The Issue Whether the Respondent violated Section 106.09(1), Florida Statutes, by accepting four cash contributions in excess of the legal limit.
Findings Of Fact 1. Respondent was a candidate for the Orlando City Commission, District 5, in the March 2010 election. 2. On July 13, 2009, Respondent filed his 2009 Q2 campaign treasurer’s report covering the period of April 1, 2009, through June 30, 2009. Respondent certified that the report was true, correct, and complete. Respondent’s report listed four $100 cash contributions received on May 15, 2009.' The four cash contributions were from Virginia Howell, Enrique Howell, Judith White, and Sam Cahman. 3. On July 20, 2009, Alana Brenner, the Orlando City Clerk, sent Respondent a letter notifying him that she discovered what appeared to be several items on his 2009 Q2 report which may be election law violations. Ms. Brenner listed the four excessive cash contributions as possible violations. . 4. On the bottom of page 23 of the June 2008 Candidate’s Handbook (Handbook), it states in bold letters that effective January 1, 2008, the maximum contribution a person can accept in cash or by means of a cashier’s check is $50. 5. Respondent testified in his November 5, 2009, affidavit that he possessed and had read the Handbook. | 6. On August 29, 2009, Respondent sent the Commission’s investigator, Cedric Oliver, a letter that stated: In response to Commission Daisy Lynum’s complaint to the election office in regards to the acceptance of four cash contribution[s] of $100.00, the Vibert White Campaign committee has taken steps to reverse this benign and small error. Due to our mistake in following the guidelines of an older election manuscript that allows for $100.00 cash gifts we failed to consult the newer " Respondent mislabeled the 2009 Q2 report as a G1 report. Faa004 (7/09) instructional guide that allows for only $50.00 cash offerings. Thus, we are sending the contributions back to the donors. 7. Despite Respondent’s promise to send back the excessive cash contributions, there was no record of the cash being returned to the contributors. 8. On October 12, 2009, after the complaint was filed in this case, Respondent filed an amended 2009 Q2 campaign report. Respondent certified the report was true, correct, and complete. On the report, Respondent changed the four May 15, 2009, $100 cash contributions to four August 11, 2009, $100 check contributions. 9. There was no record of the four checks being deposited in Respondent’s campaign bank account. 10. Respondent’s conduct was willful. Respondent accepted the four excessive cash contributions while showing reckless disregard for whether he was prohibited from accepting cash contributions in excess of $50.
Conclusions For Commission Eric M. Lipman General Counsel 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL 32399 For Respondent Frederic O’Neal - PO Box 842 Windermere, FL 34786
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 corer of the first page of the order. Copies furnished to: Eric M. Lipman, General Counsel Vibert White, Respondent (certified mail) Frederic O’Neal, Attorney for Respondent (certified mail) Daisy W. Lynum, Complainant Florida Division of Elections, Filing Officer Faa004 (7/09) ae
Findings Of Fact On Tuesday, April 24, 1979, respondent went to the home of Alberta Cross in Melbourne, Florida, to see Ms. Cross' daughter, Sandra Young, mother of his two children. At the time, respondent was having an argument with Sandra Young. Frank Bell, a friend of Ms. Cross for several years, was at her house when respondent called on Ms. Young. Mr. Bell pointed a gun at respondent and ordered him off the property. Ms. Young threw herself between respondent and Mr. Bell and then left with respondent in the van in which he had arrived. After talking things over with a friend, respondent decided to swear out a warrant for Mr. Bell's arrest. As a result, Mr. Bell was arrested the following day. He was released from jail on bond, on April 26, 1979, a Thursday. Some seven years earlier, Mr. Bell and respondent had confronted one another at Ms. Cross' house. On that occasion, too, Mr. Bell pointed a gun at respondent. Between 5:00 and 5:30 on the afternoon of April 26, 1979, Mr. Bell arrived at the home of Linda Marie Harden. Ms. Harden lived within sight of respondent's father's house. A little before 7:00 o'clock on the evening of April 26, 1979, Mr. Bell left the Harden residence in a 1964 Chevrolet sedan. Both windows on the left hand side of the vehicle were rolled up. The left front door window was held together with tape and could not be rolled down. The left front door could not be opened from the