09-005319 Florida Elections Commission vs. Jean M. Hovey Status: Closed DOAH Final Order on Tuesday, June 1, 2010.

Summary: Respondent did not willfully violate Florida Election laws. Respondent hired a qualified campaign manager and relied on the manager.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 09-5319

)

JEAN M. HOVEY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on March 18, 2010, in Orlando, Florida.

APPEARANCES

For Petitioner: Joshua B. Moye, Esquire

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

For Respondent: Michael D. Jones, Esquire

Michael D. Jones and Associates, P.A.

Post Office Box 196130

Winter Springs, Florida 32719-6130

STATEMENT OF THE ISSUES

Whether Respondent, Jean M. Hovey, willfully violated

Subsection 106.143(1)(a), Florida Statutes (2008), as alleged in

the Order of Probable Cause dated August 26, 2009, and, if so,

what is the appropriate penalty.

PRELIMINARY STATEMENT

On October 30, 2008, Petitioner, Florida Elections

Commission, received a sworn complaint alleging that Respondent,

Jean M. Hovey, had violated Florida's election laws. Subsequent

to an investigation of the allegations, Petitioner, on

August 26, 2009, filed an Order of Probable Cause, finding

probable cause to believe that Respondent had violated

Subsection 106.143(1)(a), Florida Statutes (2008).

On September 28, 2009, Petitioner forwarded a request for

formal administrative hearing in accordance with Subsection

106.25(5), Florida Statutes (2008). On September 29, 2009, the

Division of Administrative Hearings received Petitioner's

transmittal of the request for formal administrative hearing.

On the same day, an Initial Order was sent to both parties.

On November 13, 2009, the case was scheduled for final

hearing in Orlando, Florida, on January 5, 2010. On

December 30, 2009, Petitioner requested a continuance, and the

case was rescheduled for March 18, 2010. The final hearing took

place as rescheduled.

Petitioner presented the testimony of Respondent, Robert S.

Miller, and Denise Ryser. Respondent presented the same

witnesses. The parties jointly stipulated to the admission of

ten exhibits marked as Petitioner's Exhibits 1 through 10.

Respondent presented a packet of 32 exhibits which actually were

35 exhibits. They were numbered 1 through 5, 7 through 18, 18a,

18b, 19 through 22, 22a, 23 through 31, 32 and 32 (there were

two 32s). These documents were admitted into evidence and

marked accordingly.

By agreement, proposed final orders were due 21 working

days after the filing of the transcript. The Transcript of

Proceedings was filed on March 29, 2010. On April 13, 2010, the

parties filed an Agreed Motion for Extension of Time to File

Proposed Final Orders. An Order Granting Extension of Time was

entered on April 13, 2010, giving the parties until May 3, 2010,

to file proposed final orders. Both parties timely filed

Proposed Final Orders.

All statutory references are to Florida Statutes (2008),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Facts are made:

1. Respondent was a candidate for Winter Springs, Florida,

city commission in 2008.

2. Respondent was a first-time candidate for public

office. She evidenced her decision to enter the city commission

race by qualifying on August 28, 2008, one day prior to the

deadline to qualify. A component of qualifying is the

candidate's assertion that they have read and understand the

requirements of Chapter 106, Florida Statutes. As a result of

her late filing, Respondent had only five or six weeks to

actively campaign.

3. Responding to the advice of volunteer advisors, on

September 4, 2009, Respondent hired Denise Ryser to manage her

campaign. Ms. Ryser had previously managed a successful city

commission race and was managing two other Winter Springs city

commission races. Ms. Ryser was qualified to manage a city

commission campaign.

4. Ms. Ryser's initial focus was to prepare a campaign

mailer. It was important that the mailer be presented to the

voters as quickly as possible. Respondent provided the

biographical information for the mailer; Ms. Ryser did the

graphics, layout, color selection, and the "marketing" of the

mailer.

