STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM PROCTOR, JR.,
Petitioner,
vs.
FLORIDA ELECTIONS COMMISSION,
Respondent.
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) Case No. 00-4994
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RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Jeff B. Clark, held a final hearing in this case on October 9, 2001, in Tallahassee, Florida.
APPEARANCES
For Petitioner: No appearance¹
For Respondent: David F. Chester, Esquire
Florida Elections Commission
107 West Gaines Street Collins Building, Suite 224
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES
Whether Petitioner, as a candidate for the Leon County Commission, District 1, in the 1998 elections, willfully violated Subsection 106.07(5), Florida Statutes, which prohibits a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false or incomplete, on
13 separate occasions; and Subsection 106.11(3), Florida Statutes, which prohibits a candidate from authorizing any expenses from the primary campaign account without sufficient funds on deposit in the primary campaign account to pay the full amount of the authorized expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses, on five separate occasions.
Whether Petitioner, as a candidate for the Leon County Commission, District 1, in the 1998 elections, knowingly and willfully violated Subsection 106.19(1)(a), Florida Statutes, which prohibits a person from accepting a contribution in excess of $500 for each election, on one occasion; Subsection 106.19(1)(b), Florida Statutes, which prohibits a person or organization from failing to report a contribution required to be reported by Chapter 106, Florida Statutes, on 53 separate occasions; Subsection 106.19(1)(c), Florida Statutes, which prohibits a person or organization from falsely reporting or failing to report information required by Chapter 106, Florida Statutes, on 130 separate occasions; and Subsection 106.19(1)(d), Florida Statutes, which prohibits a person or organization from making or authorizing any expenditure prohibited by Chapter 106, Florida Statutes, on five separate occasions; and, if so, the appropriate penalty.
PRELIMINARY STATEMENT
On March 30, 1999, the Florida Elections Commission (the "Commission") received a Sworn Complaint alleging that Petitioner, William Proctor, Jr., had violated Chapter 106, Florida Statutes. On September 29, 1999, after an investigation by the Commission staff, the Commission staff returned to the Commission a Statement of Findings which recommended finding probable cause to believe Petitioner violated Subsection 106.07(5), Florida Statutes, on 13 occasions; Subsection 106.11(3), Florida Statutes, on six occasions; Subsection 106.19(1)(a), Florida Statutes, on one occasion; Subsection 106.19(1)(b), Florida Statutes, on 56 occasions; Subsection 106.19(1)(c), Florida Statutes, on 131 occasions; and Subsection 106.19(1)(d), Florida Statutes, on seven occasions.
On November 6, 2000, the Commission entered an Order of Probable Cause which incorporated by reference the Sworn Complaint, Report of Investigation, and Statement of Findings in this matter alleging that Petitioner had violated Subsection 106.07(5), Florida Statutes, which prohibits a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false or incomplete, on 13 occasions; Subsection 106.11(3), Florida Statutes, which prohibits a candidate from incurring an expense for the purchase of goods or services without sufficient funds on deposit in the primary
campaign depository to pay the full amount of the authorized expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses, on six occasions; Subsection 106.19(1)(a), Florida Statutes, which prohibits a person from accepting a contribution in excess of $500 for each election, on one occasion; Subsection 106.19(1)(b), Florida Statutes, which prohibits failure of a person or organization to report a contribution required to be reported by Chapter 106, Florida Statutes, on 56 occasions; Subsection 106.19(1)(c), Florida Statutes, which prohibits a person or organization from falsely reporting or failing to report information required by Chapter 106, Florida Statutes, on 131 occasions; and Subsection 106.19(l)(d), Florida Statutes, which prohibits a person from making or authorizing an expenditure prohibited by Subsection 106.11(3), Florida Statutes, or otherwise by Chapter 106, Florida Statutes, on seven occasions.
The Order of Probable Cause advised Petitioner of his entitlement to hearing before the Commission or before the Division of Administrative Hearings on the allegations. On December 5, 2000, Petitioner, through counsel, filed a Petition for Formal Administrative Hearing requesting a formal administrative hearing. On December 11, 2000, the Commission forwarded this matter to Division of Administrative Hearings.
On January 5, 2001, an Order was entered setting this matter for hearing on March 19 and 20, 2001. On March 19, 2001, the hearing was continued on Petitioner's motion. On April 4, 2001, the case was rescheduled for July 9 through 12, 2001. On July 9, 2001, Petitioner appeared for the scheduled hearing and again requested a continuance. The request for continuance was granted, and the case was rescheduled for October 8 through 11, 2001.
