ii O7 JUN~& PH Ie: 97 FLORIDA ELECTIONS COMMISSION 107 W. Gaines Street, Suite 224 Collins Building Tallahassee, Florida 32399-1050 (850) 922-4539 June 1, 2007 HAND DELIVERED Mark. Herron, Esquire , Yo - { lo 4 4 Messer, Caparello & Self, P.A. P.O. Box 15579 Tallahassee, FL 32317-5579 RE: Case No.: FEC 05-199 Dear Mr. Herron: The Florida Elections Commission at its last regularly scheduled meeting considered the above referenced case and issued the final order that is enclosed. Please read the order carefully. It will indicate the amount of the civil penalty imposed by the Commission and the number of days your client has to pay the fine. Please let me know if you have any questions. Sincerely, Barbara M. Linthicum Executive Director Enclosure: Final Order cc: Adrianna Narvaez, Respondent w/out enclosure Michael Pizzi, Attorney for Respondent w/enclosure Marie Perikles, Complainant w/enclosure Claude B. Arrington, DOAH, w/enclosure Hialeah City Clerk, Filing Officer w/ enclosure Faa017 (1/98) STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION 3 O7 JUN P2237 ELE FLORIDA ELECTIONS COMMISSION, , ,, PETITIONER, AGENCY CASE No.: FEC 05-199 v. F.O. No.: DOSFEC 07-139W ADRIANNA NARVAEZ, RESPONDENT. / FINAL ORDER THIS CAUSE came on to be heard at an informal hearing held before the Florida Elections Commission (Commission) on May 16, 2007, in Tallahassee, Florida. APPEARANCES For Commission Eric M. Lipman Assistant General Counsel 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL 32399 For Respondent Mark Herron Messer, Caparello & Self, P.A. PO Box 15579 Tallahassee, FL 32308-5579 STATEMENT OF THE ISSUE Whether the Respondent violated Sections 106.07(5), 106.19(1)(a), 106.19(1)(b), and 106.19(1)(c), Florida Statutes, as charged in the Order of Probable Cause filed in this matter. PRELIMINARY STATEMENT On July 18, 2005, the Commission received a sworn complaint alleging violations of Florida's election laws. | Staff of the Commission conducted an investigation to determine whether the facts alleged in the complaint constituted probable cause to believe that the Respondent violated The Florida Election Code. Faa004 (11/05) On January 24, 2006, staff drafted a Staff Recommendation recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. On February 24, 2006, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: On or about October 29, 2003, Respondent violated Section 106.19(1) (a), Florida Statutes, by accepting a contribution in excess of the legal limits, when she accepted a contribution in the amount of $20,000 from Ceferino Machado, and loaned $18,500 from those funds to her campaign the following day. Count 2: On or about October 31, 2003, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of her 2003 F3 report that was incorrect, false, or incomplete, when she incorrectly reported a $18,500 loan from herself, $7,000 expenditure to Maranon & Associates, a $55 expenditure for petty cash, and failed to report $85 check card purchase at Baron Visual Images. : : Count 3: On or about February 2, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of her 2003 TR report that was incorrect, false, or incomplete, when she incorrectly reported $22.14 expenditure to Bell South and $6,000 expenditure to Maranon & Associates. Count 4: On or about October 31, 2003, Respondent violated Section 106.19(1)(b), Florida Statutes, by failing to report a contribution required to be reported by Chapter 106, Florida Statutes, when she accepted a contribution in the amount of $20,000 from Ceferino Machado (used $18,500 for her campaign) and failed to report it on her 2003 F3 report. Count 5: On or about October 31, 2003, Respondent violated Section 106.19(1)(c), Florida Statutes, by falsely reporting or deliberately failing to report information required to be reported by Chapter Faa004 (1/06) 2 1106, Florida Statutes, when she accepted a contribution in the amount of $20,000 from Ceferino Machado (used $18,500 for her campaign) and failed to report it on her 2003 F3 report. Respondent timely requested formal hearing before the Division of Administrative Hearings (DOAH). The Commission transmitted the case to DOAH for assignment of an administrative law judge. On December 21, 2006, the parties filed a Joint Motion to Relinquish Jurisdiction with DOAH.. The administrative law judge remanded this case back to the Commission on December 22, 2006. The case was scheduled for an Informal Hearing February 16, 2007. The Commission continued the hearing until its May 2007 meeting to give staff an opportunity to review and verify information and documents that Respondent wanted to submit to the Commission. The Informal Hearing was rescheduled for May 16, 2007. At the hearing, staff presented the undisputed facts contained in the Staff Recommendation, and Respondent’s counsel presented information about Respondent’s financial condition for the Commission’s review. Respondent did not appear personally at the hearing. FINDINGS OF FACT 1. Respondent was an unsuccessful first-time candidate for a seat on the Hialeah City Council. The November 20, 2003 edition of the Miami Herald reported that Respondent ran on a “slate” with two other candidates for different seats on the city council. The election was held on November 4, 2003. 