paper ballots are used, the canvassing ‘board examines the counters on the precinct ‘tabulatdrs to: détermine whether the total on the précinct tabullators are equal to the overall election £2eurn. “TE there “Ws “a ‘discrepancy, the: wer counters on the tabuildtors are -prigsuméa 6 Be ‘correct ; § 102.141(6) (b); Flas Stat. (2o0ays'soo . BN we oii 415. If the matgin of victory. in “thé sédond“set of unofficial teturns’is' board responsible fr certifying’ the eredtition #estilts shall. ordér a manual recoutit of the overvétes “aiid iimdervotés cast for that particular office’ or measure. ‘§ '4021166(4), Fla. Stat. (2004). A vote’ is to be counted "if ’théré! isa clear indication on the ballot’ that’. the’ voter has made a'definite: choiée." § 102.166(5) (a), Fla. Stat. “(2004) .° "Réspondént “Has ‘the cot responsibility*to adopt’ rules for each cettified voting. system : stating what constitutes "'a clear: indicatéen’on the-ballot ‘that the voter has wade’ a definite choice.'" -°§0102.166(5) (b); Fla. Stat. (2004). ~ Respondent also has‘ the’ authority to°* promulgate ~ rules which set forth recount procedurés for each: certified fa 10 ofie-quartér Of “dtie :péreéiit Sr “Wess; tHe. voting system in addition to the statutorily mandated recount _ procedures. § 102.166(6)(d), Fla. Stat. (2004). 16. On February 12, 2004, Respondent issued DE 04-02, Division of Elections Opinion on.manual recount procedutes for the touchscreen voting systens. _ Respondent opined: Because it is impossible, fe ra; ‘voter to overvote or make. stray marks. on an, electronic ballot, the manual “recount -provisions of section 102.166, Florida .... Statutes, do not apply and therefore, counties utilizing. touchscreen, voting systems are not required or authorized, to . print.or review the electronic ballot. images of undexvotes occurring in a ‘recolnted race. Be wy Me ye . 17. "During the 2004 legislative session, legislation was filed, SB 3004, which would have renamed paper ‘allots as marksense ballots and would have require on voting ‘systens using ‘marksense ballot, provided that manual recounts may not be conducted oe undervotes on touchscreen machines. The cs for cs SB 3004 deleted the provisions that recounts would be done only on marksense ballots. “the revised proposed legislation died ‘on special calendar. - . . “48. On april 13, 2004, Respondent agGaaed ite rule governing 1 recount procedures, and petitioners have’ challenged the validity of the portion ‘of the rile ‘dealing with recounts of touchscreen votes, Florida Administrative Code Rule 1g-2.031(7), which provides: iL When a manual recount is ordered and ) touchscreen ballots are used, no manual recount of undervotes and overvotes cast on a touchscreen system shall be conducted “since these ‘machines ‘do not allow‘a véter to cast an overvote and since a review of ‘ndetvotes cannot restilt ina détermination of voter intent as required by Section 102.166(5), F.S. In this‘case, ‘the results of the machine recount conducted pursuant to paragraph (5) (c) ‘shall be thé “official totals for the touchscreen ballots. 19. Petitioners, ACLU-EL, CCR,and FSCLC, ‘and Intervenor PPAWF, contend that Florida Administrative ‘Code Rule 18-2. 032.7), prohibiting manual recounts: of undervotes on the touchscreen voting systems, violates the statutory requirement for a manual recount and denies voters a method to oh Pa reset ca insure the accuracy of the votes cast. F a ke pan re 20. Respondent argues that if a. manual recount were to be goat 3 Set conducted of undervotes using the touchscreen voting systens it ra would be useless din determining that there was na clear Say indication on the ballot that the voter has made a "definite choice" because | the Screen would be blank. This. assertion may be true if the software or hardware on the voting machine does not malfunction. Tt does not deal with a } malfunction situation in which what actually appeared on the screen when the vote was cast was not what was actually recorded by the machine. It is not known whether such a malfunction has occurred in Florida because a copy of the screen image is not maintained. ) 12 21. . Respondent's expert, Paul Craft, acknowledged that the touchscreen voting systems have had problems with system software, but pointed out that the touchscreen voting systems certified by Respondent currently have no known system software problens. |
Conclusions For Petitioners: Benjamin R. Patterson, Esquire Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315- 24289 For Intervenor: Reginald gd. Mitchell, Eequite 1550 Melvin Street Tallahassee, Florida 32301 : For Respondent : George L. Waas, Esquire Office of the Attorney General” The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Other Judicial Opinions A party who is adversely affected by this ‘Fin entitled to judicial. review pursuant to Section “I2 Statutes. Review proceedings are governed by the F OF Appellate Procedure. Such proceedings are G ; filing the original Notice of Appeal withthe agéndy ‘chétk “oF”: the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the’ District ES Appeal, First District, or with the Dist: the Appellate District where the party xe ; : * appeal must be filed within 30 days ‘Of ‘Kéndition -6f ‘the ‘order ‘to be reviewed. . By Florida | 24 No
The Issue The issues are whether the allegations set forth in the separate Amended Administrative Complaints filed by the Department of Financial Services (Petitioner) against the Respondents, A Cremation Center at Horizon Funeral Home (Horizon) and Mark E. Davis, are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged under Chapter 497, Florida Statutes (2006), with regulation of funeral establishments, director/embalmers, and the sale of preneed funeral service contracts. At all times material to this case, Horizon was a funeral establishment holding Florida license FH2372, located at 1605 Colonial Boulevard, Fort Myers, Florida. At all times material to this case, Mark E. Davis was a funeral director and embalmer holding Florida license FE4335 and was employed by Horizon in that capacity. From 1999 through October of 2005, the Respondents produced "Registration Forms" which were supplied to individuals seeking to make preneed direct cremation arrangements. A registrant would complete the form and return it to the Respondents with a non-refundable fee of $48.00. Registrants received no discount when services were eventually purchased, but "locked in" the price being charged at the time the registration form was completed and returned with the $48 fee. The prices on the registration forms were the same as those charged to customers in need of the services during the time registrants submitted the forms and fees. The $48 fee was not credited to the cost of the services chosen during registration. Although there was minor variation between some versions of the document, the "Registration Form" generally contained the following language: I, the undersigned [sic] request Horizon Funeral Home & Cremation Center to record the following information. Enclosed is the $48.00 Registration Fee which will cover registration expenses, place the following information on permanent file, and FREEZE THE PRICE of the services and merchandise selected below. The form included space for the registrant to set forth personal identifying information including name, address, date of birth, social security number, occupation, and next of kin. Following the personal identification information part of the document, the form listed the prices of available services and merchandise and directed a registrant to make choices as follows: DESIGNATE YOUR WISHES: CHECK THE ITEMS YOU WISH TO RECORD. Simple Cremation $495. Cremation with Memorial Service $795. Cremation with Rental Casket & Funeral Service $2380 ALTERNATIVE CONTAINERS (Required by law in lieu of a casket) Corrugated Cardboard $95. Pressed Wood $195. DISPOSITION OF CREMATED REMAINS Scatter @ Sea $150. Pack & Ship $65. Cardboard Container, No Charge Family To Select An Urn, (Price Range $65 to $1995) The above prices do not include the following: Medical Examiner Cremation Approval Fee, Certified Copies of death certificate, classified obituary. THE REGISTRATION FEE OF $48.00 IS NOT REFUNDABLE. The registrant made selections, and then signed and dated the document. The form contained no area for Mr. Davis or any other