vs.
Respondent.
) Case No. 01-1293
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,
Jeff B. Clark, held a formal hearing in this case on June 28
in Tallahassee, Florida.
Mark Herron, P.A. Post Office Box 1701
For Respondent: Eric M. Lipman, Esquire
Whether Petitioner willfully violated Section 106.021(3), Florida Statutes, which prohibits a candidate from making an
expenditure except through the campaign treasurer on 66 separate occasions, and, if so, what is the appropriate penalty.
On August 17, 2000, the Florida Elections Commission (the "Commission") received a sworn complaint alleging that
Alan Schreiber ("Petitioner") violated Chapter 106, Florida Statutes. An investigation by the Commission staff resulted in a Statement of Findings dated January 5, 2001. On February 13, 2001, the Commission entered an Order of Probable Cause in this matter alleging that Petitioner had willfully violated
Section 106.021(3), Florida Statutes, which prohibits a candidate from making an expenditure except through the campaign treasurer, on 66 separate occasions. The Order of Probable Cause advised Petitioner of his right to a hearing before the Commission or before the Division of Administrative Hearings on the allegations. On March 15, 2001, Petitioner requested a formal administrative hearing before the Division of Administrative Hearings on the allegations contained in the Order of Probable Cause.
On April 4, 2001, the Commission transmitted the case to the Division of Administrative Hearings. On April 16, 2001, the case was set for formal hearing in Fort Lauderdale on June 28 and 29, 2001. After two days of hearing in Fort Lauderdale, on
June 28 and 29, 2001, the case was continued until July 19, 2001, when additional witnesses were heard in Tallahassee.
The Commission presented two witnesses: Travis Wade, an investigator for the Commission, and Connie Evans, Chief of the Bureau of Election Records for the Division of Elections, Department of State, who was qualified as an expert. The Commission introduced nine exhibits, Commission's Exhibits 1-9. Petitioner presented the testimony of 12 witnesses: himself; Stephen Michaelson, his campaign treasurer; David Bogenschutz, an attorney with whom Petitioner consulted about elections law/campaign financing law during the campaign; and nine witnesses who were restauranteurs from whom Petitioner made purchases during the campaign. Petitioner introduced four exhibits, Petitioner's Exhibits 1-4.
A Transcript of the proceedings was filed with the Division of Administrative Hearings on July 23, 2001. The parties requested leave to submit proposed recommended orders 45 days after the Transcript was filed with the Division of Administrative Hearings. This extension of time to file proposed recommended orders was granted. Both parties timely submitted Proposed Recommended Orders.
Based on the testimony, documentary evidence, entire record of the proceedings, and facts admitted to in the Joint
Petitioner, Alan Schreiber, was the incumbent candidate for Public Defender, 17th Judicial Circuit, in the 2000 election. Petitioner was unopposed for reelection when qualifying ended on July 21, 2000. Petitioner is an experienced politician serving his seventh term as Public Defender.