On October 4, 2001, an Order was entered establishing trial procedure. Because Petitioner had a pending criminal trial, it was ordered that the formal administrative hearing in this matter was "to begin at 9:00 a.m. on the day following the conclusion of the criminal matter involving Petitioner currently pending in County Court, Leon County, Florida. The undersigned (Administrative Law Judge) is advised by Respondent's counsel that the criminal matter is expected to take two days (October 8 and 9 ); therefore, it is anticipated that the formal administrative hearing will begin at 9:00 a.m., October 10, 2001; however, if the criminal matter is concluded, whether by verdict, settlement, or continuance, on October 8, 9, 10, or 11, 2001, the formal administrative hearing will begin at 9:00 a.m., the following day." Petitioner's criminal trial ended with a verdict on October 8, 2001. Petitioner failed to appear for the
formal administrative hearing which began at 9:00 a.m., on Tuesday, October 9, 2001.
At the hearing, the Commission presented three witnesses: Keith Smith, an investigator for the Commission; Karen Sanders; and Clara C. Rotruck. The Commission also introduced
31 exhibits at the hearing which were received into evidence and numbered R1 through R31. Prior to the close of the hearing, the Commission's attorney requested leave to submit an additional exhibit; that exhibit, R32, was also admitted into evidence. As Petitioner did not appear at the hearing, no witnesses or exhibits were presented on his behalf. Prior to the presentation of its case, the attorney for the Commission announced that the Commission was reducing the number of alleged violations as follows: Subsection 106.11(3), Florida Statutes, six alleged violations reduced to five; Subsection 106.19(1)(b), Florida Statutes, 56 alleged violations reduced to 53; Subsection 106.10(1)(c), Florida Statutes, 131 alleged violations reduced to 130; and Subsection 106.19(1)(d), Florida Statutes, seven alleged violations reduced to five.
The Commission requested 30 days from the filing of the Transcript of Proceedings to file its proposed recommended order.
On October 10, 2001, Mark Herron, Esquire, Mark Herron, P.A., entered a Notice of Appearance on behalf of Petitioner,
who had not been represented since his previous counsel had withdrawn on April 3, 2001.
A Transcript of Proceedings was filed on November 8, 2001; an Excerpt Of Proceedings was filed on November 27, 2001; in addition, a Transcript of the "Final Hearing" of July 9, 2001, was filed on November 5, 2001. On November 29, 2001, an Order was entered extending the time for filing proposed recommended orders to January 4, 2002. Both parties timely filed Proposed Recommended Orders.
FINDINGS OF FACT
Based on the testimony, documentary evidence, entire record of this proceeding, the following Findings of Fact are made:
At the time of the alleged violations, Petitioner was a candidate for re-election to the office for the Leon County Commission, District 1, for the general election in
November 1998. Respondent had won the primary, run-off and general election in 1996. He had been a candidate for election to the office of Leon County Superintendent of Schools in 1992.
Petitioner has a Bachelor of Arts degree from Howard University (1981), a Doctorate of Jurisprudence from Howard University (1984), and has done advanced studies in Theology and Ethics at Boston University School of Theology. He has been employed as a Legal Assistant and Training Specialist by the State of Florida. In addition, he has served as a Staff
Assistant to a United States Senator and a Special Assistant to a Governor of Florida. He serves as an adjunct professor at a local university.
Prior to the alleged violations, Petitioner signed a statement indicating that he had a copy of Chapter 106, Florida Statutes, and that he had read and understood same.
Petitioner is a highly educated, sophisticated individual and an experienced candidate.
The charging document in this case is the Order Of Probable Cause, which set out in unnumbered paragraphs, each statutory provision that Petitioner allegedly violated and the number of times of each alleged statutory violation. Attached to the Order of Probable Cause, and incorporated in the Order of Probable Cause by reference, is a Statement of Findings which lists with specificity each alleged violation.
Specifically, it alleged:
Probable cause to believe that the Respondent[²] violated Section 106.07(5), Florida Statutes, prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete, on 13 occasions;
Probable cause to believe that the Respondent violated Section 106.11(3), Florida Statutes, prohibiting a candidate from authorizing any expenses from the primary campaign account without sufficient funds on deposit in the campaign account to pay the full amount of the authorized
expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses, on six occasions;
Probable cause to believe that the Respondent violated Section 106.19(1)(a), Florida Statutes, prohibiting a person or organization from accepting a contribution in excess of $500 for each election, on one occasion;
Probable cause to believe that the Respondent violated Section 106.19(1)(b), Florida Statutes, failure of a person or organization to report a contribution required to be reported by this chapter, on
56 occasions;
Probable cause to believe that the Respondent violated Section 106.19(1)(c), Florida Statutes, prohibiting a person or organization from falsely reporting or failing to report information required by this [sic], on 131 occasions.
Probable cause to believe that the Respondent violated Section 106.19(1)(d), Florida Statutes, prohibiting a person or organization from making or authorizing any expenditure prohibited by this chapter, on seven occasions.
Attached to the Order of Probable Cause, and incorporated in the Order of Probable Cause by reference, is a Statement of Findings which lists with specificity each alleged violation.
As it relates to the 13 alleged violations of Subsection 106.07(5), Florida Statutes, paragraph 17 of the Statement of Findings lists each of the 13 Campaign Treasurer's Reports and each alleged unreported or incorrectly reported campaign contribution or expenditure.
