Florida Democrat Lawmakers Could Get Five Years in Prison for Lying About Residence

By: Eric Giunta | Posted: July 3, 2013 3:55 AM

Perry Thurston, Marie Sachs, and Joseph Gibbons

Perry Thurston, Marie Sachs, and Joseph Gibbons / photo credit: myfloridahouse.gov

Almost a half-dozen Democratic state legislators from South Florida are being accused of not residing in the districts they represent. The offense is not only politically unpopular, it could get them impeached, and even land them in prison for up to five years.

What are the allegations?

A recent investigative news report by Miami's Local 10 News uncovered evidence that Sen. Maria Sachs of Delray Beach, an attorney, maintains a permanent home in Boca Raton while claiming to “reside” in Fort Lauderdale, which is within her district.

And that's not all. Saint Petersblog reports:

“House Minority Leader Perry Thurston claims to live with a convicted felon in a small, rundown Lauderhill home, rather than with his wife and family in their longtime two-story home in an upscale Plantation neighborhood. Rep. Joe Gibbons, who represents Hallandale Beach, appears to live in Jacksonville with his wife and family while renting out a small condo in his House district. Then there’s state Rep. Jared Moskowitz who won a seat in a Coral Springs district and did so by renting an apartment a few miles away from his Parkland Golf and Country Club estate, where his wife continues to live. And as it turns out -- so does he. Rep. Hazelle Rogers, the same. She rents a condo in her district, a few miles from where she actually lives.”

What laws are these legislators supposedly violating?

The Florida Constitution explicitly requires that “[e]ach legislator shall be . . . a[] resident of the district from which elected,” and Section 104.011 of the Florida Statutes makes it a third-degree felony to “swear[] or affirm[] falsely to any oath or affirmation ... in connection with or arising out of voting or elections.”

When filing to run for office, every would-be legislator swears an oath that he is “qualified under the Constitution and the Laws of Florida to hold the office to which [he] desire[s] to be nominated or elected,” and if elected must additionally swear that he is “duly qualified to hold office under the Constitution of the state.”

What is a “residence”? Can legislators have more than one?

One helpful way to examine this question is to look at the way the Florida courts have traditionally applied similar language to judges, who the Florida Constitution says must also “reside” within the territorial jurisdiction of whatever court they serve on. In 2000, the Florida 4th District Court of Appeal, in the case Miller v. Gross, held that, for constitutional purposes, “residence” means the same as “domicile,” a place where someone resides with the intention of living there indefinitely. In both federal and state law, a person can only ever have one domicile at any given moment.

In various legal contexts one's “domicile” is demonstrated by considering any number of factors, including the address listed on a driver's license, which property one claims a homestead exemption on, where one spends most of one's time residing, and where one has his newspaper regularly delivered to.

At what point in the elections process does a would-be legislator have to reside within his district?

The Constitution says that “legislators” (not “candidates”) have to reside in the district from where they are “elected,” which seems to suggest that residence only has to commence from the moment of election, when they actually become elected legislators.

What can happen to a legislator who violates the Constitution and swears falsely to their residence?

Swearing falsely on an elections-related oath is a third-degree felony, punishable by up to five years in prison and/or a fine of up to $5,000. It is up to the local prosecutor to decide whether to prosecute such a crime, or any other.

Legislators who are attorneys can also face disciplinary action by the Florida Bar for violating any law. Penalties can range from anything between censure and disbarment.

Can legislators who lie about residency be removed from office?

Yes, but only by the legislative body to which the offending members belong. Each chamber of the Legislature has its own internal rules and procedures for dealing with allegations of misconduct. It is the job of each chamber's Rules Committee to investigate allegations that members are misbehaving. If that committee finds “probable cause” that an offense has been committed, it's up to the House speaker or the Senate president to appoint a special committee to investigate the charge. If the charge is proven, each chamber votes on what the punishment should be.

The House rules provide that the speaker may (but does not have to) remove a legislator from office on his own if that legislator is convicted of a felony.

What actions have been taken so far against these South Florida Democrats?

