STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORRECTED FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on February 15 and May 18, 2009, in Bartow and Tallahassee, Florida, respectively. Respondent attended the hearing in Tallahassee by telephone conference.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

For Respondent: James B. Davis, pro se

765 South Third Avenue Bartow, Florida 33830

STATEMENT OF THE ISSUES

The issues are whether Respondent accepted campaign contributions and made expenditures before designating a campaign treasurer and campaign depository, signed a check

without sufficient funds written on a campaign account with insufficient funds to cover the check, and accepted a campaign contribution in excess of the legal limit in violation of Subsections 106.021(1)(a), 106.11(4), and 106.19(1)(a), Florida Statutes (2005).1

PRELIMINARY STATEMENT

On April 29, 2008, Petitioner found probable cause to believe that Respondent violated Subsections 106.021(1)(a), 106.11(4), and 106.19(1)(a). Respondent did not timely request a formal or informal hearing or elect to resolve the matter by a consent order. Pursuant to Subsection 106.25(5), Respondent was entitled to an administrative hearing before DOAH.

At the hearing, Petitioner called four witnesses, and Respondent presented the testimony of two witnesses. The parties submitted 25 joint exhibits for admission into evidence. Respondent identified 11 exhibits, but did not deliver the exhibits to the ALJ.

The identity of the witnesses and exhibits, and the rulings regarding each, are reported in the two-volume Transcript of the final hearing filed with DOAH on May 20 and June 1, 2009.

Petitioner timely filed its Proposed Recommended Order (PRO) June 11, 2009. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for enforcing the campaign laws of the state. During 2006, Respondent attempted, unsuccessfully, to qualify as a candidate for the United States Congress and then campaigned for election to the state Legislature.

2. Sometime in 2006, Respondent attempted to qualify as a candidate for the United States House of Representatives, District 12. On May 15, 2006, Respondent accepted two checks from Mr. Kent Lilly, an attorney in Bartow, Florida. One check was a campaign contribution of $500.00. Mr. Lilly intended the other check to be a loan of $5,000.00. Although the loan from Mr. Lilly satisfied the definition of a campaign contribution in Subsection 106.011(3)(a), Mr. Lilly and Respondent understood that Respondent was to repay the loan from subsequent campaign contributions.

3. Respondent learned by letter dated May 18, 2006, that he did not qualify as a candidate for federal office because the qualifying papers he filed did not contain an original signature. Respondent decided to campaign as a candidate for the Florida House of Representatives, District 63.

4. Respondent retained the campaign funds contributed by Mr. Lilly in a bank account divided into two sub-accounts. The two sub-accounts are identified in the record as the Sub 1 and

   Sub 2 accounts. The Sub 1 account contained funds collected for the Congressional campaign, and the Sub 2 account contained funds collected for the state legislative campaign.

5. Respondent did not designate a campaign treasurer and depository for the state legislative campaign until July 19, 2006. Respondent signed the Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (the

   DS-DE 9) form on July 5, 2006. The DS-DE 9 form designated Ms. Shirley Goodwine as the campaign treasurer. Respondent

   filed the DS-DE 9 form with the state’s Division of Elections on July 13, 2006.

6. The original DS-DE 9 form was insufficient. The original form did not include the name of the political office sought and the date of Ms. Goodwine’s signature.

7. Respondent filed an amended DS-DE 9 form on July 19, 2006. The amended form corrected the errors in the original form and was sufficient to designate a campaign treasurer and depository for state office.

8. On July 6, 2006, Respondent accepted a contribution to his Sub 2 account before designating a campaign treasurer and depository. Respondent transferred $2,000.00 from the Sub 1 account to his Sub 2 account. The funds came from the loan from Mr. Lilly. The $2,000.00 contribution was excessive, within the

   meaning of Subsection 106.19(1)(a). It exceeded the maximum allowable contribution of $500.00 by $1,500.00.

9. On July 12, 2006, Respondent expended $16.80 from his Sub 2 account before designating a campaign treasurer and depository. The charge to his account in the amount $16.80 was for checks to be used on the account.

10. On July 18, 2006, Respondent signed a check in the amount of $1,859.76, which was drawn on the Sub 2 account. Insufficient funds were available to cover the check. The check was payable to the state Division of Elections and was intended to pay the qualifying fee to run for state office.

11. On July 22, 2006, Respondent signed a check drawn on the Sub 2 account without sufficient funds. The check was payable to Publix Supermarket for $100.00.

12. Respondent has a prior disciplinary history.

    
    

    Petitioner previously fined Respondent for filing campaign treasurer reports late. Respondent has not paid the previous fines.

