Conclusions For Petitioners: Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Tallahassee, FL 323999-1050 For Respondent: Robin Gibson, Esquire Gibson, Valenti & Ashley 212 East Stuart Avenue Lake Wales, Florida 33853 THE FEC STAFF’S EXCEPTIONS 1. Staff Exception #1 is approved. As the FEC has consistently held, FEC v. Morroni, Case No. FEC 97-060; FEC v. Bosezar, Case No. FEC 95-053; Division of Elections v. 2the FEC has reviewed the entire record and heard arguments of counsel. De La Portilla, Case No. FEC 93-045; FEC v. Harris, Case No. FEC 98-087; FEC v. De La Portilla, Case No. FEC 00-006; FEC v. Proctor, Case No. FEC 99-065; the burden of proof in cases involving alleged violations of Chapter 106 is by a “preponderance of the evidence.” For this reason, the FEC rejects the ALJ's characterization (COL @ § 17) of the burden as being “clear and convincing.” That being said, the Commission finds that the facts as found by the ALJ support the conclusions in the Recommended Order as modified by the FEC’s conclusions herein under either burden. 2. The Commission rejects Staff Exception #2. The FEC fully supports the Division of Elections’ position that parties required to submit information to the Division should do so using the appropriate forms. However, the evidence as found by the ALJ showed that Respondents did notify the Division that a new Deputy Treasurer for the political committee involved had been appointed prior to the submission of the Quarterly Report at issue even though the form used was that designated for candidates not for committees. Given the facts of this case, the Commission cannot say that the Respondents’ use of the incorrect form made their Quarterly Report so inaccurate as to make their certification of the Report “inaccurate or untrue” in violation of Section 106.07(5), Fla. Stat. While the FEC does not agree with the ALJ’s conclusion (COL @ 4§ 23-25) that using an incorrect form cannot form the underlying basis of a finding that a report violates Section 106.07(5), it agrees with his conclusion that no violation occurred here. . WHEREFORE, based upon the foregoing and as amended by the Commission’s rulings on the exceptions filed herein, the FEC hereby accepts the Findings of Fact, Conclusions of Law and Recommendation of the ALJ and DISMISSES the charges against the Respondents. nd > DONE and ORDERED this Q2 day of Cgurt 2003. Chanee Qnroins Chance Irvine, Chairman Florida Elections Commission CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to counsel for Respondents, Robin Gibson, Esquire, Gibson, Valenti & Ashley, 212 East Stuart Avenue, Lake Wales, Florida, 33853, by U.S. mail, and by hand delivery to Clerk, Florida Elections Commission, 107 West Gaines nd Street, Suite 224, Tallahassee mail this 22 day of — luge 2003. y; by
Recommendation Based upon Petitioner's failure to appear, it is, RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Administrative Hearing filed herein and issuing to Respondents Clarence and Jacqueline Keevan the permit sought by them in accordance with the conditions set forth in the Intent to Issue of October 18, 1984. DONE and ORDERED this 25th day of April, 1985 at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer The Oakland Building Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1985. COPIES FURNISHED: Douglas MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Captain Ed Davidson and Commander William H. Westray 1401 Sunset Drive Key West, Florida 33040 Michael Egan, Esquire Post Office Box 1386 Tallahassee Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact 1. On September 20, 2010, the staff of the Commission issued a Staff Recommendation, recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. 2. The Respondent was served by certified mail through his attorney with a copy of the Order of Probable Cause. 3. The Respondent and the staff stipulate to the following facts: a. The Respondent Darin Wade Mellinger, was a candidate for the Delray Beach City Commission in the March 10, 2010, general election. b. During his campaign, Respondent submitted reports of all contributions _ received and all expenditures made. Respondent’s 2010 G1, 2010 G2, and 2010 G3 reports were missing information. c. Respondent maintained a website during his campaign. Respondent’s C_o 045 (12/08) 1 website did not contain the required political disclaimer and did not contain the word “for” between his name and the office he sought.
