The Issue Whether Petitioners violated provisions of Chapter 106, Florida Statutes, as alleged in the Order of Probable Cause filed August 23, 2002.
Findings Of Fact Chapters 97 through 106, Florida Statutes, comprise the Florida Election Code (Code). Pursuant to the Code, the Commission is empowered specifically to enforce the provisions of Chapters 104 and 106, Florida Statutes. Mary McCarty was elected to the City Commission of Delray Beach, Florida in 1987. She was elected to the Palm Beach County Commission in 1990. She has been returned to that office in each subsequent election and she is currently a member of the Palm Beach County Commission. In November of 2002, she was elected to her fourth term as Chairman of the Palm Beach County Republican Executive Committee. The Committee to Take Back Our Judiciary was an unincorporated entity. It was a de facto committee, which, for reasons addressed herein, did not ever become a "political committee" as defined in Section 106.011(1), Florida Statutes. Ms. McCarty has run for public office six times and was successful on each occasion. Prior to each election she received from the Florida Secretary of State a handbook addressing campaign financing. She is familiar with the statutes and rules with regard to financing an individual campaign. Sometime before the Thanksgiving Holiday in 2000, Ms. McCarty received a telephone call from Roger Stone of Washington, D.C. Ms. McCarty knew Mr. Stone, who at various times had been a campaign operative for Senator Arlen Specter, had been involved in opposing the sugar tax amendment in Florida, and had been a consultant to Donald Trump, during his short-lived presidential campaign. Ms. McCarty was aware that Mr. Stone and Craig Snyder were principals of IKON Public Affairs, a business entity with offices in Washington, D.C., and Miami Beach, Florida. Roger Stone informed Ms. McCarty that he was forming a committee to raise funds for the purpose of taking action against the Florida Supreme Court. Mr. Stone stated that he had formed The Committee and that he wished for her to be the chairperson. She did not initially commit to undertake this responsibility. A few days after the conversation with Mr. Stone, Ms. McCarty received a facsimile draft of a fundraising letter that The Committee proposed to post. The facsimile was sent by Roger Stone from Washington. She made some suggested changes and returned it to the address in Washington from whence it came. Subsequently, she had a telephone conversation with Lora Lynn Jones of Unique Graphics and Design in Alexandria, Virginia. Ms. Jones was in the business of making mass mailings. Ms. McCarty told Ms. Jones that her name could be used on the fundraising letter although Ms. McCarty did not sign the fundraising letter. Nevertheless, the document was mailed to a large number of people and it bore the printed name, "Mary McCarty, Palm Beach County Commissioner." The first time Ms. McCarty saw The Committee's finished product it was in the form of a "Telepost, high priority communication." She first saw the "Telepost" when it arrived in her mailbox in early December 2000. The wording of the letter was different from the draft Ms. McCarty had seen earlier. Unlike the draft, it targeted specific justices on the Florida Supreme Court. It cannot be determined from the evidence the date the December "Telepost" was posted, but it was posted before Ms. McCarty determined that she had become Chairperson of The Committee. The "Telepost," dated December 2000, solicited funds so that The Committee could, ". . . send a clear message to the Florida Supreme Court that we will not tolerate their efforts to highjack the Presidential election for Al Gore." Later in December 2000, Mr. Stone called Ms. McCarthy and told her that she should be the chairman of The Committee. She agreed. Ms. McCarty signed a "Statement of Organization of Political Committee," which was dated December 19, 2000. This is a form provided by the Division of Elections, which, if properly completed and filed, officially establishes a political committee. She also signed a form entitled "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committee." Mr. Stone, or his operatives, provided these forms to Ms. McCarty. She signed them and mailed them to Mr. Stone's address in Washington, D.C., which was the headquarters of the IKON Public Affairs Group. The "Statement of Organization of Political Committee," dated December 19, 2000, was received by the Division of Elections on December 26, 2000. It listed Amber McWhorter as Treasurer. Inez Williams, who works in the document section of the Division of Elections, processed the form. When Ms. Williams received it, she recognized that the form was incomplete because on the face of it the reader could not determine if the committee was an "issue" committee, or a "candidate" committee. Ms. Williams noted that the mailing address on the form dated December 19, 2000, was "c/o VisionMedia," 1680 Michigan Avenue, Suite 900, Miami Beach, Florida. Ms. Williams found a telephone number for that business and dialed it, on December 27, 2000. No one answered so she left a message on VisionMedia's answering machine. In addition to the telephone call, Ms. Williams prepared a letter with the address of, "Mary McCarty, Chairperson, The Committee to Take Back Our Judiciary, 1348 Washington Avenue, Suite 177, Miami Beach, Florida." This letter was dated December 27, 2000, and was signed by Connie A. Evans, Chief, Bureau of Election Records. This is the address found on the "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committee," which had also been received by the Division of Elections on December 26, 2000. The letter signed by Ms. Evans on December 27, 2001, informed Ms. McCarty that items 3 and 7 needed to be "rephrased." It further informed Ms. McCarty, that upon receipt of the requested information the committee would be included on the "active" list. The message recorded on The Committee answering machine on December 27, 2001, generated a response from a person who identified himself as Mr. Snyder, on January 2, 2002. Mr. Snyder engaged in a telephone conversation with Ms. Williams. Ms. Williams explained to Mr. Snyder that items 3, 5, 7, and 8, would have to be completed properly as a condition of The Committee's being recognized. A letter dated January 4, 2001, bearing the letterhead of "The Committee to Take Back Our Judiciary," and signed by Amber Allman McWhorter, was faxed to the Division of Elections on January 4, 2001, and received that date. This letter referenced the telephone call between Ms. Williams and Craig Snyder, who was further identified as The Committee's attorney. The letter stated that a corrected Statement of Organization of Political Committee, and a designation of treasurer, would be forwarded to the Division of Elections within the next 72 hours. On January 8, 2001, a filing was received by the Division of Elections that was deemed by the Division to be complete. Subsequently, in a letter dated January 10, 2001, and signed by Connie Evans, informed Ms. McCarty and The Committee that the Statement of Organization and the Appointment of Campaign Treasurer and Designation of Campaign Depository for The Committee complied with the Division of Elections' requirements. The Committee was provided with Identification No. 34261. Posted with the letter was a copy of the "2000 Handbook for Committees," which is published by the Division of Elections. The letter and the handbook were sent to The Committee operation in Miami, not Ms. McCarty, and no one in the Miami Beach operation ever forwarded it to her. Connie Evans, Bureau Chief of Election Records, the entity that supervises the filing of the forms mentioned above, believes that due to a court ruling in Florida Right to Life v. Mortham, Case No. 98-770-Civ-Orl-19A, the language in Section 106.011, Florida Statutes, which defines a "political committee," has been found to be unconstitutional. She believes that a political committee is not required to register with the Division of Elections but that if a committee does register, it must abide by the statutes regulating political committees. Ms. Evans has informed numerous entities of this interpretation of the law in letters. The efficacy of that case, and Ms. Evans' interpretation of it, will be discussed further in the Conclusions of Law, below. Ms. McCarty signed a "Campaign Treasurer's Report Summary"(CTR-Q1) which was filed with the Division of Elections on April 10, 2001. This addressed the period January 1, 2001 until March 31, 2001. Under the certification section of the CTR-Q1 are the words, "It is a first degree misdemeanor for any person to falsify a public record (ss. 839.13, F.S.)