STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA ELECTIONS COMMISSION, )
)
Petitioner, )
)
vs. ) Case No. 01-4936
)
DOUGLAS A. HUTCHESON, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearing, on June 25 and 26, 2002, in Crestview, Florida.
APPEARANCES
For Petitioner: Eric M. Lipman, Esquire
Florida Elections Commission The Collins Building, Suite 224
107 West Gaines Street Tallahassee, Florida 32399-0150
For Respondent: Ernest L. Cotton, Esquire
Cotton & Gates, P.A.
3 Plew Avenue
Shalimar, Florida 32579 STATEMENT OF THE ISSUE
The issue is whether Respondent violated the Florida Election Code.
PRELIMINARY STATEMENT
On May 8, 2001, the Florida Elections Commission (Commission) received a sworn complaint alleging that the Respondent violated Chapters 104 and 106, Florida Statutes. On November 16, 2001, subsequent to an investigation, the Commission issued an Order of Probable Cause.
The Order of Probable Cause provided as follows:
Probable cause to believe that the Respondent violated Section 104.011(1), Florida Statutes for four counts, for prohibiting a person from falsely swearing or affirming an oath or procuring another to falsely swear or affirm an oath in connection with or arising out of voting or elections on four separate occasions;
Probable cause to believe that the Respondent violated Section 104.011(2), Florida Statutes for three counts, for prohibiting a person from submitting false voter registration information on three separate occasions;
Probable cause to believe that the Respondent violated Section 106.09(1), Florida Statutes for seven counts, for prohibiting a person from making or accepting a contribution in cash or by a cashier's check in excess of $100 on seven separate occasions;
Probable cause to believe that the Respondent violated Section 106.07(5), Florida Statutes for five counts, for prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete on five separate occasions;
Probable cause to believe that the Respondent violated Section 106.11(1), Florida Statutes, for ten counts, for prohibiting a candidate from making an expenditure from campaign funds except other than by a check drawn on the campaign account of the candidate on ten separate occasions; and
Probable cause to believe that the Respondent violated Section 106.19(1)(d), Florida Statutes, for ten counts, for prohibiting a candidate from authorizing an expenditure prohibited by Chapter 106, Florida Statutes, on ten separate occasions.
The Order of Probable Cause is the charging document in the case. The Statement of Findings is incorporated into the Order of Probable Cause and provides specificity as to the nature of the charges. Neither the Order of Probable Cause nor the Statement of Findings was considered evidence in this case.
On December 20, 2001, Respondent filed a Petition for Formal Hearing. The Petition denied allegations that Respondent violated Sections 104.011(1) and (2), Florida Statutes; admitted the allegations that he received cash contributions in excess of
$100 on seven occasions, but averred that culpability should be mitigated; admitted the allegations pursuant to Section 106.07(5), Florida Statutes, to the extent that campaign treasurer's reports were incorrect or incomplete, but denied that Respondent had knowledge; and denied the allegations of Sections 106.11(1) and 106.19(1)(d), Florida Statutes.
On December 31, 2001, the matter was forwarded to the Division of Administrative Hearings for adjudication.
The case was set for hearing in Crestview, Florida, for April 2, 2002. Pursuant to a Motion for Continuance filed by Respondent, the hearing was re-scheduled for June 25 through 27, 2001, and was heard on June 25, 2002, and concluded on June 26,
2002.
At the hearing, the Commission presented the testimony of Patricia M. Hollarn, Jill Endicott, Margie Wade, Ronald Young, James Dunn, Paula Riggs, Charles Cauley, Sharon Crawford, Linda McEwen, Karen Nennig, and Paul Lux. The Commission offered 13 exhibits which were admitted.
Respondent presented the testimony of Charles W. Reid, Reginald Beck, Robert Hutcheson, Anthony Bradley, Kent Beck, Mallory Jeffers, Chad Hutcheson, Jill Bergland, Shoanette Summerlin, and Ronald E. Hale. Respondent also testified.
Respondent offered eight exhibits of which five were admitted. Respondent's Exhibit G, which was admitted, consisted of three checks written by Respondent.
At the inception of the hearing Respondent filed a Motion for Pretrial Ruling on Paragraph No. 8 of Petition for Formal Hearing. The gist of the motion was that the voter registration cards filed by Respondent required the applicant to know the definition of "legal residence" and that the term was not
defined in the statutes or rules. The motion noted that various persons in the Elections Supervisor's office could not provide a definition of "legal residence." Respondent asserted that the term "legal residence" is unconstitutionally vague.