2. Complainant is an attorney with the Miami-Dade Inspector General’s office. 3. The Hialeah City Council has seven seats. Each council member serves a four- year term. Three seats on the council were determined in the November 2003 election. Faa004 (1/06) 3 4. Ceferino Machado is a local developer who supported the slate of three candidates. On October 29, 2003, Mr. Machado issued a personal check for $20,000 (#135) to Respondent. Machado also issued $20,000 checks to the two other candidates running as a slate #133 and #134). 5. Respondent deposited the $20,000 into her personal account on October 29, 2003. The balance in Respondent’s personal account prior to making the deposit was $242.40. 6. The next day, Respondent issued a personal check to her campaign for $18,500. Respondent deposited the check into her campaign account that same day. 6. Respondent asserts that the $20,000 was a personal loan from Machado. The facts agreed upon by the parties do not support Respondent’s position. Rather, the facts show that without Machado money, Respondent would not have been able to write an $18,500 check to her campaign. Respondent failed to make any payment to Machado until issuing a check for $5,013.84 that was dated June 30, 2004. Three months later, Respondent paid Machado an additional $626.73. The date on that check was September 30, 2004. 7. Daniel Deloach, a former Hialeah City Clerk, testified during his deposition in another matter, that while working at the clerk’s office, Deloach and his staff would conduct a cursory review of the candidates’ campaign reports after reports were filed. If Mr. Deloach or his staff noticed any abnormalities, someone from the clerk’s office would call the candidate. Deloach noticed that Respondent reported loaning her campaign a large sum of money shortly before the election. Mr. DeLoach contacted Respondent and suggested that she file the forms disclosing the loans to her campaign. 8. On October 31, 2003, Respondent filed her 2003 F3 report with the Hialeah City Clerk’s office. Respondent filed an Amended 2003 F3 report and her Termination Report on Faa004 (1/06) 4 February 2, 2004. Respondent certified that each report was true, correct, and complete, as the candidate and as her own campaign treasurer. 9. The table below compares the information Respondent listed on her reports against the accurate information in Respondent’s campaign bank records: eC al Reporting Period Information on Respondent’s Report Information from bank 10/31/03 | 10/17 to 10/30/03 2003 F3 Original ¢ $18,500 loan from Candidate ¢ $4,713.33 expenditure to Maranon & Ass. e $7,000 expenditure to Maranon & Associates ¢ $413.03 expenditure to BCH Printing ¢ $55 Petty Cash, PCS ¢ Not listed on CTR | © $85.00 check card purchase at e Source of funds was Mr. Machado ¢ $4,813.34 listed on monthly bank statements e $13,000 listed on monthly bank statements © $463.03 listed on monthly bank statements e Not listed on monthly statements Baron Visual Images on 10/17/03 02/02/04 | 10/17 to 10/30/03 e Deleted the $413.03 expenditure to BCH Printing and added an © $463.03 listed on monthly bank statements 2003 F Amend : d expenditure of $463.03 to BCH Printing 02/02/04 10/31/03 to $22.14 expenditure to Bell South | e Expenditure listed on monthly 02/02/04 bank statements 2003 TR ¢ $6,000 expenditure to Maranon & | ¢ $13,000 listed on monthly bank Original Ass. statements 10. Respondent deliberately failed to report that Machado was the source of the $18,500 that she deposited into her campaign account when she reported that the money deposited into her campaign account on October 30, 2003 was a loan from herself. 11. 106, Florida Statutes, and the 2002 Handbook for Candidates. 12. Faa004 (1/06) Respondent was a first-time candidate. Respondent received a copy of Chapter Respondent signed a Statement of Candidate form on March 6, 2003 acknowledging that she received, read, and understood the requirements of Chapter 106, Florida Statutes. Respondent also testified during her deposition that she reviewed the information that the filing officer provided to her. 13. Respondent’s actions in this case were willful.! CONCLUSIONS OF LAW 14. | The Commission has jurisdiction over the parties to and subject matter of this cause, pursuant to Section 106.26, Florida Statutes. 15. Section 106.07(4)(a), Florida Statutes, requires Candidates to report specific information on their campaign reports including: 3. Each loan for campaign purposes to or from any person or political committee within the reporting period, together with the full names, addresses, and occupations, and principal places of business, if any, of the lender and endorsers, if any, and the date and amount of such loans. 