." Immediately above her signature are the words, "I certify that I have examined this report and it is true, correct, and complete." The box found immediately above and to the right of her signature, was checked to signify that Ms. McCarty was the chairperson of The Committee. According to Ms. Evans, The Division of Elections regulates several kinds of committees. There are "issues" committees, "candidate" committees," "party executive" committees, and "committees of continuing existence." Depending on the nature of the committee, different rules apply. The Committee was a "candidate" committee so the contribution regulations of a political candidate applied to the committee. That meant that the maximum contribution per person was $500. The CTR-Q1 indicated in the "Itemized Contributions Section" that seven people contributed $1,000 and one person contributed $2,000. Walter Hunter, Neda Korich, Arthur Allen, William Shutze, Caroline Ireland, Henry Allen, and Honore Wansler, contributed $1,000, each. Robert Morgan contributed $2,000. The amounts in excess of $500 were eventually returned to the $1,000 contributors, except that in the case of Henry Allen, the refund was made to Allen Investment corporation. The sum of $1,500 was returned to Robert Morgan, the $2,000 contributor, but the CTR-Q1 listed only a $500 repayment. Therefore, the CTR-Q1 in its expenditures section was incorrect with regard to Mr. Morgan. The CTR-Q1 also listed in the "Itemized Contributions Section" the receipt, on January 2, 2001, of $150,000 for "LOA/INK extension of credit for direct mail services." These words may be interpreted to mean that a loan in the form of an "in kind" service had been provided. This was reported under the name of Creative Marketing, 2760 Eisenhower Avenue, Suite 250, Alexandria, Virginia. The Committee had a bank account at CityBank of Miami, Florida. The sole authorized signatory on the account was Diane Thorne. The Account No. was 3200015694. There was no entry in the bank account of the receipt of $150,000. This indicates that the item was not processed through the bank and it would not have been processed through the bank if it were really an "in kind" contribution. Because the beginning balance was zero on February 8, 2001, it is concluded that the inception date of Account No. 3200015694 was February 8, 2001. Lora Lynn Jones, is the principal of Unique Graphics and Design, which is located in Suite 253, at an address in Alexandria, Virginia, which is not further identified in the evidence of record. Ms. Jones prepared and posted the fundraising letter of December 2000, at the direction of Mr. Stone. Ms. Jones talked on the telephone with Ms. McCarty prior to mailing the fundraising letter and determined that the language in the letter was agreeable to Ms. McCarty. At the direction of Mr. Stone, Ms. Jones requested payment and received payment for her work, but from whom she cannot remember, except that she is sure that Creative Marketing did not pay it. The money for this production was paid in advance by wire transfer. There is no evidence in the record that this was paid from the account of The Committee. In fact, because the payment was made sometime in early December 2000, it could not have been paid from the account because it had not been opened. Ms. Jones is aware of an entity by the name of Creative Marketing Company and she believes it may be located in Northern Virginia, but she is not involved with it. It is found by clear and convincing evidence that the fundraising letter was not paid for by Creative Marketing, 2760 Eisenhower Avenue, Suite 250, Alexandria, Virginia. The bank records of The Committee reflect a $50,000 expenditure made to Unique Graphics and Design, paid with a check dated May 9, 2001. This represents a payment for something other than the fundraising letter dated December 2000. The $50,000 item was reported as an expenditure on the CTR-Q1 that was reported to have been made on March 12, 2001. It was reported as having been made to Creative Marketing as payee. The only check in the amount of $50,000, reflected in The Committee checking account for the period February 8, 2001, to June 30, 2001, was payable to Unique Graphics and Design and was dated May 9, 2001. Therefore, it is found that the CTR-Q1 is incorrect when it was reported as having been made on March 12, 2001, to Creative Marketing. Ms. Jones believes there is a company by the name of Creative Marketing Company, which she believes may be located in Northern Virginia, but she is not involved with it. Contributions remitted in response to the fundraising letter were forwarded to one of Mr. Stone's two addresses. Because the address of 1348 Washington Avenue, Suite 177, in Miami Beach, Florida, is the address listed on the fundraising letter, it is likely that contributions in response to the fundraising letter went to Mr. Stone's Miami Beach operation. In any event, it is found as a fact that Ms. McCarty did not personally receive or have any contact with any of the contributions remitted to The Committee. The people handling the receipt of funds and the deposits were Roger Stone and people paid by his organization, including Diane Thorne, the secretary; Amber McWhorter, the treasurer; and Craig Snyder. Just as Ms. McCarty was not involved in the receipt of income to The Committee, she was also not involved in the disbursement of funds. The CTR-Q1 was completed by The Committee's staff in either Miami Beach or Washington, D.C., but Ms. McCarty had no input into its preparation. When Ms. McCarty signed the CTR-Q1 she was without knowledge as to whether the report was truthful, correct, or complete. It is further found that she made no effort to ascertain whether the report was truthful, correct, or complete. She believed it to be true and correct because she trusted Mr. Stone's operatives to accurately prepare the report. Ms. McCarty, excepting the current litigation, has never been the subject of a Commission action. Ms. McCarty has an income of approximately $80,000. She owns a residence jointly with her husband which is valued at approximately $300,000 and which is subject to a mortgage of approximately $200,000. She owns a vacation home in Maine jointly with her husband that is valued at approximately $25,000. She and her husband own three automobiles. She owns stocks, annuities, mutual funds or certificates of deposit of an indeterminate value.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Orders of Probable Cause entered in the case of both Mary McCarty and The Committee to Take Back Our Judiciary. DONE AND ENTERED this 21st day of April, 2003, 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 21st day of April, 2003. COPIES FURNISHED: Kendall Coffey, Esquire Coffey & Wright, LLP 2665 South Bayshore Drive Grand Bay Plaza, Penthouse 2B Miami, Florida 33133 J. Reeve Bright, Esquire Bright & Chimera 135 Southeast 5th Avenue, Suite 2 Delray Beach, Florida 33483-5256 Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Ruching, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the parties have stipulated 1/ that the only disputed issues to be resolved by the Hearing Officer are: Whether the Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes. Whether the agency's actions were substantially justified. Whether special circumstances exist that would make an award of attorney's fees unjust.