During the 2000 campaign qualifying period, Petitioner made sixty-six expenditures for which he submitted receipts and received reimbursement from his campaign account. The expenditures for which Petitioner was reimbursed are as follows:
Date Merchant Amount 05-01-00 Andrew's Tallahassee $261.00 04-04-00 Andrew's Tallahassee $225.61 12-13-99 Bar Amici/ Cathode Ray $50.40 10-29-99 Bar at Embassy Suite $51.41 06-30-00 Big Louie's $265.01
06-20-00 Big Louie's $145.72
06-27-00 Bimini Boatyard $64.82
05-31-00 Bimini Boatyard $316.49
05-21-00 Bimini Boatyard $70.08
05-18-00 Bimini Boatyard $43.26
12-08-99 Bimini Boatyard $71.66
10-20-99 | Bimini Boatyard | $47.92 |
05-04-00 | Bravo Italiano | $63.86 |
02-24-00 | Bravo Italiano | $232.43 |
02-15-00 | Bravo Italiano | $52.79 |
01-31-00 | Bravo Italiano | $62.86 |
01-27-00 | Bravo Italiano | $86.83 |
06-19-00 | Café de Paris | $113.34 |
05-24-00 | Café de Paris | $70.04 |
05-16-00 | Café de Paris | $154.99 |
05-12-00 | Café de Paris | $160.94 |
05-06-00 | Café de Paris | $136.11 |
04-13-00 | Café de Paris | $146.65 |
03-18-00 | Café de Paris | $113.09 |
03-04-00 | Café de Paris | $144.47 |
02-23-00 | Café de Paris | $280.10 |
02-07-00 | Café de Paris | $73.27 |
01-17-00 | Café de Paris | $193.51 |
12-27-99 | Café de Paris | $66.47 |
11-29-99 | Café de Paris | $145.60 |
11-26-99 | Café de Paris | $230.51 |
11-24-99 | Café de Paris | $133.57 |
11-15-99 | Café de Paris | $183.97 |
10-31-99 | Café de Paris | $105.68 |
10-22-99 | Café de Paris | $99.43 |
10-19-99 | Café de Paris | $130.76 |
03-31-00 | Café de Paris | $182.64 |
03-15-00 | Costco Wholesale | $140.96 |
12-14-99 | Costco Wholesale | $267.61 |
10-27-99 | Costco Wholesale | $231.02 |
| Costco Wholesale | $256.87 |
05-23-00 | French Quarter | $499.24 |
11-09-99 | French Quarter | $81.25 |
11-09-99 | French Quarter | $85.02 |
06-08-00 | Georgio's Food and Spirits | $193.14 |
05-11-00 | Greek Islands | $89.73 |
06-03-00 | Greek Islands | $75.25 |
01-04-00 | Greek Islands | $70.49 |
10-29-99 | Heavenly Ham | $349.66 |
03-22-00 | Houston's | $75.54 |
10-28-99 | Mayhue's Liquors | $70.02 |
06-14-00 | Mezzanot | $102.02 |
12-01-99 | Padrino's Restaurant | $61.21 |
03-17-00 | Publix | $235.32 |
12-16-99 | Publix | $235.32 |
10-29-99 | Publix | $212.00 |
| Publix | $149.41 |
05-07-00 Restaurante Botin $146.39
01-04-00 Sage $79.85
12-28-99 Sage $107.89
10-29-99 Salute-Embassy Suites $211.26 03-01-00 TGI Fridays $47.08
05-25-00 Things Remembered $79.49
05-24-00 Things Remembered $296.69
05-21-00 Things Remembered $386.22
01-03-00 Wolfgang Puck Café $138.87
While Petitioner's personal decision to "wine and dine potential donors, supporters and campaign volunteers" at upscale restaurants may have been the genesis of the complaint that caused the Commission's investigation, no evidence was offered that suggested this to be an inappropriate expenditure of campaign funds.
Sixteen checks were written by the campaign treasurer from the campaign account to Petitioner to reimburse him for the above expenditures. The campaign treasurer acknowledged that he had misdated one of the sixteen checks.
Each check was written on the campaign accounts, was dated, was made payable to Petitioner, and each check listed that the purpose of the expenditure was to reimburse for non- specific campaign expense(s) as follows:
Date Check No. Purpose Amount
10-29-99 1003 Reimb.-Campaign party
expenses
11-02-99 1004 Reimb.-misc. campaign
lunches
11-16-99 1005 Reimb.-misc. campaign
lunches
$968.38
$536.68
$350.24
11-30-99 1006 Reimb.-misc. campaign
dinners
01-06-00 1008 Reimb.-camp. party
expenses
$509.68
$502.93
01-07-00 1009 Reimb.-misc. camp. dinners $496.50
03-03-00 1015 Reimb.-misc. camp. dinners $566.81
04-04-00 1019 Reimb.-camp. meeting
expenses
$565.32
04-11-00 1020 Reimb.-camp. party exp. $376.28
04-27-00 1021 Reimb.-misc. camp. dinners $799.23
5-16-00 1023 Reimb.-misc. camp. dinners $679.69
5-18-00 1024 Reimb.- misc. camp.