5. Several layouts/mock-ups of the mailer were prepared by

Ms. Ryser and submitted to Respondent for approval. Each

layout/mock-up submitted to Respondent contained the

statutorily-mandated disclaimer. Subsection 106.143(1)(a),

Florida Statutes, requires that:

Any political advertisement that is paid for

by a candidate and that is published,

displayed, or circulated prior to, or on the

day of, any election must prominently state:

"Political advertisement paid for and

approved by (name of candidate) , (party

affiliation) , for (office sought) ."

6. After Respondent finally approved what she believed to

be the final layout/mock-up, Ms. Ryser, on September 19, 2008,

electronically forwarded a layout/mock-up to a printer in Miami.

Inexplicably, the layout/mock-up forwarded by Ms. Ryser did not

contain the statutorily-mandated disclaimer. This failure was

attributed to a transmission error.

7. Because Ms. Ryser perceived a need for "handouts" to be

distributed by Respondent at personal appearances, Ms. Ryser, on

the same day, September 19, 2008, ordered 100 additional mailers

from a local printer. These mailers contained the statutorily-

mandated disclaimer.

8. When the Miami printer returned the mailers to

Ms. Ryser, without further examining the mailers, she took them

directly to a "mail-house" in Winter Park, Florida, to be mailed

to 11,000 registered Winter Springs, Florida, voters. They were

mailed on October 2, 2008. Respondent did not receive a mailer,

as she was not on the mailing list.

9. Ms. Ryser received a mailer at her home on Saturday,

October 3, 2008. It was not until Sunday, October 4, 2008, that

she noticed the absence of the statutorily-mandated disclaimer.

10. Ms. Ryser immediately called Michael Ertel, Seminole

County, Florida, supervisor of elections, and advised him of the

error.

11. Mr. Ertel did not testify. However, the parties

stipulated that he would have testified that he advised

Ms. Ryser to remail the mailer with the proper disclaimer and

destroy the remaining mailers without the disclaimer. On

Monday, October 6, 2008, Ms. Ryser discarded the mailers in her

possession. At Ms. Ryser's direction and paid for by her, the

mail-house printed the appropriate disclaimer on the remaining

3,000 mailers in its possession and mailed them to voters.

12. On Tuesday, October 7, 2008, Respondent attended a

candidates' night at Highland's in Winter Springs, and mailers

were available to the public at this event. Unrefuted testimony

indicates that Respondent's mailers, without the statutorily-

mandated disclaimer, were available to the public at this

meeting.

13. Respondent did not learn that the mailers did not have

the statutorily-mandated disclaimer until October 8, 2008, when

she and her volunteer campaign advisors confronted Ms. Ryser

about the error.

14. Ms. Ryser acknowledged that the failure to include the

statutorily-mandated disclaimer was her error and that

Respondent was unaware of the error until October 8, 2008.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

16. In 2007, the Florida Legislature repealed Section

106.37, Florida Statutes (2006), which contained a definition of

"willfulness" for purposes of Chapter 106, Florida Statutes.

17. Contemporaneous with the repeal of Section 106.37,

Florida Statutes (2006), the same legislation amended Subsection

106.25(3), Florida Statutes, to provide that willfulness is "a

determination of fact." Subsection 106.25(3), Florida Statutes,

currently provides:

(3) For the purposes of commission

jurisdiction, a violation shall mean the

willful performance of an act prohibited by

this chapter or chapter 104 or the willful

failure to perform an act required by this

chapter or chapter 104. Willfulness is a

determination of fact ; however, at the

request of the respondent, willfulness may

be considered and determined in an informal

hearing before the commission. (Emphasis

added.)

18. Florida Administrative Code Rule 2B-1.002, 1 which

provides:

For purposes of imposing a civil penalty

for violating Chapter 104 or 106, F.S., the

following definitions shall apply:

(1) A person acts "willful" or

"willfully" when he or she knew that, or

showed reckless disregard for whether his or

her conduct was prohibited or required by

Chapter 104 or 106, F.S.

(2) "Knew" means that the person was

aware of a provision of Chapter 104 or 106,

F.S., understood the meaning of the

provision, and then performed an act

prohibited by the provision or failed to

perform an act required by the provision.