Findings Of Fact The Petitioner, Stephen S. Spector, M.D., has at all times material to this proceeding been licensed in the State of Florida as a physician. At all times material to this proceeding the Petitioner has engaged in the practice of medicine specializing in ophthalmology and ophthalmic surgery. In connection with his medical practice, the Petitioner also owns and operates, directly or indirectly, at least one outpatient surgery center where he performs most of his surgical procedures. In the normal course of events, when the Petitioner performs surgery at the outpatient surgery center he owns, the patient, or the patient's insurance carrier, is billed separately for the Petitioner's professional services as surgeon and for the use of the outpatient facility. 3/ In the course of his professional practice as a physician/surgeon and the operation of his outpatient surgery center, the Petitioner does business under a variety of business names or business entities, including the following: 4/ Steve S. Spector, M.D., P.A.; Presidential SurgiCenter, Inc.; Presidential Optical, Inc.; and Presidential Eye Center, P.A. At all times material, the Petitioner owned 100 percent of the stock in each of the four corporate entities listed immediately above. At all times material, the Petitioner was employed by Presidential Eye Center, P.A., as a physician/surgeon specializing in ophthalmology, and has been so employed for a period of approximately fourteen or fifteen years. In recent years, the Petitioner's estimated monthly income from his employment by Presidential Eye Center, P.A., was $10,000.00 per month. In some recent years, his income from his employment by Presidential Eye Center, P.A., was somewhat higher. 5/ The Petitioner also receives monthly rental payments from Presidential Eye Center, P.A., Presidential SurgiCenter, Inc., and Presidential Optical, Inc., of approximately $9,500.00. As of the date on which the Administrative Complaint was filed, the Petitioner's net worth was approximately $691,000.00. The evidence in the case does not reveal the number of Petitioner's employees or the number of people employed by the corporate entities through which the Petitioner does business. 6/ The evidence in this case does not clearly reveal which professional and/or business activities are engaged in by the Petitioner in his individual capacity and which are engaged in through each of the four corporate entities of which he is the 100 percent owner. 7/ The Case of Department of Professional Regulation, Board of Medicine v. Stephen S. Spector, M.D., DOAH Case No. 93-1307, DPR Case No. 92-0666, had its genesis in a September 17, 1991 letter from Marc Freeman, M.D., Medical Director of the Family Medical Centers, to the Department of Professional Regulation 8/ (Department) alleging that the Petitioner had made false representations related to billing practices regarding five cataract surgeries and that the Petitioner also made a practice of submitting bills for services and facilities that were allegedly covered by a capitation contract. The case was assigned to DPR Investigator Robert Herron, who notified Petitioner of the complaint and investigation by letter of February 6, 1992. Investigator Herron obtained copies of the medical records for four of the patients indicated in Dr. Freeman's complaint letter, which included records from Humana Hospital and Presidential SurgiCenter, Petitioner's surgical center. Investigator Herron interviewed Dr. Freeman, interviewed the Petitioner through his attorney, and interviewed the attorney representing Humana Health Care Plan. The Petitioner, through counsel, represented that any overbilling to Humana occurred due to errors in bookkeeping and accounting, and not through any fraud on the part of the Petitioner. Other documents obtained as part of this investigation included, but were not limited to, capitation agreements between Petitioner and Humana Medical Plan, Inc., and related court documents from civil litigation which transpired as a result of Petitioner's alleged breach of contract and unjust enrichment. Investigator Herron did not interview the employees of the Petitioner who handled the Petitioner's billing for professional services and for use of facilities. Humana's civil complaint against Petitioner, Case No. CL 90-8421 A B, alleged that Petitioner breached his contract with Humana and profited unfairly as a result, by performing surgeries and billing for same contrary to the provision of capitation agreements between the Petitioner and Humana. Humana claimed that the overbilling by the Petitioner totaled almost $400,000.00. On or about May 21, 1992, Investigator Herron compiled a report which was reviewed and approved by his supervisor on the same date. Settlement of the case between Humana and Petitioner was reached, and an Order of Dismissal was filed in that cause on September 23, 1991. The settlement called for Petitioner to pay Humana Medical Plan, Inc., a total sum of $210,000.00 over an approximate four-year period of time. This settlement was also to include a letter by Humana indicating that this case involved a contractual dispute based upon accounting procedures, and was not based upon allegations of fraud. 9/ Prior to the Probable Cause Panel meeting of July 29, 1992, the Department forwarded to the panel members copies of the complete investigative file regarding the Petitioner, along with a copy of the Department's recommendation in the form of a draft Administrative Complaint. Each panel member received and reviewed the materials related to this case prior to the Probable Cause Panel meeting. DPR Case No. 92-0666 was forwarded to the Probable Cause Panel with a recommendation that probable cause be found for an Administrative Complaint. Present at the July 29, 1992, Probable Cause Panel meeting were panel members Richard McEven, Chairman; Gerard Kaiser, M.D.; and Edward Dauer, M.D. Also present were M. Catherine Lannon, Esquire, from the Attorney General's office, Carlos J. Ramos, attorney for the Department of Professional Regulation, and Teresa Corley, also from the Department. Probable cause was found to exist unanimously by the Panel members, with Dr. Dauer noting that the proposed Administrative Complaint accurately represented "the facts of law at issue." Probable cause was found to exist that Petitioner violated the following statutory provisions: Section 458.331(1)(h), (k) and (n), Florida Statutes. On or about August 7, 1992, the Department initiated action against the Petitioner's license to practice medicine as directed by the Probable Cause Panel of the Board in DPR Case No. 92-0666, later DOAH Case No. 93-1307, through the filing of an Administrative Complaint. The Administrative Complaint filed on August 7, 1992, charged Petitioner with the following violations: filing false reports which the licensee knew to be false in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement; by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide service under a capitation agreement; and exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement. At the time of the four surgeries that form the basis for the underlying Administrative Complaint, there was no capitation agreement between the Petitioner and Humana, because Humana had terminated the agreement. The materials presented to the original Probable Cause Panel included several documents, all apparently overlooked, which showed that the capitation agreement had been terminated and that the effective date of the termination was prior to the date of the four surgeries at issue in the Administrative Complaint. At the time of the four surgeries at issue in the underlying Administrative Complaint, an employee of Petitioner, Jeanne Gold, had the responsibility of billing for Petitioner's services and for the Presidential SurgiCenter facility fee. For each patient listed in the Administrative Complaint, Ms. Gold billed Humana a surgical facility fee for surgeries purportedly rendered by Petitioner at the Presidential SurgiCenter, even though the surgeries were actually performed at Humana Hospital. There were logical explanations for how the errors occurred, which explanations are set forth in affidavits from Jeanne Gold, Brenda Gruber, and Stephen Cohen. These affidavits which explain how the errors in billing occurred were not part of the materials reviewed by the original Probable Cause Panel, but the information contained in these affidavits could have been obtained prior to the original Probable Cause Panel meeting if the case has been adequately investigated. When the Petitioner was told that Humana believed he had incorrectly billed for the four surgeries at issue, he instructed his staff to inquire into the matter and take any necessary corrective action. The Petitioner subsequently made appropriate reimbursements to correct the subject billing errors. On or about September 14, 1993, Department legal counsel presented DPR Case No. 92-0666 to the Probable Cause Panel for reconsideration based upon information which indicated that Petitioner did not have a capitation agreement with Humana at the time of the subject surgeries and that the incorrect billing was simply an error, not an intentional or fraudulent act. Based upon the recommendation of Department legal counsel, the second Probable Cause Panel dismissed all charges against the Petitioner. The evidence presented to the original Probable Cause Panel was an insufficient basis upon which to find probable cause for the violations asserted in the Administrative Complaint. That evidence failed to contain evidence that would reasonably support a belief that the Respondent acted intentionally or fraudulently, and the evidence also affirmatively showed that some of the facts asserted in the Administrative Complaint were incorrect. Adequate investigation would have revealed that all of the incorrect billing alleged in the Administrative Complaint resulted from unintentional error, for which there was a logical explanation.
The Issue Whether the Respondent committed the violation alleged in the Order of Probable Cause entered November 18, 2010, and, if so, the penalty that should be imposed.
Findings Of Fact Because Mr. Horan failed to respond to the Petitioner's First Request for Admissions, the matters of which admissions were requested are deemed conclusively established for purposes of this administrative proceeding. See Fla. R. Civ. P. 1.370. The Petitioner's First Request for Admissions is attached to this Final Order, and the matters of which admissions were requested are adopted herein as findings of fact.