lunches
$462.58
5-22-00 1025 Reimb.-novelty items $368.22
5-24-00 1051 Reimb.-misc. camp. lunches $612.58
5-26-16 1054 Reimb.-camp. novelty items $376.16
06-09-00 1055 Reimb.-camp. meals/lunches $386.53
Each of the above-noted reimbursements to Petitioner was listed as an expenditure on Petitioner's campaign
treasurer's reports filed with the Division of Elections as
follows:
Date |
Name and Address of |
Purpose |
Amount |
| Person Receiving Reimbursement |
|
|
10-29-99 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement for campaign party expenses | $968.38 |
11-02-99 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign lunches | $536.68 |
11-16-99 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign lunches | $320.24 |
11-30-99 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign dinners | $509.68 |
01-06-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement for campaign party expenses | $502.93 |
01-07-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign dinners | $496.50 |
03-03-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign dinners | $566.81 |
04-04-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement campaign meeting expenses | $565.32 |
04-11-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement for campaign party expenses | $376.28 |
04-27-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign dinners | $799.23 |
05-16-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign dinners | $697.69 |
05-18-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign lunches | $462.58 |
05-22-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement campaign novelty items | $386.22 |
05-24-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign lunches | $612.58 |
05-26-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign novelty dinners | $376.16 |
06-09-00 | Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 | Reimbursement misc. campaign lunches | $386.53 |
While the campaign treasurer's report accurately reports reimbursements to Petitioner, because the reimbursements are non-specific and aggregated, it is impossible to determine the actual expense for which reimbursement is made.
Stephen Michaelson served as the campaign treasurer for Petitioner's 2000 reelection campaign and had served as deputy treasurer of Petitioner's 1996 campaign. Mr. Michaelson has served a number of candidates in a similar fashion.
Prior to filing papers to open the 2000 reelection campaign account, Mr. Michaelson and Petitioner discussed whether it was permissible under Florida law for a candidate to be reimbursed from his campaign account for legitimate,
campaign-related expenditures made by him personally in the course of the campaign. Petitioner had experienced difficulty writing campaign checks at restaurants during the 1996 campaign.
After the 1996 campaign, Mr. Michaelson had researched the issue and informed Petitioner that he had discovered a "reimbursement statute." Mr. Michaelson also found a 1994 Division of Elections opinion that he believed "to be right on all fours," i.e., the opinion dealt specifically with the issue.
The 1994 Division of Elections opinion [DE 94-07] referred to by Mr. Michaelson provides, in pertinent part, as follows:
It is also permissible for a candidate to make a purchase with his own personal check or currency if the candidate intends to seek reimbursement from his campaign. However, the purchase does not become a campaign expenditure until such time as the reimbursement is made by campaign check or petty cash through the candidate's campaign treasurer.
In 1999, prior to opening his campaign account, Petitioner and Mr. Michaelson again discussed the "reimbursement issue." Mr. Michaelson checked Chapter 106, Florida Statutes, that had been in effect when the 1994 Division of Elections opinion [DE 94-07] had been issued and noted no changes in the statute. In addition, he did a computer search on Florida Statutes Annotated of District and Supreme Court cases and found nothing dealing with the subject that, in his opinion, would
warrant a change in the Division of Elections opinion. He checked the Division of Elections website to see if the 1994 opinion was still there and concluded that it was. He did a computer check to see if there were any subsequent Division of Elections opinions that referred to expenditures; finding none, he concluded that the 1994 opinion was still in effect. Based on his review, he advised Petitioner that Petitioner could seek reimbursement from the campaign account for legitimate campaign expenditures that he paid with personal funds.
Mr. Michaelson has been a campaign treasurer or deputy campaign treasurer on seven occasions, has, himself, been a candidate, is a lawyer who has practiced criminal defense law for 23 years, and, during his testimony at this formal hearing, demonstrated competency and understanding of the Florida election law/campaign financing law. He gave Petitioner advice on Florida election law/campaign financing law knowing that Petitioner would rely on his advice. Petitioner's reliance on Mr. Micahelson's advice was warranted.