An administrative law judge is not a judge under Article V of the Florida Constitution and may not rule on questions of constitutionality. To the extent the motion requested a constitutional ruling, it was denied. A ruling was reserved as to the issue of whether the term was so vague that a registrant could not violate Sections 104.011(1) and (2), Florida Statutes, by submitting a voter registration card, until evidence could be taken during the course of the hearing. The matters addressed in the motion will be discussed below.
A transcript was not filed. Both Parties timely filed Proposed Recommended Orders which were considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Chapters 97 through 106, Florida Statutes, comprise the Florida Election Code (Code). The Commission is empowered specifically to enforce the provisions of Chapters 104 and 106, Florida Statutes.
Respondent is an attorney who at times pertinent practiced law in Ft. Walton Beach, Florida. He was a first-time candidate for Okaloosa County Commissioner, District 3, in the
year 2000. He had no opposition after the October 3, 2000, second primary election and was elected to office at the general election.
Allegations concerning the filing of false voter registration cards
The evidence of record included three voter registration cards. A card was filed by Respondent on
January 24, 2000, asserting that he lived at 1024 Christy Drive, Niceville, Florida. Another was filed on June 22, 2000, stating that he lived at 409-B Corvette Street, Ft. Walton Beach, Florida. Another was filed on February 22, 2001, stating that he lived at 8234 Mormon Temple Road, Baker, Florida.
On each of the aforementioned cards are the following words: "Oath: I do solemnly swear (or affirm) that: . . . All information on this form is true. I understand that if it is not true, I can be convicted of a felony of the third degree and fined up to $5,000 and/or imprisoned for up to five years."
Shoanette Summerlin is the former wife of Respondent.
She lived with Respondent, along with six children, in Navarre, Florida, in Santa Rosa County, until December 1999. She continued to live in Navarre with the children until June of 2000. During this time the rent was paid by Respondent.
Sometime after that date Ms. Summerlin moved to Dothan, Alabama. One of the children was the offspring of Respondent.
Ms. Summerlin testified that Respondent moved in with his mother at 1024 Christy Drive, Niceville, at the end of 1999 or the first part of 2000.
Ms. Summerlin testified that subsequent to early July 2000, she and Respondent's daughter occasionally stayed with Respondent at 409-B, Corvette Street in Ft. Walton Beach.
Ms. Summerlin testified that once Respondent's daughter visited him at the Baker address but she had no personal knowledge as to whether or not he was living there.
Ronald Young works for Select Real Estate of Ft. Walton Beach. On one occasion in the summer or early fall of 2000, he went to 409-B, Corvette Street, to repair a leaking faucet. Someone had complained to the real estate company, which owns or manages the premises, that the faucet was leaking. Mr. Young entered the premises and fixed the faucet. He saw no furniture other than a sleeping bag and pillow lying on the floor. He did not enter the bedrooms or closets of the dwelling. He did not observe Respondent or anyone else living at the premises.
James Dunn is the property manager for Select Real Estate. Respondent called him on June 20, 2000, and asked to see the premises at 409-B, Corvette Street. Mr. Dunn did not show the property to Respondent, but was aware that another property manager had shown it and that Respondent had leased it. The lease ran from July 1, 2000 until December 31, 2000. On
July 6, 2000, Respondent called Mr. Dunn to complain about the malfunctioning of a lock on the garage door.
Kent Beck is a self-employed handyman. He occasionally works on property owned or managed by Select Real Estate. Some time after June 2000 but before December 2000, he was given a work order on 409-B, Corvette Street. He saw Respondent at that address when he did his work. He observed furniture and toiletries in the premises. He talked to Respondent on two occasions, and he worked twice on the back porch of the premises.
Select Real Estate noted that Respondent was behind on his rent and, as a result, Mr. Dunn placed a notice of pending eviction on the door of the premises in September 2000. The notice was placed so that the door to the premises could not be opened without disturbing the notice. Another notice was placed on the premises by him on September 27, 2000; Mr. Dunn noticed at this time the previous notice was undisturbed. On
September 26, 2000, Respondent paid the back rent then due.
On October 19, 2000, Mr. Dunn placed another notice of eviction on the door of the premises. Mr. Dunn could not discern if anyone was residing in the premises.
