The proposed rule amendments are intended to address changes to the complaint process; to address additional violations that can be considered minor violations; and to address changes regarding criteria and requirements for expedited hearings.

 

DEPARTMENT OF LEGAL AFFAIRS

Florida Elections Commission

RULE NOS.:RULE TITLES:

2B-1.0025Complaints

2B-1.003Minor Violations

2B-1.0041Expedited Hearing for False Military Service

PURPOSE AND EFFECT: The proposed rule amendments are intended to address changes to the complaint process; to address additional violations that can be considered minor violations; and to address changes regarding criteria and requirements for expedited hearings.

SUMMARY: The proposed changes to Rule 2B-1.0025 incorporate the Complaint form and the Additional Complaint Information form into the rule and specify the criteria for filing a complaint with the Commission, and the manner in which the complaint is handled.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: During discussion of the economic impact of this rule at its Commission meeting, the Commission concluded that this rule change will not have any impact on licensees and their businesses or the businesses that employ them. The rule will not increase any fees, business costs, personnel costs, will not decrease profit opportunities, and will not require any specialized knowledge to comply. This change will not increase any direct or indirect regulatory costs. Hence, the Commission determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 104.2715(3), 106.26(1),(12), FS.

LAW IMPLEMENTED: 104.2715, 105.071, 106.25, 106.26(12), FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Amy Toman, Executive Director, Florida Elections Commission, Department of Legal Affairs, PL-01, The Capitol, Tallahassee, Florida 32399-1050.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

2B-1.0025 Complaints.

(1) Any complaint alleging violations of the Florida Election Code over which the Florida Elections Commission has jurisdiction may be filed with the Commission.

(a) Within 5 days after receipt of a complaint, Commission staff shall conduct a technical and clerical review of the complaint to ensure that:

1. FEC Form 1, entitled “Complaint,” (5/17), which is hereby adopted and incorporated by reference and can be obtained from http://www.flrules.org/Gateway/reference.asp?No=Ref-                                                                , or from the Commission’s website at www.fec.state.fl.us,  has been used to file the complaint;

2. All information required by FEC Form 1 has been provided, and all instructions on the complaint form have been followed;

3. A single respondent has been named in the complaint;

4. The complaint has not been submitted anonymously;

5. Any exhibits or attachments referenced in the complaint have been included with the complaint, and if multiple complaints have been submitted together, separate copies of exhibits or attachments referenced in each complaint have been attached to the complaint that references those exhibits or attachments;

6.The complaint has been properly signed by the complainant under oath in the presence of a notary public or other person authorized by law to administer oaths; and

7. The complaint contains the original signature of the complainant.

(b) If a complaint does not comply with any of the requirements of subsection (1)(a) of this rule or is otherwise incomplete, Commission staff shall return the complaint to the complainant and identify the defect(s). Commission staff shall provide assistance or information to persons seeking to file a complaint, but shall not encourage, solicit, or discourage the filing of a complaint.

Complaints that are returned in accordance with this subsection remain confidential in accordance with Section 106.25(7), F.S.

(c) Commission staff shall assign a case number to each complaint which is not returned to the complainant, and Commission staff shall then deliver the complaint to the executive director in order for the executive director to determine whether the complaint is legally sufficient.

(2) Upon receipt of a complaint from Commission staff after the completion of the technical and clerical review required by subsection (1) of this rule, the executive director shall determine whether the complaint is legally sufficient. A complaint is legally sufficient if it meets the following criteria:

(a) The complaint alleges a violation of Chapters 104 or 106 or Sections 98.212 or 105.071, F.S.;

(b) The complaint was made under oath in the presence of a notary public or other person authorized by law to administer oaths;

(c) The complaint contains the original signature of the complainant;

(b)(d) The complaint contains specific facts upon which the complainant bases the allegation of a violation of law; and

(c)(e) The complaint alleges a violation that occurred within two years of the date the complaint is filed with the Commission;.

(d)(f) The complaint is based on personal information or information other than hearsay; and.

(e) The complaint otherwise complies with the requirements of subsection (1)(a) of this rule.

(3) through (4) No change. 

(5) When the executive director determines that a complaint is legally insufficient, the complainant and the respondent shall be notified. The notice shall include the reason the complaint is legally insufficient and notify the complainant that he has 14 days to correct the stated ground of insufficiency by filing FEC Form 2, entitled “Additional Complaint Information,” (5/17), which is hereby adopted and incorporated by reference and can be obtained from http://www.flrules.org/Gateway/reference.asp?No=Ref-                                                                  or from the Commission’s website at www.fec.state.fl.us. If the complainant does not respond within 14 days, the executive director shall close the case. If the complainant responds but does not provide information that corrects the stated ground of insufficiency, the case shall be closed. A corrected complaint must also be sworn as required by Section 106.25(2), F.S.

Rulemaking Authority 106.26(1) FS. Law Implemented 105.071, 106.25 FS. History–New 2-17-91, Amended 11-14-93, 3-19-96, 8-19-96, Formerly 1D-1.0025, Amended 1-11-99, 1-2-02, 2-15-04, 4-24-05, 6-2-13,                                 .

 

2B-1.003 Minor Violations.