The Issue Did the Department of Children and Family Services (Department) improperly deny funds to Maurice Parkes for the purchase of bottled water?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family care program, and the provisions of in-home subsidies. Petitioner is a developmentally disabled child who lives in his family's home and receives numerous services from the Department for his developmental disability, medical, and physical problems. The services presently being furnished to Petitioner are funded through the Medicaid Waiver Program. The bottled water at issue is not funded through the Medicaid Waiver Program and would have to be funded through General Revenue funds. General Revenue funds appropriated by the legislature for the fiscal year 2001-2002 to the Department have largely been moved to the Medicaid Waiver Program to obtain the benefit of federal matching funds, which are provided at the rate of 55 cents for each 45 cents of state funds. The use of General Revenue Funds to obtain matching federal funds for the Medicaid Waiver Program allows the Department to service some of those developmentally disabled clients that are presently eligible for the Medicaid Waiver Program but have not been receiving services due to lack of funding. There are no uncommitted funds in the General Revenue category of the Developmental Services' budget that could be used to fund the purchase of bottled water for Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request to provide him with bottled water. DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2002. COPIES FURNISHED: Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Maurice Parkes c/o Erika Parkes 2229 Bonita Way, South St. Petersburg, Florida 33712 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Respondent willfully violated Section 106.141(1), Florida Statutes, by failing to properly account for and report the expenditure of certain campaign funds.
Findings Of Fact The Respondent was elected as State Attorney for the Seventh Judicial Circuit in 1988. He defeated the incumbent at that time, Stephen Boyles. Thereafter, in 1992, the Respondent was a republican candidate for re-election as State Attorney in that circuit. The Respondent was challenged in that republican primary in 1992 by Steve Alexander, a former Assistant State Attorney, under both Mr. Boyles and the Respondent. The campaign was a nasty and personal one, focusing on the Respondent's religious beliefs, including his prison ministry. The Respondent was defeated by 57 votes of more than 40,000 votes cast. Upon being defeated in the primary, the Respondent elected to support the democratic candidate in the general election, Ted Doran. The Respondent sent letters on his campaign stationery through the law office of Kermit Coble, a partner with the firm of Coble, Woods, Seps, Clayton and Teal. Two groups of letters were sent out: one to supporters of the Respondent in the primary and another to all members of the Florida Bar for the Seventh Judicial Circuit. The postage on these letters was provided through Mr. Coble's postage meter at his law firm and totaled $260.00. There came a time when Mr. Coble and representatives of his law firm called the Respondent to request reimbursement for the postage funds expended, the $260.00. The Respondent, therefore, wrote a check to reimburse Mr. Coble for the postage early on the morning of October 1, 1992. He used a check drawn on the campaign account. Typically, Mrs. Tanner wrote the check, both on the campaign checkbook and on their personal checkbook. The Respondent did not normally write checks. However, on this occasion, the Respondent did not want to bother Mrs. Tanner with the issuance of the reimbursement check. She was a student at the time, in graduate school, in addition to having to care for two daughters, the youngest of which was causing her parents considerable difficulty. Although the Respondent had read Chapter 106, Florida Statutes, in connection with embarking on his political campaign, he did not recall a specific prohibition which barred the use of campaign funds for the purpose involved in this proceeding. The use of the campaign checkbook did not trigger any awareness, at the time the Respondent issued the check, of any inappropriateness of using campaign funds in that manner. He did not give his action the thoughtfulness and attention that he should have, by his own admission. He conceded that he was pre-occupied with other duties and responsibilities at the time and failed to adequately consider the legal ramifications and consequences of his actions. At about this time, he was heavily involved in the preparation of a "double murder case", one of several significant cases in his office that he was attempting to complete prior to the end of his term of office. In fact, he had just recently completed the trial of serial killer, Aileen Wuornos. He had been keeping very long hours, arising before dawn and working late at night in order to prepare for each day's work and complete it. Several weeks later, he realized he had made an error in using campaign funds to pay for the postage charge. He requested Mrs. Tanner to reimburse the campaign account from their personal funds. He then relied upon and trusted his wife, Mrs. Tanner, who was also his campaign treasurer, to accomplish the reimbursement payment. He did not actually follow up on his request to her and gave it no further thought, assuming that it had been done. The Respondent and his wife have been married for 25 years, and she served as his campaign treasurer for both of his political campaigns in 1988 and 1992. She collected and deposited contributions to the campaign, wrote checks for campaign expenses, and she was responsible for completing and timely filing campaign reports with the Division of Elections and with local elections officials in her capacity as campaign treasurer. Mrs. Tanner acknowledged that the Respondent had asked her to reimburse the campaign account from their personal funds and that she had simply forgotten to do it. This time in question was a difficult time for her and her family. She was a student in graduate school and working as the mother of teenage daughters. Their younger teenage daughter was having behavioral problems which made her difficult to manage. Additionally, at the same period of time, the Respondent's mother was ill and required medical attention, including emergency room visits. In summary, it was a stressful, difficult time for the Respondent and his wife. Mrs. Tanner was quite distracted from the orderly, normal performance of her duties as a mother and student, as well as a campaign manager. She simply forgot to make the reimbursement, after being requested to do so by the Respondent. The Respondent and his wife filed the campaign treasurer's report dated October 5, 1992, which covered the period of August 28, 1992 through October 5, 1992. This report did not include any reference to the expenses related to the letters sent on behalf of Ted Doran. A note attached to the report, however, indicated that an amended report would be filed. The final campaign treasurer's report, covering the period October 5, 1992 through December 12, 1992 did include an expense of $260.00 to reimburse the firm of Coble, Woods, Seps, Clayton and Teal for the postage in question. The report did not note any payment from the Tanners' personal funds to the campaign as reimbursement for that postage. The Respondent and his wife signed the campaign treasurer's reports, as required by law, certifying the correctness and completeness of the report, which the Respondent believed to be the case at the time he signed it. He testified that he reviewed the report for accuracy, completeness and legal compliance and did not note the lack of an entry showing a personal reimbursement to the campaign account. He stated that the report was accurate and complete and that it contained all financial activities of the campaign for that period in question. On January 12, 1993, however, a sworn complaint was filed by Shirley Bundy, former chairwoman of the Volusia County Republican Party Executive Committee, against the Respondent. She complained of the use of the Tanner republican campaign stationery to support a democratic candidate. The complaint also stated that a "reliable source" had informed Mrs. Bundy that Kermit Coble had paid the postage for the letters the Respondent sent in support of democratic candidate, Ted Doran. Thereafter, pursuant to statutory authority, the Division of Elections initiated an investigation in response to the Bundy complaint. Investigator, C.L. Ivey, was assigned to conduct the investigation. He is an experienced investigator, having over 31 years of experience with the Florida Department of Business Regulation and the Florida Department of Professional Regulation. On March 8, 1993, the Respondent filed an initial response to the complaint. He attributed the complaint to political retribution by Mrs. Bundy. He stated at that time that the postage cost had been reimbursed to Mr. Coble "with a personal check". He believed that that had, indeed, been done at the time he made that representation. The Respondent testified at hearing that he summarily put together his initial response to the complaint without reviewing his records or consulting his wife about the matter. He knew that she had been under a lot of stress at the time and did not even mention it to her. He was in the process of re- establishing his private law practice and was very pre-occupied with that and, therefore, relied exclusively on his memory of the facts involved in making