As it relates to the six alleged violations of Subsection 106.11(3), Florida Statutes, paragraphs 19-26 list each check returned for non-sufficient funds and other relevant information to the alleged violations.
As it relates to the alleged violation of Subsection 106.19(1)(a), Florida Statutes, it is discussed with specificity in paragraph 34 of the Statement of Findings.
As it relates to the 56 alleged violations of Subsection 106.19(1)(b), Florida Statutes, paragraphs 17 and 36 of the Statement of Findings specifically list each of the unreported contributions.
As it relates to the 131 alleged violations of Subsection 106.19(1)(c), Florida Statutes, paragraphs 17, 38 and
39 of the Statement of Findings specifically list the 131 unreported or incorrectly reported expenditures.
As it relates to the seven alleged violations of Subsection 106.19(1)(d), Florida Statutes, each of the prohibited expenditures is discussed with specificity in paragraphs 19-26 and 41 of the Statement of Findings.
In his Petition for Formal Administrative Hearing, Petitioner "disputes issues of material fact" listed in paragraphs 3-6, 8-10, 13-20, 22-28, 30, and 33-43 of the Statement of Findings which is incorporated by reference into the Order Finding Probable Cause. In so doing, Petitioner
specifically delineates his denial of each of the specifically alleged violations incorporated in the Order of Probable Cause by the Statement of Findings and demonstrates his awareness of the specific number of alleged violations and that the Commission intended to impose a fine for each violation.
On June 17, 1996, Petitioner opened a campaign account at the Florida A & M University Credit Union which was given the account number 9174. This account was opened for Petitioner's 1996 campaign. The only bank signature card on file for the campaign account is the original card dated June 17, 1996. It designates two signatories: William Proctor and Fredrick T. Smith, campaign treasurer. Although account 9174 was inactive after the end of the 1996 campaign, it was activated for the 1998 campaign.
On May 19, 1997, on opening his re-election campaign, Petitioner filed form DS-DE 9 designating himself Campaign Treasurer and the Florida A & M University Credit Union as campaign depository. On January 12, 1998, he filed a second form DS-DE 9 designating Thomas Rollins as Campaign Treasurer. None of the campaign checks or deposit slips offered into evidence were signed by Tom Rollins.
An examination of records of the campaign account records produced by representatives of the Florida A & M University Credit Union indicate that Petitioner personally
handled essentially all campaign banking activities. In his sworn responses to inquiries directed to unreported transfers of funds from the campaign account to Petitioner's personal accounts, unreported cash received by Petitioner at the time he deposited checks payable to the campaign account, cash withdrawals, unreported campaign contributions, and other financial irregularities, Petitioner typically gave the following answer:
My campaign staff was instructed to record all expenditures [or contributions ] for reporting purposes. However, this expenditure was not reported because the campaign staff included inexperienced, non- professional clerical and bookkeeping personnel who did not always follow instructions to record the contributions and expenditures for reporting purposes. In addition, the campaign had a high turnover of staff, which further complicated efforts to insure that staff properly followed instructions.
The Florida A & M University Credit Union will, at any time during business hours, print-out the last 30 days' account activity for a $3.00 fee. This allows an account holder to keep track of deposits, paid checks, issued checks that have not yet been paid, etc. Campaign account records show that this was done in August 1998.
On July 27, 1998, prior to the first primary election, a $500 transfer was made from the account of William Proctor, Sr. and Patricia Proctor, account number 5016, to Petitioner's
campaign account. This transfer is not reported in the campaign treasurer's report.
Petitioner's campaign account records indicate that a transfer of $1,000 was made to Petitioner's campaign account from the account of William Proctor, Sr., and Patricia Proctor, account number 5016, which was maintained at the Florida A & M University Credit Union, on October 12, 1998, after the first primary and prior to the general election. This transfer is not reported in the campaign treasurer's report.
In addition to the $1,500 in unreported contributions that were transferred from an individual account within the Florida A & M University Credit Union mentioned in paragraphs 17 and 18, an examination of the campaign account records reveals an additional $4,900 in unreported contributions was transferred into the campaign account from another account maintained by Petitioner within the Florida A & M University Credit Union.