(3) "Reckless disregard" means that the

person disregarded the requirements of

Chapter 104 or 106, F.S., or was plainly

indifferent to its requirements, by failing

to make any reasonable effort to determine

whether his or her acts were prohibited by

Chapter 104 or 106, F.S., or whether he or

she failed to perform an act required by

Chapter 104 or 106, F.S.

19. In its Order of Probable Cause dated August 26, 2009,

Petitioner charged Respondent with the following violations of

Chapter 106, Florida Statutes:

Count 1 :

On or about October 3, 2008, Respondent

violated Section 106.143(1)(a), Florida

Statutes, by failing to mark prominently the

political advertisement that she paid for

and published with the correct disclaimer,

when she published a palm card mailer

entitled "Jean Hovey A Lifetime of

Leadership" that failed to contain the

following disclaimer: "Political

advertisement paid for and approved by Jean

Hovey, for Winter Springs City Commission."

Count 2 :

On or about October 7, 2008, Respondent

violated Section 106.143(1)(a), Florida

Statutes, by failing to mark prominently the

political advertisement that she paid for

and published with the correct disclaimer,

when she distributed a palm card at the

Highlands Homeowners Association entitled

"Jean Hovey A Lifetime of Leadership" that

failed to contain the following disclaimer:

"Political advertisement paid for and

approved by Jean Hovey, for Winter Springs

City Commission."

20. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in the proceeding. Petitioner has the burden of proof.

Department of Banking and Finance v. Osborne Stern and Company ,

670. So. 2d 932, 934 (Fla. 1996); Department of Transportation

v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); and

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349 (Fla. 1st DCA 1977).

21. The standard of proof imposed on Petitioner is to

establish the essential elements of a violation by clear and

convincing evidence. Diaz de la Portilla v. Florida Elections

Commission , 857 So. 2d 913 (Fla. 3rd DCA 2003). Petitioner must

establish by clear and convincing evidence that Respondent

willfully violated the particular statute alleged.

22. As noted by the Florida Supreme Court:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in mind

of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

23. Subsection 106.143(1)(a), Florida Statutes, reads as

follows:

Any political advertisement that is paid for

by a candidate and that is published,

displayed, or circulated prior to, or on the

day of, any election must prominently state:

"Political advertisement paid for and

approved by (name of candidate) , (party

affiliation) , for (office sought) ."

24. Respondent's campaign, in the person of the campaign

manager, Ms. Ryser, published a mailer that failed to contain

the statutorily-mandated disclaimer. Ms. Ryser had the

requisite experience in managing city commission campaigns.

Respondent cannot be faulted for relying on her.

25. In addition, Respondent reviewed what she thought was

the final proof of the mailer which contained the statutorily-

mandated disclaimer. Respondent, once she places an experienced

person in a position of responsibility in the campaign, cannot

be expected to double-check on all the work performed by that

individual. Diaz de la Portilla v. Florida Elections

Commission , supra .

26. The evidence presented clearly indicates that

Respondent was not aware that the mailer did not have the

statutorily-mandated disclaimer until several days after the

publication.

27. Respondent did not willfully violate Subsection

106.143(1)(a), Florida Statutes, as alleged. She did not

knowingly perform any act prohibited by the statute, nor was her

conduct in any way reckless as it relates to the publication of

the offending mailer.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Respondent, Jean M. Hovey, has not violated

Chapter 106, Florida Statutes, as alleged in Petitioner's Order

of Probable Cause.

DONE AND ORDERED this 1st day of June, 2010, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of June, 2010.

ENDNOTE

1/ This Rule was in effect at the time of the alleged

impropriety, but has since been declared invalid.

COPIES FURNISHED :

Eric M. Lipman, Acting Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Patricia Rushing, Clerk

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Michael D. Jones, Esquire

Michael D. Jones and Associates, P.A.

Post Office Box 196130

Winter Springs, Florida 32719-6130

Joshua B. Moye, Esquire

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.