16. In DE 92-16 the Division of Elections opined that gifts, loans, or transfers are considered contributions if the contributor has the intent of making the gift, loan, or transfer for the purpose of influencing the results of an election” 1 §106.37, Fla. Stat., provides that a person willfully violates Ch. 106, Fla. Stat.: If the person commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited ... or does not commit an act while knowing that, or showing reckless disregard for whether the act is required.... A person knows that an act is prohibited or required if the person is aware of the provision which prohibits or required 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. ? §106.011(3), Fla. Stat. defines a contribution as: (a) A gift, subscription, conveyance, deposit, loan, payment, or distribution of money or anything of value, including contributions in kind having an attributable monetary value in any form, made for the purpose of influencing the results of an election or making an electioneering communication. Faa004 (1/06) 6 17. Mr. Machado’s writing Respondent a $20,000 check was for the purpose of influencing the results of Respondent’s election. Respondent’s depositing the money into her personal account and then transferring the funds to her campaign account the next day was an attempt to conceal the illegal contribution. 18. The Respondent committed one count of violating Section 106.19(1)(a), Florida Statutes, by accepting $20,000 she received from Ceferino Machado for the purpose of influencing the results of her election; committed two counts of violating Section 106.07(5), Florida Statutes, by certifying that her 2003 F3 and 2003 Termination Report were true, correct, and complete when they were not; committed one count of violating Section 106.19(1)(b), Florida Statutes, by failing to report the $20,000 she received from Ceferino made for the purpose of influencing the results of her election; and committed one count of violating Section 106.19(1)(c), Florida Statutes, by falsely reporting, or failing to include information required by Chapter 106. 19. Based upon the Findings of Fact in paragraphs 10-13 above, Respondent’s conduct was willful. 20. In determining the amount of the civil penalty, the Commission considered the (b) A transfer of funds between political committees, between committees of continuous existence, between electioneering communications organizations, or between any combination of these groups. (c) The payment, by any person other than a candidate or political committee, of compensation for the personal services of another person which are rendered to a candidate or political committee without charge to the candidate or committee for such services. (4) The transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, and the term includes any interest earned on such account or certificate. Notwithstanding the foregoing meanings of "contribution," the word shall not be construed to include services, including, but not limited to, legal and accounting services, provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or political committee. This definition shall not be construed to include editorial endorsements Faa004 (1/06) 7 mitigating and aggravating circumstances set forth in Section 106.265, Florida Statutes, including the appropriateness of the penalty to Respondent’s financial condition. 21. The Commission also considered that Respondent had no previous history of similar acts or omissions, that the gravity of Respondent’s actions was significant, and that Respondent did not make good faith efforts to comply with Chapter 104 and 106. ORDER WHEREFORE the Commission finds that Respondent has violated the following provisions of Chapter 106, Florida Statutes, and imposes the following fines, inclusive of fees and costs: A) Respondent violated Section 106.19(1)(a), Florida Statutes, on one occasion. Respondent is fined $4000 for Count 1; B) Respondent violated Section 106.07(5), Florida Statutes, on two occasions. Respondent is fined $1000 each for Counts 2 and 3 for a total of $2000; C) Respondent violated Section 106.19(1)(b), Florida Statutes, on one occasion. Respondent is fined $1000 for Count 4; and D) Respondent violated Section 106.19(1)(c), Florida Statutes, on one occasion. Respondent is fined $1000 for Count 5 for a total civil penalty of $8000. Therefore, it is ORDERED that Respondent shall remit a civil penalty in the amount of $8000. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida, 32399-1050, within 30 days of the date this Final Order is received by Respondent. DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk Faa004 (1/06) 8 of the Commission on the 1* day of June 2007, in Tallahassee, Florida. Chance Irvine, Chairman Florida Elections Commission NOTICE OF RIGHT TO APPEAL Pursuant to Section 120.68, Florida Statutes, the Respondent may appeal the Commission's Final Order to the appropriate district court of appeal by filing a notice of appeal with both, the Clerk of the Florida Elections Commission and the Clerk of the district court of appeal. The notice must be filed within 30 days of the date this Final Order was filed and must be accompanied by the appropriate filing fee. ; Copies furnished to: Eric M. Lipman, Assistant General Counsel Mark Herron, Attorney for Respondent Michael A. Pizzi, Jr., Attorney for Respondent (certified mail) Marie Perikles, Complainant Hialeah City Clerk, Filing Officer Faa004 (1/06) 9

Docket for Case No: 06-001644