Chad Hutcheson testified that he visited his father on Halloween in 2000. He stated that his father lived at 409-B Corvette Street.
Jill Bergland is Respondent's legal secretary and worked at his law office on Mary Esther Cut-Off in Ft. Walton Beach. She paid both his business and personal bills. She once went to the premises at 409-B Corvette Street to retrieve his dress shoes for him. She could not remember the date that this occurred.
Respondent testified that he lived in Navarre from April 1999 until his final separation from his wife in December 1999. He testified that he moved in with his mother at 1024 Christy Drive, in Niceville, in December 1999 or early in 2000. Respondent testified that he continued to pay rent on the Navarre property until his wife and the children vacated the residence in June 2000.
Respondent testified that he moved into 409-B Corvette Street, in Ft. Walton Beach, around July 2000. He stated that he obtained a lease for six months which expired in December 2000. He stated that because of the situation with his then wife that he had no furniture and few belongings.
Respondent testified that he then moved to an address on Mormon Temple Drive, in Baker, around the first week in January 2001. Up until this point, it should be noted that Respondent's testimony with regard to living in Niceville with his mother and residing at 409-B Corvette was somewhat believable and was, in the case of 1024 Christy Drive,
unrebutted, and in the case of 409-B Corvette Street, corroborated by other evidence. Therefore, it is concluded that the Commission failed to prove by clear and convincing evidence that he did not live at those addresses.
His testimony with regard to living at a premises located on Mormon Temple Road, Baker, Florida, as he asserted under oath on February 22, 2002, is rejected as untrue based on the evidence which will be addressed below.
The premises on Mormon Temple Road was owned by Anthony Bradley of Valpraiso, Florida. The premises consisted of about 180 acres and located upon it was a brick house which bore the address of 8234 Mormon Temple Road, and a white house which bore the address of 8300, Mormon Temple Road.
Mr. Bradley gave Respondent the use of the white house on or before January 2001 and charged him no rent. The house was furnished. It was located down an unimproved road which was approximately one-half mile from Mormon Temple Road. In order to drive a vehicle onto the curtilege of the white house at 8300 Mormon Temple Road, it was necessary to unlock a gate, although it was possible to simply walk around the gate and access the house.
Also on the property, near the white house, a red horse resided within a fenced area. Feed for the horse was located nearby.
Charles Cauley lived alone at 8234 Mormon Temple Road beginning at some point in time in 2000 until April 2001. It is noted that this encompassed the period that Respondent claimed to live there. Respondent asserted that his claim of residing at 8234 Mormon Temple Road address on the voter registration card filed February 22, 2001, was a simple mistake and that he really lived at 8300 Mormon Temple Road.
Mr. Cauley paid rent to Mr. Bradley and it was his responsibility to "look after" the place and to feed the horse.
In order to feed the horse, Mr. Cauley had to depart the asphalt surface of Mormon Temple Road and to traverse the unimproved road leading to the white house. He did not actually drive right up to the white house because the way was barred by the locked gate and he had no key. He would walk from the locked gate to the area where the horse lived. He fed the horse two to three times during the week, usually in the evening, and at various times on weekends.
Mr. Cauley doesn't know Respondent. Mr. Cauley did not see anyone at all living in the white house. He did not observe tire tracks or footprints which would indicate anyone had been in the area of the white house.
The Chattahoochee Electric Co-op provides electric service to both 8234 and 8300 Mormon Temple Road. During the period January through April 2001, the premises at 8234 Mormon
Temple Road, the dwelling where Mr. Cauley resided, used electrical service which was billed as follows: January,
$40.57; February, $37.37; March, $62.87; and April, $94.14.
The co-op records reveal that electric service at the premises at 8300 Mormon Temple Road was billed as follows: January, $12.77; February, $13.15; March $12.38; and April,
$12.45.
The account with the co-op at 8300 Mormon Temple Road was in the name of Jane Bradley, who is Anthony Bradley's wife. Mr. Bradley surmised that the meter may have been broken when he looked at it in May or June 2001, but failed to provide a rationale for arriving at that conclusion. Therefore, his testimony in that regard is rejected as conjecture and is not considered probative.
Electric bills in the amounts experienced at 8300 Mormon Temple Road are inconsistent with the bills one would expect from an inhabited dwelling, especially when compared to the bills experienced in a similar dwelling by Mr. Cauley, who lived alone.