One Matthew Feiler, a Broward voter, has filed a complaint against Sachs with the State Commission on Ethics, but don't expect it to go anywhere. Without discussing any specific case, a spokeswoman with the commission confirmed to Sunshine State News that the commission has no jurisdiction whatsoever over this question. If Mr. Feiler's out for blood, he should file his complaint with the Senate Rules Committee, the local state attorney's office, and the Florida Bar.

Disbarred attorney Jack Thompson has filed a complaint against Thurston with the Florida Bar. Thurston, an attorney, has no disciplinary history.

Eric Giunta is a member of the Florida Bar. Reach him at egiunta@sunshinestatenews.com or at 954-235-9116.

Comments (22)

Charles Foy
3:10PM JUL 7TH 2013
After reading I get the impression that no one cares. Probably because actions like this are no stranger to the Democratic Party. Their attitude is: anything goes!
11:00PM JUL 7TH 2013
Ah, far right politics of the continued "Big Lie" . . . . faux news, as can be seen below if you would/could only read . . . but then facts don't matter to the far right, do they . . . whether they involve science, women's bodies, election polls, voter suppression, minorities, or even election requirements . . . . . just paint yourself . . .

Pathetic . . . .
Interested Citizen
11:15AM JUL 4TH 2013
Eric, you seemed to have attempted balanced reporting in your piece. I'm sure you've found the matter of residency and Florida elected officials a rather difficult one to research and understand. Since I have a good feel for this area of the law, I'm going to attempt to help you continue your balanced piece.

First, we have to move this conversation on Florida elected officials on even ground, in that multiple elected D's and R's in the state are in this situation of questionable and somewhat unclear requirements to qualify and hold elective office. Second, in most if not all cases, residency accusations are raised in a contentious political context. In other words, it is used as a political device.

To take this in bite sizes, residency is defined in the state of Florida as "where you say it is" AND "the intention of making ones permanent residence." F.S. 196.015 clearly identifies residency as a factual determination of documents (voters registration, vehicle registration, mailing address, etc.). One other key determination in 196.015 is where you work. Next, Blacks Law Dictionary helps to specifically identify operative concepts around residency, including domicile. Residency is defined in Blacks law as being "an official one." This would support F.S. 196.015, where the term "official" and "factual" come together.

Your citation of Miller vs. Gross while correct, it is taken a bit out of context with respect to Homestead Exemption. While the Homestead test helps to determine residency (et.al F.S. 196.015), the Homestead Exemption itself is not a test in determining the residency requirement in holding elective office. On the subject on qualification, the Florida Supreme Court in Miller vs. Mendez (No. SC00-2096) ended in the majority ruling with the interpretation of residency as "at the time of assuming office."

You will find multiple interpretations under the Florida Attorney Generals Office on residency and elective office, including AGO 75-113 pertaining to municipal office, AGO 88-12, length of residency prerequisite for commissioner and AGO 2005-67, residency requirements for candidates.

Of all the recent review of residency and qualifications for holding elective office, Case No. SC 09-1910 is the most telling. The Nineteenth Statewide Grand Jury Study of Public Corruption in Florida and Recommended Solutions. Beginning on pg. 95 of the report, the Grand Jury found the words "resident", "residency" or "resides" are extremely vague and unclear across the state. The recommendations of the Grand Jury were to 1) Have the Legislature provide a grandfather clause to prevent presently seated public officials from being held in violation since the interpretation of the law remains unclear and 2) residency should be further defined by the legislature.

The only body in the state of Florida that has the criminal authority to prosecute is the local state attorney. They are typically hesitant to do so, as most are familiar that the law is unclear and concern themselves with liability for false accusations and subsequent prosecution. Civil prosecution is possible however, the same concern applies with the vagueness of the law as previously described. Lastly, a public official could be censured. It is unlikely an elective body is willing to undertake such steps, unless it has a strong case to do so.

In the end, residency complaints of elective officials in the state of Florida are typically unfounded, with the person seeking office and subsequently elected are in the end found to be meeting the law, since the residency test is not a strong as what the typical voter believes it is and criminal and civil prosecution are not viable approaches to clarify the law. If the public at large is interested in further clarity of residency and resident for elective office, it should make it known to its local and state officials.
10:31PM JUL 3RD 2013
Sigh . . . . more "We got trouble right here in River City" faux news . . . . come wake me up on this issue when a state's attorney actually files criminal charges . . . . so we can then survey corresponding Republican domiciles . . .