the initial response to the complaint. Shortly thereafter, as part of his investigation, Mr. Ivey sought certain information and records from the 1992 campaign from Mrs. Tanner. She asked the Respondent about the request for information and, after further discussion and review of pertinent records, the Respondent and Mrs. Tanner learned that the Respondent's initial response, indeed, was incorrect. This was the first time that the Tanners had discussed the matter since the Respondent's original request for Mrs. Tanner to reimburse the campaign account from their personal account. On March 23, 1993, the Respondent filed a notarized, corrected response to the complaint, in which he explained the circumstances of his initial response, as well as explaining the circumstances surrounding the payment of the postage to Mr. Coble's law firm and the failure of Mrs. Tanner to reimburse the campaign funds from their personal funds, as he had requested her to do. The Respondent stated in this corrected response that in the last months of his term as State Attorney, he was pre-occupied with other matters and "was just too busy and did not give this matter my personal attention". Simultaneously with making this corrected response, the Respondent sought to reimburse the general revenue fund of the state for $260.00 with his personal check. He was informed that he needed to file an amended campaign report and to sent his reimbursement check with that report. He promptly did so and made his reimbursement to the general revenue fund at that time. Mr. Ivey completed his investigation and submitted his report on April 28, 1993. The report was based solely on documentary evidence. Mr. Ivey did not interview, depose, or otherwise interrogate the Respondent or Mrs. Tanner. Following the completion of his report, Mr. Ivey had no further contact with the case. Mr. Ivey had a case load at that time of 30 or 40 cases assigned to him. Mr. Ivey testified that he tries to complete investigations within a six-month period. He testified at hearing that because of the case load and limited resources available to him, many investigations had to be handled through correspondence, without an interview or a deposition. In this case, one of the reasons why an interview or deposition was not conducted, according to Mr. Ivey, was because the Respondent admitted all of the acts necessary to make out a violation of the statute, except for denying the element of willfulness. The investigative report stated that the Respondent had acknowledged the improper payment of the postage and had taken steps to correct it. The report also states that the Respondent did not acknowledge that the violation was willful. More than one year after Mr. Ivey completed his report, on May 19, 1994, the Division of Elections found probable cause to believe that a willful violation of Section 106.141(1), Florida Statutes, had occurred. A letter from Barbara Linthicum informing the Respondent of that finding was sent on May 19, 1994 to the Respondent. He testified, however, that he had never received that letter. The Florida Elections Commission issued its order of probable cause on June 28, 1994. It has not been established by sufficient, preponderant evidence of record that the Respondent willfully violated Section 106.141(1), Florida Statutes, as alleged. The probable cause finding was based only on an investigation which consisted of a review of documents and not upon consideration of any testimony or statements by either the Respondent or Mrs. Tanner. The weight of the evidence establishes that the Respondent acted in a careless manner but that his conduct was not "willful", as that term is employed and intended in Section 106.l41(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered dismissing the complaint against John Tanner for the reasons found and concluded above. DONE AND ENTERED this 28th day of February, 1995, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4641 Petitioner's Proposed Findings of Fact 1-14. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accord with the weight and credibility of the preponderant evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. The Hearing Officer has made the findings of fact on this subject matter after weighing, considering and determining the candor and credibility of the witnesses and evidence. Accepted, in the sense that the Respondent, if he had adequately reflected, would have known that the campaign check written was in violation of the law but not in terms of the violation being willful, intentional and conscious at the time he wrote the check. Consequently, this proposed finding of fact is subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the Hearing Officer's findings of fact made on this subject matter after determining the candor and credibility of the witnesses and the evidence. Accepted, only in terms of a mere recitation of the attempted proof of the Respondent concerning bias on the part of agency personnel. It has not been found that such bias, if any existed, had an effect on the prosecution of this case by the agency and the Respondent has candidly receded from that position in a post-hearing letter to the Hearing Officer and opposing counsel. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact are accepted, to the extent that they are in accord with the findings of fact made by the Hearing Officer. Proposed findings number 28 and numbers 30 through 39 are rejected as being immaterial and unnecessary to an adjudication of this dispute. COPIES FURNISHED: David R. Westcott, Esq. Florida Elections Commission The Capitol, Room 2002 Tallahassee, FL 32399-1007 Christopher R. Haughee, Esq. AKERMAN, SENTERFITT & EIDSON, P.A. 216 South Monroe Street, Suite 200 Tallahassee, FL 32301 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250
The Issue The issue in this case is whether Respondent, the Department of Revenue, should grant Petitioner's application for a consumer's certificate of exemption from sales and use tax.
Findings Of Fact Petitioner is a nonprofit organization incorporated under the laws of the State of Florida on or about August 27, 1997. Petitioner applied to Respondent for a consumer's certificate of exemption from sales and use tax. While the application indicates that it is based on exemption status as an "enterprise zone," Petitioner clarified at final hearing that it actually was basing its application on exemption status as a "charitable institution." ("Enterprise zone" is not an exemption category under the applicable statutes. See Conclusions of Law, infra.) The IRS has determined that Petitioner is exempt from federal income tax under IRC Section 501(a) as an organization described in IRC Section 501(c)(3). A letter dated February 2, 1999, stated that Petitioner: was formed in 1997 to plan and implement redevelopment efforts in the Greater Newtown Community which lead to overall improvement in the quality of life of its residents. In the short time since our inception, we have responded to community needs by implementing a broad range of programs that will have a positive impact on our community. But from the evidence presented (which included no testimony from either party), it is difficult to ascertain factual detail about Petitioner, its activities, or its finances. In addition to grant application and fund-raising activities, it appears that Petitioner has been involved in informational and participation-recruitment meetings and information-gathering surveys for planning purposes (called the Business Retention and Expansion Survey). Petitioner also appears to have been involved in a Storefront Renovation Program and several community celebrations. Petitioner has plans for other economic and community redevelopment activities. But it cannot be ascertained from the evidence which of the other economic development activities have taken place and which are still in grant application or planning stages. For example, documentation regarding Petitioner's involvement in one activity refers to the activity as the "proposed WAGES Employment Challenge." Petitioner obtained $128,000 of funding from the City of Sarasota for seed money for its economic redevelopment and other activities. Petitioner budgeted to spend the $128,000 in 1998. The entire budget consists of salaries, fringe benefits, and overhead expenses. According to a "Profit and Loss" statement for January through October 1998, Petitioner spent $30,581.49 during that time period. All of those expenditures were in the category of payroll and overhead expenses. One activity referenced in Petitioner's documentation is Petitioner's "partnering" with financial institutions and mortgage brokers to process mortgage loans for affordable housing. In that case, the expenditures would be by the other institutions, not by Petitioner. There is no information as to any other expenditures made by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying Petitioner's application for a consumer's certificate of exemption from sales and use tax. DONE AND ENTERED this 5th day of November, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 5th day of November, 1999. COPIES FURNISHED: Bill Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Cynthia E. Porter, Executive Director Greater Newtown Community Redevelopment Corporation 1751 Dr. Martin Luther King, Jr., Way Sarasota, Florida 34234 Joseph C. Mellichamp, III, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue 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.
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.
Recommendation 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.
