Appeal For This Case This order is final agency action. Any party who is adversely affected by this order has the right to seek judicial review pursuant to Section 120.68, Florida Statutes, by filing a notice of administrative appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Florida Elections Commission at 107 West Gaines Street, Suite 224, Collins Building, Tallahassee, Florida 32399-1050 and by filing a copy of the notice of appeal with the appropriate district court of appeal. The party must attach to the notice of appeal a copy of this order and include with the notice of appeal filed with the district court of appeal the applicable filing fees. The notice of administrative appeal must be filed within 30 days of the date of this order is filed with the Commission. The date this order was filed appears in the upper right-hand corner of the first page of the order. ; Copies furnished to: Eric M. Lipman Assistant General Counsel Eric Ruiz, Respondent (certified mail) Division of Elections, Filing Officer
Findings Of Fact At all times relevant hereto, respondent, George E. Feld, held certified general contractor license number CG C021801 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. Feld has been a licensed contractor in Florida since June 1982. He has qualified George E. Feld and Associates, Inc. under his license and operates the business at 2131 Northeast 205th Street, North Miami Beach, Florida. After submitting the low bid, on or about March 1, 1985 George Feld and Associates, Inc. entered into a contract with the City of Tamarac to construct a 5,500 square foot recreation building for the City. The negotiated contract price was $195,950. The contract called for commencement of the project within ten days after the contract was signed and completion by July 27, 1985. Sometime prior to March 20, 1985, Feld met one David P. McCall and Marvin Weiss at a motel in North Miami. McCall was interested in doing work on the Tamarac project. He gave Feld a business card with the name "Arrow Head Development Corporation, Inc." printed on it, and which stated the firm was "state certified" and "licensed" as a general contractor. Feld also noted that Weiss held a general contractor's license, and he assumed that McCall and Weiss were working together. Relying on McCall's card, and later representations by McCall, but without checking with petitioner's office to verify if McCall or Arrow Head were licensed or qualified, Feld agreed to subcontract out the shell and sewer work on the Tamarac project to Arrow Head. To this end, Feld and Arrow Head entered into two contracts on March 20, 1985, for Arrow Head to perform the shell and sewer work. On June 21, 1985 McCall submitted a written "proposal" to Feld for the shell work on the job. The proposal had the following words and numbers typed on its face: "State License Number: #CGC 05961." It was not disclosed whose license number this was. Although McCall denied typing this document (because he does not personally know how to type), he did not deny that it was placed on the document at his direction or with his knowledge. It was not until sometime later that Feld learned that Arrow Head was not qualified by any licensee. Because of his mistaken belief that Arrow Head was qualified, Feld had never qualified that firm. Even so, there was no evidence that Feld intended to allow an unqualified firm to perform the work. Work proceeded on a timely basis as required by the contract. Feld visited the job site daily, and supervised all activities, including those performed by McCall. He routinely inspected the work, verified that it was being done according to specifications, and made corrections where needed. The job specifications called for trusses that were over forty feet in length. Because of this, and pursuant to the South Florida Building Code (Code), it was necessary for the City to hire an engineer to oversee their installation. The City hired one George Fink as engineer to supervise this phase of the project. However, Fink's responsibility was limited to just that, and once the installation was completed, Feld resumed responsibility for the remainder of the job. Trusses are a manufactured roof member and may vary in length, height and pitch. In this case, they were designed in the form of a cathedral roof, and were in excess of forty-seven feet in length. Further, because of the building's design, there were