representative of Horizon to acknowledge receipt of the form or to document any agreement to provide the services selected by the registrant. There were approximately 500 forms completed and submitted to the Respondents with the $48 fee. At the hearing, Mr. Davis testified that although there was no signature from the Respondent on the form, by his act of accepting the registration form and fee, he was agreeing to provide the services at the prices set forth on the form in accordance with each registrant's wishes. At no time have the Respondents been licensed or authorized to sell preneed contracts for final disposition of cremated human remains. Mr. Davis, an experienced funeral director, was familiar with the requirements to sell preneed contracts. He did not believe that the "Registration Forms" were preneed contracts. There was no evidence that Mr. Davis made any attempt to conceal the registration process from state regulators at any time. The use of the registration forms was observed during an investigation of the Respondents in 2004. At that time, the investigator believed that the forms were preneed contracts and drafted a complaint related to alleged unlicensed preneed contract sales, but for reasons unknown, persons who reviewed his work apparently disagreed, and the complaint was not pursued. A second investigation was initiated in November 2006 based on a complaint related to signage. The signage complaint raised concerns related to proposed transfer of Horizon ownership to a hospice organization, which was a topic of some controversy. As an investigator (not the 2004 investigator) drove to Horizon, he received a call from his supervisor which directed him to review the registration issue while was at the facility. The signage issue was resolved without difficulty. When the investigator inquired about the registration process, Mr. Davis produced the registration forms for review. The investigator believed that the forms were preneed contracts and stated so in his investigative report. The Petitioner apparently agreed and initiated the disciplinary process at issue in these cases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that the Respondents committed the statutory violations identified herein and issuing a letter of reprimand. The final order should additionally require that the Respondents execute a document to be prepared by the Petitioner, which specifically obligates the Respondents to provide to each registrant the services selected at the prices stated on each registrant's form, and providing a mechanism for enforcement of the obligation. DONE AND ENTERED this 26th day of July, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 26th day of July, 2007. COPIES FURNISHED: Garvin B. Bowden, Esquire Gardner, Wadsworth, Duggar, Bist & Wiener, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 Casia R. Sinco, Esquire Elizabeth Teegen, Esquire Department of Financial Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Diana M. Evans, Director Bureau of Funeral and Cemetery Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Financial Services 200 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350
The Issue The issues in this case are whether Respondent violated sections 497.152(1)(a) and 497.152(4)(h), Florida Statutes (2008 and 2009); section 497.146, Florida Statutes (2009); sections 497.152(5)(b) and 497.152(5)(g), Florida Statutes (2008);2/ and Florida Administrative Code Rule 69K-21.055, and, if so, what discipline should be imposed.
Findings Of Fact Mr. Singleton has been licensed by the Department as a funeral director and embalmer since December 15, 1997. His license number is F043742. On August 26, 2008, the Department entered a Final Order finding Mr. Singleton guilty of the violations alleged in the administrative complaint, In the Matter of: Tebbie Singleton (License Number F043742), Case No. 95046-08-FC. The Department imposed the following penalty: Respondent [Mr. Singleton] shall pay an administrative fine in the amount of $5,000. Said fine shall be paid within ninety (90) days of the date of the filing of this Final Order. The fine shall be paid by cashier's check or money order payable to the Board of Funeral, Cemetery, and Consumer Services and delivered to the Board office at the Department of Financial Services, Board of Funeral, Cemetery and Consumer Services, 200 East Gaines Street, Tallahassee 32399. In addition, Respondent is required to pay interest on the fine due to the Board at a rate of 11% per annum, beginning on the ninety-first (91st) day after the issuance of this Final Oder. Respondent is placed on probation for a period of one year. Respondent must attend an in-person meeting of the Board at the last scheduled meeting prior to the expiration of the one year probation. Respondent must notify the Division Director of his intent to attend no less than one month prior to the meeting. Respondent shall demonstrate compliance with the Order and demonstrate by testimony, presentation of letters, or recommendation from individuals within the industry, or other indicia of rehabilitation, that Respondent is able to resume practicing with reasonable care and safety and is in compliance with the laws of the State of Florida and rules of this Board. Mr. Singleton failed to pay the fine within 90 days of the issuance of the Final Order. On December 22, 2008, the Department entered a Notice of Intent to Enter Emergency Order of Suspension, advising Mr. Singleton that if he did not comply with the Final Order issued on August 26, 2008, that his license would be suspended. Mr. Singleton sent a check in the amount of $6,340.00 and dated January 17, 2011, to the Department. The check was drawn on the account of Betty Miller (Ms. Miller), who was a friend of Mr. Singleton's mother. At the top of the check was handwritten: "Tebbie Singleton, 9506 Fieldview Drive, Thonotosassa, Florida 33592, 850-577-6500." Mr. Singleton claims that neither he nor Ms. Miller wrote the address on the check, which was a starter check. The address that appeared on the check was an address at which Mr. Singleton had previously lived. Mr. Singleton's testimony that neither he nor Ms. Miller wrote the address on the check is not credible. The Department had no record prior to the receipt of the check that Mr. Singleton had ever resided at that address. Ms. Miller's check was returned for insufficient funds. Mr. Singleton explained that Ms. Miller, a 72-year-old woman, had her Social Security check deposited in the account and that the money was used for bills so the account was overdrawn. As of the date of the final hearing, Mr. Singleton had not paid the fine. On January 21, 2009, the Department entered an Emergency Order of Suspension because Mr. Singleton had failed to pay the administrative fine of $5,000.00 as required by the Final Order issued on August 26, 2008. The Emergency Order of Suspension provides: IT IS THERERFORE ORDERED that all licenses, appointments and eligibility for licensure heretofore issued to Licensee, Tebbie Singleton, within the purview of the Department, are hereby SUSPENDED. You, TEBBIE SINGELTON, shall return your license to the Division of Funeral, Cemetery and Consumer Services within ten (10) days of the issuance of the suspension. Your, TEBBIE SINGLETON'S, licenses shall not thereafter be reinstated except upon written request by you. Reinstatement shall be conditioned upon your compliance with all terms of the Final Order, including payment of the administrative fine and upon compliance with the terms of this suspension. This suspension shall terminate upon notice by the Department to the licensee that the Department has received satisfactory evidence that the licensee has come into compliance with the Board's order. The Department shall promptly provide said notice to the licensee upon receipt of such evidence. During the period of suspension, you, TEBBIE SINGLETON, shall not engage in or attempt or profess to engage in any transaction or business for which a license or appointment is required under the Florida Funeral, Cemetery and Consumer Services Act. Mr. Singleton has had odd jobs since the Final Order imposing the fine, but Mr. Singleton has made no effort to make even minimal payments on the fine. Instead, he tries to get friends to help him pay his fine. He intends to get married later on this year and