IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401

October 10, 2012

FREDA SHERMAN STEVENS v.

Appellant I Petitioner(s),

BY ORDER OF THE COURT:

CASE NO.: 4D12-2288 L.T. No.: 11-6185

FLORIDA ELECTIONS COMMISSION

Appellee I Respondent(s).

ORDERED, the appellant in the above-styled case is hereby directed to file with

this Court, and show cause in writing, if any there be, on or before October 20, 2012,

why the above-styled case should not be dismissed for lack of timely prosecution, in

that the appellant's initial brief has not been filed with this Court as of this date. Failure

to respond to this order will result in a sua sponte dismissal without further notice.

If the initial brief is filed within this time, the order to show cause will be

considered automatically discharged without further order.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

Served:

Freda Sherman Stevens Jacqueline Marie Davison

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Eric Lipman Division Of Admin. Hearings Florida Elections Commission

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Petitioner,

vs. Case No. 11-6185

FREDA SHERMAN STEVENS,

Respondent.

FINAL ORDER

Pursuant to notice, a formal administrative hearing was

conducted in this case on July 10 and 19, 2012, by

teleconference and telephone conference at sites in Fort

Lauderdale and Tallahassee, Florida, before Administrative Law

Judge {ALJ) Claude B. Arrington of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Eric Lipman, Esquire Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399

For Respondent: Freda Sherman Stevens, pro se Suite 406 4611 South University Drive Davie, Florida 33328

STATEMENT OF THE ISSUE

Whether Freda Sherman Stevens (Respondent), a candidate in

the 2008 primary for a seat in the Florida House of

Representatives, willfully violated section 106.07(5), Florida

Statutes (2008), by certifying that six of her campaign reports

were true, correct, and complete when they were not. Whether

Respondent willfully violated section 106.19(l)(c), Florida by

falsely reporting, or deliberately failing to report information

required to be reported by chapter 106, Florida Statutes

(2008). 11

PRELIMINARY STATEMENT

Following the receipt of a sworn complaint and an

investigation, the Florida Elections Commission (the Commission)

found probable cause to believe that Respondent violated the

provisions of section 106.07(5), Florida Statutes (2008), when

she filed her original report on August 22, 2008 (Count 1); her

first amended report on August 23 (Count 2); her second amended

report on August 30 (Count 3); and her third, fourth, and fifth

amended reports on November 24 (Counts 4, 5, and 6). Counts 1-6

are identical except for the date of the report. Count 1 is as

follows:

On or about August 22, 2008, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of 2008 F3 Report that was incorrect, false, or incomplete, when she failed to report

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$13,812.50 and $680.00 in-kind contributions from Green Apple Association of Christian Schools and failed to report that the $680.00 was payment to WPLG-TV for television political advertising.

The Commission also found probable cause that Respondent

violated section 106.19(1)(c) by filing each report referenced

in Counts 1-6. Counts 7-12 are identical except for the date of

the report. Count 7 is as follows:

On or about August 22, 2008, Respondent violated Section 109.19(1)(c), Florida Statutes, by falsely reporting or deliberately failing to include information required by Chapter 106, when Respondent deliberately failed to report a $13,812.50 in-kind contribution from Green Apple Association of Christian Schools to WPLG-TV on'her 2008 F3 campaign report.

Respondent timely requested a formal hearing before the

Commission. On October 7, 2011, the Respondent and counsel for

the parties entered into a consent judgment that was subject to

approval by the Commission. The consent judgment was

subsequently rejected by the Commission, the matter was referred

to DOAH, and this proceeding followed.

At the final hearing, the Commission presented the

testimony of Genevieve Anderson (records custodian for Wells

Fargo Bank), Myra Dennis (records custodian for Citibank),

Kristi Reid Bronson (Bureau Chief of elections records,

Department of State, Division of Elections), Tamara McCraw (a

process server), Respondent, and Jamie Leon (business manager

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for WPLG-TV). Petitioner's pre-marked Exhibits 1-7, 9~16, and

20-37 were admitted into evidence. Respondent did not present

any other testimony or exhibits.

A Transcript, consisting of three volumes, was filed

July 27, 2012. The Proposed Final Orders filed by the parties

have been duly considered by the undersigned in the preparation

of this Final Order.

FINDINGS OF FACT

1. Respondent was a candidate for the House of

Representatives, District 100, in the August 26, 2008, primary

election.

2. As a candidate for the Florida Legislature, the

Division of Elections of the Florida Department of State (the

Division), was Respondent's filing office, and Respondent was

required to file all her reports electronically.

3. On October 30, 2007, Respondent filed with the Division

her Appointment of Campaign Treasurer and Designation of

Campaign Depository form listing herself as treasurer for her

2008 campaign.