inside of the car. As Mr. Bell turned a corner in front of respondent's father's house, respondent took up position with a shotgun, threw a cinder block at the car, and, when Mr. Bell turned around to see what had caused the noise, fired a single shot which blew out both windows on the left hand side of the car, hit Mr. Bell in the left shoulder, forehead, back of his head, and left eye, knocked him over in his seat, and resulted in his hospitalization for nine days. After the shooting, respondent fled. Respondent could have avoided a confrontation with Mr. Bell by taking cover. Respondent's father and respondent's son were sitting in the front yard with respondent, beside one of two vans parked in the front yard, when respondent first spotted Mr. Bell's car. Respondent's father grabbed his grandson and ran for the house before the shooting. Instead of making a run for the house or taking shelter behind a van, respondent threw the cinder block and fired the shotgun. When the police arrived, they found a pistol on the right hand side of the floor in the back of Mr. Bell's car. Mr. Bell did not point this gun at respondent on April 26, 1979; Mr. Bell did not even see respondent before the shot was fired. As a result of these events, respondent was tried on charges of aggravated battery. In those proceedings, as in these, he raised the defense of self defense. The criminal trial eventuated in an acquittal. Three young people, including two of respondent's former students, witnessed the shooting. News of the incident spread rapidly. The next day, respondent's principal received eight to ten telephone calls from parents with remarks like "Surely you won't let a murderer stay in the classroom." Other parents complained in person and two students mentioned the incident to the principal. Respondent was suspended on April 27, 1979, and subsequently fired, by the Brevard County School Board. After respondent's acquittal, 120 students signed a petition for his reinstatement.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Education suspend respondent's teaching certificate for three years. DONE and ENTERED this 24th day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 C. Anthony Cleveland, Esquire 208 West Pensacola Street Tallahassee, Florida 32304
The Issue Did Respondent, Randy Scott, willfully violate section 106.07(2)(b)1., Florida Statutes (2018)1, by filing an incomplete campaign financial report 1 All citations to Florida Statutes are to the 2018 codification unless otherwise indicated. and failing to file an addendum completing the report within seven days after receiving notice that the report was incomplete?
Findings Of Fact Mr. Scott ran for election to Seat 4 of the governing board for the Lee Memorial Health System. The election for the seat was to be held during the November 6, 2018, general election, not during the August 28, 2018, primary election. The Lee County Supervisor of Elections (Supervisor) oversees and conducts elections. Candidates running for election in Lee County submit their initial paperwork, qualifying paperwork, and electronic financial reports to the Supervisor's filing officer. Cheryl Futch has been the Supervisor's filing officer for six years. Tammy Lipa assists Ms. Futch. On June 20, 2018, Mr. Scott filed to run for Seat 4. On June 28, 2018, Mr. Scott filed an Active Candidate Acknowledgement designating himself as the campaign treasurer. After that filing, Mr. Scott could accept campaign contributions and make campaign expenditures. He was also required by section 106.07(1) to file regular reports of contributions and expenditures. Mr. Scott opened a campaign bank account with SunTrust Bank with a $160.00 cash contribution. He reported the contribution on his Campaign Treasurer's Report Summary for the period June 23 to July 6, 2018, as a loan from himself. For the period August 4 through August 10, 2018, Mr. Scott filed a Waiver of Report with a notification of no activity during the reporting period. On August 10, 2018, he made a withdrawal from his campaign account at an ATM. The records do not show what time of day he made the withdrawal. This case does not involve a charge related to the August 10, 2018, report. Mr. Scott subsequently filed his campaign treasurer's report for August 11 to August 23, 2018. On that report, Mr. Scott reported an expenditure as a payment to himself of $140.00 on August 11, 2018. He identified the purpose of the expenditure as "website." The $140.00 expenditure appears in Block 7 of the form titled "Expenditures This Report" and on an attached itemized expenditure form. Block 8 of the summary form, titled "Other Distributions" does not