a number of trusses to be installed. The installation of the trusses was begun around 9:00 a.m. on Friday, June 27, 1985 and finished by 2:00 p.m. that same day. As required by the Code, Fink was present and supervised the installation of the trusses on the top of the shell. He confirmed at hearing that they were properly installed. The problem herein arose early that day when Fink had noticed that the building plans did not provide for lateral bracing of the trusses. However, according to Fink, this was not unusual since plans do not normally provide for lateral bracing. Even so, Fink told an unnamed person who "appeared to be the fellow running the erection crew" that lateral bracing should be added to the center and two side core members and that the four trusses on each end needed additional bracing. Fink also suggested to this unnamed individual that sheathing be added "as soon as possible" to the top and outside of the trusses to give added stability and protect them from wind damage and the like. In this regard, at hearing Fink conceded that it was "reasonable" for a contractor to erect trusses one day, and to place sheathing on them the following work day. Fink thought sheathing to be particularly necessary on this job since the trusses were high pitched," "long in length," and there were "no gables or anything in between to ... add any other support." By the end of the work day, the crew had placed the proper bracing on the trusses. However, no sheathing was applied. According to Fink, who was accepted as an expert in this proceeding, a prudent and competent contractor would be aware of the need for sheathing and added bracing because of the potential hazard of high winds caused by late afternoon thunderstorms in South Florida. By failing to place sheathing on the roof, Fink opined that Feld was grossly negligent and incompetent in the practice of construction on the Tamarac project. Sometime on late Sunday night or early Monday morning, most of the trusses on the roof collapsed. Some fell on an electrical wire running to the building. However, no injuries occurred. Only five trusses on the north side of the building remained in place. The City of Tamarac then filed a complaint with petitioner against Feld. The cause of the collapse was not disclosed, and even Fink was unable to state that the lack of sheathing was the cause of the accident. There was no evidence that strong winds or thunderstorms occurred on the night the trusses fell, or that bad weather was predicted when the work day ended on Friday afternoon. Feld acknowledged that no sheathing was placed on the trusses. He attributed this to the fact that the construction crew stopped work at 3:30 on Friday afternoon, and did not return to the job site until the following Monday morning. He intended to install the sheathing the following Monday but by then it was too late. This was in accord with the standard enunciated by Fink that it was not unreasonable for a contractor to erect trusses one day, and to place sheathing on them the following work day. Feld also stated that he was well aware of the need for bracing and sheathing on trusses by virtue of his long experience in the construction business. Feld hinted, but did not prove, that McCall may have been responsible for the accident because of bad blood between the two. In any event, he doubted that wind would have caused the trusses in question to fall. Finally, Feld pointed out that, even though city inspectors were present, no one had come to him on Friday afternoon and said the trusses might collapse over the weekend without sheathing. Feld is a graduate of the University of Buenos Aires with a degree in architecture, and has been engaged in the construction/architecture business for twenty-two years. He presently is an instructor of construction at Miami-Dade Community College. There is no evidence he has ever been the subject of a disciplinary action by the Board on any other occasion.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint against George E. Feld be DISMISSED, with prejudice. DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1987.
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
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
The Issue Whether Petitioner is entitled to credit for his answers to questions 41 and 48 on the February 2000 Construction, Building Contractor (Contract Administration) examination.