thinks that his fiancée's family will help him pay the fine. As of the date of this Recommended Order, nothing has been submitted by Mr. Singleton that the fine has been paid. He did state in his post-hearing submittal that he had not paid the fine, but that he would be paying the fine within the next few days. Prior to June 7, 2007, Mr. Singleton had provided the Department with the following address for himself: 5607 North Armenia Avenue, Tampa, Florida 33609. He changed his address on June 7, 2007, to 8551 Manassas Road, Tampa, Florida 33635. On or about August 3, 2009, Kurt Schuler, a financial specialist with the Department, sent a letter to Mr. Singleton notifying him of an investigation concerning allegations of his unlicensed practice. The letter was sent to the Manassas Road address, but was returned by the United States Postal Service as "unable to forward." On October 8, 2009, Mr. Singleton filed a license renewal with the Department and changed his preferred mailing address to "5108 Mission Hill Drive, # 332, Tampa, Florida 33617." He had been living at the "5108 Mission Hill Drive" address since sometime in December 2008. No evidence was presented concerning the allegations of practicing with a suspended license as set forth in Count II of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Singleton violated sections 497.152(1)(a), 497.152(4)(h), and 497.146 and rule 69K-21.055; finding that Mr. Singleton did not violate sections 497.152(5)(b) and 497.152(5)(g); imposing an administrative fine of $2,500.00; suspending his license until he becomes complaint with the Final Order issued on August 26, 2008, and the payment of the fine imposed in this case; and placing him on probation for two years after his suspension is lifted. DONE AND ENTERED this 19th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 July, 2011.
The Issue The issue in this case is whether the allegations set forth in the Amended Administrative Complaint filed by the Department of Health (Petitioner), against Santana Lashonda Williams, L.P.N. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of nursing. At all times material to this case, the Respondent was licensed as a practical nurse in the State of Florida, holding license no. PN 5195962, with an address of record at 7255 Bucks Ford Drive, Riverview, Florida 33578. Between July 2012 and June 2013, the Respondent was employed as a licensed practical nurse by Armor Correctional Health Services, Inc. (Armor). At all times material to this case, persons employed by Armor, including the Respondent, provided health services to "patients" (inmates) incarcerated in detention facilities operated by the Hillsborough County Sheriff's Office (HCSO), including the Falkenburg Road Jail. The HCSO utilizes a computerized jail management system ("JAMS") that, in relevant part, stores personal and medical data for each inmate incarcerated in the HCSO detention facilities. Personal data stored in JAMS includes names, birthdates and social security numbers. The HCSO treats inmate social security numbers as confidential and private. The names and birthdates of inmates incarcerated in HCSO detention facilities are published online and are available to the public through the HCSO website. Medical data stored in JAMS is confidential and includes screening information obtained by a registered nurse upon an inmate's initial arrival to a detention facility, as well as information about inmate health issues that are presented during incarceration. Licensed practical nurses working at the Falkenburg Road Jail can access JAMS through computer terminals at nursing stations placed in various locations in the facility. At all times material to this case, the Respondent had access to JAMS and to the relevant data contained therein. In May 2013, Anthony Collins, an undercover detective employed by the HCSO, engaged in an investigation of a tax fraud scheme based on information received from a confidential informant. Detective Collins testified persuasively at the hearing, and his testimony is fully credited. The scheme involved using the personal information (names, birthdates and social security numbers) of inmates incarcerated in HCSO detention facilities to file fraudulent federal tax returns and obtain refunds. On May 30, 2013, Detective Collins met with the Respondent's father. During the meeting, the Respondent's father showed Detective Collins a handwritten list of names, birthdates and apparent social security numbers (List #1). The reverse side of the document was a blank form titled, "Armor Correctional Health Services, Inc., Infirmary Shift Report." During the May 30 meeting, Detective Collins learned that the Respondent was employed at the Falkenburg Road Jail. With Detective Collins present, the Respondent's father telephoned someone he represented as the Respondent to discuss List #1 and its delivery to Detective Collins. Detective Collins believed the Respondent to be the source of List #1. HCSO Corporal Kristy Udugawa testified at the hearing that during the course of the undercover operation, she was directed to determine whether List #1 revealed personal data of inmates incarcerated in the Falkenburg Road Jail. Corporal Udugawa interviewed nine inmates and determined that List #1 disclosed their names, birthdates and social security numbers. Corporal Udugawa's testimony is fully credited. At the hearing, a witness who had been incarcerated in the Falkenburg Road Jail during the relevant period testified credibly that his name, birthdate, and social security number were on List #1, and that he had not given consent for the data to be used in filing a fraudulent tax return. The May 30 meeting ended with an agreement between Detective Collins and the Respondent's father to proceed with the scheme. On May 31, 2013, Detective Collins met with the Respondent after a series of telephone calls between Detective Collins, the Respondent, and the Respondent's father. Detective Collins had been directed to bring a computer and related equipment to the meeting so as to begin filing tax returns, and he complied with the instructions. During the May 31 meeting, the Respondent told Detective Collins that on a weekly basis, she would provide personal information for 20 to 30 individuals that could be used to file tax returns and that the proceeds of the tax refunds would be divided evenly between the Respondent and Detective Collins. She directed him to obtain a prepaid cell phone for use in arranging the weekly meeting. During the May 31 meeting, the Respondent advised Detective Collins that she had access to personal information for about 3,400 people. The Falkenburg Road Jail houses about 3,400 inmates. During the May 31 meeting, Detective Collins paid $500 to the Respondent, which she accepted. The Respondent provided Detective Collins a list of six handwritten names (List #2), with birthdates and apparent social security numbers. By deposition, a witness who had been incarcerated at the Falkenburg Road Jail during the relevant period testified that List #2 disclosed his name, birthdate, and social security number, and that he had not given consent for the data to be used in filing a fraudulent tax return. The testimony is credited. The interaction between the Respondent and Detective Collins was recorded through the use of electronic audio and video surveillance equipment. At the conclusion of the May 31 meeting, the Respondent was arrested by HCSO officers who had been monitoring the surveillance. Deputy Paul Baez, one of the officers participating in the surveillance monitoring, testified at the hearing that after having been advised of her "Miranda Rights," the Respondent admitted that she had obtained personal data of inmates at the jail and had sold the data. Deputy Baez further testified that the Respondent admitted "doing drops," which Deputy Baez explained involved obtaining the personal data of other people and selling it for use in fraudulent tax return filings. Deputy Baez's testimony was persuasive and is fully credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order finding the Respondent guilty of the violations set forth herein, revoking the Respondent's license as a practical nurse, and imposing a fine of $10,000. DONE AND ENTERED this 24th day of February, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 24th day of February, 2014.