The Issue The issue in this case is whether Petitioner is entitled to an exemption as a charitable institution or as a military museum fundraiser within the respective meanings of Sections 212.08(7)(o)2.b or (l), Florida Statutes (1997). (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is a non-profit corporation incorporated in Florida. Respondent is the state agency responsible for the issuance of certificates of exemption from sales and use tax in accordance with the requirements of Chapter 212. Petitioner applied for a certificate of exemption on December 22, 1997. On April 22, 1998, Respondent denied Petitioner's application. The application and denial are based on information from Petitioner's 1997 tax year. Petitioner is not a charitable organization within the meaning of Section 212.08(7)(o)2.b. Petitioner is qualified as a nonprofit corporation pursuant to Section 501(c)(3) of the Internal Revenue Code. However, Petitioner failed to show by a preponderance of the evidence that its sole or primary purpose satisfies the requirements of Section 212.07(o)2.b. and Florida Administrative Code Rule 12A-1.001(3)(g). (All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order.) Petitioner failed to show that in 1997 it provided a reasonable percentage of the services enumerated in Sections 212.08(7)(o)2.b.(I)-(VII) for free, or at a substantially reduced charge, to persons who are unable to pay for those services. Petitioner did not show that it raised funds for organizations that provide a reasonable percentage of the statutorily qualified services for free, or at a substantially reduced charge, to persons who are unable to pay for those services. Petitioner asserts that it provides some portion of its computer time for qualified services and that Petitioner provides volunteers for other qualified services. However, Petitioner failed to show the value of the computer time, admitted that the value of the computer does not satisfy the 50 percent test in Rule 12A-1.001(3)(g), and was unable to quantify the amount or value of its volunteer services. Petitioner failed to show that it complied with the requirements of Rule 12A-1.001(3)(g). Petitioner did not show that more than 50 percent of its expenditures in 1997 directly related to statutorily qualified services provided by Petitioner to persons who cannot afford such services. Petitioner did not show that more than 50 percent of its expenditures directly related to raising funds for organizations that provide qualified services to persons who cannot afford those services ("qualifying organizations"). Petitioner's 1997 annual report shows that none of its expenditures were made for statutorily qualified services provided to persons who cannot afford those services. Similarly, the report did not show that more than 50 percent of expenditures were made to raise funds for qualifying organizations. Petitioner is not a military museum fundraiser within the meaning of Section 212.08(7)(l). Petitioner admitted that it made no cash contributions to military museums during 1997. Petitioner claims that it allowed other organizations to use Petitioner's tax exemption under Section 501(c)(3) of the Internal Revenue Code to facilitate in-kind contributions to military museums or to related organizations which, in turn, contributed the items to military museums. The primary item Petitioner claimed to have obtained in this manner in 1997 was a Huey helicopter allegedly donated by the U. S. Army to Vietnam Veterans of Central Florida, Inc. ("Veterans Central"). Petitioner failed to show that the title to the helicopter ever passed from the U. S. Army to Petitioner or to any other organization designated by Petitioner to receive an in- kind contribution. Petitioner failed to show that either Petitioner or its designee otherwise obtained title to the helicopter or any other in-kind contributions. Petitioner claims that a contribution to Veterans Central is a contribution to Petitioner because the two organizations are members of the same group. The group purportedly operates as the Vietnam Veterans of Florida State Coalition (the "state coalition"). However, Petitioner failed to provide any documentary evidence which establishes the relationship between the two organizations or their membership in the state coalition. Petitioner admits that the two organizations have separate boards and that Petitioner does not control or own stock in Veterans Central as required in Sections 617.0601 and 617.0721 (providing that corporate members of a not- for-profit group have no voting rights and, unless otherwise provided in the articles of incorporation and by-laws, the directors of each corporation have sole voting rights for each corporation and do not have voting rights in other member corporations.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for a certificate of exemption. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Ken Baker, President Vietnam Veterans of Florida Foundation, Inc. 1509 Tate Street Cocoa, Florida 32922 George C. Hamm, Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314
The Issue Whether Petitioner willfully violated Section 106.021(3), Florida Statutes, which prohibits a candidate from making an expenditure except through the campaign treasurer on 66 separate occasions, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the testimony, documentary evidence, entire record of the proceedings, and facts admitted to in the Joint Pre-Hearing Stipulation, the following Findings of Fact are made: Petitioner, Alan Schreiber, was the incumbent candidate for Public Defender, 17th Judicial Circuit, in the 2000 election. Petitioner was unopposed for reelection when qualifying ended on July 21, 2000. Petitioner is an experienced politician serving his seventh term as Public Defender. During the 2000 campaign qualifying period, Petitioner made sixty-six expenditures for which he submitted receipts and received reimbursement from his campaign account. The expenditures for which Petitioner was reimbursed are as follows: Date Merchant Amount 05-01-00 Andrew's Tallahassee $261.00 04-04-00 Andrew's Tallahassee $225.61 12-13-99 Bar Amici/ Cathode Ray $50.40 10-29-99 Bar at Embassy Suite $51.41 06-30-00 Big Louie's $265.01 06-20-00 Big Louie's $145.72 06-27-00 Bimini Boatyard $64.82 05-31-00 Bimini Boatyard $316.49 05-21-00 Bimini Boatyard $70.08 05-18-00 Bimini Boatyard $43.26 12-08-99 Bimini Boatyard $71.66 10-20-99 Bimini Boatyard $47.92 05-04-00 Bravo Italiano $63.86 02-24-00 Bravo Italiano $232.43 02-15-00 Bravo Italiano $52.79 01-31-00 Bravo Italiano $62.86 01-27-00 Bravo Italiano $86.83 06-19-00 Café de Paris $113.34 05-24-00 Café de Paris $70.04 05-16-00 Café de Paris $154.99 05-12-00 Café de Paris $160.94 05-06-00 Café de Paris $136.11 04-13-00 Café de Paris $146.65 03-18-00 Café de Paris $113.09 03-04-00 Café de Paris $144.47 02-23-00 Café de Paris $280.10 02-07-00 Café de Paris $73.27 01-17-00 Café de Paris $193.51 12-27-99 Café de Paris $66.47 11-29-99 Café de Paris $145.60 11-26-99 Café de Paris $230.51 11-24-99 Café de Paris $133.57 11-15-99 Café de Paris $183.97 10-31-99 Café de Paris $105.68 10-22-99 Café de Paris $99.43 10-19-99 Café de Paris $130.76 03-31-00 Café de Paris $182.64 03-15-00 Costco Wholesale $140.96 12-14-99 Costco Wholesale $267.61 10-27-99 Costco Wholesale $231.02 Costco Wholesale $256.87 05-23-00 French Quarter $499.24 11-09-99 French Quarter $81.25 11-09-99 French Quarter $85.02 06-08-00 Georgio's Food and Spirits $193.14 05-11-00 Greek Islands $89.73 06-03-00 Greek Islands $75.25 01-04-00 Greek Islands $70.49 10-29-99 Heavenly Ham $349.66 03-22-00 Houston's $75.54 10-28-99 Mayhue's Liquors $70.02 06-14-00 Mezzanot $102.02 12-01-99 Padrino's Restaurant $61.21 03-17-00 Publix $235.32 12-16-99 Publix $235.32 10-29-99 Publix $212.00 Publix $149.41 05-07-00 Restaurante Botin $146.39 01-04-00 Sage $79.85 12-28-99 Sage $107.89 10-29-99 Salute-Embassy Suites $211.26 03-01-00 TGI Fridays $47.08 05-25-00 Things Remembered $79.49 05-24-00 Things Remembered $296.69 05-21-00 Things Remembered $386.22 01-03-00 Wolfgang Puck Café $138.87 While Petitioner's personal decision to "wine and dine potential donors, supporters and campaign volunteers" at upscale restaurants may have been the genesis of the complaint that caused the Commission's investigation, no evidence was offered that suggested this to be an inappropriate expenditure of campaign funds. Sixteen checks were written by the campaign treasurer from the campaign account to Petitioner to reimburse him for the above expenditures. The campaign treasurer acknowledged that he had misdated one of the sixteen checks. Each check was written on the campaign accounts, was dated, was made payable to Petitioner, and each check listed that the purpose of the expenditure was to reimburse for non- specific campaign expense(s) as follows: Date Check No. Purpose Amount 10-29-99 1003 Reimb.