Charles W. Reid is a friend of Respondent. He is an attorney. He visited 8300 Mormon Temple Road during the time Respondent allegedly lived there. He was accompanied by Lavon Mason and Respondent. They fished in the pond located on the premises. He observed that Respondent had a key to the gate
leading directly to the white frame house. The three men caught bluegill and transported them to Mr. Mason's pond for the purpose of restocking it.
Reginald Beck is a retired person who lives in the north end of Okaloosa County. He knew Respondent from the time he ran for county commissioner. Respondent asked him to cut his lawn at 8300 Mormon Temple Road and Mr. Beck did this from time to time in March or April 2001, for which he was paid. Respondent also attended a cook-out on the premises, along with several people.
Mr. Beck stated that his wife cut up the meat in the kitchen of the house at 8300 Mormon Temple Road during the cook- out. Mr. Beck noted that he saw furniture in the house but he didn't know who owned it. He stated that every time he went to the premises Respondent was there and stated that he visited the premises about ten times. He did not know if Respondent slept at the premises, but he saw him on at least one occasion at 7:30 in the morning.
Robert Hutcheson is Respondent's older brother and lives in Crestview. He went fishing in the pond at 8300 Mormon Temple Road on one occasion in January 2001. He was in the house on at least one occasion and observed fishing tackle and boxes but no clothes. He would occasionally visit the premises after hunting and sometimes he would see Respondent there.
Mallory Jeffers resides in Baker, Florida, and met Respondent when Respondent was campaigning for county commissioner. He first met Respondent around August 2000. On January 4, 2001, Respondent called Mr. Jeffers and told him he was moving into the Collingswood place, which was a local name for the land at 8234 and 8300 Mormon Temple Road. He helped unload items for Respondent and moved them into the white frame house at 8300 Mormon Temple Road. The items consisted solely of four boxes.
Mr. Jeffers attended two cook-outs at 8300 Mormon Temple Road. He saw Respondent on the premises from three to five times. He also observed the red horse. He noted that Respondent went to Montgomery, Alabama, almost every weekend to visit his wife. However, Mr. Jeffers was mistaken in his belief that Respondent went to Montgomery. As noted above,
Ms. Summerlin lived in Dothan at that time, and was residing in Dothan at the time of the hearing.
Chad Hutcheson is the son of Respondent. He stated that he visited his father at 8300 Mormon Temple Road in February or March 2001 and spent almost the entire day there both times.
Respondent testified that he is an extremely ethical attorney and person. However, he has been disciplined by the
Florida Bar on five occasions for violating the rules regulating the Florida Bar.
Although Respondent may have spent some time at the premises at 8300 Mormon Temple Road, and may have entertained friends at the address, and may have stored some small amount of personal property there, he did not "live" there.
Allegations concerning filing false campaign reports
Patricia M. Hollarn is the elected Supervisor of Elections for Okaloosa County. It is her duty, among other things, to ensure that when persons register to vote that they provide addresses at which they actually live. She also ensures that her office provides candidates with the information they need to comply with the election law.
Campaign Treasurer's Report Summaries are submitted to Ms. Hollarn by candidates who are running in local elections. She does not audit them, but if an obvious error is discovered she will give first-time candidates the opportunity to correct them.
Candidates must pre-file if they wish to receive campaign donations. Once they pre-file, a Campaign Treasurer's Report Summary must be filed quarterly. According to the Candidate Handbook on Campaign Financing, which was provided to Respondent, after qualification reports must be filed on the thirty-second, eighteenth, and fourth days immediately preceding
the first primary. After the first primary, a Campaign Treasurer's Report Summary must be filed on the eighteenth and fourth days immediately preceding the second primary and general election.
Ms. Linda McEwen is the Elections Service Manager in the office of the Okaloosa Supervisor of Elections. She knows Respondent. He came to the Supervisor of Elections' office and met with her at the time he pre-filed, and at other times during the campaign. She noted that Respondent pre-filed on
January 28, 2000, for County Commission, District 5; later, he decided to run in District 3.
Respondent filed documents appointing himself as his campaign treasurer at the time he pre-filed. He was provided a copy of the Candidate Handbook on Campaign Financing and was asked to read it and sign and return within ten days an acknowledgement that he had read it. When he was presented with the Candidate Handbook on Campaign Financing he told Ms. McEwen, "I am an attorney. I'll understand it."