In the same general time period during which he opened his reelection campaign account, Petitioner spoke to David Bogenschutz, an attorney in Fort Lauderdale, and asked whether a candidate could incur campaign expenses and then seek reimbursement from his campaign account. Mr. Bogenschutz is a lawyer who has known Petitioner since 1971, whose practice is
devoted largely to criminal defense, who had previously advised and represented candidates and public officials in proceedings related to the Florida's election law/campaign financing law, had himself been a candidate, and was believed by Petitioner to be knowledgeable regarding Florida election law/campaign financing law. While Mr. Bogenschutz was reluctant to acknowledge that he was an "expert" in Florida election law, his testimony at this formal hearing demonstrated a satisfactory working knowledge of Florida election law/campaign financing law; it was appropriate for Petitioner to seek his counsel and to be guided by his advice. Mr. Boganschutz advised Petitioner that he saw nothing wrong with his reimbursing himself from his campaign treasury for authorized campaign expenses. He further advised that he would research the matter and advise if he saw anything wrong.
Mr. Boganschutz reviewed Section 106.021(3) and Subsection 106.07(4)(a)7, Florida Statutes, and Florida Statutes Annotated. He concluded that Subsection 106.07(4)(a)7, Florida Statutes, permitted a candidate to be reimbursed for authorized campaign expenditures from the campaign account and so advised Petitioner. In giving his advise, he did not review Division of Elections Opinion DE 94-07 or a later opinion, DE 97-06, because, while other Division of Elections opinions are found in Florida Statutes Annotated, neither of the referenced opinions
is listed in Florida Statutes Annotated. In addition, he felt that the statute regarding reimbursement was so clear that there was no need to do further research.
In addition to his discussions with Mr. Michaelson and Mr Bogenschutz, Petitioner conducted his own research and concluded that it was appropriate to pay vendors personally for campaign-related expenses and then be reimbursed from his campaign account for those campaign-related expenses.
The qualifying period ended on July 21, 2000, with Petitioner having drawn no opposition. At about the same time, a local newspaper article questioned Petitioner's campaign spending habits and quoted a Division of Elections official saying Petitioner should have been using campaign checks.
After reading the newspaper article, Mr. Michaelson called the local Supervisor of Elections who advised him that Division of Elections opinion DE 94-07 had been rescinded by Division of Elections opinion DE 97-06.
This caused Mr. Michaelson obvious concern; the qualifying period had ended and, for Petitioner, the election was over. It appeared that he had incorrectly advised Petitioner regarding the propriety of paying campaign-related expenses personally and then seeking reimbursement.
Mr. Michaelson then checked his research in an effort to understand how he had missed the rescission of Division of
Elections opinion DE 94-07 and discovered that the Division of Elections website did not indicate that opinion DE 94-07 had been rescinded.
The Division of Elections, Department of State, maintains a website which includes "Formal Opinions of the Division of Elections." This website lists all opinions from 1987-2000. Intermittently throughout the list of opinions is the notation "rescinded" in highlighted type, indicating that the particular opinion has been rescinded. No such notation appeared in reference to opinion DE 94-07.
The 1997 Division of Elections opinion DE 97-06 indicates "Rescinding DE 76-16, 78-2, 88-32, 90-16, and 94-7." This is presented in the same type as the rest of the text and is not highlighted.
Mr. Michaelson then used his web browser to search the Division of Elections website that lists these advisory opinions for the words "expenditure" or "reimbursement," the website did not direct him to the 1997 opinion DE 97-06.