4. On November 1, 2007, Ms. Bronson sent Respondent a

letter acknowledging that Respondent had been placed on the 2008

active candidate list. The letter advised Respondent that all

candidates filing reports with the Division were required to use

the electronic filing system (EFS) and provided Respondent with

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a personal identification number (PIN) and initial password to

grant access to the EFS. The user was expected to change the

initial password after logging on for the first time.

5. Ms. Bronson's letter included the following

information:

You, your campaign treasurer, and deputy treasurers are responsible for protecting these passwords from disclosure and are responsible for all filings using these credentials, unless the Division is notified that your credentials have been compromised.

* * *

Each campaign treasurer's report filed by means of the EFS is considered to be under oath by the candidate and campaign treasurer and such persons are subject to the provisions of Section 106.075(5), Florida Statutes.

* * *

An online guide is available to you on the EFS to assist with navigation, data entry, and submission of reports. The Division of Elections will also provide assistance to all users by contacting the EFS Help Desk at (850) 245-6240.

All of the Division's publications and reporting forms are available on the Division of Election's web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapters 104 and 106, Florida Statutes; Candidate and Campaign Treasurer Handbook (September 2007 edition); 2007-2008 Calendar of Reporting

5

Dates; and Rule 1S-2.017, Florida Administrative Code.

6. When a campaign report is submitted electronically

through the EFS, both the candidate and treasurer's PINs must be

entered into the website. Though it is possible for either the

candidate or the treasurer to give their PINs to another

individual to enter the report on their behalf, the candidate

remains responsible for the PINs and the filed reports.

7. Respondent did little to educate herself as to her

responsibilities as a candidate and as the treasurer for her

campaign. She could not even remember whether she read

Ms. Bronson's letter, and she did not remember whether she had

read the handbook referred to by Ms. Bronson. Respondent did

not attend any candidate trainings offered by the Broward County

Supervisor of Elections Office.

8. On November 21, 2007, Respondent resigned as treasurer

and appointed her mother, Clementine Sherman, as her new

treasurer. On December 5, 2007, Ms. Bronson sent a letter to

Ms. Sherman, with a copy to Respondent, acknowledging

Ms. Sherman's appointment as treasurer and providing the same

information contained in Ms. Bronson's letter to Respondent

dated November 1, 2007 (and discussed above).

9. On January 29, 2008, the Division accepted Respondent's

appointment of herself as her deputy treasurer.

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10. Respondent did not have a system for keeping track of

campaign contributions or expenditures.

11. Pursuant to section 106.07, Florida Statutes (2008),

Respondent was required to file periodic reports listing "all

contributions received, and all expenditures made, by or on

behalf of her candidacy."

12. At all times relevant to this proceeding, Respondent

has been the owner of Prodigal S & D Corporation, which does

business as Green Apple Association of Christian Schools (Green

Apple). Respondent was authorized to issue and sign checks on

the bank account owned by Green Apple.

13. In August 2008, shortly before the primary election,

Respondent placed an order with WPLG-TV for airtime to

disseminate political advertisement for her campaign.

14. The script used in the advertisement aired on WPLG

included the following: "Please vote Freda Stevens for State

Representative District 100 on August 26. Thank you. " 21

15. On August 6, 2008, Respondent signed two checks made

payable to WPLG. Both checks were drawn on the same bank

account owned by Green Apple. Check 1050 was in the amount of

$13,812.50. Check 1051 was in the amount of $680.00. Both

checks were made payable to WPLG in payment for political

advertising that Respondent had purchased from WPLG. When

Respondent signed those checks to WPLG, she knew, or should have

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known, that there were insufficient funds in both the Green

Apple account and her campaign account to cover the checks.

16. On August 15, 2008, Respondent signed check number

1053 payable to WPLG that was drawn on the same bank account

owned by Green Apple as checks 1050 and 1051. Check number 1053

was in the amount of $7,161.25 and was used to pay for political

advertising that Respondent bought from WPLG prior to the

primary election. When Respondent signed check numbered 1053 to

WPLG, she knew, or should have known, that there were

insufficient funds in both the Green Apple account and her

campaign account to cover the check.

17. Check numbered 1050 and 1051 were returned to WPLG for

non-sufficient funds. WPLG did not deposit check numbered 1053.

18. Respondent filed an original and five amended 2008 F3

Reports. Respondent certified that each report was true,

correct, and complete. All reports were filed electronically

utilizing the PIN number given to Respondent by Ms. Bronson.

19. On August 22, 2008, Respondent filed her "Original

Report." That report listed no campaign contribution from Green

Apple, and it failed to list campaign expenditures to WPLG or

other media. Because of those omissions, the report was not

accurate, and it was not complete.