contain any amounts. In Block 9, titled "Expenditure Type," the letters "RM" appear. (Comm. Ex. F) The evidence does not prove what those letters represent or who placed them there. Ms. Futch accepted the report conditionally. At the hearing, Commission counsel asked Ms. Futch, "Why was Mr. Scott's original 2018 P7 report incorrect or incomplete?" She replied, "He indicated a reimbursement without a distribution in his expenditures." (Tr. P. 118) The record does not reveal why Ms. Futch concluded that Mr. Scott had indicated a reimbursement. The record is clear that Ms. Futch disagreed with Mr. Scott's characterization of the expenditure and thought that it was incorrect. On August 27, 2018, at 8:04 a.m., Ms. Futch sent Mr. Scott an email stating: "Good morning. Your report has the following errors therefore you will be required to amend this report." An image of a campaign treasurer's report, in a different form than the report filed by Mr. Scott was beneath the text. The words "reimbursements must have a distribution recorded" are enclosed in a text box and an arrow points toward the word "Reimbursements" in another box appearing directly below the words "Exp. Type." The email does not state that Mr. Scott's report is incomplete. Mr. Scott called and spoke to Ms. Futch on August 27, 2018. He advised her that he did not agree with her and did not want to identify the $140.00 expenditure as a reimbursement. At 2:20 p.m., Ms. Futch sent Mr. Scott another email. It stated, "Your amended report has the following errors and therefore will be rejected." It does not state that the report is incomplete. An August 27, 2018, email from Ms. Futch stated, "Mr. Scott your report is still incorrect, please make the proper corrections and resubmit." It does not state that the report is incomplete. On August 28, 2018, Ms. Futch emailed Mr. Scott telling him she noticed he was having difficulty filing an amended report using the Supervisor's online filing system. She noted he had attempted to file five amended reports. She adds, "In addition, the amendment you are attempting is still incorrect. If you would like to make an appointment after the election, I would be glad to walk you through deleting the extra reports and show you how to correct your P7." The email does not state that Mr. Scott's report is incomplete. The disagreement between Mr. Scott and Ms. Futch about how to categorize the $140.00 continued. During their communications, Mr. Scott provided Ms. Futch differing theories about how the expenditure should be classified and why. Eventually the Supervisor issued a "Notification of Incomplete Report Filing," received by Mr. Scott on September 17, 2018. The notification states: The Lee County Supervisor of Elections office has determined that one or more campaign reports are incomplete for the following reasons. The P7 report needs to be amended: expenditure type should be Monetary (not reimbursement). Eventually, Ms. Futch executed and filed a Complaint against Mr. Scott with the Commission. More emails between Mr. Scott, Ms. Futch, and Ms. Lipa followed. On October 9, 2018, Ms. Futch sent an email to Mr. Scott stating: Good Afternoon Mr. Scott, Your P7 and previously filed amendments to that report are incorrect and the explanations why have been relayed to you through multiple emails. Our office can not force you to file your report properly we are just under the obligation to report it when you don't. The email does not state that Mr. Scott's report is incomplete. Mr. Scott's response on October 9, 2018, ended: Since you are asking me to fill out a state form contrary to the facts I can not and will not honor your request. Further your rejection is outside the ministerial duties of your job and find that action unbecoming a public official. [sic] At any time Tommy Doyle [the Supervisor] has the ability to pull back the complaint and based on these facts and the law that is exactly what he should order you to do. For now no further communication is needed on the P7 filing. Mr. Scott disagreed repeatedly, vigorously, and contentiously with Ms. Futch about how to characterize the $140.00. In Ms. Futch's view, Mr. Scott repeatedly characterized the expenditure incorrectly on his report and amended reports. The reports were not incomplete.
The Issue Whether Florida Administrative Code Rule 61G4-15.008, constitutes an invalid exercise of delegated legislative authority because it enlarges, modifies, or contravenes Section 489.129(1)(a), Florida Statutes, and because it exceeds Respondent’s rulemaking authority; and Whether an interpretation of Section 455.227(1)(h), Florida Statutes, constitutes an unpromulgated “rule.”