Division of Elections opinion DE 97-06, which, in part, rescinds Division of Elections opinion DE 94-07, provides in pertinent part, as follows:
We held that candidates could make unlimited purchases by personal check as long as they intended for such expenditures to be reported as in-kind contributions. The opinion also stated that the "candidate
cannot make such purchases as a campaign expenditure except by means of a campaign check . . . made through the candidate's campaign treasurer." This reasoning has resulted in some confusion as to when and under what circumstances a campaign expenditure or in-kind contribution occurs. Therefore, we rescind DE 94-07. Except for petty cash expenditures allowed under section 106.12, Florida statutes (1995), the only way that a candidate may make a campaign expenditure is by means of bank check drawn on the primary campaign depository, pursuant to section 106.11(1), Florida Statutes (1995). Having said this, we recognize the applicability of section 106.07(4)(a)7, Florida Statutes (1995), which requires that candidates report any reimbursements of authorized expenses from the campaign accounts to themselves.
We believe that the purpose of this provision is to cover rare occurrences where the campaign must make an expenditure, but the campaign check book is not available.
Such a situation could occur when a bill must be paid and the campaign has not received its first order of checks from the bank, or where, during the course of campaign travel, tolls or other miscellaneous expenses must be paid in cash and the candidate has failed to take the money out of his petty cash fund for such purposes.
During the 2000 campaign, Mr. Michaelson maintained possession of the campaign checkbook which was usually kept at his home. On occasion, he would have one or two campaign checks on his person. If Petitioner asked for a campaign check, and Mr. Michaelson had one on his person, he would give it to Petitioner. On occasion, Petitioner would return a campaign
check to Mr. Michaelson, indicating that the check was not accepted by a particular vendor.
Most of the reimbursements at issue are a result of Petitioner's not having a campaign check with him at the time of a transaction or the vendor's unwillingness to accept a check or campaign check. In most instances the transaction involved purchases by Petitioner at restaurants.
TGI Friday's located in Plantation, Florida, does not accept checks. Petitioner made one campaign-related purchase at TGI Friday's for which he was reimbursed from the campaign account.
Bimini Boatyard does not generally permit patrons to pay with checks, although exceptions have been made. Petitioner made six campaign related-purchases at Bimini Boatyard for which he was reimbursed from the campaign account. During his 1996 campaign, Petitioner wrote 15 checks directly to Bimini Boatyard for campaign expenditures from the campaign account.
Café de Paris and French Quarter have a policy of not accepting checks except when personally approved by the owner or for a special party. The owner indicated he would not accept a campaign check. Petitioner made 20 campaign related-purchases at Café de Paris and three campaign-related purchases at French Quarter for which he was reimbursed from the campaign account.
The Sage Restaurant accepts only cash, MasterCard and Visa from restaurant patrons; checks are accepted for catering. The owner opined that had Petitioner called ahead and advised that campaign laws required him to pay by campaign check, she would accept that form of payment. Petitioner made two campaign-related purchases at Sage Restaurant for which he was reimbursed from the campaign account.
Bar Amici and Cathode Ray do not accept checks; however, if a candidate advised that the law required payment by campaign check, a check would be reluctantly accepted. Petitioner made one campaign-related purchase at Bar Amici and Cathode Ray for which he was reimbursed from the campaign account.
Greek Island Taverna does not accept checks.
Petitioner sought reimbursement for three campaign-related expenditures at Greek Island Taverna for which he was reimbursed from the campaign account.
Padrino's Restaurant does not accept checks. The owner, who is seldom at the restaurant, indicated that he would accept Petitioner's check. Petitioner made one campaign-related purchase at the Padrino's Restaurant for which he was reimbursed from the campaign account.
Andrew's, a Tallahassee restaurant, does not accept checks from restaurant patrons. The manager opined that, if
prior arrangements were made, a campaign check might possibly be accepted, but an out-of-town campaign check made it more problematic. Petitioner made two campaign-related expenditures at Andrew's for which he was reimbursed from the campaign account.
Connie Evans, Chief, Bureau of Election Records, Division of Elections, Department of State, who has been employed by Division of Elections for 22 years and a bureau chief for five years, was qualified as an expert witness "in the area of Chapter 106 of Florida Statutes," without objection.
She opined that Chapter 106, Florida Statutes, requires full disclosure of all contributions and expenditures for the public benefit.
Ms. Evans further opined that Division of Elections advisory opinions are only binding on the candidate or organization who sought the opinion.