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. on May 20, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit win, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:49 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $1,200.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this BF aay of Pece hi , 2075. Rie Oi fon Disnew 5. Werpglle Diann S. Wo¥zalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van _ Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this CG day of Sanuary , 20\4_ Prtccln MN Nihbe For Putreln~M, Division of Hotels and Restaurants : “Certified: Article: Number, ; ; 7446 008 S111 5516 1783
The Issue The issue is whether Respondent committed the violations alleged in the Orders of Probable Cause, and, if so, what penalty should be imposed.
Findings Of Fact Respondent was a candidate for election to the Florida House of Representatives in 2006. The Division of Elections (Division) was the filing office for that election. On March 27, 2006, the Division sent a letter to Respondent acknowledging his candidacy and informing him of the filing deadline for the first campaign treasurer’s report. The letter also informed Respondent that all of the Division’s publications, including the “2006 Calendar of Reporting Dates,” were available on the Division’s website. The filing deadline for the campaign treasurer’s report covering the second quarter of 2006 (hereafter “Q2 report”) was July 10, 2006. Respondent did not file his Q2 report by that deadline. On July 12, 2006, the Division sent Respondent a letter informing him that his Q2 report had not been received. The Division sent a second letter (by certified mail) on October 17, 2006, and the Commission sent several additional follow-up certified letters in November and December 2006. Respondent filed his Q2 report on February 9, 2007, which is 214 days after the deadline. Respondent was a candidate for election to the Alachua City Council in 2007. The City Clerk was the filing officer for that election. Respondent submitted his campaign paperwork to the City Clerk on February 23, 2007.2/ The paperwork included a “Statement of Candidate” form signed by Respondent stating that he “received, read, and understand[s] the requirements of Chapter 106, Florida Statutes.” On February 23, 2007, the City Clerk’s office provided Respondent a copy of Chapters 104 and 106, Florida Statutes, a copy of the “2006 Candidate and Campaign Treasurer’s Handbook,” and a calendar of the election dates. The handbook contained the applicable filing deadlines for the campaign treasurer’s reports that Respondent was required to file. The first report was due on March 14, 2007, and covered the period between the candidate’s filing date and March 14. The second report was due on March 23, 2007, and covered the period of March 15 to March 23. The third report was due on April 6, 2007, and covered the period of March 24 to April 6. Respondent did not file the first report even though he had contributions and expenditures during the period covered by the report. On March 15, 2007, the City Manager sent a certified letter to Respondent informing him that his first campaign treasurer’s report had not been received. The letter advised Respondent that fines had started to accrue. Respondent did not file the second report, nor did he file a “waiver report” reflecting that he did not have any contributions or expenditures during the period covered by the report. On March 27, 2007, the City Manager sent a certified letter to Respondent informing him that his second campaign treasurer’s report had not been received. The letter advised Respondent that fines were accruing. On April 9, 2007, Respondent filed an untimely and incomplete report for the third reporting period. The report included only the itemized contribution page and the itemized expenditure page; it did not include the required summary page that contains the candidate’s certification of the report’s truth, correctness, and completeness. On April 9, 2007, the City Manager sent a certified letter to Respondent informing him that his third campaign treasurer’s report was incomplete. The letter gave Respondent three days to submit a complete report. To date, Respondent has not filed the first or second reports or a complete third report. In each of the circumstances described above, Respondent was aware of the requirement to file a complete campaign treasurer’s report as well as the deadline for doing so by virtue of having been provided copies of the applicable laws and the candidate’s handbook. Respondent’s failure to file complete and timely reports was clearly more than an oversight. Indeed, even though Respondent was sent certified letters by the filing officer on each occasion advising him that the reports had not been received, he did not make any subsequent filings with the City Clerk and it took him over six months to file his Q2 report with the Division. Respondent was provided notice of the date, time, and location of the final hearing, through a Notice of Hearing mailed to his address of record. Respondent failed to appear at the final hearing despite having been provided proper notice of the hearing.
