ALJDEC

01-200091686-AAG · Office of the Attorney General · 2001-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 1, 2001. APPEARANCES: Caleb Soptelean appeared personally and as Chairman of the Soptelean 2000 campaign committee. The Arizona Attorney General’s Office was represented by Assistant Attorney General Joseph A. Kanefield. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. This matter came on for hearing the appeal of the Order Requiring Compliance, Notice of Civil Penalties and Hearing issued on June 29, 2001 by the Arizona Attorney General’s Office to Caleb Soptelean and Soptelean 2000. 2. Caleb Soptelean was a candidate in the 2000 District 1 Republican primary election for the Arizona House of Representatives. That primary election was held on September 12, 2000. 3. Soptelean 2000 was candidate Caleb Soptelean’s campaign committee. Soptelean 2000 filed a statement of organization with the Arizona Secretary of State naming Caleb Soptelean as its committee chairman and Burr Marley as its committee treasurer. 4. On or about September 4, 2000, Soptelean 2000 entered into a written Service Contract/Invoice with Automated Telecommunications Systems, Inc. (“ATS”) for up to 40,000 pre-recorded automated telephone calls to be sent to voters in the 2000 District 1 Republican primary election. 5. The said written Service Contract/Invoice was executed on behalf of Soptelean 2000 by Caleb Soptelean. 6. Soptelean paid ATS the total contract price of $3,000.00. 7. Pursuant to the terms of the Service Agreement/Invoice, Caleb Soptelean was to record messages up to 30 seconds in length. 8. Mr. Soptelean pre-recorded three telephone messages which were which were later sent by ATS via the automated telephone messaging system to District 1 Republican voters between the hours of 9:00 a.m. to 9:00 p.m. on September 5, 8 and 11, 2000. 9. Mr. Soptelean personally read the following script for the pre-recorded message played on September 5, 2000 to District 1 Republican primary voters:

“Hello, this is Caleb Soptelean…candidate for Arizona House of Representatives. My opponent, Linda Bender[1] (sic), likes to pass herself off as a conservative Republican. However, she has the worst record on spending your tax dollars of any Republican in the state house. Most of the Democrats do a better job. That’s why she is known as…Linda Bender, Big Spender. For a true conservative, vote for Caleb Soptelean on September 12.”

10. Mr. Soptelean personally read the following second script for the pre- recorded message played on September 8, 2001:

“Hello…this is Caleb Soptelean, Candidate for the Arizona House of Representatives. My opponent, Linda Bender, claims to support your rights of gun ownership. Not true - in the last session, Liberal Linda voted the wrong way on every major piece of gun legislation. For a true conservative - and one who will honor your personal freedoms - vote for Caleb Soptelean on September 12.”

11. Mr. Soptelean personally read the third script for the pre-recorded message played on September 11, 2000. The text of the third script was not introduced into evidence. However, it is undisputed that the third script failed to disclose who had paid for that message. 12. A telephone system is determined to be a medium of communication. A telephone is an instrumentality or apparatus that transmits and receives messages, signals and sounds by a network of wire, electromagnetic or other similar means. 13. The term “telecommunications system” is found to include a telephone system. 14. ATS is found to have “broadcasted” the three pre-recorded Soptelean campaign messages to District 1 Republican voters using an automated telecommunications system. 15. The three messages recorded by Mr. Soptelean and subsequently broadcasted via an automated telephone messaging system by ATS to District 1 Republican primary voters are deemed to be advertisements advocating the election of Mr. Soptelean and the defeat of Ms. Binder. 16. Neither of the three messages recorded by Mr. Soptelean stated who had paid for the telephone advertisements. 17. The three pre-recorded Soptelean campaign messages advocating his election sent by ATS to District 1 Republican primary voters were statutorily required to contain oral disclosures identifying who had paid for those advertisements. 18. Pursuant to the provisions of A.R.S.§§ 16-912(E) and 16-924, the Arizona Attorney General’s Office issued an Order Requiring Compliance, Notice of Civil Penalties and Hearing dated June 29, 2001. The Attorney General’s Office assessed Caleb Soptelean and Soptelean 2000 a civil penalty in the total amount of $9,000.00, which is three times the amount spent on the automated telephone messages recorded and played without the “paid for “ language. 19. Mr. Soptelean and Soptelean 2000 timely contested the assessment of the civil penalty by the Attorney General’s Office and requested an administrative hearing. 20. Mr. Soptelean did not win the 2000 District 1 Republican primary election. 21. On or about October 11, 2000, Caleb Soptelean, as Chairman, and Burr Marley, as Treasurer, filed a Political Committee Termination Statement for Soptelean 2000 with the Arizona Secretary of State.