Ms. Evans further opined that the Division of Elections, in applying Division of Elections opinion DE 97-06, considers that it is appropriate for a candidate to seek reimbursement for personal payment of a campaign-related expense at a restaurant when the restaurant refuses to take a check, but that the candidate should not return to the same restaurant knowing that the restaurant will not accept a campaign check in
payment. She acknowledged that there is no statutory authority in Chapter 106, Florida Statutes, for this opinion.
Ms. Evans further acknowledged that Division of Elections opinion DE 97-06 refers to Subsection 106.07(4)(a)(7), Florida Statutes (which allows reimbursement for campaign- related expenses), and that both DE 97-06 and DE 94-07 advise that it is permissible for candidate to reimburse himself for campaign-related expenses.
Ms. Evans opined that the Division of Elections website should have indicated that Division of Elections opinion DE 94-07 had been rescinded in bold type, as is done with the other rescinded opinions.
Ms. Evans further opined that, if a candidate were to reimburse himself or another person for authorized campaign- related expenses, it is the position of the Division of Elections that the reimbursement must be made by a campaign check, must be reported on the campaign treasurer's report as an expenditure, and the amount, date, and the purpose of the expenditure must be reported.
CONCLUSIONS OF LAW
Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Sections 106.25(5), 120.569 and 120.5(1), Florida Statutes.
The Commission in its Order of Probable Cause asserts that "Respondent violated Section 106.021(3), Florida Statutes, prohibiting a candidate from making an expenditure except through the campaign treasurer on 66 occasions."
Section 106.021(3), Florida Statutes, reads as
follows:
(3) Except for independent expenditures, no contribution or expenditure, including contributions or expenditures of a candidate or of the candidate's family, shall be directly or indirectly made or received in furtherance of the candidacy of any person for nomination or election to political office in the state or on behalf of any political committee except through the duly appointed campaign treasurer of the candidate or political committee. However, expenditures may be made directly by any political committee or political party regulated by chapter 103 for obtaining time, space, or services in or by any communications medium for the purpose of jointly endorsing three or more candidates, and any such expenditure shall not be considered a contribution or expenditure to or on behalf of any such candidates for the purposes of this chapter.
Section 106.265(1), Florida Statutes, reads as follows:
The commission 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. In determining the amount of such civil penalties, the commission shall consider, among other mitigating and aggravating circumstances:
The gravity of the act or omission;
Any previous history of similar acts or omissions;
The appropriateness of such penalty to the financial resources of the person, political committee, committee of continuous existence, or political party; and
Whether the person, political committee, committee of continuous existence, or political party has shown good faith in attempting to comply with the provisions of this chapter or chapter 104.
Section 106.25(3), Florida Statutes, reads, in pertinent part, as follows: "[A] violation shall mean the willful performance of an act prohibited by this chapter . . . or the willful failure to perform an act required by this chapter . . ."
Section 106.37, Florida Statutes, reads as follows:
A person willfully violates a provision of this chapter if the person commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited under this chapter, or does not commit an act while knowing that, or showing reckless disregard for whether, the act is required under this chapter. A person knows that an act is prohibited or required if the person is aware of the provision of this chapter which prohibits or requires the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required.
A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the
act would constitute a violation of this chapter.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Banking and Finance v. Osborne Stern and Company, 670. So. 2d 932, 934 (Fla. 1996);
Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
While Section 106.265(1), Florida Statutes, authorizes a $1000 civil penalty per "count," the Order of Probable Cause, which is the charging document in this case, does not contain "counts." Instead, it contains a single paragraph which alleges that there is probable cause to believe that Petitioner violated Section 106.021(3), Florida Statutes, on 66 separate occasions. Therefore, Petitioner faces a potential civil penalty of $66,000 if the Commission proves its entire case. In addition to the civil penalty, the ruinous effect of a determination that a candidate has violated the Florida election law/campaign financing law has on an individual's reputation for personal integrity makes the penalty in this case punitive and penal in nature.
Section 120.57(1)(j), Florida Statutes, reads as follows:
(j) Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.