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
The Issue The issue is whether Respondent violated the Florida Election Code.
Findings Of Fact Chapters 97 through 106, Florida Statutes, comprise the Florida Election Code (Code). The Commission is empowered specifically to enforce the provisions of Chapters 104 and 106, Florida Statutes. Respondent is an attorney who at times pertinent practiced law in Ft. Walton Beach, Florida. He was a first-time candidate for Okaloosa County Commissioner, District 3, in the year 2000. He had no opposition after the October 3, 2000, second primary election and was elected to office at the general election. Allegations concerning the filing of false voter registration cards The evidence of record included three voter registration cards. A card was filed by Respondent on January 24, 2000, asserting that he lived at 1024 Christy Drive, Niceville, Florida. Another was filed on June 22, 2000, stating that he lived at 409-B Corvette Street, Ft. Walton Beach, Florida. Another was filed on February 22, 2001, stating that he lived at 8234 Mormon Temple Road, Baker, Florida. On each of the aforementioned cards are the following words: "Oath: I do solemnly swear (or affirm) that: . . . All information on this form is true. I understand that if it is not true, I can be convicted of a felony of the third degree and fined up to $5,000 and/or imprisoned for up to five years." Shoanette Summerlin is the former wife of Respondent. She lived with Respondent, along with six children, in Navarre, Florida, in Santa Rosa County, until December 1999. She continued to live in Navarre with the children until June of 2000. During this time the rent was paid by Respondent. Sometime after that date Ms. Summerlin moved to Dothan, Alabama. One of the children was the offspring of Respondent. Ms. Summerlin testified that Respondent moved in with his mother at 1024 Christy Drive, Niceville, at the end of 1999 or the first part of 2000. Ms. Summerlin testified that subsequent to early July 2000, she and Respondent's daughter occasionally stayed with Respondent at 409-B, Corvette Street in Ft. Walton Beach. Ms. Summerlin testified that once Respondent's daughter visited him at the Baker address but she had no personal knowledge as to whether or not he was living there. Ronald Young works for Select Real Estate of Ft. Walton Beach. On one occasion in the summer or early fall of 2000, he went to 409-B, Corvette Street, to repair a leaking faucet. Someone had complained to the real estate company, which owns or manages the premises, that the faucet was leaking. Mr. Young entered the premises and fixed the faucet. He saw no furniture other than a sleeping bag and pillow lying on the floor. He did not enter the bedrooms or closets of the dwelling. He did not observe Respondent or anyone else living at the premises. James Dunn is the property manager for Select Real Estate. Respondent called him on June 20, 2000, and asked to see the premises at 409-B, Corvette Street. Mr. Dunn did not show the property to Respondent, but was aware that another property manager had shown it and that Respondent had leased it. The lease ran from July 1, 2000 until December 31, 2000. On July 6, 2000, Respondent called Mr. Dunn to complain about the malfunctioning of a lock on the garage door. Kent Beck is a self-employed handyman. He occasionally works on property owned or managed by Select Real Estate. Some time after June 2000 but before December 2000, he was given a work order on 409-B, Corvette Street. He saw Respondent at that address when he did his work. He observed furniture and toiletries in the premises. He talked to Respondent on two occasions, and he worked twice on the back porch of the premises. Select Real Estate noted that Respondent was behind on his rent and, as a result, Mr. Dunn placed a notice of pending eviction on the door of the premises in September 2000. The notice was placed so that the door to the premises could not be opened without disturbing the notice. Another notice was placed on the premises by him on September 27, 2000; Mr. Dunn noticed at this time the previous notice was undisturbed. On September 26, 2000, Respondent paid the back rent then due. On October 19, 2000, Mr. Dunn placed another notice of eviction on the door of the premises. Mr. Dunn could not discern if anyone was residing in the premises. Chad Hutcheson testified that he visited his father on Halloween in 2000. He stated that his father lived at 409-B Corvette Street. Jill Bergland is Respondent's legal secretary and worked at his law office on Mary Esther Cut-Off in Ft. Walton Beach. She paid both his business and personal bills. She once went to the premises at 409-B Corvette Street to retrieve his dress shoes for him. She could not remember the date that this occurred. Respondent testified that he lived in Navarre from April 1999 until his final separation from his wife in December 1999. He testified that he moved in with his mother at 1024 Christy Drive, in Niceville, in December 1999 or early in 2000. Respondent testified that he continued to pay rent on the Navarre property until his wife and the children vacated the residence in June 2000. Respondent testified that he moved into 409-B Corvette Street, in Ft. Walton Beach, around July 2000. He stated that he obtained a lease for six months which expired in December 2000. He stated that because of the situation with his then wife that he had no furniture and few belongings. Respondent testified that he then moved to an address on Mormon Temple Drive, in Baker, around the first week in January 2001. Up until this point, it should be noted that Respondent's testimony with regard to living in Niceville with his mother and residing at 409-B Corvette was somewhat believable and was, in the case of 1024 Christy Drive, unrebutted, and in the case of 409-B Corvette Street, corroborated by other evidence. Therefore, it is concluded that the Commission failed to prove by clear and convincing evidence that he did not live at those addresses. His testimony with regard to living at a premises located on Mormon Temple Road, Baker, Florida, as he asserted under oath on February 22, 2002, is rejected as untrue based on the evidence which will be addressed below. The premises on Mormon Temple Road was owned by Anthony Bradley of Valpraiso, Florida. The premises consisted of about 180 acres and located upon it was a brick house which bore the address of 8234 Mormon Temple Road, and a white house which