Findings Of Fact The first 12 findings of fact are facts contained in the Stipulation: Prior to June 2005, Petitioner, Juan Cuellar, Luis Garcia, and Gerardo Quintero, received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Petitioners applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”), to obtain a registered contractor’s license using the Certificates of Competency. Based on the Certificates of Competency, the Department issued each Petitioner a registered contractor’s license bearing license numbers RG291103667 (Mr. Cuellar), RF11067267 (Mr. Garcia), and RF11067268 (Mr. Quintero). Petitioners each applied for a certificate of authority for their respective businesses, Cuellar Construction and Drywall (Mr. Cuellar), A.P.A. Plumbing Corp. (Mr. Garcia), and Q Plumbing Services Corp. (Mr. Quintero). Based on the fact the Certificates of Competency and the registered contractor’s licenses had been granted, the Department issued a certificate of authority to Cuellar Construction and Drywall, QB 41342; APA Plumbing Corp., QB 42763; and Q Plumbing Services Corp., QB 42825. At the time the Department issued Petitioners their registered contractor’s licenses and subsequent certificates of authority, it did so based solely on the Miami-Dade Building Business Certificates of Competency presented by Petitioners and the only information submitted to it. The parties stipulate that Petitioners were not entitled to their registered contractor’s licenses and certificates of authority because the Miami-Dade Building Business Certificates of Competency were not valid certificates. At the time of their applications to the Department, Petitioners were not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department. The Department filed Administrative Complaints against Petitioners for the suspension or revocation of their licenses based on violations of Sections 489.129(1)(a), 489.129(1)(d), 489.129(1)(m), and 455.227(1)(h), Florida Statutes (hereinafter collectively referred to as the “Administrative Complaints”). (All references to Sections of Chapter 489, Florida Statutes, as they relate to the Administrative Complaint are to the 2005 version. All other references to Florida Statutes are to the 2007 version). Each Petitioner challenged the Administrative Complaint filed against him in DOAH Case No. 07-2823PL (Mr. Cuellar), DOAH Case No. 07-2824PL (Mr. Garcia), and DOAH Case No. 07-2825PL (Mr. Quintero). On December 13, 2007, the undersigned, as the Administrative Law Judge to whom the cases had been assigned, issued a Recommended Order in DOAH Case No. 07-2823PL (Mr. Cuellar), DOAH Case No. 07-2824PL (Mr. Garcia), and DOAH Case No. 07-2825PL (Mr. Quintero), determining that Petitioners violated Sections 489.129(1)(a), 489.129(1)(m), and 455.227(1)(h), Florida Statutes (hereinafter referred collectively as the “Recommended Orders”). The “Recommendation” in each of the Recommended Orders was, except for the name of the Respondent, the same as the following: Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Luis Garcia violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. Based upon the foregoing, and the fact that no final decision has been entered by the Construction Industry Licensing Board (hereinafter referred to as the “Board”), Petitioners are facing the possible revocation or voluntary relinquishment of their licenses (an adverse impact whether they are “entitled” to the licenses or not), continued defense against the Administrative Complaints, and the payment of the cost incurred by the Department in prosecuting the Administrative Complaints. Should the Board revoke Petitioners’ licenses, they will also be precluded from re-applying for licensure for a period of five years pursuant to Section 489.129(9), Florida Statutes. Petitioners face the same consequence even if they voluntarily relinquish their license pursuant to Florida Administrative Code Rule 61G4-12.017(3)(a). The adverse consequences of the possible final action on the Administrative Complaints which they face stem in part from a finding that they have violated Section 489.129(1)(a), Florida Statutes, which provides the following: The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $10,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under 489.1195 is found guilty of any of the following acts: Obtaining a certificate, registration, or certificate of authority by fraud or misrepresentation. . . . . Petitioners were found in the Recommended Orders to have violated Section 489.129(1)(a), Florida Statutes, based upon an interpretation of that statutory provision adopted by the Board in Florida Administrative Code Rule 61G4-15.008, an existing rule which Petitioners have challenged in this proceeding (hereinafter referred to as the “Challenged Existing Rule”), which provides: Material false statements or information submitted by an applicant for certification or registration, or submitted for renewal of certification or registration, or submitted for any reissuance of certification or registration, shall constitute a violation of Section 489.129(1)(a), F.S., and shall result in suspension