The Issue The issues presented for determination are whether Respondent violated Subsections 106.11(3) and 106.19(1)(d), Florida Statutes, as alleged in the Order of Probable Cause dated May 22, 2001, and the Statement of Findings dated April 3, 2001.
Recommendation It is recommended that the Florida Elections Commission enter a final order dismissing all charges against Petitioner, Bruce Grady. DONE AND ENTERED this 26th day of November, 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 26th day of November, 2001. COPIES FURNISHED: Mark Herron, Esquire Mark Herron, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 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 Whether WKDR II, Inc. (WKDR), is jurisdictionally time-barred from bringing the challenges in Case Nos. 21-0844 and 21-0845 to contest the Department of Revenue's (Department) tax assessment and subsequent freeze of WKDR's bank account to attempt to collect on the assessment.
Findings Of Fact The Department administers Florida's sales tax statutes and performs audits to ensure compliance with sales tax laws. WKDR is a Ford franchise car dealership operating as LaBelle Ford. WKDR is organized as an "S" corporation and is wholly owned by Douglas Plattner (Mr. Plattner). WKDR's address is 851 South Main Street, LaBelle, Florida 33935 (851 South Main Street). Mark Smith (Mr. Smith) is a self-employed certified public accountant (CPA) at the firm of Smith and Waggoner CPAs. He is the CPA for Mr. Plattner and WKDR. Mr. Smith's business mailing address is 115 Tamiami Trail North, Suite 7, Nokomis, Florida 34275 (115 Tamiami Trail). On or about March 21, 2019, the Department began a sales tax audit of WKDR for the period of March 1, 2016, through February 28, 2019 (audit period). WKDR was notified of the audit through a Notice of Intent to Audit Books and Records, dated March 21, 2019. Jeff Barnard (Mr. Barnard) was a tax auditor for the Department. Mr. Barnard was responsible for examining the books and records of various taxpayers for compliance with Florida tax laws. Mr. Barnard retired from the Department in May 2021. He was employed by the Department for 30 years. He spent the last 15 years with the Department as a Tax Auditor IV—the most senior tax auditor position at the Department. Mr. Barnard was responsible for the tax audit of WKDR for the audit period. On or about July 30, 2019, Mr. Smith sent the Department a fully executed Power of Attorney/Declaration of Representative form (POA form) to appear as WKDR's representative in connection with the Department's audit. The POA form was completed and signed by WKDR's owner (Mr. Plattner) and its CPA (Mr. Smith). The POA form gave Mr. Smith authority to speak and act on WKDR's behalf for the Department's audit. The POA form correctly states the mailing addresses of both WKDR and its CPA/representative, Mr. Smith. It also correctly states the e-mail address and fax number for Mr. Smith. Mr. Smith entered WKDR's address in section 1 of the POA form. The POA form included spaces for a contact person's name, telephone number, and fax number at WKDR, but those spaces were left blank in the form signed by Mr. Smith and Mr. Plattner. The POA form signed by both Mr. Smith and Mr. Plattner set forth the name, address, telephone number, and fax number of Mr. Smith’s CPA firm in section 2 of the POA form. Section 6 of the POA form provides as follows: Notices and Communication. Do not complete Section 6 if completing Section 4. Notices and other written communications will be sent to the first representative listed in Part I, Section 2, unless the taxpayer selects one of the options below. Receipt by either the representative or the taxpayer will be considered receipt by both. If you want notices and communications sent to both you and your representative, check this box. If you want notices or communications sent to you and not your representative, check this box. Mr. Smith completed section 6 by checking option "a," indicating that they wished to have notices and communication sent to both the taxpayer (WKDR) and the representative (Mr. Smith). Mr. Smith's e-mail address was added on the POA form by the Department's employee, Lisa Weems, after she called Mr. Smith's telephone number to obtain his e-mail address. All other information was added by Mr. Smith after consultation with Mr. Plattner, before they both signed the form. Throughout the audit, the Department's auditor, Mr. Barnard, primarily communicated with WKDR through its designated representative—Mr. Smith—at his mailing address and e-mail address. This included multiple requests for documents. At times, Mr. Barnard communicated directly with