Petitioner's campaign account records indicated that the following 53 contributions totaling $8,075 were received by the campaign but were not reported in the campaign treasurer's reports:
DATE CONTRIBUTOR AMOUNT
7-11-97 1996 Bill Proctor Campaign, Account
No. 5016
$345.00
10-6-97 Eight Star Land Company $50.00
10-6-97 A. L. Buford, Jr. $50.00
10-9-97 Lewis Buford $100.00
10-19-97 | Barbara Rouse | $25.00 |
10-23-97 | Charles Lockhart | $150.00 |
10-28-97 | Dr. Clinitia Ford | $50.00 |
12-19-97 | R & R Corporate Systems | $200.00 |
2-10-98 | Rudolf Maloy | $100.00 |
4-13-98 | Mitchell Asphalt | $450.00 |
4-14-98 | Hannah Plumbing | $100.00 |
4-14-98 | Suber & Weaver Equipment Repair | $50.00 |
4-16-98 | Tallahassee Mack Sales | $250.00 |
4-16-98 | Capital City Lawn Care | $100.00 |
4-22-98 | Eli Roberts & Sons, Inc. | $100.00 |
4-27-98 | Fort Knox Center | $250.00 |
4-30-98 | McKenzie Tank Lines | $150.00 |
5-7-98 | Gilbert Brown | $50.00 |
6-5-98 | Jimmy R. Jones Construction | $250.00 |
7-17-98 | Walter T. Mathis | $100.00 |
7-20-98 | Ron and/or Wanda Brafford | $125.00 |
7-24-98 | William and/or Deborah Grudice | $100.00 |
7-27-98 | Transfer from Patricia Proctor Account No. 1912 | $500.00 |
7-27-98 | Transfer from Patricia Proctor Account | $400.00 |
7-27-98 | No. 1912 Transfer from William Proctor Account | $500.00 |
7-28-98 | No. 5016 Jessie Dennis | $100.00 |
7-29-98 | Mary Middlebrooks | $300.00 |
8-1-98 | John and/or Phyllis Green | $100.00 |
8-6-98 | James H. Tookes | $100.00 |
8-6-98 | Charles Lockhart | $100.00 |
8-7-98 | Angela McNair | $15.00 |
8-8-98 | Marion Camps | $100.00 |
8-9-98 | Estate of Reginal Settles-Yolanda Foutz | $100.00 |
8-11-98 | Settles Ruby Seymour Bass | $100.00 |
8-12-98 | Martin and/or Susan Proctor | $100.00 |
8-13-98 | Cherry Bluff | $200.00 |
8-13-98 | Realtors PAC of Florida | $500.00 |
8-18-98 | Alfreda Blackshear | $100.00 |
8-19-98 | Davis Insurance Agency | $25.00 |
8-19-98 | John Haughabrook | $50.00 |
8-19-98 | Brown's Paint and Body Shop | $100.00 |
8-20-98 | Winnie Davis | $100.00 |
8-24-98 | Limm-Ann Griffin | $50.00 |
9-4-98 | Charles A. Francis | $100.00 |
9-22-98 | Allan Franklin | $50.00 |
9-23-98 | Marie Roy | $50.00 |
9-24-98 | Mitchell Asphalt | $500.00 |
10-8-98 | Marcus Robinson | $25.00 |
10-9-98 | Michael Moore | $150.00 |
10-17-98 | Sharon Durham | $15.00 |
10-27-98 | Catherine Gretsch | $50.00 |
10-27-98 | Catherine Gretsch | $50.00 |
11-1-98 | Rev. Jaycee Oliver | $300.00 |
Petitioner's campaign account records indicated that the following 35 expenditures totaling $11,149.11 were made by campaign check but were not reported in the campaign treasurer's
reports: | |||
DATE | PAYEE | AMOUNT | |
7-24-98 | Lamar | Advertising (Check No. 1003) | $3,930.00 |
7-24-98 | Sears | (Check No. 1004) | $26.92 |
8-5-98 | Bill Doolin (Check No. 1003) | $25.00 | |
8-15-98 | Petrandis Realty (Check No. 1004) | $700.00 | |
8-6-98 | Morrison's (Check No. 1007) | $12.38 | |
8-12-98 | Sprint (Check No. 514) | $280.00 | |
8-18-98 | Bethel Family (Check No. 1012) | $30.25 | |
8-21-98 | Feron Jones (Check No. 1030) | $100.00 | |
8-26-98 | Gallery Graphics (Check No. 1076) | $350.00 | |
8-18-98 | Payee Illegible (Check No. 516) | $401.25 | |
8-29-98 | Jumbo Sports (Check No. 1077) | $121.79 | |
8-29-98 | Knights of Pythias (Check No. 1078) | $85.00 | |
9-2-98 | Sprint (Check No. 520) | $269.78 | |
9-2-98 | Sprint (Check No. 521) | $30.00 | |
9-23-98 | Zakiya Williams (Check No. 1079) | $300.00 | |
9-23-98 | Arthur Gaines (Check No. 1080) | $50.00 | |
9-27-98 | Angelo's Seafood (Check No. 1102) | $68.81 | |
9-28-98 | Books-A-Million (Check No. 1103) | $29.10 | |
9-28-98 | Morrison's (Check No. 1093) | $10.93 | |
10-2-98 | Zakiya Williams (Check No. 1105) | $150.00 | |
10-7-98 | All-World (Check No. 1106) | $565.00 | |
10-8-98 | Comcast (Check No. 1107) | $350.00 | |
10-8-98 | Comcast (Check No. 1108) | $2,023.00 | |
10-9-98 | Danny Harris (Check No. 1081) | $300.00 | |
10-14-98 | CUP, Inc. (Check No. 1109) | $25.00 | |
10-20-98 | Ada Ibraahim (Check No. 1114) | $70.00 | |
10-2-98 | Zakiya Williams (Check No. 1086) | $125.00 | |
10-26-98 | Olive Garden (Check No. 1129) | $13.67 | |
10-27-98 | Morrison's (Check No. 1091) | $12.10 | |
11-5-98 | Aaron Rental (Check No. 1093) | $310.92 | |
11-5-98 | Sprint (Check No. 1094) | $245.80 |
11-9-98 | Morrison's (Check No. 1115) | $22.26 |
11-17-98 | Ming-Tree (Check No. 1095) | $20.80 |
11-24-98 | Gene Sutton (Check No. 1116) | $75.00 |
11-28-98 | Soft-Touch (Check No. 1098) | $20.00 |
Petitioner's campaign account records indicated that
56 cash withdrawals were made from the campaign account totaling
$20,070.10. None of these cash withdrawals were listed on the campaign treasurer's reports.