or revocation of the certificate or registration. Essentially the same conclusions of law were reached in the Recommended Orders concerning the application of the Challenged Existing Rule (in paragraphs numbered “23” through “25” or “25” through 27” of the Recommended Orders): While Respondent has not been specifically charged with a violation of Florida Administrative Code Rule 61G4- 15.008, the Department cited the Rule, which contains the following interpretation of what constitutes "[o]btaining a certificate, registration, or certificate of authority by . . . misrepresentation" in violation of Section 489.129(1)(a), Florida Statutes, in support of Count I of the Administrative Complaint: . . . . It is the Department’s position, that despite the fact that Respondent did not commit “fraud” in obtaining his license and a certificate of authority for [the business] and, in fact, did not knowingly submit false information to the Department in obtaining his license and the certificate of competency, “[m]aterial false statements or information” were nonetheless submitted by Respondent in support thereof. Florida Administrative Code Rule 61G4- 15.008, in defining what constitutes the act of "[o]btaining a certificate, registration, or certificate of authority by . . . misrepresentation” eliminates the need for the Department to prove any knowledge on the part of Respondent that he has made a material misrepresentation or any intent on the part of Respondent to rely upon a material misrepresentation. All that is required is proof that a material representation was made and that the representation was false. Petitioners have challenged the validity of the Challenged Existing Rule as being an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b) and (c), Florida Statutes. Petitioners were also found in the Recommended Orders to have violated Section 455.227(1)(h), Florida Statutes, based upon an interpretation of that statutory provision advanced by the Department during the prosecution of the Administrative Complaints. Section 455.227(1)(h), Florida Statutes, provides that the following act constitutes grounds for which disciplinary action may be taken: (h) Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board. (Emphasis added). The Department’s argument concerning the appropriate interpretation and application of Section 455.227(1)(h), Florida Statutes, advanced in the prosecution of the Administrative Complaints, was advanced in paragraphs 24 through 26 of the Department’s Proposed Recommended Order: Obtaining a certificate or registration in error as a result of a misrepresentation made during the application process is conduct proscribed by Section 455.227(1)(h), Florida Statutes. Respondent was issued a registration by error of the Department. To be issued a registration by the Department, an applicant must submit along with an application for registration, a copy of the applicant’s validly issued competency card from a local government licensing board . . . . Respondent submitted a fake competency card that appeared to be validly issued by the Miami Compliance Office. . . . If the Department had known Respondent’s Competency Card was fake and Respondents’ answer to the attest statement was false, the Department would not have issued Respondent a registration. Thus, since the Department did not have truthful and accurate information, the registration issued to Respondent was in error. The Department’s interpretation was described and accepted in the Recommended Orders (in paragraphs numbered “29” through “31” or “31” through 33”, in the Recommended Orders), as follows: In support of this alleged violation, the Department has argued that Respondent obtained his license “through an error of the department . . . .” That “error” was the Department’s reliance upon an improperly issued Miami-Dade building business Certificate of Competency. The evidence proved clearly and convincingly that the Department issued the Respondent’s license in “error.” While it is true that Respondent did not intentionally cause or even know of the error, the Department reasonably takes the position that Respondent obtained his license nonetheless as a result of this error and that is all that Section 455.227(1)(h), Florida Statutes. The Department has proved clearly and convincingly that Respondent violated Section 455.227(1)(h), Florida Statutes [requires]. Although not specifically quoted in their Petition in this case, Petitioners have quoted what they believe is the unpromulgated rule of the Board which they are challenging in this case in paragraph 60 of Petitioner’s Proposed Final Order (hereinafter referred to as the “Challenged Language”): . . . . Essentially, the Board applies the following unadopted rule when applying Section 455.227(1)(h): Disciplinary action may be taken pursuant to Section 455.227(1)(h), Florida Statutes, where an individual attempts to obtain a license through an error of the department even if the individual did not have knowledge of the error. As of the date of the final hearing of this matter, the Board had taken no action on the Recommended Orders.