20. On August 23, 2008, Respondent filed a first "Amended

Report." That report listed five in-kind contributions from

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Respondent with the descriptor "media" under each contribution.

The amounts of the in-kind contributions were $13,812.50;

$680.00; $3,185.85; $7,161.25; and $3,187.00. That report was

inaccurate because the in-kind contributor for three of the in­

kind contributions ($13,812.50; $680.00; and $7,161.25) was

Green Apple, not the Respondent. 31

21. Respondent lost the primary election. After the

election, on August 30, 2008, Respondent filed a second "Amended

Report." The five in-kind contributions from Respondent with

the descriptor "media" that had been on the first "Amended

Report" were deleted from the report and were replaced with the

following four in-kind contributions with.the reported date of

the contribution in parentheses: $13,812.50 (August 6);

$3,187.50 (August 20); $3,128.85 (August 18); and $680.00

(August 6). That report was inaccurate because the in-kind

contributor was Green Apple, not the Respondent. That report

also failed to report the check in the amount of $7,161.25 that

Green Apple had issued to WPLG on August 15.

22. On November 24, 2008, Respondent filed a third

"Amended Report", a fourth "Amended Report", and a fifth

"Amended Report." The third "Amended Report" deleted the in­

kind contribution from Respondent dated August 6, in the amount

of $13,812.50, and with the descriptor "media." The fourth

"Amended Report" and the fifth "Amended Report" reflected no

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contributions, only expenditures, none of which was for media.

These "Amended Reports" were incomplete and inaccurate.

23. WPLG attempted to collect the monies owed by

Respondent's campaign. Clementine Sherman remitted a payment

(by cashier's check) in the amount of $6,000.00 on August 27,

2008. 41 Respondent remitted three money orders that were

deposited September 28, October 15, and December 22, 2009,

respectively. These money ·orders were in the amounts of

$200.00, $200.00, and $680.00. These payments were not

reflected on any report filed by Respondent.

CONCLUSIONS OF LAW

24. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to sections 120.569,

120.57(1), and 106.24(5), Florida Statutes (2012).

25. This proceeding seeks to impose discipline against

Respondents and is, consequently, penal in nature. State ex

rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491

(Fla. 1973). Accordingly, to impose discipline, the Department

must prove the charges against Respondents by clear and

convincing evidence. Dep't of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34

(Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95

(Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med.,

654 So. 2d 205, 207 (Fla. 1st DCA 1995).

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26. Regarding the standard of proof, in Slomowitz v.

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

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear 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 the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey, 645 So. 2d 398, 404 (Fla. 1994).

27. Counts 1-6 allege that Respondent violated the

following provisions of section 106.07(5), Florida Statutes

(2008):

(5) The candidate and his or her campaign treasurer, in the case of a candidate, or the political committee chair and campaign treasurer of the committee, in the case of a political committee, shall certify as to the correctness of each report; and each person so certifying shall bear the responsibility for the accuracy and veracity of each report. Any campaign treasurer, candidate, or political committee chair who willfully

11

certifies the correctness of any report while knowing that such report is incorrect, false, or incomplete commits a misdemeanor of the first degree, punishable as provided ins. 775.082 or s.775.083.

28. Counts 7-12 allege that Respondent violated the

following provisions of section 106.19(1)(c), Florida Statutes

(2008):

(1) Any candidate; campaign manager, campaign treasurer, or deputy treasurer of any candidate; committee chair, vice chair, campaign treasurer, deputy treasurer, or other officer of any political committee; agent or person acting on behalf of any candidate or political committee; or other person who knowingly and willfully:

* * *

(c) Falsely _reports or deliberately fails to include any information required by this chapter; or

* * *

is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s.775.083.

29. Section 106.25, Florida Statutes (2008), provides, in

relevant part, as follows:

(1) Jurisdiction to investigate and determine violations of this chapter and chapter 104 is vested in the Florida Elections Commission

* * *

(3) For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by

12

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.

30. Florida Administrative Code Rule 2B-1.002 sets forth

the following definitions:

1. For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S., the following definitions 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.

31. Chapter 2011-40, Section 70, Laws of Florida, amended

section 106.25 by adding the following language:

The commission may not by rule determine what constitutes willfulness or further define the term "willful" for purposes of this chapter or chapter 104.

13

32. In this proceeding, it is not necessary to discuss the

impact of the foregoing amendment on the rule because there is

no meaningful argument that Respondent's actions were not

willful. Respondent's actions in misreporting the in-kind

contributions at issue in this proceeding were voluntary and

intentional. Respondent knew she was required to report in-kind

contributions, and she knew how to report in-kind contributions.