Mr. Plattner while copying Mr. Smith on the correspondence. Mr. Barnard sent a letter dated November 14, 2019, by regular mail, to WKDR at 851 South Main Street, with a copy to Mr. Smith at 115 Tamiami Trail. Mr. Smith testified that he received and read this letter. The November 14 letter provided WKDR and Mr. Smith with notice that, as things stood on that date, a NOPA was imminent. The letter stated, in pertinent part: On September 20th, we wrote you a letter requesting the information needed to complete the audit of WKDR II Inc. and the DR54 Formal Notice of Demand to Produce Certain Records. The letter stated that your failure to provide the information be [sic] September 27, 2019 may result in an assessment. That is, the implementation of alternative audit procedures to estimate a liability based on the best available information. As of the date of this letter you have not complied with our request. Therefore, enclosed is the Notice of Intent to Make Audit Changes (DR1215) and the audit work papers, which are an estimate based upon the best information available as provided in Section 212.12(5)(b), Florida Statutes. You have 30 days to review the audit adjustments, which expires on December 16, 2019. * * * If we do not hear from you by December 16, 2019, the audit file will be sent to Tallahassee so that the Notice of Proposed Assessment (NOPA) can be issued to you. The NOPA is the formal notice of the amount due. The NOPA will also provide the procedures for filing informal and formal protests. The Notice of Intent to Make Audit Changes, which was included with the November 14 letter, listed a "balance due through 11/14/2019" of $1,157,025.16. This sum included taxes of $801,967.01, a penalty of $200,491.75, and interest of $154,566.40. The notice also explicitly laid out WKDR's opportunities to informally protest this preliminary sum through a conference with the auditor or the auditor's supervisor. It provided that after the 30-day informal conference period expired, a NOPA would be issued. On December 20, 2019, Mr. Barnard sent an e-mail to Mr. Plattner with a copy to Mr. Smith. Attached to the e-mail was a letter of the same date. The letter provided as follows: On November 14, 2019, a Notice of Intent to Make Tax Audit Changes (DR-1215) was issued with additional tax due of $801,967.00. The 30 day informal protest period with the Service Center was up December 13, 2019.[2] Although your representative, Mark Smith, did provide some sales invoices after issuance of the DR-1215 they did not represent a full month of invoices as requested. Please be advised all sales invoices for December 2018 must be provided by January 3, 2020 for any changes in the assessment to be considered. These invoices should consist of same for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for December 2018. As indicated in the December 20 letter, one month before the NOPA was issued, Mr. Barnard notified Mr. Smith and Mr. Plattner that the 30-day informal protest period expired on December 13, 2019. Mr. Smith's testimony on this matter was evasive. At first, he acknowledged that he received the December 20 letter. However, after objection from WKDR's counsel, Mr. Smith backtracked and denied receipt. His attempted denial was not credible and is not credited. The undersigned finds that Mr. Smith received the December 20 letter. Mr. Barnard sent another letter, dated January 7, 2020, by regular mail to Mr. Plattner, and by e-mail to both Mr. Plattner and Mr. Smith, which stated as follows: Please be advised the information necessary to make an adjustment to the audit results issued on November 14, 2019 has not been provided. As stated in our December 20, 2019 letter this information was sales invoices for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for the entire month of December 2018. 2 The Notice of Intent to Make Tax Audit Changes sent on November 14 provided a deadline of December 13 for the 30-day informal conference period, while the e-mail sent on December 20 referenced a deadline of December 16. The discrepancy in the December 20 letter is immaterial as both deadlines (December 13 and 16) had passed by the date of the December 20 letter. The audit will be closed and a Notice of Proposed Assessment will be issued shortly. Once again, Mr. Smith’s testimony was evasive. After seemingly admitting he received and read the January 7 letter, Mr. Smith testified that he did not receive the January 7 letter. The undersigned found Mr. Smith's testimony on this point wholly untruthful. At the hearing, during cross-examination, the Department's counsel asked Mr. Smith about his actions and impressions after receipt of