The Issue Whether Respondent, Arlene Schwartz, willfully violated Subsection 104.31(1)(a), Florida Statutes, which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office, or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, entire Transcript of Proceedings, and the facts admitted in the Joint Pre-hearing Stipulation, the following findings of fact are made: Respondent, Arlene Schwartz, as Mayor of the City of Margate, Florida, was a municipal officer on October 27, 2000, when she wrote a letter signed by her as Mayor, Margate, Florida, on official City of Margate stationery, endorsing Howard Forman for Clerk of Court, Broward County, Florida. Respondent has 10 years of experience as a candidate, elected official or member of municipal boards. Eugene Steinfeld was City Attorney, City of Margate, for 24 years; as such he gave advice to the Mayor and Commissioners of the City of Margate about their responsibilities under the Florida Ethics Code and Elections Laws. In 1994, in his capacity as City Attorney, Mr. Steinfeld authored a City of Margate Resolution which authorized the Mayor, Vice Mayor and City Commissioners "to use a facsimile of the official seal of the City of Margate in correspondence, promotion, or advertising when they are promoting the City of Margate. " On January 24, 2000, in his capacity as City Attorney, Mr. Steinfeld sent an inter-office memorandum to Respondent and others advising "there is no prohibition for endorsing a candidate for City Commission by another candidate for City Commission . . . ; it is only where a candidate expends money for another candidate or contributes things of value to another candidate that is prohibited, pursuant to FS. 104.071." In September 2000, Mr. Steinfeld had a conversation with Respondent wherein she asked if she would be permitted to endorse a candidate for a board position in a development district. In advising her that she could, he recalled saying, "You do not lose your freedom of speech when you become an elected official." On October 23, 2000, Respondent attended a meeting of the Margate Democratic Club where Howard Forman, a candidate for Clerk of Court, Broward County, spoke. As a State Senator, Mr. Forman had assisted the City of Margate even though Margate was not in his Senate District. Respondent orally endorsed Mr. Forman at the meeting and offered her assistance. On October 25, 2000, Respondent's office received a telephone call from Iris Siple who worked in Mr. Forman's campaign. Respondent returned the call on October 26, 2000, and was asked to write a letter endorsing Mr. Forman on city stationery. The letter was written on October 27, 2000, and later faxed to Mr. Forman's campaign headquarters. Mr. Forman's campaign reproduced the letter and mailed approximately 700 copies to potential voters. Respondent received no remuneration or benefit for writing the endorsement letter. Respondent acknowledged that she had no specific discussion with the City Attorney regarding the appropriateness of using city stationery in the endorsement letter. Nevertheless, she believed that writing the endorsement letter was something that she could do without violating the law. Based on the evidence presented, including the resolution allowing the use of the seal in correspondence promoting the city, the memorandum and advice given by the City Attorney, and her reliance on the request made by Mr. Forman's campaign office for a letter on city stationery, the undersigned finds that Respondent's belief that she had done nothing inappropriate in writing the endorsement letter to be credible.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, Arlene Schwartz, did not violate Subsection 104.31(1)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: J. David Bogenschutz, Esquire Bogenschutz & Dutko 600 South Andrews Avenue Suite 500 Fort Lauderdale, Florida 33301-2802 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to the provisions of Section 57.111, Florida Statutes (2004), and, if so, in what amount.