Respondent told Ms. McEwen on March 22, 2000, that he lived at 1024 Cristy Drive, Niceville. She told him he would have to move into the district in which he was running. During this conversation Ms. McEwen talked about the Campaign Treasurer's Report Summary which was due on April 10, 2000. He
presented that report subsequent to the due date and paid a fine.
Respondent filed a Campaign Treasurer's Report Summary for the period July 1, 2000 to July 31, 2000. This report contained the following deficiencies:
An incomplete address is provided for a contribution from Ted Reeves.
An incomplete address is provided for a contribution from Gussy Elmore.
An incomplete address is provided for a contribution from Jennifer Mozak.
Respondent's Campaign Treasurer's Report Summary for the period July 1, 2000 to July 31, 2000, also revealed that he accepted cash contributions in excess of $100, from the following persons in the following amounts:
Lavon Mason, $200.
Leo Tisa, $200.
Respondent filed a Campaign Treasurer's Report Summary for the period August 1, 2000 to August 11, 2000. This report contained the following deficiencies:
No address is provided for "PIP" for an expenditure on August 2, 2000.
No address is provided for "PIP" for an expenditure on August 3, 2000.
Respondent filed a Campaign Treasurer's Report Summary for the period August 12, 2000 to August 31, 2000. This report contained the following deficiencies:
No address is provided for WMMK and WFAV for an expenditure on August 16, 2000.
No address is provided for WMMK and WFAV for an expenditure on August 23, 2000.
No address is provided for WAAZ for an expenditure on August 30, 2000.
No address is provided for WAAZ for a second expenditure on August 30, 2000.
Respondent's Campaign Treasurer's Report Summary for the period August 12, 2000 to August 31, 2000, also revealed that he accepted cash contributions in excess of $100, from the following persons in the following amounts:
Sue Young, $300.
Ronald E. Hale, Jr., $500.
David Kuntz, $500.
Ronald E. Hale, Sr., $300
Respondent's Campaign Treasurer's Report Summary for the period August 12, 2000 to August 31, 2000, revealed that he made cash payments to the following entities in the following amounts:
WMMK and WFAV (radio stations), in the amount of $504, on August 16, 2000.
WMMK and WFAV (radio stations), in the amount of $504, on August 23, 2000.
WAAZ (radio station), in the amount of
$374, on August 30, 2000.
WAAZ (radio station), in the amount of
$85, on August 30, 2000.
WMMK and WFAV (radio stations), in the amount of $300, on August 31, 2000.
Respondent filed a Campaign Treasurer's Report Summary for the period September 23, 2000 to December 31, 2000. This report contained the following deficiencies:
An incomplete address is provided for an expenditure to Gulf Breeze Media.
An incomplete address is provided for NW Florida Daily News for an expenditure dated September 27, 2000.
An incomplete address is provided for NW Florida Daily News for an expenditure dated September 28, 2000.
An incomplete address is provided for an expenditure to First National Bank.
Ronald E. Hale is the general manager of WMMK-FM and WFAV-AM, which are radio stations in Ft. Walton Beach. The radio stations were having problems with the Internal Revenue Service during the time Respondent was purchasing advertising and refused to accept checks, which is why Respondent paid
Mr. Hale in cash. Respondent actually negotiated checks for the exact cash amounts owed and then gave the cash to the radio stations. Nevertheless, this transaction is a violation of Section 106.11(1), Florida Statutes.
Respondent swore to the truth of the contents of the Campaign Treasurer's Report Summaries which he filed with the Supervisor of Elections. Specifically, on each of the aforementioned reports, after having been advised in bold face type immediately above the signature blocks that, "It is a first
degree misdemeanor for any person to falsify a public record (ss. 839.13, F.SS.)," he signed the summaries both as candidate and as treasurer. Above the blocks that he signed was a statement which read, "I certify that I have examined this report and it is true, correct and complete."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), 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 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 and, therefore, the Commission has the burden of proof.
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 imposition of an administrative fine or a civil penalty, like those sought by the Commission in this case, is punitive and penal in nature. Therefore, the Commission must prove its case by clear and convincing evidence. Department of Banking and
Finance v. Osborne Stern & Company, 670 So. 2d 932, 935 (Fla. 1996).
Statutes which 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.
Section 104.011(1), Florida Statutes, provides as follows:
104.011. False swearing; submission of false voter registration information
A person who willfully swears or affirms falsely to any oath or affirmation, or willfully procures another person to swear or affirm falsely to an oath or affirmation, in connection with or arising out of voting or elections commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
A person who willfully submits any false voter registration information commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
The order of probable cause alleged that Respondent violated Section 104.011(1), Florida Statutes, on four occasions and Section 104.011(2), Florida Statutes, on three occasions.