In addition, existing case law establishes that the Commission has the burden of proving by clear and convincing evidence that Petitioner willfully violated Section 106.021(3), Florida Statutes. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997); Department of Banking and Finance v.
Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As noted by the Florida Supreme Court:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify 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 is produces in mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Subsection 106.07(4)(a)7, Florida Statutes, reads as follows:
The full name and address of each person to whom an expenditure for personal services, salary, or reimbursement for authorized expenses has been made and which is not
otherwise reported, including the amount, date, and purpose of such expenditure.
However, expenditures made from the petty cash fund provided for in s. 106.12 need not be reported individually.
Petitioner made 66 purchases during his reelection campaign with personal funds, most of which were at restaurants, for which he was reimbursed from his campaign treasury. The reimbursements were made by 16 checks that were drawn on the campaign account. The reimbursements were reported in accordance with Subsection 106.07(4)(a)7, Florida Statutes.
There is an apparent conflict between Section 106.021(3), Florida Statutes, "no . . . expenditure . . . shall be . . . made . . . except through the duly appointed campaign treasurer," and Subsection 106.07(4)(a)7, Florida Statutes, "[E]ach report required by this section shall contain: [T]he full name . . . of each person to whom an expenditure for . . . reimbursement for authorized expenses has been made and which is not otherwise reported."
It is understandable that Petitioner and his advisors, in their examination of Chapter 106, Florida Statutes, deemed it appropriate to make campaign-related expenditures and then seek reimbursement from the campaign account; this is exactly what the Division of Elections opined appropriate as it advised in Division of Elections opinion DE 94-07.
While the Division of Elections announced that it had
changed its opinion in DE 97-06, which repealed DE 94-07, there was no statutory change to support the change of opinion. In addition, the Division of Elections website did not advise website users that DE 94-07 had been "rescinded" as it did for other rescinded opinions. Further, Florida Statutes Annotated did not include these particular opinions in the annotation of the referable statute.
Section 106.23(2), Florida Statutes, reads, in pertinent part, as follows: "The Division of Elections shall provide advisory opinions when requested by any . . . candidate
. . . relating to any provisions or possible violations of Florida election laws . . . The opinion . . . shall be binding on any person who sought the opinion . . ." Petitioner did not request either opinion referenced herein and, therefore, is not bound by either opinion.
It is well settled that a statute should be construed in its entirety and as a harmonious whole. Further, where two laws are in conflict, courts should adopt an interpretation that harmonizes the laws, for the Legislature is presumed to have intended that both laws are to operate coextensively and have the fullest possible effect. Palm Beach County Canvassing Board
v. Harris, 772 So. 2d 1273 (Fla. 2000); T.R. v. State, 677 So.
2d 270 (Fla. 1996); Sun Insurance Office, Ltd. v. Clay, 133 So.
2d 735 (Fla. 1961).
Viewed coextensively, Section 106.021(3) and Subsection 106.07(4)(a)7, Florida Statutes, allow a candidate to pay for campaign-related purchases with personal funds and to be reimbursed from the campaign treasury as long as the reimbursement is appropriately reported in the campaign treasurer's report. This was done in the instant case; there was no violation.
In addition, there is no demonstration that Petitioner's conduct was "willful" as defined in Section 106.37, Florida Statutes. Assuming, arguendo, that there was a clear statutory prohibition against the conduct complained of, Petitioner's concern for compliance with the campaign financing laws as demonstrated by his own research and his reliance on the well-reasoned opinions of two competent advisors obviates the suggestion of reckless disregard or knowledge.
Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Alan Schreiber, did not violate the Florida Campaign Financing Law as alleged and dismissing the Order of Probable Cause.
DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida.
JEFF B. CLARK
Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2001.
Mark Herron, Esquire Mark Herron, P.A. Post Office Box 1701
Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002
Barbara M. Linthicum, Executive Director Florida Elections Commission
Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
15 days from the date of this Recommended Order. Any exceptions
to this Recommended Order should be filed with the agency that will issue the final order in this case.