Findings Of Fact In May 2003, Respondent filed an Amended Administrative Complaint against Petitioner. The Amended Administrative Complaint was brought before the Florida Real Estate Commission Probable Cause Panel (Probable Cause Panel) for a determination of probable cause. The Probable Cause Panel reviewed the entire record and found probable cause to file an Amended Administrative Complaint against Petitioner alleging various violations of Section 475.25, Florida Statutes (2004). On or about July 2, 2003, Petitioner served Respondent, through counsel, with Petitioner's response to the Amended Administrative Complaint. Petitioner did not dispute the essential allegations of material fact in the Amended Administrative Complaint, but raised affirmative defenses to the allegations. On or about November 19, 2003, at the Florida Real Estate Commission (FREC) meeting, Petitioner's counsel stated that they did not dispute the essential facts as alleged in the Amended Administrative Complaint and requested a formal hearing based on additional facts alleged by Petitioner, but not Respondent. Following a formal hearing, a Recommended Order was entered by the undersigned Administrative Law Judge on August 11, 2004, in the case of Department of Business and Professional Regulation, Division of Real Estate v. Nicholas Anthony Musashe and the Jander Group, Inc. (Petitioner herein). The case arose from allegations that Mr. Musashe and Petitioner violated various provisions of the Real Estate Practice Act, Chapter 475, Florida Statutes (2004), with respect to the handling of certain deposits. Petitioner is a Florida corporation owned by Mr. Musashe. Petitioner is licensed as a real estate broker under the provisions of Chapter 475, Florida Statutes (2004). Petitioner's sole business is managing rental properties. The gravamen of the complaint against Petitioner was that it failed to handle certain deposits as directed by provisions of Chapter 475, Florida Statutes (2004). Petitioner's defense was that it handled those deposits in accordance with the Residential Landlord and Tenant Act, Chapter 83, Part II, Florida Statutes (2004), specifically Section 83.40, Florida Statutes (2004). That provision provides that compliance therewith specifically exempts real estate licensees from having to comply with the provisions of Chapter 475, Florida Statutes (2004), concerning rental deposits. Furthermore, Petitioner's method of handling these types of deposits under the Residential Landlord and Tenant Act, rather than under Chapter 475, Florida Statutes (2004), had been earlier specifically approved of by Respondent. Prior to filing the underlying case and without notice to real estate brokers, Respondent reversed its position. It now required real estate licensees to comply with the provisions of Chapter 475, Florida Statutes (2004), instead of Chapter 83, Florida Statutes (2004), on how these types of deposits should be handled. Petitioner relied, to his detriment, upon the previously-held position of Respondent in handling the subject deposits. The Recommended Order found in Petitioner's favor and recommended dismissal of the charges. A final order essentially adopting the Recommended Order and dismissing the charges was filed by the FREC on January 7, 2005. However, the Final Order rejected the first sentence of the Conclusions of Law, paragraph 24, and the first two sentences of the Conclusions of Law, paragraph 29, in the Recommended Order and asserted that it has substantive jurisdiction over the provisions of Section 83.49, Florida Statutes (2004). Respondent holds that the alternative procedure for handling deposits set out in Section 83.49, Florida Statutes (2004), does not apply to deposits that are made by a person who is not entitled to occupy a property as part of an application that is not a rental agreement. Petitioner was the "prevailing party" in the underlying action, as that term is defined in Section 57.111, Florida Statutes (2004). At the time of commencement of the action, Petitioner was a "small business party" as that term is defined in Section 57.111, Florida Statutes (2004). A Petition for Costs and Attorney's Fees pursuant to Section 57.111, Florida Statutes (2004), was filed by Petitioner with Respondent agency on February 7, 2005. Respondent took no action on said Petition. The Petition was late-filed with DOAH on April 18, 2005. The attorney's fees of $49,610.00 and costs of $1,137.98 sought by Petitioner are reasonable for the defense of this action. The actions of the agency in bringing the initial proceeding were substantially justified. There are no circumstances which would make an award of costs and attorney's fees unjust.
The Issue Whether Petitioner, Grant Maloy, willfully violated Subsection 106.143(4)(a), Florida Statutes.