Sixteen "official checks" (i.e., guaranteed payment checks paid for by withdrawals from the campaign account for which his campaign account paid the amount of the check plus a fee of $2 per check, similar to a cashier's check issued by a bank), totaling $9,000.10 were issued by the Florida A & M University Credit Union, and apparently used to pay campaign debts. None of these official checks were reported in the campaign treasurer's reports.
A listing of these "official checks" follows:
DATE PAYEE AMOUNT
4-21-98 Eugene Stanton (Check No. 144650) $300.00
4-21-98 | Ricky Coring (Check No. 144716) | $1,750.00 |
6-28-98 | Lamar Advertising | $500.00 |
7-1-98 | Gene Sutton (Check No. 145837) | $100.00 |
7-1-98 | Lamar Advertising (Check No. 145843) | $530.00 |
7-1-98 | Rugenia Speight (Check No. 145844) | $200.00 |
7-7-98 | Lamar Advertising (Check No. 146000) | $130.00 |
7-20-98 | Augustus Colston (Check No. 146159) | $600.00 |
9-1-98 | The Links, Inc. (Check No. 146837) | $150.00 |
9-1-98 | Aaron Roberts (Check No. 146838) | $675.10 |
9-30-98 | WHBX Radio (Check No. 147256) | $1,700.00 |
10-1-98 | M. Feron Jones (Check No. 147305) | $210.00 |
10-1-98 | WHBX Radio (Check No. 147306) | $70.00 |
10-14-98 | Zakiya Williams (Check No. 147507) | $150.00 |
10-16-98 | Zakiya Williams (Check No. 147528) | $350.00 |
11-4-98 | Petrandis Realty (Check No. 147835) | $1,585.00 |
Although the evidence is inconclusive, it appears that all or most of the "official checks" were the result of cash withdrawals from the campaign account. Assuming that to be the case, approximately $11,000 in cash withdrawals remain unaccounted for.
In connection with making 12 deposits to the campaign account, cash was deducted from each deposit. The amount of cash received totaled $1,460. The use of this cash was not shown in the campaign treasurer's reports.
Four transfers totaling $2,900 were made from the campaign account to accounts numbered 9120-2 and 6038-2 which are Petitioner's personal accounts. These transfers were not listed in the campaign treasurer's reports.
The records of Petitioner's campaign account indicate that the following checks in the total amount of $4,132.93 were presented and returned for insufficient funds:
CHECK NO. PAYEE AMOUNT OF CHECK
1002 | Unknown | $319.93 |
1016 | WHBX | $1,170.00 |
1017 | WHBX | $600.00 |
1108 | Comcast | $2,023.00 |
1097 | Unknown | $20.00 |
An examination of campaign checking account records reveal that fees were charged by the campaign depository for
returned checks and other special banking services, totaling
$165.00, which were not listed in the campaign treasurer's reports.
In sum, 123 expenditures (excluding bank fees), amounting to $44,579.31 were not listed in Petitioner's campaign treasurer's reports during the 1998 campaign.
On March 2, 1999, Petitioner filed an amended campaign treasurer's report for the period October 10, 1998 to
October 29, 1998, indicating that he had loaned his campaign
$8,000 on October 12, 1998. The campaign account does not reflect such a loan. The original campaign treasurer's report for the period October 10, 1998 to October 29, 1998, reflects "loans $8,000” without further documentation.
Petitioner certified the correctness of 13 campaign treasurer's reports each of which was incorrect, false, or incomplete.
On October 8, 2001, Petitioner was convicted of
8 counts of violating Section 106.19(1)(a), Florida Statutes (failure to report campaign contributions during the 1998 campaign), adjudicated guilty, and sentenced to 12 months probation, to be served concurrently, and 100 hours of community service.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Subsections 106.25(5) and 120.57(1) and Section 120.569, Florida Statutes.
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 & 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). In this proceeding, it is the Commission that is asserting the affirmative, namely, that Petitioner either "willfully" or "knowingly and willfully" violated Chapter 106, Florida Statutes, as alleged.