These charges refer to the question of the voter registration cards and Respondent's actual place of residence. Only three voter registration cards were offered into evidence.
Of the three cards admitted into evidence, Respondent swore to the truth of each. It was the burden of the Commission to prove by clear and convincing evidence that Respondent did not live at each of the claimed addresses. With regard to the alleged residences at 1024 Christy Drive, Niceville, and 409-B, Corvette Street, Ft. Walton Beach, as noted herein the Commission did not prove by clear and convincing evidence that he did not live in the claimed residences. In the case of the card which asserted that beginning February 22, 2001, Respondent resided at 8234 Mormon Temple Road, the evidence was sufficient to prove by clear and convincing evidence that, not only did Respondent not live at 8234 Mormon Temple Road, he did not live at 8300 Mormon Temple Road either.
In arriving at this conclusion, the motion, addressed earlier, which asserted that there is no clear definition of "legal residence," was considered. The term "legal residence" is a term which has an ordinary meaning which is understood by citizens to mean the place where a person lives. This is made clear by the block on the voter registration cards in question which states, "Address where you live (legal residence)." To turn this question into one involving legal complexities would
be to obfuscate the obvious. Upon consideration of all of the evidence it is found that the question is not vague, and therefore, the motion is denied.
Section 106.09(1), Florida Statutes, provides as follows:
106.09. Cash contributions and contribution by cashier's checks
(1) No person shall make or accept a cash contribution or contribution by means of a cashier's check in excess of $100.
The evidence of record proves that Respondent accepted cash contributions in excess of $100 from six people on six occasions for a total of $2,000. It is noted that the Petition for Formal Hearing admits that Respondent accepted cash contributions in excess of $100 in the case of seven people on seven separate occasions. The evidence of record does not provide proof in excess of the six occasions already addressed. The Campaign Treasurer's Report Summary for the period
August 12, 2000 through August 31, 2000, has an entry for Tony Powell for a contribution of $150, and Tanya Perkins, for a contribution of $400, but the type of contribution is not reflected on the report. Because this case is penal in nature, matters infused with ambiguity must be resolved in favor of Respondent. Accordingly, and despite the pleadings, it is found
that Respondent accepted cash contributions in excess of $100 from six people for a total of $2,000.
Section 106.07(5), Florida Statutes, provides as follows:
106.07. Reports; certification and filing
* * *
(5) 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 as 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 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.
The Order of Probable Cause asserts that on five occasions the aforementioned statute was violated. At the hearing only four Campaign Treasurer's Report Summaries were offered into evidence. All four were admitted; all four were certified by Respondent both in his capacity as campaign treasurer and as candidate; and all four include incomplete information. Accordingly, Respondent violated this statute on four occasions.
Section 106.11(1), Florida Statutes, provides as follows:
106.11. Expenses of and expenditures by candidates and political committees
Each candidate and each political committee which designates a primary campaign depository pursuant to s. 106.021(1) shall make expenditures from funds on deposit in such primary campaign depository only in the following manner, with the exception of expenditures made from petty cash funds provided by s. 106.12:
The campaign treasurer or deputy campaign treasurer of a candidate or political committee shall make expenditures from funds on deposit in the primary campaign depository only by means of a bank check drawn upon the campaign account of the candidate or political committee. The campaign account shall be separate from any personal or other account and shall be used only for the purpose of depositing contributions and making expenditures for the candidate or political committee. The checks for such account shall contain, as a minimum, the following information:
The statement "Campaign Account of (name of candidate or political committee)."
The account number and the name of the bank.
The exact amount of the expenditure.
The signature of the campaign treasurer or deputy treasurer.
The exact purpose for which the expenditure is authorized.
The name of the payee.
Respondent made five payments in cash, on five different occasions, contrary to the aforementioned statute, for a total amount of $1767.
Section 106.19(1)(d), Florida Statutes, provides as follows:
106.19. Violations by candidates, persons connected with campaigns, and political committees
(1) 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:
* * *
(d) 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 or s. 775.083.
Section 106.11, Florida Statutes, noted above, is inapplicable to this case because it addresses presenting checks with insufficient funds to cover them, among other things.
