Pasquale v. Florida Elections Com'n, 4D99-1145.

• Decision Date: 22 March 2000
• Docket Number: No. 4D99-1145.,4D99-1145.
• Citation: 759 So.2d 23
• Parties: Armond PASQUALE, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
• Court: Florida District Court of Appeals

759 So.2d 23

Armond PASQUALE, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.

No. 4D99-1145.

District Court of Appeal of Florida, Fourth District.

March 22, 2000.

Rehearing Denied June 14, 2000.

Harriet Rae Freeman, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, and John J. Rimes, III, Assistant Attorney General, Tallahassee, for appellee.

KLEIN, J.

Appellant, who was the treasurer for his wife, was fined $500 by the Florida Elections Commission for failing to report in-kind contributions to her political campaign. The contributions were in the form of a newsletter containing news about city government which was printed by a citizen and which endorsed appellant's wife and other candidates for seats on the Stuart City Commission. We reverse in part and affirm in part.

Following an election in 1995, a number of citizens in Stuart, including the Pasquales and a Mr. Carroll, formed a discussion group about city government. Mr. Carroll then began printing a newsletter about city government. He paid for all costs of producing the newsletter, and he and others would distribute the newsletter to the public by placing copies in plastic bags and leaving them on the lawns of homeowners.

One of Mr. Carroll's newsletters published shortly before the 1996 elections for the Stuart City Commission contained editorial endorsements of Mrs. Pasquale and other candidates. A number of copies of the issue were given to Mrs. Pasquale free of charge, and Mr. Pasquale was observed distributing some of these copies. Mr. Carroll testified that if Mr. Pasquale did distribute copies it was not on behalf of Mr. Carroll.

As a result of a complaint filed by Mr. Rifkin, the husband of Mrs. Pasquale's opponent in the election, the Florida Elections Commission issued an order of probable cause charging Mr. Pasquale with violating section 106.19(1)(b), Florida Statutes (1995), which requires "contributions" to be reported and section 106.07(5), Florida Statutes, which prohibits the certification of an incorrect campaign treasurer's report.

A contribution which must be reported under section 106.19(1)(b) is defined in section 106.011(3) as:

A gift, subscription, conveyance, deposit, loan, payment, or distribution of money or anything of value, including contributions in kind having an attributable monetary value in any form....

Notwithstanding the foregoing meanings of "contribution," the word shall not be construed to include services, including, but not limited to, legal and accounting services, provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or political committee. This definition shall not be construed to include editorial endorsements. [Emphasis supplied.]

It was the position of the FEC that Mr. Pasquale had violated the law in two respects: (1) the copies of the newsletter given Mrs. Pasquale had value which should have been reported as a contribution; and (2) the endorsement in the newsletter was not exempt as an editorial endorsement and therefore had value in and of itself which had to be reported.

The administrative law judge (ALJ) concluded that this was an editorial endorsement excluded by section 106.011(3) and thus found no violation in that regard. He did conclude, however, that by failing to report the value of the copies of the newsletter given to Mrs. Pasquale, Mr. Pasquale had violated section 106.19(1)(b), which requires the reporting of "any contribution" and section 106.07(5) which requires campaign treasurers to accurately report contributions. The ALJ recommended that Mr. Pasquale be fined $500.

Both Mr. Pasquale and the Commission filed exceptions. The Commission adopted the recommendation of the ALJ that Mr. Pasquale had violated section 106.19(1)(b), because the copies produced by Mr. Carroll constituted something "of value" under section 106.011(3)(a), and Mr. Pasquale appeals.

We agree with the Commission that the receipt of the copies had to be reported. If Mrs. Pasquale had obtained only one copy of the newsletter and had to print the additional copies herself, that would have resulted in an expense to her campaign. Her campaign did not have to bear that expense because Mr. Carroll contributed the copies to the campaign. They were accordingly something "of value."

Mr. Pasquale argues in his brief that copies of the newsletter were distributed to the public at no cost and that he could have obtained the copies he distributed merely by picking them up at a place where they had been left for the public to take them. That is not what occurred, however, in this case. Neither of the Pasquales testified, but the evidence reflected that Mr. Carroll printed a larger than normal number of copies of the issue containing the editorial endorsement of Mrs. Pasquale and free copies were furnished to Mrs. Pasquale's campaign for the purpose of helping her get elected.

Nor can we agree with Mr. Pasquale that the violation was not willful. Willfulness is defined in section 106.37 as knowing or showing reckless disregard. Although, under other circumstances, omitting to report the receipt of the copies of this free newsletter could amount to no more than neglect, Mr. Pasquale was a campaign treasurer and had signed a statement certifying that he understood Chapter 106. In addition the citizens' group which included the Pasquales had a lawyer advise them about what they could and could not do politically. There is accordingly competent substantial evidence to support the finding of a willful violation under the specific facts of this case.

As to the editorial endorsement itself, the Commission disagreed with the ALJ on the issue of whether the recommendation in the newsletter was exempt. The Commission relied on a different part of the statute, section § 106.011(17), which defines "political advertisement" and excludes "editorial endorsements by any newspaper, radio or television station, or other recognized news medium." The Commission applied the "recognized news medium" language in the political advertisement section of the statute so as to narrow the exclusion in the definition of contributions, which simply excludes all "editorial endorsements." Utilizing that narrower definition, the Commission then concluded that Mr. Carroll's newsletter was not "any newspaper, radio or television station, or other recognized news medium."

The Commission's use of the "recognized news medium" language in one section of the statute, in order to interpret a different section of the statute which does not contain that language, runs afoul of Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (1995), in which our supreme court stated:

When the legislature has used a term, as it has here, in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded.

It would have been a simple matter for the legislature to have worded the exclusions for editorial endorsements identically, but it did not. This differentiation must be assumed to be intentional. Myers v. Hawkins, 362 So.2d 926 (Fla.1978). Our lenity statute, section 775.021(1), provides that "offenses" defined by any Florida statutes must be construed most favorably to the offender if the language is susceptible of different meanings. Accordingly, any ambiguity in the meaning of "editorial endorsement" in this penal statute must be construed in favor of Mr. Pasquale. Whitaker v. Department of Ins., 680 So.2d 528 (Fla. 1st DCA 1996). Applying that principle we agree with Mr. Pasquale that the recommendation in the newsletter was an "editorial endorsement," under section 106.011(3)(a), and that there was no violation in that regard.

As we noted earlier, the ALJ had recommended that Mr. Pasquale be fined $500 for the one violation. Even though the Commission determined that there were two violations, it did not increase the penalty,...