bore the address of 8300, Mormon Temple Road. Mr. Bradley gave Respondent the use of the white house on or before January 2001 and charged him no rent. The house was furnished. It was located down an unimproved road which was approximately one-half mile from Mormon Temple Road. In order to drive a vehicle onto the curtilege of the white house at 8300 Mormon Temple Road, it was necessary to unlock a gate, although it was possible to simply walk around the gate and access the house. Also on the property, near the white house, a red horse resided within a fenced area. Feed for the horse was located nearby. Charles Cauley lived alone at 8234 Mormon Temple Road beginning at some point in time in 2000 until April 2001. It is noted that this encompassed the period that Respondent claimed to live there. Respondent asserted that his claim of residing at 8234 Mormon Temple Road address on the voter registration card filed February 22, 2001, was a simple mistake and that he really lived at 8300 Mormon Temple Road. Mr. Cauley paid rent to Mr. Bradley and it was his responsibility to "look after" the place and to feed the horse. In order to feed the horse, Mr. Cauley had to depart the asphalt surface of Mormon Temple Road and to traverse the unimproved road leading to the white house. He did not actually drive right up to the white house because the way was barred by the locked gate and he had no key. He would walk from the locked gate to the area where the horse lived. He fed the horse two to three times during the week, usually in the evening, and at various times on weekends. Mr. Cauley doesn't know Respondent. Mr. Cauley did not see anyone at all living in the white house. He did not observe tire tracks or footprints which would indicate anyone had been in the area of the white house. The Chattahoochee Electric Co-op provides electric service to both 8234 and 8300 Mormon Temple Road. During the period January through April 2001, the premises at 8234 Mormon Temple Road, the dwelling where Mr. Cauley resided, used electrical service which was billed as follows: January, $40.57; February, $37.37; March, $62.87; and April, $94.14. The co-op records reveal that electric service at the premises at 8300 Mormon Temple Road was billed as follows: January, $12.77; February, $13.15; March $12.38; and April, $12.45. The account with the co-op at 8300 Mormon Temple Road was in the name of Jane Bradley, who is Anthony Bradley's wife. Mr. Bradley surmised that the meter may have been broken when he looked at it in May or June 2001, but failed to provide a rationale for arriving at that conclusion. Therefore, his testimony in that regard is rejected as conjecture and is not considered probative. Electric bills in the amounts experienced at 8300 Mormon Temple Road are inconsistent with the bills one would expect from an inhabited dwelling, especially when compared to the bills experienced in a similar dwelling by Mr. Cauley, who lived alone. Charles W. Reid is a friend of Respondent. He is an attorney. He visited 8300 Mormon Temple Road during the time Respondent allegedly lived there. He was accompanied by Lavon Mason and Respondent. They fished in the pond located on the premises. He observed that Respondent had a key to the gate leading directly to the white frame house. The three men caught bluegill and transported them to Mr. Mason's pond for the purpose of restocking it. Reginald Beck is a retired person who lives in the north end of Okaloosa County. He knew Respondent from the time he ran for county commissioner. Respondent asked him to cut his lawn at 8300 Mormon Temple Road and Mr. Beck did this from time to time in March or April 2001, for which he was paid. Respondent also attended a cook-out on the premises, along with several people. Mr. Beck stated that his wife cut up the meat in the kitchen of the house at 8300 Mormon Temple Road during the cook- out. Mr. Beck noted that he saw furniture in the house but he didn't know who owned it. He stated that every time he went to the premises Respondent was there and stated that he visited the premises about ten times. He did not know if Respondent slept at the premises, but he saw him on at least one occasion at 7:30 in the morning. Robert Hutcheson is Respondent's older brother and lives in Crestview. He went fishing in the pond at 8300 Mormon Temple Road on one occasion in January 2001. He was in the house on at least one occasion and observed fishing tackle and boxes but no clothes. He would occasionally visit the premises after hunting and sometimes he would see Respondent there. Mallory Jeffers resides in Baker, Florida, and met Respondent when Respondent was campaigning for county commissioner. He first met Respondent around August 2000. On January 4, 2001, Respondent called Mr. Jeffers and told him he was moving into the Collingswood place, which was a local name for the land at 8234 and 8300 Mormon Temple Road. He helped unload items for Respondent and moved them into the white frame house at 8300 Mormon Temple Road. The items consisted solely of four boxes. Mr. Jeffers attended two cook-outs at 8300 Mormon Temple Road. He saw Respondent on the premises from three to five times. He also observed the red horse. He noted that Respondent went to Montgomery, Alabama, almost every weekend to visit his wife. However, Mr. Jeffers was mistaken in his belief that Respondent went to Montgomery. As noted above, Ms. Summerlin lived in Dothan at that time, and was residing in Dothan at the time of the hearing. Chad Hutcheson is the son of Respondent. He stated that he visited his father at 8300 Mormon Temple Road in February or March 2001 and spent almost the entire day there both times. Respondent testified that he is an extremely ethical attorney and person. However, he has been disciplined by the Florida Bar on five occasions for violating the rules regulating the Florida Bar. Although Respondent may have spent some time at the premises at 8300 Mormon Temple Road, and may have entertained friends at the address, and may have stored some small amount of personal property there, he did not "live" there. Allegations concerning filing false campaign reports Patricia M. Hollarn is the elected Supervisor of Elections for Okaloosa County. It is her duty, among other things, to ensure that when persons register to vote that they provide addresses at which they actually live. She also ensures that her office provides candidates with the information they need to comply with the election law. Campaign