17-001593F Linda Yates vs. Kathy Schure Status: Closed Recommended Order on Monday, August 7, 2017.

Summary: Petitioner is not entitled to an award of costs and attorney's fees because the underlying allegations filed against her are immaterial to any purported violation of either chapter 104 or chapter 106.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA YATES,

Petitioner,

vs. Case No. 17 - 1593F

KATHY SCHURE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Sarasota and

Tallahassee, Florida, on June 14, 2017 , before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Linda M. Yates, pro se

6475 Munsing Avenue

North Port, Florida 34291

For Respondent: Kathy Schure, pro se

3720 West Price Boulevard

North Port, Florida 34286

STATEMENT OF THE ISSUE

Whether P etitioner is entitled to costs and reasonable

attorneyÓs fees pursuant to section 106.265(6), Florida Statutes

(2016) , 1/ and Florida Administrative Code Rule 2B - 1.0045.

PRELIMINARY STATEMENT

On August 22, 2016, Kathy Schure filed a complaint

(Complaint) w ith the Florida Elections Commission (Elections

Commission) against Linda M. Yates, who serves as an elected

member of the North Port, Florida, c ity c ommission. The C omplaint

alleges that Ms. Yates committed ÐSunshine Law and Ethics

Violations.Ñ The Elec tions Commission dismissed the C omplaint on

the grounds that the C omplaint alleges matters that are not within

the jurisdiction of the Elections Commission. Following dismissal

of the C omplaint, Ms. Yates filed with the Elections Commission a

Petition for Costs and AttorneyÓs Fees wherein, pursuant to

section 106.265 and r ule 2B - 1.0045(1), she seeks reimbursement of

her expenses from Ms. Schure. Ms. Schure disputed the Petition

for Costs and AttorneyÓs Fees and the matter was forwarded to DOAH

for formal hearing.

At the hearing, Ms. Yates testified and presented the

testimony of six witnesses (including the testimony of

Ms. Schure). Ms. Schure testified on her own behalf and called no

other witnesses. Ms. YatesÓ Exhibits 2 through 4, 6, 7, 9, 10,

12 t hrough 15, and 17 through 19 were admitted into evidence.

Ms. SchureÓs Exhibits A through F, and I were admitted into

evidence.

A Transcript of the formal hearing was filed on July 10,

2017. Ms. Yates filed a Proposed Recommended Order on July 20,

2017 , and Ms. Schure filed what is titled ÐFinal ArgumentÑ on

July 17, 2017.

FINDING S OF FACT

1. Linda Yates is an elected member of the city commission

for North Port, Florida. Ms. Yates was first elected to the

North Port city commission in 2010, and was re - elected to the

same office in 2014.

2. On August 22, 2016, Kathy Schure, who at all times

relevant hereto was a resident of the City of North Port, filed a

C omplaint with the Elections Commission alleging, in material

part, the following:

Sunshine Law and Ethics Violations by City of

North Port Commissioner Linda M. Yates

covering the period June 1, 2012 to July 20,

2016.

* * *

This writing is to bring a formal complaint

and a request for investigation into illegal

and unethical activity of Commi ssioner

Linda M. Yates through the use [of] personal

email servers, Tor Browsers, relay internet

list servers, and intermediaries to knowingly

violate FL 286 Î Open Meetings Law and FL 119

Î Florida Public Records Law. Additionally,

Commissioner Jacqueli ne Moore appears to have

participated in Ðsecret meetings and

communicationsÑ with Commissioner Yates as

recipient of emails and texts directly and

through intermediaries.

3. On the c omplaint form, Ms. Schure identified Ms. Yates

as a ÐcandidateÑ for th e city commission for the City of North

Port. Although Ms. Yates was a member of the city commission on

August 22, 2016, she was not a candidate for this office as noted

by Ms. Schure in the Complaint.

4. The c omplaint form used by Ms. Schure to assert her

allegations against Ms. Yates directs the complainant

(Ms. Schure) to Ð[p]lease list the provisions The Florida

Elections Code that you believe the person named above may have

violated [and that] [t]he Commission has jurisdiction only to

investigation [sic] . . . Chapter 104, Chapter 106, and Section

105.071, Florida Statutes .Ñ

5. The Complaint filed by Ms. Schure makes no reference to

chapter 104, chapter 106 or section 105.071. The Complaint does ,

however , reference chapters 286 and 119, Florida S tatutes, and

case law dealing with FloridaÓs open government laws. 2/

6. By correspondence dated August 25, 2016, the Elections

Commission informed Ms. Yates that Ms. Schure filed a complaint

against her and that she had Ð14 days after receipt of the

comp laint to file an initial response,Ñ and that the Elections

Commission would Ðnot determine the legal sufficiency of the

complaintÑ until expiration of the referenced 14 - day response

period.

7. On August 28, 2016, Ms. Yates hired Douglas A. Daniels,

Esq ui re , an attorney in good standing with The Florida Bar, to

represent her before the Elections Commission. Mr. Daniels

charged Ms. Yates $400.00 per hour for work related to the

C omplaint filed by Ms. Schure.