Pathetic . . .
8:22PM JUL 3RD 2013
Really REALLY is this news worthy print???
What are you REALLY Afraid of??? Because she is a women or because Maria is working on "real issues" like Veteran Benefits and Property Tax Issues.
We got more important issues to deal with and it is about time people WAKE up and work together on that.
Real American Hero
4:33PM JUL 3RD 2013
And Mitt Romney lived in his son's basement?

C'mon if we are going to prosecute these local officials lets see Mitt in jail.
8:51AM JUL 4TH 2013
how about someone born in another country and lied about his birth certificate to get elected into the white house. does he need to be put in jail or impeached.
10:08AM JUL 4TH 2013
@lee, I guess your white robes are now in style since it is summer.Then again, maybe you were thinking about Ted Cruz.
mickey paulson
4:00PM JUL 3RD 2013
What do you expect? Obama was born in Kenya and "proves" that he was born in the US with a fake birth certificate stating he was born in Hawaii and is African-American (this term was never used until the 1970s, more than ten years after his birth--in 1961, the usual term was either Negro or colored). The legislators have a corrupt, lying model to follow.
10:37PM JUL 3RD 2013
Ah, truthiness and racism raises its ugly head once again in the best Joe Arpaio birther impersonator mode . . . . you, sir, are lying here, as any court suit will demonstrate . . . . and as we don't tolerate those who lie, consider yourself just . . . .

Pathetic . . . .
mickey paulson
4:00PM JUL 3RD 2013
What do you expect? Obama was born in Kenya and "proves" that he was born in the US with a fake birth certificate stating he was born in Hawaii and is African-American (this term was never used until the 1970s, more than ten years after his birth--in 1961, the usual term was either Negro or colored). The legislators have a corrupt, lying model to follow.
Chaz Stevens
11:45PM JUL 6TH 2013
Not true.

Look at the Google Ngram Viewer... Used before then.
9:59AM JUL 5TH 2013
Ditto above . . . apparently not computer literate enough to single entry . . .

Pathetic . . .
2:54PM JUL 3RD 2013
2:39PM JUL 3RD 2013
Several years ago, a Republican county commissioner in Okaloosa County was accused of having falsly claimed to have been living in the disrtrict in which he was elected and held office. You would have thought he had committed mass-murder. People screaming for blood, residents storming with torches, front page news ad nauseum, etc etc ...
2:30PM JUL 3RD 2013
There are plenty of Republicans in the same place that is not their actual residence. In simple terms, Florida Court's and the Legislature have made the residency "requirement" toothless.
Tally insider
9:01AM JUL 3RD 2013
Did you check the rules committee to see if Feiler sent a complaint.
8:58AM JUL 3RD 2013
So, are you saying, at the end of this story, that nothing is likely to happen to any of these violators of the law? Why are politicians, particularly Democrats, always allowed to commit violations, break laws, etc. and get away with it? Don't have a law in the legislative body if it's not going to be enforced! If the leaders of the House and Senate are going to look the other way, then abolish the law. We saw that in North Florida in the last elections....folks filing (democrats) who did not live in the named districts....nothing happened to them during the campaigns or before the elections either when this problem was brought up. I have a condo in Cocoa Beach, but live in North Florida...can I run for office in Brevard County? Just check the property taxes...you can only have one homestead exemption in Florida...is that so difficult to check?
12:20PM JUL 3RD 2013
You can bet they cheat on the homestead exemption claim too.
just a minute
2:00PM JUL 3RD 2013
Actually Thurston did and the property appraiser (a D, Lori Parrish) rejected it in Broward.
6:56AM JUL 3RD 2013
Nothing will happen. Democrats are Teflon coated, only Republicans are forced out of office because of the media's willingness to be biased in news coverage no matter how shameful it looks. There is only an outcry from the media if it is a Republican. That is the way it is, and until the media decides to report the news not shape it, it will remain the same. No Democrat could survive if the media was not biased.
7:46AM JUL 3RD 2013
the biased media has been nothing but a right wing talking point for yrs. media scrutiny exists for all politicians. sometimes it's just the public doesn't care about what the right or left consider to be important.

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