Treasurer's Report Summaries are submitted to Ms. Hollarn by candidates who are running in local elections. She does not audit them, but if an obvious error is discovered she will give first-time candidates the opportunity to correct them. Candidates must pre-file if they wish to receive campaign donations. Once they pre-file, a Campaign Treasurer's Report Summary must be filed quarterly. According to the Candidate Handbook on Campaign Financing, which was provided to Respondent, after qualification reports must be filed on the thirty-second, eighteenth, and fourth days immediately preceding the first primary. After the first primary, a Campaign Treasurer's Report Summary must be filed on the eighteenth and fourth days immediately preceding the second primary and general election. Ms. Linda McEwen is the Elections Service Manager in the office of the Okaloosa Supervisor of Elections. She knows Respondent. He came to the Supervisor of Elections' office and met with her at the time he pre-filed, and at other times during the campaign. She noted that Respondent pre-filed on January 28, 2000, for County Commission, District 5; later, he decided to run in District 3. Respondent filed documents appointing himself as his campaign treasurer at the time he pre-filed. He was provided a copy of the Candidate Handbook on Campaign Financing and was asked to read it and sign and return within ten days an acknowledgement that he had read it. When he was presented with the Candidate Handbook on Campaign Financing he told Ms. McEwen, "I am an attorney. I'll understand it." Respondent told Ms. McEwen on March 22, 2000, that he lived at 1024 Cristy Drive, Niceville. She told him he would have to move into the district in which he was running. During this conversation Ms. McEwen talked about the Campaign Treasurer's Report Summary which was due on April 10, 2000. He presented that report subsequent to the due date and paid a fine. Respondent filed a Campaign Treasurer's Report Summary for the period July 1, 2000 to July 31, 2000. This report contained the following deficiencies: An incomplete address is provided for a contribution from Ted Reeves. An incomplete address is provided for a contribution from Gussy Elmore. An incomplete address is provided for a contribution from Jennifer Mozak. Respondent's Campaign Treasurer's Report Summary for the period July 1, 2000 to July 31, 2000, also revealed that he accepted cash contributions in excess of $100, from the following persons in the following amounts: Lavon Mason, $200. Leo Tisa, $200. Respondent filed a Campaign Treasurer's Report Summary for the period August 1, 2000 to August 11, 2000. This report contained the following deficiencies: No address is provided for "PIP" for an expenditure on August 2, 2000. No address is provided for "PIP" for an expenditure on August 3, 2000. Respondent filed a Campaign Treasurer's Report Summary for the period August 12, 2000 to August 31, 2000. This report contained the following deficiencies: No address is provided for WMMK and WFAV for an expenditure on August 16, 2000. No address is provided for WMMK and WFAV for an expenditure on August 23, 2000. No address is provided for WAAZ for an expenditure on August 30, 2000. No address is provided for WAAZ for a second expenditure on August 30, 2000. Respondent's Campaign Treasurer's Report Summary for the period August 12, 2000 to August 31, 2000, also revealed that he accepted cash contributions in excess of $100, from the following persons in the following amounts: Sue Young, $300. Ronald E. Hale, Jr., $500. David Kuntz, $500. Ronald E. Hale, Sr., $300 Respondent's Campaign Treasurer's Report Summary for the period August 12, 2000 to August 31, 2000, revealed that he made cash payments to the following entities in the following amounts: WMMK and WFAV (radio stations), in the amount of $504, on August 16, 2000. WMMK and WFAV (radio stations), in the amount of $504, on August 23, 2000. WAAZ (radio station), in the amount of $374, on August 30, 2000. WAAZ (radio station), in the amount of $85, on August 30, 2000. WMMK and WFAV (radio stations), in the amount of $300, on August 31, 2000. Respondent filed a Campaign Treasurer's Report Summary for the period September 23, 2000 to December 31, 2000. This report contained the following deficiencies: An incomplete address is provided for an expenditure to Gulf Breeze Media. An incomplete address is provided for NW Florida Daily News for an expenditure dated September 27, 2000. An incomplete address is provided for NW Florida Daily News for an expenditure dated September 28, 2000. An incomplete address is provided for an expenditure to First National Bank. Ronald E. Hale is the general manager of WMMK-FM and WFAV-AM, which are radio stations in Ft. Walton Beach. The radio stations were having problems with the Internal Revenue Service during the time Respondent was purchasing advertising and refused to accept checks, which is why Respondent paid Mr. Hale in cash. Respondent actually negotiated checks for the exact cash amounts owed and then gave the cash to the radio stations. Nevertheless, this transaction is a violation of Section 106.11(1), Florida Statutes. Respondent swore to the truth of the contents of the Campaign Treasurer's Report Summaries which he filed with the Supervisor of Elections. Specifically, on each of the aforementioned reports, after having been advised in bold face type immediately above the signature blocks that, "It is a first degree misdemeanor for any person to falsify a public record (ss. 839.13, F.SS.)," he signed the summaries both as candidate and as treasurer. Above the blocks that he signed was a statement which read, "I certify that I have examined this report and it is true, correct and complete."
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding Respondent guilty of 16 counts of violating the Florida Election Code and assessing a $21,301 penalty. DONE AND ENTERED this 12th day of July, 2002, 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 12th day of July, 2002. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-0150 Ernest L. Cotton, Esquire Cotton & Gates, P.A. 3 Plew Avenue Shalimar, Florida 32579 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
The Issue The issue in this proceeding is whether the Petitioner is entitled to recover attorney's fees and costs incurred in this proceeding pursuant to the provisions of Section 112.317(8), Florida Statutes, and if so, the amount of such attorney's fees and costs.