(1) The Commission shall consider a violation of Chapter 106, F.S., a minor violation under the following circumstances:

(a) through (b) No change.

(c) The respondent against whom the complaint was filed is and has not been the subject of any other legally sufficient complaint alleging a violation of Chapter 104, 105 or 106, F.S., prior to the occurrence of  the conduct described in the complaint;

(c)(d) The respondent against whom the complaint was filed is not a political party; and

(d)(e) The respondent against whom the complaint was filed agrees to correct, if feasible, the conduct that resulted in a violation identified in this rule.; and

(f) If the violation involves political advertising, the violation must have occurred more than 14 days before the election in which the candidate or committee named in the political advertising is participating and the person, candidate, or committee that paid for the political advertisement must be named in the political advertisement. If the violation occurred less than 14 days before the election, the complaint must not contain an allegation that the political advertising was either deceptive or influenced the outcome of the election.

(2) The following violations are minor violations so long as the requirements of subsection (1) of this rule have been met:

(a) through (c) No change. 

(d) Section 106.07(7), F.S., failure of a candidate or political committee, in any reporting period during which the candidate or political committee has not received funds, made any contributions, or expended any reportable funds, to notify the filing officer in writing on the prescribed reporting date that no report is being filed on that date.  A fine of $50 shall be imposed for each violation.

(e)(d) No change.

(f)(e) Section 106.143(1)(a), F.S., failure of a candidate, except a write-in candidate, making an expenditure for a political advertisement to mark prominently the political advertisement with the required disclaimer. A fine of $250 shall be imposed for each violation.

(g) Section 106.143(1)(b), F.S., failure of a write-in candidate making an expenditure for a political advertisement to mark prominently the political advertisement with the required disclaimer. A fine of $250 shall be imposed for each violation.

(f) through (q) renumbered as (h) through (s) No change.

(3) through (4) No change.

Rulemaking Authority 106.26(12) FS. Law Implemented 106.26(12) FS. History–New 1-11-99, Amended 2-14-00, 1-2-02, 4-24-05, 8-13-14,                                          .

 

2B-1.0041 Expedited Hearings for False Military Service. The procedure for the investigation and hearing, if necessary, of a sworn complaint alleging a violation of Section 104.271(2) or 104.2715, F.S., will be as described in Rule 2B-1.004, F.A.C. and Sections 106.24, 106.25, 106.26, F.S., except that the following time restrictions shall be adhered:

(1) The executive director shall make a determination as to legal sufficiency of the complaint, and the legal sufficiency or legal insufficiency letter shall be sent by certified mail no later than 5 days after the expiration of the time allotted for the respondent to provide a written response to the complaint.

(a)  If the complaint also alleges a violation of any section of law other than Section 104.271(2) or 104.2715, F.S., the executive director shall cause the complaint to be separated into two complaints, one of which shall contain all allegations made under Sections 104.271(2) and 104.2715, F.S., and one of which shall contain all other allegations made by the complaint.

(b) A new case number shall be assigned to the complaint containing all allegations other than those made under Sections 104.271(2) and 104.2715, F.S., and the procedures and time restrictions of subsections (2) through (4) of this rule shall not apply to the investigation and hearing, if necessary, of such complaint.

(1) If the executive director finds that the complaint is legally sufficient, the legal sufficiency letter shall be sent by certified mail no later than 10 days after the expiration of the time allotted for respondent to provide a written response to the complaint.

(2) The Commission shall complete its report of investigation no later than 30 60 days after the respondent’s Respondent’s receipt of the legal sufficiency letter.

(3) A copy of the Commission counsel’s probable cause recommendation shall be furnished to the respondent no later than 5 10 days after the expiration of the time allotted for respondent to provide a written response to the investigator’s report.

(4) Upon a finding of probable cause, the case shall proceed to hearing in accordance with Section 106.25(5), F.S., except that:

(a) In cases to be heard by the Division of Administrative Hearings, the executive director shall, no later than 5 10 days after receipt of an election from the respondent to have a formal administrative hearing conducted by an administrative law judge in the Division of Administrative Hearings order finding probable cause, refer the case to the Division of Administrative Hearings for an expedited hearing.

(b) In cases involving disputed issues of material fact to be heard by the Commission, the Chairman shall, within 5 10 days of determining that a disputed issue of material fact exists, issuing an order finding probable cause, direct that a Commissioner or Commissioners hear the case, in accordance with subsection 2B-1.004(5), F.A.C.  Determination as to the existence of a disputed issue of material fact shall be made by the Chairman within 5 days of receipt of such claim by respondent.  The Chairman shall direct that the hearing be an expedited proceeding, and shall issue an expedited discovery schedule.

(c) Informal hearings, involving no disputed issues of material fact, shall be conducted before the Commission at the next scheduled commission meeting, unless the Chairman elects to proceed in accordance with subsection 2B-1.004(5), F.A.C.

(5) The above set timeframes may be waived upon a showing of good cause.

Rulemaking Authority 104.2715(3) FS. Law Implemented 104.2715 FS. History‒New 1-8-14, Amended _____.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Florida Elections Commission

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Florida Elections Commission

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 17, 2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 8, 2017