8. By correspondence dated October 20, 2016, t he Elections

Commission informed Ms. Schure of the following:

The Florida Elections Commission has received

your complaint alleging violations of

FloridaÓs election laws. I have reviewed

your complaint and find it to be legally

insufficient.

This complai nt was received by the Florida

Elections Commission on August 22, 2016. The

cover page, which was an FEC complaint form,

named Linda Yates as the Respondent.

Attached to the complaint form was [a] second

complaint form indicating a different

Respondent ( Jacqueline Moore), as well as a

narrative of the allegations against

Ms. Yates. You did not indicate anywhere in

the documents that you intended to file two

complaints, so the Commission accepted the

entire document as a complaint against

Respondent Lind a Yates.

The essential allegations of your complaint

are that Respondent violated FloridaÓs open

meetings and public records laws, Chapter 286

and 119, Florida Statutes, respectively. The

jurisdiction of the Florida Elections

Commission is limited to all eged violations

of Chapter 104 and 106, Florida Statutes. As

such, I find your complaint to be legally

insufficient.

If you have additional information to correct

the stated grounds(s) of insufficiency,

please submit it within 14 days of the date

of this letter. If we do not receive

additional information that corrects the

stated grounds of insufficiency, this case

will be closed. For your convenience,

enclosed is a form for your use in submitting

additional information. If you submit an

additional sta tement containing facts, you

must sign the statement and have your

signature notarized . In addition, any

additional facts you submit to the Commission

must be based on either personal information

or information other than hearsay.

9. Ms. Schure offere d no additional information in support

of her allegations and the Elections Commission, by

correspondence dated December 30, 2016, informed Ms. Yates that

the C omplaint was dismissed due to legal insufficiency.

CONCLUSIONS OF LAW

10. The Division of Admin istrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1) , Fla. Stat.

11. As the party asserting entitlement, Petitioner has the

burden to prove Ðby clear and convincing evidenceÑ that an award

of attorneyÓs fees and costs is appropriate pursuant to section

106.265(6). See DepÓt of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932, 934 (Fla. 1996); DepÓt of Transp. v. J.W.C. Co. ,

396 So. 2d 778, 787 (Fla. 1st DCA 1981).

12. Section 106.265(6) and r ule 2B - 1.0045 provide for an

award of attorneyÓs fees and costs in certain actions brought

before the Elections Commission. Section 106.265(6) provides, in

part, as follows:

In any case in which the commission

determines that a person has filed a

complaint against another person with a

malicious intent to injure the reputation of

the person complained against by filing the

complaint with knowledge that the complaint

contains one or more false allegations or

with reckless disregard for wheth er the

complaint contains false allegations of fact

material to a violation of this chapter or

chapter 104, the complainant shall be liable

for costs and reasonable attorneyÓs fees

incurred in the defense of the person

complained against, including the cos ts and

reasonable attorneyÓs fees incurred in

proving entitlement to an d the amount of

costs and fees.

13. Further, r ule 2B - 1.0045(1) provides:

(1) If the Commission determines that a

complainant has filed a complaint against a

respondent with a malici ous intent to injure

the reputation of such respondent by filing

the complaint with knowledge that the

complaint contains one or more false

allegations or with reckless disregard for

whether the complaint contains false

allegations of fact material to a vi olation

of chapter 104 or 106, F.S., the complainant

shall be liable for costs and reasonable

attorney's fees incurred in the defense of

the complaint, including the costs and

reasonable attorney's fees incurred in

proving entitlement to and the amount of

costs and fees.

14. In Brown v. Commission on Ethics , 969 So. 2d 553 (Fla.

1st DCA 2007), t he court interpreted section 112.317(8), Florida

Statutes (current version at section 112.317(7)) , which contains

language that is in material part identical to t hat found in

section 106.265(6). As an initial matter, t he opinion holds that

the person seeking attorneyÓs fees does not have to prove that

the complainant acted with actual malice when filing the

complainant. Next, t he court established that the elemen ts of a

claim by a public official for attorneyÓs fees are: (a) the

complaint was made with a malicious intent to injure the

officialÓs reputation; (b) the person filing the complaint knew

that the statements about the official were false or made the

stat ements about the official with reckless disregard for the

truth; and (c) the statements were material.

15. In Hadeed v. State , 208 So. 3d 782 (Fla. 1st DCA 2016),

Al Hadeed, in his capacity as attorney for the Flagler County

Board of County Commissioners , and Dennis McDonald, in his

capacity as a Flagler County c ommissioner, each sought costs and

attorneyÓs fees under section 112.31 7 (7) after the Ethics

Commission dismissed as Ðlegally insufficientÑ complaints filed

against them by concerned citizens. Sp ecifically, the Ethics

Commission rejected the complaints as legally insufficient

because Ðneither established grounds for an ethics violation.Ñ

Id. at 783. On appeal, the court affirmed the dismissal of the

claim for costs and attorneyÓs fees, in part, on the grounds that

recovery is not allowed Ðwhere knowingly false allegations are

maliciously made to injure a public officialÓs reputation on

matters immaterial to an ethics violation.Ñ Id . at 785. In

other words, section 112.313(7) Ðrequires that the false

allegations be ÒmaterialÓ to an ethics violation to be actionable

for costs and fees.Ñ As the court noted, Ð[f]alsely calling

someone a terrorist or child abuser is of no moment under section

112.317(7) unless the false allegation is ÒmaterialÓ to v iolation

of FloridaÓs Code of Ethics.Ñ Id . at 784. Hadeed is persuasive,

if not controlling, in resolving the instant dispute.