Findings Of Fact Petitioner, Grant Maloy, is a Seminole County Commissioner. In September 2000, as an incumbent Republican, he won the Republican primary for his commission district which, in Seminole County, is tantamount to election. In November 2000, he was reelected in the general election. In the same September 2000, primary election, Bob West ("West") was the top vote-getter in a three-way primary for Commission District 5 which included incumbent Commissioner Daryl McLain, who finished second. West did not have a majority of the votes; consequently, he and Daryl McLain were in an October second primary. West sought Petitioner's endorsement and, as a result, Petitioner authored a letter endorsing West over the incumbent Commissioner Daryl McLain, seeking campaign contributions for West. Petitioner's endorsement letter stated, in part, "Enclosed is a letter from Bob [West] and a return envelope for your contribution." The endorsement letter was typed by Petitioner's wife, Althea Maloy, on a personal computer. She created a letterhead similar to the Maloy campaign letterhead and, with the permission of Petitioner, signed "Grant" to the endorsement letter. The endorsement letter also contained the following political disclaimer: "PD POL ADV PAID FOR AND APPROVED BY THE GRANT MALOY CAMPAIGN FOR SEMINOLE COUNTY COMMISSION DIST 1, REPUBLICAN." West paid for all paper, envelopes and postage for the endorsement letter mailing. Althea Maloy and other campaign volunteers "stuffed" the endorsement letter and an undated letter from West into the envelopes provided by West. Petitioner's wife, Althea Maloy, was acting as a West campaign volunteer as it relates to her activities regarding the endorsement letter. The undated letter sent by West stated, in part, " . . . Commissioner Grant Maloy would like to join together with me to ask for your financial support in my bid to defeat Daryl McLain." This letter also contained the following political disclaimer: "Pd. pol. adv. approved by Bob West, Paid for by the campaign account of Bob West for County Commissioner, Dist 5, Rep." During the investigation, Respondent requested the envelope in which the endorsement letter and West's undated letter were mailed. The complainant faxed the envelope to the Respondent. The facsimile of the envelope received by Respondent did not contain a political disclaimer. West is a computer software consultant. He testified that every envelope used in his campaign was programmed to have an appropriate political disclaimer on its face; he testified that the envelope used for the endorsement mailing was a oversized envelope. He opined that the facsimile copy of the envelope received by Respondent was too large for the fax machine and, therefore, the political disclaimer did not copy or was turned under to allow transmission and, as a result, was not copied. This testimony is accepted as credible. Mrs. Phyllis Hampton, General Counsel, Florida Elections Commission, was qualified as an expert witness on Florida elections law. Mrs. Hampton opined that Subsection 106.143(4)(a), Florida Statutes, would be satisfied if either the envelope in which the letters were sent contained the appropriate political disclaimer or the September 11, 2000, endorsement letter was sent with another letter which contained the appropriate political disclaimer. Her testimony is accepted as credible. Other than his support, as reflected in the endorsement letter, Petitioner contributed nothing of value to the West campaign. On April 28, 1999, Petitioner signed a Statement Of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes. Petitioner knew his endorsement letter would be mailed with a West letter as reflected by the reference to the West letter in the endorsement letter and, therefore, believed that the sponsor of the letter would be clear to the recipient. Petitioner believed that West would ensure compliance with in Chapter 106, Florida Statutes, and had a "good faith" belief that Chapter 106, Florida Statutes, had been complied with.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Grant Maloy, did not violate Subsection 106.143(4)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 4th day of October, 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 4th day of October, 2001. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Frederick Nelson, Esquire The Law Offices of Frederick H. Nelson 1110 Douglas Avenue, Suite 1002 Altamonte Springs, Florida 32714 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
Findings Of Fact 1. On September 15, 2009, 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. On December 4, 2009, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: On January 19, 2008, Respondent violated Section 106.09(1), Florida Statutes, by accepting a contribution in cash in excess of $50, when the Respondent accepted a cash contribution for $250 from Joe Blanco on January 19, 2008. 3. On December 8, 2009, the Respondent was served by certified mail with a copy of the Order of Probable Cause. 4. The case was transmitted to the Division of Administrative Hearings on January C_0 045 (12/08) 1 8, 2010, however, the Respondent wishes to resolve the case by Consent Order. 5. The Respondent and the staff stipulate to the following facts: A. Respondent, Susan Valdes, was re-elected to the Hillsborough County School Board, District 1, on August 26, 2008. Respondent was first elected to the school board on November 2, 2004. B. Respondent reported receiving a $250 cash contribution from Joe Blanco on her 2008 Q1 report. : C. Effective January 1, 2008, Section, 106.09(1), Florida Statutes, prohibited cash contributions in excess of $50. D. The $250 was an excessive cash contribution to Respondent’s campaign.
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994.