the January 7 letter in the following exchange: Q. Let's go to Exhibit 22, which is Bates Number 00081. This is another e-mail sent to you on January 7th, 2020 to Mr. Plattner showing a carbon copy to Mr. Mark Smith CPA POA. The third sentence states; "The audit will be closed and a notice of proposed assessment will be issued shortly." Does that mean that the audit is still open or the audit is closed? A. That, like I said, I mean, I've -- I've dealt with audits where they say they're going to do this and do that and it's taken them two years to send anything. Q. This letter dated January 7th, 2020 does not give a new deadline, does it? A. It does not appear to but -- yeah, it does not appear to. Q. In fact, it says the audit is closed. That means that it's done, right? A. No. I don't -- I -- not necessarily. Q. It also says that the notice of proposed assessment will be issued shortly. So you knew at this time, the NOPA was imminent, right? A. Not necessarily. Q. Is there any language in this letter indicating that WKDR has any more time to provide additional documents? A. I've worked with the State before and they've provided us additional time quite often. Q. In fact, the auditor did provide you a deal -- a great deal of additional time to have the audit, didn't he? A. Well, we provided him so many documents that we thought he needed more time too. The whole tenor of Mr. Smith's testimony was to acknowledge that he read and understood the January 7 letter to say the NOPA was imminent, but that he knew from his experience the NOPA was "not necessarily" imminent. Notably, when asked if he knew at that time that the NOPA was imminent, Mr. Smith did not say that he did not know that because he did not receive or read the January 7 letter when it was sent to him by e-mail. Mr. Smith provided answers to these and several other questions about what he did or did not do in response to the January 7 letter. It was not until after an objection by WKDR's counsel that, as before, Mr. Smith backtracked to say that he did not receive the letter. In making the finding that Mr. Smith was untruthful when he testified that he had not received the January 7 letter, the undersigned had the distinct opportunity to observe the demeanor of Mr. Smith during testimony on this issue. He was not credible and his belated denial is not credited. The undersigned finds that Mr. Smith received the January 7 letter, reviewed it, and hoped that he could buy more time as he had thought he might be able to. Testimony of Lisa Weems Ms. Weems is a Revenue Specialist III for the Department. She has worked for the Department, in its Compliance Standards Section, for over 15 years. In addition to other tasks, Ms. Weems is responsible for printing NOPAs to send out to taxpayers and their representatives. Ms. Weems testified in great detail about the process she uses to send out NOPAs. When a NOPA is issued, it is uploaded to the Department's system overnight and cannot be printed until the following morning. Because of this, Ms. Weems sends out NOPAs only four days a week—Tuesdays, Wednesdays, Thursdays, and Fridays. Ms. Weems prints and mails out approximately 400 NOPAs per week. On the day of the final hearing, she had mailed out 88 NOPAs. Ms. Weems has a system in place to keep track of the NOPAs she sends out. Ms. Weems clearly and credibly testified about the process she used to send out NOPAs and when and by what means she used to send the NOPA to WKDR and its representative in this case. Each NOPA is mailed out in a packet that includes four documents: the NOPA, NOPA Remittance Coupon, Tax Audit Satisfaction Survey, and a document titled How to Pay Your Audit Assessment and Notice of Taxpayer Rights. The packets are sent by USPS first-class mail. WKDR's NOPA was issued on January 13, 2020. It had to load in the Department's system overnight, so it was printed on January 14, 2020. WKDR's NOPA assessed taxes of $801,967.01, a penalty of $200,491.75, and interest of $166,431.12, for a total due by WKDR of $1,168,889.88 following the audit.3 3 The amount of the taxes assessed and penalty remained the same as was listed in the Notice of Intent to Make Audit Changes. The amount of the interest had increased. The interest listed in the Notice of Intent to Make Audit Changes was for the period up to November 14, 2019. The NOPA specified that the deadline to request a formal hearing before DOAH was May 12, 2020, or 60 days from the date the assessment becomes a final assessment. The Notice of Taxpayer Rights provided detailed instructions on how to contest the assessment and provided further details on the timelines and deadlines to do so. Ms. Weems