Findings Of Fact Petitioner, Gordon Sands (Petitioner or Mayor Sands), is and at all times material to this proceeding was mayor of the Town of Welaka, Florida (Town or Town of Welaka), having served in that position for four years. Initially, Petitioner was appointed mayor in May 1996, after the then-mayor resigned. In 1997, Petitioner ran unopposed for mayor and, in March 1999, he was re-elected. Respondent, Caron Speas (Respondent), is and has been a resident of the Town of Welaka for two years. Respondent, who has practiced law since 1981, considers herself a "watchdog" of the actions of the Town's local government. She is chair of and has been active in a local "political committee" currently known as Concerned Citizens for Public Integrity, Inc. Respondent's brother, Rand Speas, is also a resident of the Town of Welaka. During January to March 1999, Mr. Speas was running for a position on the Town Council at the request of his sister, Respondent. Mr. Speas lost his election campaign on March 3, 1999. During Mr. Speas' unsuccessful 1999 election campaign, Mayor Sands was running for re-election. Respondent was opposed to Petitioner's re-election bid and had actively opposed many of the official actions taken by Mayor Sands. Moreover, Respondent had openly expressed her dislike and dissatisfaction with the manner in which the Town of Welaka was governed and her opposition to the administration of Mayor Sands. On April 9, 1999, Respondent filed an amended ethics complaint (Amended Complaint) against Mayor Sands alleging that the mayor violated Section 112.313(6), Florida Statutes, by orchestrating a willful and deliberate violation of the public records laws in order to aid his re-election campaign. After an investigation and consideration of the Complaint and the Amended Complaint, the Ethics Commission issued an order finding that there was no probable cause to believe that the mayor had violated the Code of Ethics as alleged by Respondent and dismissing both the Complaint and the Amended Complaint. In this case, Petitioner asserts a right to attorney's fees and costs by reason of Respondent's filing the Amended Complaint. In the Amended Complaint made against Mayor Sands, Respondent submitted an Amended Statement of Facts, which stated: AMENDED STATEMENT OF FACTS During the months from January 1999 to March 1999, said party [Mayor Sands] did violate Florida Statute [sic] 112.313(6) by orchestrating a willful and deliberate violation of the public records laws for the purpose of aiding his re-election campaign. Said party did use his position as Mayor of the Town of Welaka (population approximately 600) to instruct the town clerk not to provide his political opponents with public records that contained information relating to campaign issues. On January 13, 1999, The Concerned Citizen's Group, a political committee opposing Mayor Sands [sic] bid for re-election, requested copies of very specific public records. The town clerk produced records which were wholly incomplete--rather than producing the audited financial statements that were requested, she produced only the balance sheets taken from the audited financial statements. When the deficiency was pointed out to her, she wrote a letter on February 16, 1999, improperly requesting a $100.00 deposit for the "extensive labor" involved in locating the records. When it was pointed out that she had already located the records because she copied the balance sheets from them, she finally had to accede to copying the audited financial statements that day. Over one month after they were requested. [sic] On January 22, 1999, The Concerned Citizen's Group, served a second written request for copies of very specific public records, to wit: grant applications. On February 16, 1999, the town clerk wrote the above- referenced letter improperly requesting a $100.00 deposit but did not object to the public nature of the records requested. When the $100.00 deposit was paid under protest, the records were nevertheless not forthcoming. One day before the election, The Concerned Citizen's Group was contacted and told it could pick up the records that afternoon. The records consisted of 11 pages for which the Concerned Citizen's Group was charged $66.50, or $6.60 per page. On January 22, 1999 Philip J. Cobb, campaign manager for Rand Speas, requested a copy of the Absentee Ballot Voter's List for the last two Welaka elections and did not receive the requested document until one day before the election. It was three pages long and he was charged 45 cents. On January 28, 1999, Edna Moore, a political opponent of the mayor, made a request for public records, (specifically: two ordinances, a permit, a receipt for equipment purchase, Minutes of a town council meeting, and employee work sheets for 4 months). Ms. Moore also received a letter requesting a $100.00 deposit, which she was unable to pay. The day after the election, Ms. Moore was told that her public records were ready for pick up. She was charged $39.75 for 115 copies, or 35 cents per page. On February 15, 1999, May Nigh, a member of the Concerned Citizen's Group, made a request for specific public records. Ms. Nigh also received a letter requesting a $100.00 deposit, which she was unable to pay. Ms. Nigh received the requested records a week after the election. The records consisted of 19 pages for which she was charged $31.25, or $1.64 per page. The excuses and explanations given for the delays in producing the above records were totally lacking in plausibility. Each of the persons who requested public records were [sic] told that the requests were either voluminous or could not be located and that the town clerk would have to work on the weekends to provide the records. The records that were ultimately produced were not "voluminous" and a former town employee, Irene Perrins, (who has a lifetime of experience in office work) has indicated verbally to the complainant that there is not enough work at town hall to keep the town clerk busy for more than 3 hours a day, let alone on the weekends. The statute cited by Respondent and the facts alleged in support of her charges comprise a specific accusation by Respondent that Mayor Sands, a public officer of the Town of Welaka, corruptly used his official position by orchestrating a willful and deliberate violation of public records laws in order to secure a special privilege or benefit for himself by directing the Town Clerk not to provide his political opponents with requested records. At the time Respondent completed and filed the Amended Complaint, she had no personal knowledge that Mayor Sands had, in fact, "orchestrated a willful and deliberate violation of the public records laws for the purpose of aiding his re-election campaign." Respondent relied on statements of three individuals in making the charge against Mayor Sands contained in the Amended Complaint. First, according to Respondent, Grace Evans, a former member of the Town Council of the Town of Welaka, told Respondent that Mayor Sands totally controls and directs the activities of the Town Clerk, Renee Peterson. Next, Virgil Posetti, a political ally of Rand Speas and the political opponent of Mayor Sands in the 1999 election, allowed Respondent to tape a statement in which Posetti stated that Mayor Sands controls what goes on in Town Hall and supervises the Town Clerk. Finally, in a telephone conversation initiated by Respondent, Eileen Perrins, a former town employee who was fired, told Respondent that the Town Clerk had only three or four hours of work to do during the work day. Respondent put credence in Ms. Evans' statements because Respondent believed that Ms. Evans knew Mayor Sands well. Respondent testified that Ms. Evans had formerly served on the Town Council under Mayor Sands but resigned from the Council "saying that Mayor Sands violates the Sunshine Laws regularly." Respondent apparently believed the statements made by Posetti because he had been a former member of the Town Council. However, it is significant that at the time the public records requests were made to the Town Clerk, Posetti was not a member of the Town Council, was not active in Town Hall, and did not work in Town Hall. Moreover, prior to and at the time Respondent filed the Amended Complaint, she was aware that Posetti was running against Mayor Sands for mayor of the Town of Welaka. Lastly, Respondent apparently believed the statements of Ms. Perrins because Perrins had previously worked in Town Hall as an employee of the Town. Respondent relied on Ms. Perrins' statements although she knew or believed that Perrins had been fired from her job with the Town. Respondent's reliance on any statements made by Evans, Posetti, or Perrins was not well-founded. By her own testimony, Respondent was aware that the statements by these individuals should be weighed carefully in light of their likely biases against Mayor Sands. Moreover, there was no evidence that Evans, Posetti, or Perrins worked at Town Hall or were aware of or had any knowledge of what was going on in Town Hall at the time the subject public records request were made. Finally, Respondent acknowledged that none of the aforementioned individuals ever told her that Mayor Sands had orchestrated a willful and deliberate violation of the public records laws. Respondent also based the charges in the Complaint on the chronology--the dates the public requests were made; the information that was requested; the length of time she believed it