The Commission seeks to impose a civil penalty on Petitioner, pursuant to Section 106.265, Florida Statutes, in the form of a fine not to exceed $1,000 per count. The Commission has alleged that Petitioner has violated six Subsections of Chapter 106, Florida Statutes, on 207 occasions. In addition, the Commission seeks to impose a civil penalty equal to three times the amount involved for the alleged violations of Subsections (1)(a), (1)(b), and (1)(d) of
Section 106.19, Florida Statutes, pursuant to Subsection 106.19(2), Florida Statutes. The imposition of an administrative fine or a civil penalty, like those sought by the Commission in this case, is punitive and penal in nature.
Department of Banking and Finance v. Osborne Stern & Company, 670 So. 2d 932, 935 (Fla. 1996).
The Commission has the burden of establishing by clear and convincing evidence that Petitioner willfully violated Chapter 106, Florida Statutes, as alleged. Latham v. Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997), citing Department
of Banking and Finance v. Osborne Stern, 670 So. 2d 932, 935 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also Subsection 120.57(1)(j), Florida Statutes, which provides that: "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 . . . ." Inasmuch the potential fine and civil penalty makes this proceeding penal in nature, the appropriate standard of proof is "clear and convincing evidence."
As noted by the Florida Supreme Court:
[C]lear 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.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Section 106.37, Florida Statutes, provides as follows:
Willful violations.--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.
Subsection 106.265(1), Florida Statutes, provides 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.
Subsection 106.07(5), Florida Statutes, provides as follows:
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 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 certifies to 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 in s.775.082 or s. 775.083.
Subsection 106.11(3), Florida Statutes, provides as follows:
No candidate, campaign manager, treasurer, deputy treasurer, or political committee or any officer or agent thereof, or any person acting on behalf of any of the foregoing, shall authorize any expenses, nor shall any campaign treasurer or deputy treasurer sign a check drawn on the primary campaign account for any purpose, unless there are sufficient funds on deposit in the primary campaign depository account of the candidate
or political committee to pay the full amount of the authorized expense, to honor all other checks drawn on such account, which checks are outstanding, and to meet all expenses previously authorized but not yet paid. However, an expense may be incurred for the purchase of goods or services, if there are sufficient funds on deposit in the primary depository account to pay the full amount of the incurred expense, to honor all checks drawn on such account, which checks are outstanding, and to meet all other expenses previously authorized but not yet paid, provided that payment for such goods and services is made upon final delivery and acceptance of the goods or services; and an expenditure from petty cash pursuant to the provisions of s.106.012 may be authorized, if there is a sufficient amount of money in the petty cash fund to pay for such expenditure. Payment for credit card purchases shall be made pursuant to s. 106.125. Any expense incurred or authorized in excess of such funds, on deposit shall, in addition to other penalties provided by law, constitute a violation of this chapter.
Subsections 106.19(1) and (2), Florida Statutes, provide as follows:
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:
Accepts a contribution in excess of the limits prescribed by s. 106.08;
Fails to report any contribution required to be reported by this chapter;
Falsely reports or deliberately fails to include any information required by this chapter; or
Makes or authorizes any expenditure in violation of s. 106.11(3) or any other expenditure prohibited by this chapter; is guilty of a misdemeanor of the first
degree, punishable as provided in s. 775.082 and s. 775.083.
Any candidate, campaign treasurer, or deputy treasurer; any chair, vice chair, or other officer of any political committee; any agent or person acting on behalf of any candidate or political committee; or any other person who violates paragraph (1)(a), paragraph (1)(b), or paragraph (1)(d) shall be subject to a civil penalty equal to three times the amount involved in the illegal act. Such penalty may be in addition to the penalties provided by subsection (1) and shall be paid into the General Revenue Fund of this state.
Statutes that authorize the imposition of a penal sanction must be strictly construed and any ambiguity must be construed in favor of Petitioner. Elmariah v. Department of Professional Regulation, 574 So. 2d 164, 165 (Fla. 1st DCA 1990). Moreover, Subsection 775.021(1), Florida Statutes, provides that "offenses" defined by any Florida statutes must be construed most favorably to the offender if the language is susceptible to different meanings.
The Commission is authorized, upon a finding of a violation of Chapter 106, Florida Statutes, to impose civil penalties in the form of fines not to exceed $1,000 per count. Subsection 106.265(1), Florida Statutes. The charging document, which in this case is the Order of Probable Cause, does not allege separate counts. Each separate paragraph of the Order of
Probable Cause cites a particular Subsection of Chapter 106, Florida Statutes, alleged to have been violated and the specific number of violations of the particular Subsection. The Order of Probable Cause incorporates by reference the Statement of Findings which lists with specificity each alleged violation.