sent WKDR and Mr. Smith copies of the NOPA by USPS first-class mail on January 14, 2020. On January 14, 2020 (the day after the NOPA was uploaded), Ms. Weems printed an original and copy of WKDR's NOPA. She placed the original NOPA and the other three documents in a window envelope, addressed to WKDR at 851 South Main Street. A copy of the NOPA, along with the three other documents, were placed in another envelope, addressed to Mark Smith, CPA, at his business mailing address, 115 Tamiami Trail. Ms. Weems testified that she created a mail log sheet, wrapped the log sheet around the envelopes, and placed both of these NOPA envelopes in the outgoing mail basket. After placing the items in the outgoing mail basket, a Department employee from Building L picks up the outgoing mail and mails it out. Ms. Weems testified that she has mailed NOPAs this way for over 10 years. Ms. Weems testified that it was her practice, and what she was taught by the Department, to send NOPAs that had assessments for over $100,000.00 by fax and e-mail, in addition to regular mail.4 WKDR's assessment was for an amount greater than $100,000.00. On January 16, 2020, Ms. Weems sent a copy of the NOPA to Mr. Smith by fax transmission. 4 It must be noted that the Department's internal policy to send NOPAs with assessments over $100,000.00 by e-mail and fax is an unadopted rule; however, it is not necessary to rely on it as the basis for the determination in this matter. See § 120.57(1)(e)1., Fla. Stat. Ms. Weems sent the fax to Mr. Smith's fax number, which was provided on the POA form. Ms. Weems used a fax coversheet when sending the fax. The coversheet recorded several important pieces of information. It provided the case number and the taxpayer's name (WKDR). Two boxes on the fax coversheet were checked—a box indicating there was a "POA" (Power of Attorney) in the file and a box indicating the NOPA was to be sent to the "POA." Ms. Weems also made some notes on the fax coversheet. She wrote: "original notice mailed 1/14/20," "email: mark@swagcpa.com," and "(8) pages." Ms. Weems testified that the reference to eight pages represented the amount of pages she faxed. These pages included the four documents sent by USPS first-class mail mentioned above. After faxing the documents to Mr. Smith's fax number, Ms. Weems received a fax transmission report. The report indicated "Results OK." The term "OK" on a fax transmission report is generally accepted as meaning that the transmission was completed successfully. On January 16, 2020, Ms. Weems also sent a copy of the NOPA and Notice of Taxpayer Rights to Mr. Smith by e-mail. Ms. Weems sent the e-mail to Mr. Smith at mark@swagcpa.com—the e-mail address she obtained from Mr. Smith's office, and which he confirmed was his through testimony at the hearing. The e-mail's subject line stated "Audit Number 200262550-010 WKDR II, INC." The e-mail stated as follows: Please respond back to me by e-mail letting me know you did receive the Notice of Proposed Assessment (Nopa) and Taxpayer Rights by Email and Fax please. Good afternoon, Mr. Smith. I'm e-mailing you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights. I also faxed you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights to fax number 941-866-7691. The Original Notice of Proposed Assessment (Nopa) & Taxpayer Rights was mailed out on 1/14/2020. Any questions call the Nopa Line at 850-617-8565. Thanks, Lisa Weems. The e-mail included an attachment labeled "3125_001.pdf." Ms. Weems testified that the attachment was a copy of the NOPA and Taxpayer Rights. Ms. Weems requested a "delivery receipt" and "read receipt" through her e-mail platform for the e-mail she sent to Mr. Smith. This was her customary practice when sending e-mails. A few seconds after sending her e-mail, she received a "delivery receipt" confirmation that the e-mail was delivered to mark@swagcpa.com. Shortly thereafter, Ms. Weems received a "read receipt" confirmation that her e-mail was received by Mr. Smith and was "read." The use of delivery and read receipts are not novel practices. Delivery and read receipts are used by a sender of an e-mail to confirm that the e-mail sent has been delivered to the addressee and, subsequently "read," that is, opened by the recipient. Ms. Weems keeps a monthly log of the NOPAs she sends out by fax and e-mail. Ms. Weems's monthly log for January 2020 includes entries that confirm she sent the WKDR NOPA by e-mail and fax to Mr. Smith at the contact information he provided. In addition to her personal monthly log, Ms. Weems also used SAP—a Department computer system that employees work in every day—to document her activities. On January 16, 