Findings Of Fact Upon consideration of oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of a general contractor in the State of Florida is administered by the Department of Business and Professional Regulation, Division of Technology, Licensure and Testing. Chapter 455.217, Florida Statutes. A written examination is authorized by Rule 61G4-16.001, Florida Administrative Code. Respondent contracts with Professional Testing, Incorporated, 1200 East Hillcrest Street, Orlando, Florida, which develops tests for the Florida Construction Industry Licensing Board. This practice is approved by Section 455.217, Florida Statutes. Professional Testing, Incorporated, ensures that questions and answers are not ambiguous through a number of methodologies. Petitioner has been an "original" candidate for the construction, building contractor examination twice. The examination has three sections: business finance, project management, and contract administration. A candidate may retake any section three times before the entire examination has to be retaken. One of the questions Petitioner is challenging is the same question he had on the June 1999 examination, that is, the "S mortar" question. This question was repeated on the August 1999 and the February 2000 examination. The copies of the "S mortar" question and answers on the August 1999 and February 2000 examinations which were accepted into evidence were identical. Petitioner maintains that the August 1999 examination question and answers accepted into evidence is not the same as the one he had on his examination. Petitioner agrees that the answer he gave, 20.74, was an incorrect answer and that 46.67 (the "graded correct" answer) was correct. Petitioner maintains that the 20.74 answer he gave on the February 2000 examination was a result of having been advised that 46.67 was an incorrect answer on the August 1999 test. Petitioner examined his original answer sheet form both examinations (August 1999 and February 2000) at the hearing. Petitioner's original answer for the August 1999 examination showed his answer to be "B", an incorrect answer, not the "graded correct" answer "C" (which was 46.67). The second challenged question is question 48 which deals with a "critical activity list" also called a "critical activity interval" or "critical path." Petitioner's answer is 106 days; the "graded correct" answer is 86 days. Question 48 asked the test taker to identify "the latest day work must begin on the roofing activity." One-hundred and six is the number of days the roof must be completed by (not when work must begin). Since this roofing activity takes 21 days it must begin on the 86th day to be complete on the 106th day. The psychometrician expert witness testified that both questions (and answers) were within acceptable statistical ranges as valid. That opinion is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Bureau of Testing, enter a final order denying Petitioner's challenge to questions 41 and 48. DONE AND ORDERED this 30th day of January, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jermado Emmanuel Turner 6511 John Aldan Way Orlando, Florida 32818 Cathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979. On the application completed by Respondent, Question 12(b) asked: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel? Question 12(c) of the application asked: Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded. DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040 Fort Myers, Florida 33902 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DOAH CASE NO. 79-1546 Marlene Lutman, CR C012570, CR CA 12570 Respondent, /
The Issue The issue for consideration in this case is whether Respondent, Katherine Harris, violated the provisions of Section 106.08, Florida Statutes, by making payments of organizational dues from her campaign account prior to the 1998 election.
Findings Of Fact As to the Merits: At all times pertinent to the issues herein the Commission was the state agency responsible for the oversight of public elections in this state. Respondent was a candidate for public office whose activities were subject to scrutiny by the Commission. The Division of Elections (Division) was a branch of the office of the Secretary of State. Respondent initially notified the Division on June 8, 1997 that she was seeking re-election to the Florida Senate seat she then held. However, on November 19, 1997, she filed the appropriate forms with the Division to signify her candidacy for the office of Florida Secretary of State. At or near each filing, Respondent filed with the Division a "Statement of Candidate" in which she stated she had received, read, and understood the requirements of Section 106, Florida Statutes. From April 1997, through mid-March 1998, 21 separate checks were written by her campaign treasurer on Respondent's campaign account with the Barnett Bank for dues payments to organizations. This is the issue here. The organizations to which the checks were written are organizations established for the public good. The checks in issue are as follows: CH # DATE PAYEE AMT 0101 04/03/97 Charlotte County 9.00 Republican Club 0102 04/03/97 Peace River Federated 5.00 Republican Women 0103 04/03/97 Manasota Republican 11.00 Women's Club Fed. 0104 04/03/97 Venice-Nokomis Fed. 11.00 Women's Club 0105 04/03/97 Sarasota Bay Republican 5.00 Women's Club 0106 04/03/97 West Charlotte 5.00 Republican Club 0108 06/05/97 Bernice Furrow 25.00 0109 07/03/97 Venice Area C