This case is distinguishable from McGann v. Florida
Elections Commission, Case No. 1D00-3494 (Fla. 1st DCA Nov. 6, 2001) wherein the First District Court of Appeal recently stated:
[W]e hold that a statute authorizing a maximum fine "per count" does not authorize a fine in excess of that maximum amount for
(a) violation(s) set out in a single paragraph in the charging document, which gives no indication that separate counts are intended. Any agency seeking fines in excess of a statutory maximum "per count" would do well to set out discrete allegations in multiple counts so designated.
In McGann the charging language was that Dr. McGann "violated the following section(s) of Chapter 106, Florida Statutes:
. . . Section 106.19(1)(b), Florida Statutes, failure of a person to report a contribution required to be reported by this chapter on multiple occasions . . ." Clearly, "on multiple occasions" does not give an indication that separate counts are intended. In the instant case the Order of Probable Cause lists each statutory violation and the number of violations alleged.
Petitioner is further advised of the number of violations by the
incorporation by reference of the Statement of Findings which lists with specificity each violation. By clearly indicating the specific number of violations per count and listing each violation with specificity in the Statement of Findings, Petitioner is given ample notice of the number of violations he is charged with and that the Commission intends separate counts and a fine for each violation.
With respect to the alleged violation of Section 106.07(5), Florida Statutes, the Commission proved by clear and convincing evidence, that Petitioner willfully certified to the correctness of 13 incorrect or incomplete campaign treasurer's reports. This is a non-delegable duty whose importance is obvious. Given the facts that Petitioner had signed a statement indicating that he had read and understood Chapter 106, Florida Statutes, that he was an highly-educated, experienced candidate, having run for office twice prior to the election that is the subject of this proceeding and that Subsection 106.07(5), Florida Statutes, requires the candidate to sign the campaign treasurer's report and to "bear the responsibility for the accuracy and veracity of each report," Petitioner's responsibility is clear. Petitioner was directly involved with essentially all unreported campaign financial transactions as he endorsed all contribution checks, effected all unreported transfers to and from the campaign account to other accounts in
the Florida A & M University Credit Union, was personally involved, in most of the instances, where cash was taken directly from a campaign deposit, issued unreported "official checks," and was personally involved in other questionable campaign financing activities, as a result, his willfulness is clearly demonstrated.
With respect to the alleged violation of Section 106.11(3), Florida Statutes, the Commission proved by clear and convincing evidence, that Petitioner willfully authorized expenses without having sufficient funds in the primary campaign account to pay the full amount of the authorized expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses. The evidence showed that five campaign checks were presented to the campaign depository and returned for insufficient funds; the total amount of these checks was $4,132.93.
With respect to the alleged violation of
Section 106.19(1)(a), Florida Statutes, the Commission has failed to prove by clear and convincing evidence that Petitioner accepted "a contribution in excess of the limits prescribed by
s. 106.08." Section 106.08, Florida Statutes, essentially limits contributions to $500 per individual per election. The primary and general elections are considered separate elections by Subsection 106.08(1)(c), Florida Statutes. Five-hundred
dollars was transferred from Petitioner's parents' account to the campaign account prior to the primary election and $1,000 was transferred from his parents' account prior to the general election. These transfers do not exceed the per individual limit proscribed by Section 106.08, Florida Statutes. Even though, in a sworn statement, Petitioner characterizes these transfers as unreported "loans," a loan is a "contribution" subject to the $500 limit. Nevertheless, because the "loans" came from a joint account, they do not exceed the $500 limit per election when divided between Petitioner's parents.
The alleged violations of Subsection 106.19(1)(b), Florida Statutes, are proved by clear and convincing evidence. The only evidence received from Petitioner in response to inquiries directed to the 53 unreported campaign contributions was the following self-serving statement:
My campaign staff was instructed to record all contributions for reporting purposes. However, this contribution was not reported because the campaign staff included inexperienced, non-professional clerical and bookkeeping personnel who did not always follow instructions to record the contributions and expenditures for reporting purposes. In addition, the campaign had a high turnover of staff, which further complicated efforts to insure that staff properly followed instructions.
It is clear from the campaign account records that Petitioner was intimately involved in every aspect of campaign financing:
he wrote campaign checks, he endorsed deposits, he effected unreported cash withdrawals and endorsed deposit slips that evidenced cash being taken from the campaign account deposits, and he transferred campaign funds to his personal accounts.
Almost 20 percent of campaign contributions went unreported. A candidate cannot simply turn his or her back on the statutorily- mandated reporting responsibility and lay the blame on campaign staff. Petitioner, except on one occasion, failed to use the readily available thirty-day activity print-out from the Florida A & M University Credit Union. Petitioner's failure to report this significant number of campaign contributions evidences reckless disregard for the law and demonstrates that he ignored his overall supervisory responsibility for his campaign.