reasonably should have taken to produce the documents; the time it actually took to produce the documents; and the dates that the records were actually produced. In summary, Respondent testified that the basis for the charges she made in the Amended Complaint was as follows: [W]hat I was hearing around town, what I was hearing from former council people, what I heard from Irene Perrins in the telephone conversation I had with her and the timing of the requests, the demands for $100 deposits, and the actual production of documents and what was produced. The totality of the circumstances is the reason this complaint was filed. (Transcript, pages 71-71). Respondent was "upset" and "outraged" when some of the public records requests were not responded to in the time frame and manner that she thought was reasonable. As a result, after the March 1999 election, she filed the Complaint against Mayor Sands. Respondent chose to file the Complaint against Mayor Sands although she knew that all the subject public records requests had been directed to the Town Clerk and/or the Town Custodian of Records. The only Town official with whom Respondent communicated regarding the subject public records requests was Renee Peterson. However, Respondent believed Mayor Sands was a "dictator" in that he "controls" and "runs everything" at Town Hall. In light thereof, Respondent believed that Ms. Peterson was delaying and withholding production of documents at the direction of Mayor Sands. Despite Respondent's belief that Mayor Sands controlled everything at Town Hall, including responses to public records requests, she never communicated with him about the delay in the Town Clerk's responding to the subject public records requests. In fact, Respondent has never had a conversation with Mayor Sands. At all times material to this proceeding, Renee Peterson was the Town Clerk and Custodian of Records for the Town of Welaka, having been employed in that position since September 1998. Among her various duties, Ms. Peterson was responsible for keeping and providing public records for review and copying such records upon request. In that connection, the Town of Welaka has a duly-adopted ordinance establishing a procedure for Ms. Peterson to follow. At all times relevant to this proceeding, Mayor Sands was charged with supervising the Town Clerk, Ms. Peterson. When Ms. Peterson was first employed, Mayor Sands instructed Ms. Peterson to refer any questions about public records to the Town's attorney or to use the "Sunshine Manual." However, the mayor was not involved in and did not direct the day-to-day work activities of Ms. Peterson. Ms. Peterson used her discretion in establishing and accomplishing her job priorities. Between approximately January 13 and March 9, 1999, Ms. Peterson received at least 13 public records requests from the Concerned Citizens Group and several individuals. Ten of the thirteen public records requests were made in January 1999 and some required research back to 1990. In January 1999, when ten of the public records requests were made, Ms. Peterson had been employed as Town Clerk for only three or four months. Given her varied responsibilities as Town Clerk, the number and the volume of the public records request, and the extensive research required to comply with some of the public records requests, Ms. Peterson took several weeks to respond to several of the public records requests. In instances when Ms Peterson determined that there would be some delay in fully responding to the requests, she wrote letters to the appropriate individuals and informed them of the status of their public records requests. Subsequently, with the help of two other people, Ms. Peterson worked seven hours one Saturday to satisfactorily respond to the public records requests. Respondent testified that the public records requests were relevant to campaign issues in the March 1999 election. However, none of the persons who had made the subject public records requests ever complained to Ms. Peterson about the time frame within which she responded to their public records requests. Furthermore, when the requests were made and after they received letters advising them of the status of their requests, none of the individuals advised Ms. Peterson that the requested records were needed by a date certain. Ms. Peterson did not think in terms of the subject public requests as related to the election. She simply thought of them as public records requests. Under all the circumstances, there was no unreasonable delay in her response to those public records requests. Ms. Peterson testified credibly that she never told Mayor Sands that the subject public records requests had been made; that Mayor Sands never orchestrated any willful or deliberate violation of the public records law; and that the mayor never instructed her not to provide his political opponents with public records that contained information relating to campaign issues or to delay providing such records to his political opponents. Mayor Sands' credible testimony was that Ms. Peterson never advised him that she had received the subject public records requests and that he never instructed her not to provide his political opponents with public records or to delay providing such records to his political opponents. Mayor Sands' credible testimony was that he first heard about problems concerning an individual's obtaining public records at a political rally two weeks before the March 1999 election. While at that rally, he heard Posetti, his opponent in the election, and Edna Moore, make statements that Ms. Moore could not get public records that she desired. Neither Posetti nor Ms. Moore accused Mayor Sands of interfering with Ms. Moore's getting the records. However, after hearing these complaints, Mayor Sands asked the former Town Clerk and a former Town Council member who had served as assistant records keeper to assist Ms. Peterson in responding to the public records requests. Soon thereafter, all records were produced. Respondent acknowledged that no one told her that Mayor Sands orchestrated a willful and deliberate violation of the public records law to assist his re-election campaign. Rather, in filing the Amended Complaint, Respondent relied on statements made to her by individuals who were obviously biased against Mayor Sands and whose statements, even if true, do not support the charge that the mayor orchestrated a willful and deliberate violation of the public records law for the purpose of aiding his re-election efforts. Respondent had no first-hand knowledge of any facts that would reasonably support the charge she made against Mayor Sands in the Amended Complaint. In absence of such knowledge, Respondent relied on the statements of Ms. Evans, Ms. Perrins, and Mr. Posetti and on Respondent's conclusion that the chronology of events related to the public records was evidence that Mayor Sands: (1) orchestrated a willful and deliberate violation of the public records law for the purpose of aiding his re-election campaign; and (2) instructed the Town Clerk not to provide his political opponents with public records that contained information relating to campaign issues. Contrary to Respondent's beliefs, the aforementioned statements and the chronology of events relative to the public records requests do not support or provide a reasonable basis for charges against Mayor Sands in the Amended Complaint. The allegations and statements of fact in the Amended Complaint are mere conjecture and surmise. Based on the foregoing, Respondent filed the Amended Complaint with a malicious intent to injure the reputation of Mayor Sands and with reckless disregard for whether said Amended Complaint contained false allegations material to a violation of the Code of Ethics. In defending himself against the allegations in the Complaint and in this proceeding, Petitioner has been represented by Allen C. D. Scott, II, Esquire. Mr. Scott's hourly rate is $125.00. Prior to the final hearing, Mr. Scott expended 43 hours on this matter and a related case, McGuire v. Speas, DOAH Case No. 00-0267FE, Recommended Order issued August 24, 2000. One- half of that time is attributable to the instant case. The hourly rate of $125.00 billed by Mr. Scott is reasonable. Likewise, the pretrial time of 21.80 hours expended in this matter is reasonable. Accordingly, the attorney's fee of $2,725.00 incurred is reasonable. Judith Ginn, Esquire, an attorney who has practiced law in the state of Florida since 1974, testified as an expert witness in this case. Ms. Ginn's hourly rate of $150.00 is reasonable. The reasonable cost of Ms. Ginn's expert witness services in this case and in the companion case is $650.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Ethics Commission enter a final order finding that Respondent, Caron Speas, is liable for attorney's fees of $2,725.00 and costs of $325.00; and The Ethics Commission award fees and costs which were incurred on the day of and after the administrative hearing. DONE AND ENTERED this 5th day of September, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 5th day of September, 2000. COPIES FURNISHED: Allen C. D. Scott, II, Esquire Scott & Scott 101 Orange Street St. Augustine, Florida 32084 Peter Ticktin, Esquire Scholl, Ticktin, Rosenberg, Glatter & Litz, P.A. Net First Plaza 5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080 Sheri L. Gerety, Complaint Coordinator and Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