Section 106.19(1)(d), Florida Statutes, condemns "any other expenditure prohibited by this chapter" and the cash payments made in violation of Section 106.11(1), Florida Statutes, on five occasions, result in five violations of this section.
Section 106.265, Florida Statutes, provides as follows:
106.265. Civil penalties.
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.
If any person, political committee, committee of continuous existence, or political party fails or refuses to pay to the commission any civil penalties assessed pursuant to the provisions of this section, the commission shall be responsible for collecting the civil penalties resulting from such action.
Any civil penalty collected pursuant to the provisions of this section shall be deposited into the Election Campaign Financing Trust Fund.
Notwithstanding any other provisions of this chapter, any fine assessed pursuant to the provisions of this chapter, which fine is designated to be deposited or which would otherwise be deposited into the General Revenue Fund of the state, shall be deposited into the Election Campaign Financing Trust Fund.
Section 106.37, Florida Statutes, provides as follows:
106.37. 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.
The violations noted above are all found to be willful violations, based on the analysis provided by Section 106.37, Florida Statutes. Respondent is a mature person and an attorney; he was provided with a helpfully written booklet entitled "Candidate Handbook on Campaign Financing"; and his testimony at the hearing indicated that he was a sophisticated person capable of understanding what it means to sign a document under oath.
With regard to willfulness, Section 106.19, Florida Statutes, provides as follows:
106.19. Violations by candidates, persons connected with campaigns, and political committees.--
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;
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.
Because Respondent violated Section 106.19(1)(d), Florida Statutes, on five occasions, and because those violations were willful, Respondent is liable for the enhancement of the amount involved, by a multiple of three. The amount involved was $1767. Accordingly, the enhanced penalty is
$5301.
In summary, the following counts are proven by clear and convincing evidence:
A single violation of Sections 104.011(1) and (2), Florida Statutes, amounting to one count.
Six violations of Section 106.09(1), Florida Statutes, on six occasions, amounting to six counts.
Four violations of Section 106.07(5), Florida Statutes, amounting to four counts.
Five violations of Section 106.11(1), Florida Statutes, amounting to five counts, which are subsumed by the five violations of Section 106.19(1)(d), Florida Statutes, and which should not provide for separate penalties.
Five violations of Section 106.19(1)(d), Florida Statutes.
The total authorized civil penalty is $26,000. This is calculated as follows:
a. Section 104.011(1), $1000.
b. Section 106.09(1), $6,000.
c. Section 106.07(5), $4,000.
d. Five violations of Sections 106.11(1) and 106.19(1)(d),
$1,000 each, totaling $5,000, plus the multiple of $5301, for a total of $10,301.
With regard to Section 106.265, Florida Statutes, the following is found:
Subsection (a), filing a false voter registration card, is a grave offense which offends the integrity of the voter registration process. The remaining charges are less serious.
With regard to Subsection (b), no evidence of a previous history of violating the Florida Election Code was offered at the hearing.
With regard to Subsection (c), no evidence of the financial resources of Respondent was adduced at the hearing, except to the extent that he believes that he cannot practice law for the immediate future.
With regard to Subsection (d), it is apparent that Respondent did not make a good-faith effort to comply with the Florida Election Code.
Based upon the findings of fact and conclusions of law, it
is
RECOMMENDED: That a final order be entered finding
Respondent guilty of 16 counts of violating the Florida Election Code and assessing a $21,301 penalty.
DONE AND ENTERED this 12th day of July, 2002, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
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 12th day of July, 2002.
COPIES FURNISHED:
Eric M. Lipman, Esquire Florida Elections Commission
The Collins Building, Suite 224
107 West Gaines Street Tallahassee, Florida 32399-0150
Ernest L. Cotton, Esquire Cotton & Gates, P.A.
3 Plew Avenue
Shalimar, Florida 32579
Patsy Rushing, Clerk Florida Elections Commission
The Collins Building, Suite 224
107 West Gaines Street Tallahassee, Florida 32399-1050
Barbara M. Linthicum, Executive Director Florida Elections Commission
The Collins Building, Suite 224
107 West Gaines Street 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 |
|---|---|---|
| Nov. 25, 2002 | Agency Final Order | |
| Jul. 12, 2002 | Recommended Order | Commission demonstrated that Respondent completed false voter registration card; Respondent received cash in amounts not permitted and paid for services in cash, contrary to Florida Election Code; incomplete Campaign Treasurer Reports were filed. |
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