16. In correspondence dated October 20, 2016, from the

Elections Commission to Ms. Schure, the Elections Commission

noted tha t,

The essential allegations of [the] complaint

are that [Ms. Yates] violated FloridaÓs open

meetings and public records laws, Chapter 286

and 119, Florida Statutes, respectively. The

jurisdiction of the Florida Elections

Commission is limited to alleged violations

of Chapter 104 and 106, Florida Statutes. As

such, I find your complaint to be legally

insufficient.Ñ

17. Having reviewed the allegations of the underlying

C omplaint that Ms. Schure filed against Ms. Yates with the

Elections Commission, it i s not necessary to address the veracity

of the allegations because they are framed exclusively within the

context of chapters 119 and 286 , neither of which falls within

the jurisdiction of the Elections Commission. 3/ Ms. SchureÓs

allegations that Ms. Yate s violated chapters 286 and 119 are

immaterial to whether Ms. Yates violated chapters 104 and 106,

which respectively deal with elections requirements and matters

related to campaign finance. Therefore, in accordance with

Hadeed , Ms. Yates is not entitled to recover her fees and costs

because Ms. SchureÓs allegations against her are immaterial to

any purported violation of either chapter 104 or 106. 4/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Elections Commission

enter a f inal o rder denying the Petition for Costs and AttorneyÓs

Fees.

DONE AND ENTERED this 7 th day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative La w Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7 th day of August , 2017 .

ENDNOTE S

1/ All statutory references are to 2016 Florida Statutes, unless

otherwise indicated.

2/ The Complaint includes the following paragraph:

The complaint also relies on a significant

body of Florida case law that has firmly

established that ÐThe clear policy the

legislature has established for Florida is

simple to understand: to have the publicÓs

business carried out in public.Ñ City of

Fort Myers v. News - Press Publishing Co.,

Inc. , 514 So. 2d 408 (Fla. 2nd DCA 1987).

The case law also establishes that ÐThe

sunshine law is to be construed liberally in

favor of open government to assure openness

in and access to government.[Ñ] Krause v.

Reno , 366 So. 2d 1244, 1250 (Fla. 1979), see

also Zore v. City of Vero Beach , 722 So. 2 d

891 (Fla. 4th DCA 1998); and the law is

directed to: Ðfrustrate all evasive

devices[,Ñ] Toen of Palm Beach v. Gradison ,

296 So. 2d 473, 477 (Fla. 1974). And in

part, ÐRemedial measures taken after lawsuit

seeking declaratory judgment is filed do not

mo ot a claim.Ñ Gangloff v. Taylor , 758 So.

2d 1159 (Fla. 4th DCA 2000).

3/ The court in Hadeed noted that the Ethics Commission found

three allegations in the Ðhundreds of pages of inflammatory,

disparaging, and conclusory allegations in the complaintsÑ t hat

Ðwere material to possible ethics violations.Ñ Because of these

material allegations, it was necessary for the court to determine

Ðwhether these factual allegations Ï stripped of the tacked - on

hyperbolic legal conclusions that accompany them in the

comp laints Ï are false.Ñ No such analysis is necessary in the

instant case because the complaint filed by Ms. Schure contains

no factual allegations that are material to a possible violation

of matters within the jurisdiction of the Elections Commission.

4/ Ms. Yates argues that because Ms. Schure erroneously

identified her on the c omplaint form as a Ðcandidate,Ñ that this

constitutes a material allegation with respect to either

chapter 104 or 106. This assertion is not persuasive given that

the substance of Ms. SchureÓs C omplaint, as set forth in the

Ðalleged violationsÑ portion of the C omplaint, clearly indicates

that Ms. Schure is complaining about ÐSunshine Law and Ethics

Violations by City of North Port Commissioner Linda M. Yates

covering the period J une 1, 2012, to July 20, 2016.Ñ The fact

that Ms. Schure erroneously identified Ms. Yates as a ÐcandidateÑ

for city commission is insufficient, in itself, to convert what

is clearly a complaint about alleged Ðsecret meetings and

communicationÑ into a comp laint about violations of chapters 104

and 106.

COPIES FURNISHED:

Kathy Schure

3720 West Price Boulevard

North Port, Florida 34286

(eServed)

Linda M. Yates

6475 Munsing Avenue

North Port, Florida 34291

(eServed)

Amy McKeever Toman, Executive Direct or

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

Donna Malphurs, Agency Clerk

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agenc y that

will issue the Final Order in this case.