The Commission has established by clear and convincing evidence that Petitioner violated Subsection 106.19(1)(c), Florida Statutes, on 130 separate occasions in that
53 contributions totaling $8,075 were not listed in Petitioner's campaign treasurer's reports; that 35 expenditures amounting to
$11,149.11 were made by campaign check but not listed in Petitioner's campaign treasurer's reports; that Petitioner's parents made two unreported transfers to the campaign account totaling $1,500 and that an additional $4,900 was transferred into the campaign account without being reported in the campaign treasurer's report; that on 56 occasions cash was withdrawn from
the campaign account in a total amount of $20,070.10 without being reported in the campaign treasurer's report; that 16 "official checks" totaling $9,000.10 were uttered to pay campaign expenses without being reported in the campaign treasurer's report; that there were 12 instances where cash was taken from campaign checks being deposited in the campaign account in a total amount of $1,460 without the transactions being reported in the campaign treasurer's report; that on four occasions Petitioner transferred a total of $2,900 from the campaign account to his personal accounts without the transactions being reported in the campaign treasurer's report; and on at least five occasions $20 bank charges for checks returned for non-sufficient funds were not reported in the campaign treasurer's report. The total number of instances where Petitioner "falsely reports or deliberately fails to include any information required by this chapter" exceeds the
130 violations alleged and totals more than $59,000. The totality of unreported transactions, particularly where evidence clearly shows Petitioner's extensive, personal involvement with most of the unreported transactions, demonstrates that Petitioner knowingly and willfully violated Subsection 106.19(1)(c), Florida Statutes, as alleged.
The foundation of the Commission's prosecution of the alleged violation of Subsection 106.19(1)(d), Florida Statutes,
lies in the five campaign checks that were presented to the campaign depository and returned for insufficient funds, which is prohibited by Section 106.11(3), Florida Statutes. The difference between the two statutory prohibitions is that Subsection 106.19(1)(d), Florida Statutes, permits an enhanced penalty, if it can be established that Petitioner's conduct was "knowing and willful." Petitioner signed essentially all campaign checks and handled essentially all campaign banking transactions. He had the ability to ascertain whether funds were available to pay the campaign checks he wrote. He uttered five checks that were returned for insufficient funds. Because Petitioner was intimately familiar with his campaign finances, his conduct is "knowing and willful."
Subsection 106.265(1), Florida Statutes, advises that in determining the amount of a civil penalty, the Commission shall consider, among other mitigating and aggravating factors:
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,
. . . ; and
Whether the person . . . has shown good faith in attempting to comply with the provisions of this chapter or chapter 104.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
Recommended that the Florida Elections Commission enter a final order:
Imposing a civil penalty in the amount of $13,000 for
13 violations of Subsection 106.07(5), Florida Statutes.
Imposing a civil penalty in the amount of $2,500 for five violation of Subsection 106.011(3), Florida Statutes.
Imposing a civil penalty in the amount of $5,300 for
53 violations of Subsection 106.19(1)(b), Florida Statutes.
Imposing a civil penalty in the amount of $59,000 for
130 violations of Subsection 106.19(1)(c), Florida Statutes.
Not imposing an enhanced penalty, as provided in Subsection 106.19(2), Florida Statutes, for Petitioner's violation of Subsection 106.19(1)(d), Florida Statutes.
Dismissing the alleged violations of Subsection 106.19(1)(a), Florida Statutes.
DONE AND ENTERED this 25th day of January, 2002, in Tallahassee, Leon County, Florida.
JEFF B. CLARK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2002.
ENDNOTES
1/ Subsequent to final hearing , Mark Herron, Esquire, Mark Herron, P.A., appeared on behalf of Petitioner in this proceeding.
2/ Petitioner is referred to as "Respondent" in the Order of Probable Cause and Statement of Findings.
COPIES FURNISHED:
David F. Chester, Esquire Florida Elections Commission
107 West Gaines Street Collins Building, Suite 224
Tallahassee, Florida 32399-1050
Mark Herron, Esquire Mark Herron, P.A. Post Office Box 1701
Tallahassee, Florida 32302-1701
Barbara M. Linthicum, Executive Director Florida Elections Commission
107 West Gaines Street Collins Building, Suite 224
Tallahassee, Florida 32399-1050
Patsy Rushing, Clerk
Florida Elections Commission
107 West Gaines Street Collins Building, Suite 224
Tallahassee, Florida 32399-1050
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 23, 2002 | Agency Final Order | |
| Jan. 25, 2002 | Recommended Order | Petitioner found to have knowingly and willfully violated Florida Statutes Sections: 106.07 - 13 times; 106.011(3) - 5 times; 106.19(1)(b) - 53 times; and 106.19(1)(c) - 130 times. A substantial fine is recommended. |
BRUCE GRADY vs FLORIDA ELECTIONS COMMISSION, 00-004994 (2000)
FLORIDA ELECTIONS COMMISSION vs RODERICK HARVEY, 00-004994 (2000)
FLORIDA ELECTIONS COMMISSION vs BOB MCGANN, 00-004994 (2000)
TERRY SMITH vs FLORIDA ELECTIONS COMMISSION, 00-004994 (2000)
FLORIDA ELECTIONS COMMISSION vs JAMES B. DAVIS, 00-004994 (2000)