13. Respondent reports his net worth to be $103,000.00.

    
    

    Respondent has not repaid the loan from Mr. Lilly. Respondent submitted no evidence of mitigating factors that may have reduced the fine proposed by Petitioner.

14. Respondent committed the foregoing acts willfully within the meaning of former Section 106.37, which was in effect

    at the time Respondent committed the acts. Respondent committed the acts with reckless disregard for whether the acts were prohibited by relevant campaign laws of the state.

    CONCLUSIONS OF LAW

    
    

15. DOAH has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 106.25(5), Fla. Stat. (2008). DOAH provided the parties with adequate notice of the final hearing.

16. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by clear and convincing evidence that Respondent committed the alleged acts, that the acts were willful, and that the proposed penalty is reasonable. McGann v.

    Florida Elections Commission, 803 So. 2d 763 (Fla. 1st DCA 2001). For reasons stated in the Findings of Fact, Petitioner satisfied its burden of proof.

17. Petitioner seeks civil penalties in the total amount of $9,500.00. The proposed penalties include $4,500.00 as an enhanced penalty described in Subsection 106.19(2) equal to three times $1,500.00, the amount by which the $2,000.00 contribution exceeded the legal limit.

18. This is an administrative proceeding and not a civil action in circuit court. DOAH has no statutory authority to conduct civil proceedings described in Section 45.021 or to impose civil penalties.

19. Subsection 106.19(2) authorizes civil penalties when an illegal act occurs. However, a finding that an illegal act occurred is required by Subsection 106.25(5) to be made in an administrative proceeding conducted pursuant to Chapter 120 rather than in a civil action described in Section 45.021.

20. Chapter 120 does not authorize DOAH to conduct civil actions or to impose civil penalties. DOAH has authority to impose an administrative fine if the substantive statute expressly authorizes the imposition of an administrative fine.

21. DOAH is an administrative agency organized within the executive branch of state government. DOAH carries out quasi- judicial duties to resolve a factual dispute between a sister, administrative agency and a substantially affected party.

22. The performance of quasi-judicial duties by DOAH does not transform DOAH into a court with the constitutional power to conduct civil actions. Nor does the performance of quasi- judicial duties imbue DOAH with the authority of a presiding court in a civil action to impose civil penalties.

23. If the Legislature had intended to authorize an administrative agency, such as DOAH, to exercise the judicial powers of conducting civil actions and imposing civil penalties, the Legislature would have expressly done so in a manner consistent with: the prohibition against courts other than those enumerated in Article V, Section 1, of the Florida

    Constitution; and the separation of powers act in Article II, Section 3, of the Florida Constitution.

24. Subsections 106.25(5) and 106.19(2) must be construed, whenever possible, in a manner that preserves the constitutionality of each provision. An interpretation that the relevant statutory provisions empower DOAH to preside over civil actions and impose civil penalties is constitutionally infirm. In order to preserve the constitutionality of both statutes, the undersigned has construed the two statutes so as to limit the authority of DOAH to fact-finding needed to determine whether an illegal act has occurred.2

25. If Petitioner construes the civil penalty provisions in Chapter 106 to mean that the Legislature authorized Petitioner to impose civil penalties based on a finding by DOAH that an illegal act has occurred, Petitioner does not need an order from DOAH imposing civil penalties.3 Petitioner may collect any civil penalties that Petitioner imposes on Respondent in a civil action brought pursuant to

Subsection 106.27(2).

ORDER

Based upon the Findings of Fact and Conclusions of Law, it

is

ORDERED that Respondent violated Subsections 106.021(1)(a), 106.11(4), and 106.19(1)(a), for the reasons described in the Findings of Fact.

DONE AND ORDERED this 13th day of July, 2009, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2009.

ENDNOTES

1/ References to subsections, sections, and chapters are to Florida Statutes (2005), unless otherwise stated.

2/ The statutory tension is attributable to a lack of symmetry between statutorily-mandated fact-finding that Subsection 106.25(5) requires to be performed in an

administrative proceeding and the civil penalties authorized in Subsection 106.19(2), which only a court has constitutional authority to impose in a civil action. The confusion can be eliminated by legislative amendment that either replaces the authority to impose civil penalties with authority to impose administrative fines or replaces the administrative proceeding required in Subsection 120.25(5) with a civil action in circuit court.

3/ The requirement in Subsection 106.25(5) that the fact-finding by DOAH must take the form of a final order does not necessarily preclude Petitioner from issuing a final order imposing civil

penalties. However, the requirement for a final order from DOAH does muddy the procedural water for Petitioner.

COPIES FURNISHED:

Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

James B. Davis

765 South Third Avenue Bartow, Florida 33830

Barbara M. Linthicum, Executive Director Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Patsy Rushing, Clerk

Florida Elections Commission The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 08-006413

Orders for Case No: 08-006413