CONCLUSIONS OF LAW

1. Pursuant to the provisions of A.R.S. § 16-924, the Arizona Attorney General’s Office has jurisdiction over this subject matter. 2. Mr. Soptelean was a “candidate”, as defined in A.R.S. § 16-901(2), in the 2000 District 1 Republican primary. 3. Soptelean 2000 was Mr. Soptelean’s “candidate’s campaign committee” as defined in A.R.S. § 16-901(3). 4. The three pre-recorded campaign messages sent by ATS to District 1 Republican primary voters were “advertisements” within the meaning of A.R.S. § 16-901(17). 5. The several separate uses of the automated telephone messaging system by Soptelean 2000 to deliver pre-recorded messages advocating the election of Mr. Soptelean constitute advertisements which had been “placed in some medium of communication for the purpose of influencing the outcome of an election” as defined in A.R.S. § 16-901(17). 6. Mr. Soptelean and Soptelean 2000 violated the provision of A.R.S. § 16- 912(A)(1) by sending campaign messages using the automated telephone messaging system to advocate the election of Mr. Soptelean without identifying who had paid for those campaign advertisements. 7. Pursuant to A.R.S. § 16-912(D), Mr. Soptelean and Soptelean 2000 were required to give the required disclosure statement orally on the three messages sent to prospective voters using the automated telephone messaging system. Mr. Soptelean’s position that the Arizona Legislature did not intend such a system to be included within the meaning of the term “telecommunications system” is unpersuasive. At the time the Arizona Legislature enacted A.R.S. § 16-912, the use of automated telephone messaging systems was in its infancy. The Legislature chose to include the term “telecommunications systems” rather than more specific terminology when it enacted A.R.S. § 16-912. The Arizona Supreme Court has held that “(t)he intent of the Legislature can only be determined by the language used, aided by canons and rules of construction founded upon reason and experience.” Golder v. Department of Revenue, 123 Ariz. 260, 265, 599 P.2d. 216, 221 (1979). The language contained in A.R.S. § 16-912 is clear and unambiguous. The automated telephone messaging system used by Mr. Soptelean and Soptelean 2000 transmitted campaign advertising to voters on three separate dates using a telecommunications system.[2] A.R.S. § 16-912(C) provides for exceptions to the disclosure requirements. The use of an automated telephone messaging system to broadcast campaign messages advocating the election or defeat of candidates to prospective voters clearly does not fit within those exceptions. 8. Pursuant to the provisions of A.R.S. § 16-912(E), a violator of the provisions of A.R.S. § 16-912 is subject to a civil penalty in the amount of three times the cost of offending advertisement, which is to be imposed pursuant to A.R.S. § 16-924. Having determined that Mr. Soptelean and Soptelean 2000 had violated the provisions of A.R.S. § 16-912, the Attorney General’s Office did not act arbitrarily or capriciously when it imposed a civil penalty in the amount of $9,000.00 against Mr. Soptelean and Soptelean 2000 for the three violations. 9. A.R.S. § 16-924(A) does provide that the Attorney General “may serve on the person an order requiring compliance” with A.R.S. § 16-916. However in this case no corrective action by Mr. Soptelean or Soptelean 2000 was possible because the three campaign messages had already been sent by the automated telephone messaging system and the election was over for Mr. Soptelean on September 12, 2000. 10. The evidence of record supports upholding and affirming the Attorney General Office’s issuance of a civil penalty in the total amount of $9,000.00 against Mr. Soptelean and Soptelean 2000 for the three violations of A.R.S. § 16-916(A)(1).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the appeal in this matter be dismissed, and that the Attorney General Office’s issuance of a civil penalty in the total amount of $9,000.00 against Mr. Soptelean and Soptelean 2000 be upheld and affirmed. Done this day, October 22, 2001.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Janet Napolitano, Esq. Attorney General Office of the Attorney General ATTN: Jan McLemore 1275 West Washington Phoenix, AZ 85007

By ___________________________

----------------------- [1] Incumbent Linda Binder was a Republican candidate in the District 1 primary election. [2] The company hired to create and broadcast the three telephonic campaign messages, Automated Telecommunications Systems, Inc., uses the term “telecommunications” in its corporate name.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826