of C 50.00 0110 08/06/97 Charlotte County C of C 65.00 0111 08/11/97 Republican Women's Club 10.00 of Sarasota 0112 09/04/97 Sarasota Bay Republican 15.00 Women's Club 0114 10/29/97 Taxpayer's Association of Sarasota County 12.00 0120 11/30/97 Sarasota Republican Club 15.00 0162 02/11/98 Mid-County Republican 15.00 0163 02/11/98 Club Venice-Nokomis Federated 7.50 0164 02/11/98 Republican Club West County Republican 5.00 0165 02/11/98 Club Siesta Key Republican 6.00 0189 03/03/98 Club Sarasota County Young 30.00 0199 03/09/98 Republicans Republican Women's Club 10.00 of Sarasota 0204 03/16/98 Republican Women's Club 15.00 0206 03/16/98 of Lakeland Federate Manasota Republican 10.00 Women's Club Federate All of the checks except number 0108 were for dues to the organization shown, and totaled $325.00. Check number 0108, in the amount of $25.00, was made to Bernice Furrow, and the memo space on the instrument indicates it was issued in reimbursement of dues to the Peace River Forum. These checks were written at the direction of Respondent. Clifford M. King, the maker of the checks in question, is an attorney admitted to practice in Florida in 1988. He served as campaign treasurer for Respondent during her successful campaign for the Florida Senate in 1994, and was her attorney and campaign treasurer during her campaign for Secretary of State. His major areas of practice include business transactions, estate planning, and probate. He has not worked for any other candidate nor has he ever been employed by any other client to give advice on elections law. Nonetheless, he considered himself to be qualified to advise Respondent on the Florida Election Code during her campaigns. It is so found. To prepare for giving that advice, Mr. King reviewed the Florida Statutes pertinent to elections and the campaign handbook prepared and issued by the Division of Elections. However, he did not read any opinions issued by the Division or opinions of the Attorney General dealing with elections law. When issues arose with which he did not feel comfortable, he would seek the advice of the Division of Elections. Mr. King cannot recall whether it was Respondent or one of her campaign workers who asked him if it were permissible to spend campaign funds for dues, but he is sure the question was asked. In response, he advised that to do so was a permissible expenditure of the campaign. Mr. King recalls that this same issue arose during the 1994 campaign at which time, based on his research of the statutes and the Division's campaign handbook, and after consultation with individuals involved in other campaigns, he concluded that expenditures for dues were permissible and he so advised Respondent. Though Mr. King recalls having discussed with Respondent the issue of the permissibility of writing these checks, he did not advise her of the specific provisions of the elections statute in issue here. He was satisfied at the time he advised Respondent and wrote the checks in issue, that it was lawful and permissible to do so. The Division's investigator, Mr. Smith, contacted representatives of most, if not all of the organizations to whom the checks in issue were written. All checks except the one to Ms. Furrow, were in payment of membership dues paid by all members. Mr. Young could find no instance where a specific benefit accrued to Respondent as a result of her payment of dues which was not received by every other member of the organization, candidate for public office or not. It is so found. As to the Motion for fees: After the Order of Probable Cause involving Respondent was served on Respondent, she requested a formal hearing. This hearing was initially denied by the Commission on the grounds that Respondent had failed to identify issues of fact requiring formal hearing. However, this decision was subsequently reversed and the matter was referred for formal hearing before the Division of Administrative Hearings. While the discovery process was being carried out, it became known that Respondent had twice been advised by Mr. King, her attorney, that the donations/dues payments from campaign funds in issue were permissible expenditures. When this information became known to the Commission's counsel, counsel prepared a Motion to Dismiss the Order of Probable Cause and recommended that action to the Commission. The basis for the recommendation was a lack of evidence to demonstrate that Respondent's actions were willfully illegal. Notwithstanding its counsel's advice, the Commission determined to proceed with the action on the basis that a majority of the Commissioners considered Respondent's counsel/campaign treasurer, the individual who had given the advice to Respondent, a "straw man" whose testimony by deposition was for the sole purpose of exonerating Respondent. That conclusion is not supported by the evidence of record, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order dismissing its Order of Probable Cause in this matter. An award of attorney's fees and costs to Respondent is unwarranted and rejected. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Phyllis Hampton, Esquire David F. Chester, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Richard E. Coates, Esquire Christopher B. Lunny, Esquire Katz, Kutter, Alderman, Bryant & Yon, P.A. 106 East College Avenue Post Office Box 1877 Tallahassee, Florida 32302-1877 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Steven K. Christensen, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