Respondent negotiated with WPLG for the purchase of airtime for

her campaign, and she signed the checks written on the Green

Apple account supposedly in payment for the airtime. Respondent

knowingly misrepresented the source of the in-kind contribution

in disregard for the law. The Commission met its burden of

proof in this proceeding. Compare Fugate v. Fla. Elections

Comm., 924, So. 2d 74 (Fla. 1st DCA 2006).

33. Respondent willfully and intentionally disregarded

reporting requirements in violation of section 106.19(l)(c),

Florida Statutes (2008), as alleged in Counts 7-12.

34. Respondent willfully and intentionally certified as

being true and complete reports she knew to be inaccurate in

violation of section 106.07(5), Florida Statutes (2008), as

alleged in Counts 1-6.

35. Section 106.265, Florida Statutes (2012), provides, in

relevant part, as follows:

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(1) The commission or, in cases referred to the Division of Administrative Hearings pursuant to s. 106.25(5), the administrative law judge is authorized upon the finding of a violation of this chapter or chapter 104 to impose civil penalties in the form of fines not to exceed $1,000 per count, or, if applicable, to impose a civil penalty as provided ins. 104.271 or s. 106.19. ·( 2) In determining the amount of such civil penalties, the commission or administrative law judge shall consider, among other mitigating and aggravating circumstances:. (a) The gravity of the act or omission; (b) Any previous history of similar acts or omissions . . .

36. In its Proposed Final Order, the Commission seeks to

impose a fine against Respondent in the amount of $1,000.00 per

count for a total of $12,000.00. Such fines for the violations

at issue in this proceeding are excessive. In considering the

factors set forth in section 106.265(2)(a) and (b), the

undersigned concludes _that Respondent should be fined in the

amounts set forth below.

ORDER

Based on the foregoing findings of fact and conclusions of

law, it is ORDERED:

Freda Sherman Stevens is guilty of the violations of

Section 106.075(5), Florida Statutes (2008) alleged in Counts 1-

6. Administrative fines pursuant to the provisions of section

106.265, Florida Statutes (2012) are hereby imposed against

Freda Sherman Stevens: $1,000.00 for the violation in Count 1;

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$100.00 for Count 2; $100.00 for Count 3; $100.00 for Count 4;

$100 for Count 5; and $100.00 for count 6.

Freda Sherman Stevens is guilty of the violations of

Section 106.19(1)(c), Florida Statutes (2008) alleged in Counts

7-12. Administrative fines pursuant to the provisions of

section 106.265, Florida Statutes (2012) are hereby imposed

against Freda Sherman Stevens: $1,000.00 for the violation in

Count 7; $100.00 for Count 8; $100.00 for Count 9; $100.00 for

Count 10; $100.00 for Count 11; and $100.00 for Count 12.

Freda Sherman Stevens shall pay to the Florida Elections

Commission a fine in the form of a civil penalty in the total

amount of $3,000.00 within 30 days of this Final Order becoming

final. The civil penalty shall be paid to the Florida Elections

Commission, either by cashier's check, money order, or

attorney's trust check, and sent to 107 West Gaines Street,

Collins Building, Suite 224, Tallahassee, Florida 32399-1050.

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DONE AND ORDERED this 26th day of September, 2012, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON Administrative Law 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 26th day of September, 2012.

ENDNOTES

11 These campaign reports were referred to by the parties as "F3 reports."

21 The political advertisement Respondent ran on WPLG was not an "electioneering communication" as that term is defined by section 106.011(18(a), Florida Statutes (2008), and Green Apple was not a registered electioneering communication organization within the meaning of section 106.03(b), Florida Statutes (2008).

31 Petitioner asserted that Respondent should have listed the in-kind contribution as being to WPLG instead of using the term "media." Petitioner has presented no authority for that assertion. Consequently, Respondent should not be. faulted for that aspect of the first "Amended Report."

41 In its Proposed Final Order, the Commission discusses that Respondent received campaign contributions in excess of the maximum of $500.00 (allowed by section 106.08(l)(a), Florida Statutes (2008)) from Green Apple and from Ms. Sherman. While the issue as to the receipt of excess contributions was briefly mentioned in the "Amended Staff Recommendation Following

17

Investigation'', there was no finding of probable cause as to that issue. Consequently, no findings are made as to whether Respondent received excessive contributions from Green Apple or Ms. Sherman .

COPIES FURNISHED:

Freda Sherman Stevens Suite 406 4611 South University Drive Davie, Florida 33328 freda@fredastevens.com

Jaakan Ammiel Williams, Esquire Florida Elections Commission 107 West Gaines Street Tallahassee, Florida 32399-1050 jaakan.williams@myfloridalegal.com

Donna Malphurs, Agency Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399

Rosanna Catalano, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399

1~

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 the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

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