-Campaign party expenses 11-02-99 1004 Reimb.-misc. campaign lunches 11-16-99 1005 Reimb.-misc. campaign lunches $968.38 $536.68 $350.24 11-30-99 1006 Reimb.-misc. campaign dinners 01-06-00 1008 Reimb.-camp. party expenses $509.68 $502.93 01-07-00 1009 Reimb.-misc. camp. dinners $496.50 03-03-00 1015 Reimb.-misc. camp. dinners $566.81 04-04-00 1019 Reimb.-camp. meeting expenses $565.32 04-11-00 1020 Reimb.-camp. party exp. $376.28 04-27-00 1021 Reimb.-misc. camp. dinners $799.23 5-16-00 1023 Reimb.-misc. camp. dinners $679.69 5-18-00 1024 Reimb.- misc. camp. lunches $462.58 5-22-00 1025 Reimb.-novelty items $368.22 5-24-00 1051 Reimb.-misc. camp. lunches $612.58 5-26-16 1054 Reimb.-camp. novelty items $376.16 06-09-00 1055 Reimb.-camp. meals/lunches $386.53 Each of the above-noted reimbursements to Petitioner was listed as an expenditure on Petitioner's campaign treasurer's reports filed with the Division of Elections as follows: Date Name and Address of Purpose Amount Person Receiving Reimbursement 10-29-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $968.38 11-02-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $536.68 11-16-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $320.24 11-30-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $509.68 01-06-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $502.93 01-07-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $496.50 03-03-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $566.81 04-04-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign meeting expenses $565.32 04-11-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $376.28 04-27-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $799.23 05-16-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $697.69 05-18-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $462.58 05-22-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign novelty items $386.22 05-24-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $612.58 05-26-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign novelty dinners $376.16 06-09-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $386.53 While the campaign treasurer's report accurately reports reimbursements to Petitioner, because the reimbursements are non-specific and aggregated, it is impossible to determine the actual expense for which reimbursement is made. Stephen Michaelson served as the campaign treasurer for Petitioner's 2000 reelection campaign and had served as deputy treasurer of Petitioner's 1996 campaign. Mr. Michaelson has served a number of candidates in a similar fashion. Prior to filing papers to open the 2000 reelection campaign account, Mr. Michaelson and Petitioner discussed whether it was permissible under Florida law for a candidate to be reimbursed from his campaign account for legitimate, campaign-related expenditures made by him personally in the course of the campaign. Petitioner had experienced difficulty writing campaign checks at restaurants during the 1996 campaign. After the 1996 campaign, Mr. Michaelson had researched the issue and informed Petitioner that he had discovered a "reimbursement statute." Mr. Michaelson also found a 1994 Division of Elections opinion that he believed "to be right on all fours," i.e., the opinion dealt specifically with the issue. The 1994 Division of Elections opinion [DE 94-07] referred to by Mr. Michaelson provides, in pertinent part, as follows: It is also permissible for a candidate to make a purchase with his own personal check or currency if the candidate intends to seek reimbursement from his campaign. However, the purchase does not become a campaign expenditure until such time as the reimbursement is made by campaign check or petty cash through the candidate's campaign treasurer. In 1999, prior to opening his campaign account, Petitioner and Mr. Michaelson again discussed the "reimbursement issue." Mr. Michaelson checked Chapter 106, Florida Statutes, that had been in effect when the 1994 Division of Elections opinion [DE 94-07] had been issued and noted no changes in the statute. In addition, he did a computer search on Florida Statutes Annotated of District and Supreme Court cases and found nothing dealing with the subject that, in his opinion, would warrant a change in the Division of Elections opinion. He checked the Division of Elections website to see if the 1994 opinion was still there and concluded that it was. He did a computer check to see if there were any subsequent Division of Elections opinions that referred to expenditures; finding none, he concluded that the 1994 opinion was still in effect. Based on his review, he advised Petitioner that Petitioner could seek reimbursement from the campaign account for legitimate campaign expenditures that he paid with personal funds. Mr. Michaelson has been a campaign treasurer or deputy campaign treasurer on seven occasions, has, himself, been a candidate, is a lawyer who has practiced criminal defense law for 23 years, and, during his testimony at this formal hearing, demonstrated competency and understanding of the Florida election law/campaign financing law. He gave Petitioner advice on Florida election law/campaign financing law knowing that Petitioner would rely on his advice. Petitioner's reliance on Mr. Micahelson's advice was warranted. In the same general time period during which he opened his reelection campaign account, Petitioner spoke to David Bogenschutz, an attorney in Fort Lauderdale, and asked whether a candidate could incur campaign expenses and then seek reimbursement from his campaign account. Mr. Bogenschutz is a lawyer who has known Petitioner since 1971, whose practice is devoted largely to criminal defense, who had previously advised and represented candidates and public officials in proceedings related to the Florida's election law/campaign financing law, had himself been a candidate, and was believed by Petitioner to be knowledgeable regarding Florida election law/campaign financing law. While Mr. Bogenschutz was reluctant to acknowledge that he was an "expert" in Florida election law, his testimony at this formal hearing demonstrated a satisfactory working knowledge of Florida election law/campaign financing law; it was appropriate for Petitioner to seek his counsel and to be guided by his advice. Mr. Boganschutz advised Petitioner that he saw nothing wrong with his reimbursing himself from his campaign treasury for authorized campaign expenses. He further advised that he would research the matter and advise if he saw anything wrong. Mr. Boganschutz reviewed Section 106.021(3) and Subsection 106.07(4)(a)7, Florida Statutes, and Florida Statutes Annotated. He concluded that Subsection 106.07(4)(a)7, Florida Statutes, permitted a candidate to be reimbursed for authorized campaign expenditures from the campaign account and so advised Petitioner. In giving his advise, he did not review Division of Elections Opinion DE 94-07 or a later opinion, DE 97-06, because, while other Division of Elections opinions are found in Florida Statutes Annotated, neither of the referenced opinions is listed in Florida Statutes Annotated. In addition, he felt that the statute regarding reimbursement was so clear that there was no need to do further research. In addition to his discussions with Mr. Michaelson and Mr Bogenschutz, Petitioner conducted his own research and concluded that it was appropriate to pay vendors personally for campaign-related expenses and then be reimbursed from his campaign account for those campaign-related expenses. The qualifying period ended on July 21, 2000, with Petitioner having drawn no opposition. At about the same time, a local newspaper article questioned Petitioner's campaign spending habits and quoted a Division of Elections official saying Petitioner should have been using campaign checks. After reading the newspaper article, Mr. Michaelson called the local Supervisor of Elections who advised him that Division of Elections opinion DE 94-07 had been rescinded by Division of Elections opinion DE 97-06. This caused Mr. Michaelson obvious concern; the qualifying period had ended and, for Petitioner, the election was over. It appeared that he had incorrectly advised Petitioner regarding the propriety of paying campaign-related expenses personally and then seeking reimbursement. Mr. Michaelson then checked his research in an effort to understand how he had missed the rescission of Division of Elections opinion DE 94-07 and discovered that the Division of Elections website did not indicate that opinion DE 94-07 had been rescinded. The Division of Elections, Department of State, maintains a website which includes "Formal Opinions of the Division of Elections." This website lists all opinions from 1987-2000. Intermittently throughout the list of opinions is the notation "rescinded" in highlighted type, indicating that the particular opinion has been rescinded. No such notation appeared in reference to opinion DE 94-07. The 1997 Division of Elections opinion DE 97-06 indicates "Rescinding DE 76-16, 78-2, 88-32, 90-16, and 94-7." This is presented in the same type as the rest of the text and is not highlighted. Mr. Michaelson then used his web browser to search the Division of Elections website that lists these advisory opinions for the words "expenditure" or "reimbursement," the website did not direct him to the 1997 opinion DE 97-06. Division of Elections opinion DE 97-06, which, in part, rescinds Division of Elections opinion DE 94-07, provides in pertinent part, as follows: We held that candidates could make unlimited purchases by personal check as long as they intended for such expenditures to be reported as in-kind contributions. The opinion also stated that the "candidate cannot make such purchases as a campaign expenditure except by means of a campaign check . . . made through the candidate's campaign treasurer." This reasoning has resulted in some confusion as to when and under what circumstances a campaign expenditure or in-kind contribution occurs. Therefore, we rescind DE 94-07. Except for petty cash expenditures allowed under section 106.12, Florida statutes (1995), the only way that a candidate may make a campaign expenditure is by means of bank check drawn on the primary campaign depository, pursuant to section 106.11(1), Florida Statutes (1995). Having said this, we recognize the applicability of section 106.07(4)(a)7, Florida Statutes (1995), which requires that candidates report any reimbursements of authorized expenses from the campaign accounts to themselves. We believe that the purpose of this provision is to cover rare occurrences where the campaign must make an expenditure, but the campaign check book is not available. Such a situation could occur when a bill must be paid and the campaign has not received its first order of checks from the bank, or where, during the course of campaign travel, tolls or other miscellaneous expenses must be paid in cash and the candidate has failed to take the money out of his petty cash fund for such purposes. During the 2000 campaign, Mr. Michaelson maintained possession of the campaign checkbook which was usually kept at his home. On occasion, he would have one or two campaign checks on his person. If Petitioner asked for a campaign check, and Mr. Michaelson had one on his person, he would give it to Petitioner. On occasion, Petitioner would return a campaign check to Mr. Michaelson, indicating that the check was not accepted by a particular vendor. Most of the reimbursements at issue are a result of Petitioner's not having a campaign check with him at the time of a transaction or the vendor's unwillingness to accept a check or campaign check. In most instances the transaction involved purchases by Petitioner at restaurants. TGI Friday's located in Plantation, Florida, does not accept checks. Petitioner made one campaign-related purchase at TGI Friday's for which he was reimbursed from the campaign account. Bimini Boatyard does not generally permit patrons to pay with checks, although exceptions have been made. Petitioner made six campaign related-purchases at Bimini Boatyard for which he was reimbursed from the campaign account. During his 1996 campaign, Petitioner wrote 15 checks directly to Bimini Boatyard for campaign expenditures from the campaign account. Café de Paris and French Quarter have a policy of not accepting checks except when personally approved by the owner or for a special party. The owner indicated he would not accept a campaign check. Petitioner made 20 campaign related-purchases at Café de Paris and three campaign-related purchases at French Quarter for which he was reimbursed from the campaign account. The Sage Restaurant accepts only cash, MasterCard and Visa from restaurant patrons; checks are accepted for catering. The owner opined that had Petitioner called ahead and advised that campaign laws required him to pay by campaign check, she would accept that form of payment. Petitioner made two campaign-related purchases at Sage Restaurant for which he was reimbursed from the campaign account. Bar Amici and Cathode Ray do not accept checks; however, if a candidate advised that the law required payment by campaign check, a check would be reluctantly accepted. Petitioner made one campaign-related purchase at Bar Amici and Cathode Ray for which he was reimbursed from the campaign account. Greek Island Taverna does not accept checks. Petitioner sought reimbursement for three campaign-related expenditures at Greek Island Taverna for which he was reimbursed from the campaign account. Padrino's Restaurant does not accept checks. The owner, who is seldom at the restaurant, indicated that he would accept Petitioner's check. Petitioner made one campaign-related purchase at the Padrino's Restaurant for which he was reimbursed from the campaign account. Andrew's, a Tallahassee restaurant, does not accept checks from restaurant patrons. The manager opined that, if prior arrangements were made, a campaign check might possibly be accepted, but an out-of-town campaign check made it more problematic. Petitioner made two campaign-related expenditures at Andrew's for which he was reimbursed from the campaign account. Connie Evans, Chief, Bureau of Election Records, Division of Elections, Department of State, who has been employed by Division of Elections for 22 years and a bureau chief for five years, was qualified as an expert witness "in the area of Chapter 106 of Florida Statutes," without objection. She opined that Chapter 106, Florida Statutes, requires full disclosure of all contributions and expenditures for the public benefit. Ms. Evans further opined that Division of Elections advisory opinions are only binding on the candidate or organization who sought the opinion. Ms. Evans further opined that the Division of Elections, in applying Division of Elections opinion DE 97-06, considers that it is appropriate for a candidate to seek reimbursement for personal payment of a campaign-related expense at a restaurant when the restaurant refuses to take a check, but that the candidate should not return to the same restaurant knowing that the restaurant will not accept a campaign check in payment. She acknowledged that there is no statutory authority in Chapter 106, Florida Statutes, for this opinion. Ms. Evans further acknowledged that Division of Elections opinion DE 97-06 refers to Subsection 106.07(4)(a)(7), Florida Statutes (which allows reimbursement for campaign- related expenses), and that both DE 97-06 and DE 94-07 advise that it is permissible for candidate to reimburse himself for campaign-related expenses. Ms. Evans opined that the Division of Elections website should have indicated that Division of Elections opinion DE 94-07 had been rescinded in bold type, as is done with the other rescinded opinions. Ms. Evans further opined that, if a candidate were to reimburse himself or another person for authorized campaign- related expenses, it is the position of the Division of Elections that the reimbursement must be made by a campaign check, must be reported on the campaign treasurer's report as an expenditure, and the amount, date, and the purpose of the expenditure must be reported.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Alan Schreiber, did not violate the Florida Campaign Financing Law as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 19th day of September, 2001. COPIES FURNISHED: Mark Herron, Esquire Mark Herron, P.A. Post Office Box 1701 Tallahassee, Florida 32301-1701 Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue The issue is whether the Application for Registration as an Associated Person filed by Petitioner should be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying Petitioner's application for registration as an associated person of Noble Investment Company of Palm Beach. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of February 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February 1993. COPIES FURNISHED: Karen M. Camechis H. Richard Bisbee Assistant General Counsels Department of Banking and Finance Suite 1302 The Capitol Tallahassee, Florida 32399 Ardith H. Steele 1639 South University Drive Plantation, Florida 33324 The Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel The Capitol Room 1302 Tallahassee, Florida 32399-0350