2020, Ms. Weems made a notation in SAP that stated as follows: "I faxed the Notice of Proposed Assessment (NOPA) & taxpayer rights to Mark Smith on 1/16/20 to fax number 941-866- 7691. I e-mailed the Notice of Proposed Assessment (NOPA) and taxpayer rights to Mark Smith on 1/16/20 to e-mail address (mark@swagcpa.com). See attachments and notes." Testimony of Mark Smith Mr. Smith testified that he did not receive the NOPA by USPS first- class mail, fax, or e-mail. If the undersigned took Mr. Smith's testimony as true, all three of the Department's avenues of sending the NOPA failed. Mr. Smith testified that the NOPA, sent by USPS first-class mail, in the same fashion used for several other letters that he had received from the Department, was not received. Other than Mr. Smith's denial, WKDR provided no evidence that the NOPA and accompanying documents Ms. Weems mailed in separate packages to WKDR at its address and to WKDR's representative's address were not received. Mr. Smith testified that during the time the NOPA was sent, his business utilized an electronic faxing service called MyFax.com. Through this service, he received faxes in e-mail format, with the contents of the fax attached to the e-mail as a PDF document. Mr. Smith testified that he did not receive the fax from Ms. Weems. Mr. Smith also testified that he rarely read faxes because "90 plus percent of our faxes are payroll-related" and belonged to his business partner. Mr. Smith did not credibly explain how he comes to know about the ten percent of faxes directed to him. While perhaps his business partner screens faxes, it is inconceivable that a business firm would not ensure that incoming faxes are directed to the person to whom they are sent. That is particularly true where, as here, Mr. Smith has provided his business fax number as a means to give him notices regarding WKDR's audit. Although the Department provided documentation of a delivery and read receipt of the NOPA sent by e-mail to Mr. Smith, Mr. Smith testified that he did not receive it. Mr. Smith offered no credible explanation for the delivery and read receipts. Once again, it is not credible that a CPA who serves as the POA for taxpayer WKDR would not be reviewing e-mails delivered to his e-mail address, when his office has provided that e-mail address to the Department. Notably, he acknowledged reviewing other e-mail communications from the Department with regard to WKDR's audit. Mr. Smith's feigned ignorance of an e-mail delivered to him and opened by him is not credible and is not credited. The competent substantial evidence establishes that the Department mailed the NOPA to both Mr. Smith and WKDR at the addresses provided on the POA form. The testimony that Mr. Smith did not receive the NOPA is not credible. WKDR did not deny that it received the NOPA mailed to it; WKDR offered no testimony on the subject.5 The NOPA was mailed to the same addresses provided by Mr. Smith and Mr. Plattner on the POA form and used by the Department to successfully communicate with Mr. Smith during the audit. WKDR and Mr. Smith were on notice that a NOPA was forthcoming. The Department advised WKDR and Mr. Smith by letter through regular mail and e-mail, on at least two occasions, that a NOPA was going to be issued and that the Department anticipated an assessment of additional taxes of approximately $801,967.00. The Department provided notice of the NOPA in a manner reasonably calculated to inform WKDR and its representative of WKDR's rights and of the deadlines to take action to protect those rights. WKDR and the Department communicated frequently during the audit, but after issuance of the NOPA, communications with WKDR and Mr. Smith ceased for several months. Mr. Smith did not reach out to the Department to find out why communications ceased. The reasonable inference is that Mr. Smith was fully aware of why the previous communications during the audit stopped: because the audit had culminated 5 In its post-hearing submittal, WKDR argued that the NOPA mail should have been sent to Mr. Plattner. But the NOPA package was addressed to WKDR, the taxpayer, at the mailing address given on the NOPA. WKDR had the opportunity in the POA form to designate Mr. Plattner as the taxpayer contact person but chose not to do so. in the NOPA and it was up to WKDR to contest the NOPA in a timely hearing request. On or around February 18, 2021, the Department issued an NIL against WKDR, by which it notified WKDR that it intended to freeze funds from WKDR's bank account in the amount of $999,999.99. The NIL provided that WKDR had 21 days from the date of receipt of the NIL to dispute the matter. On February 19, 2021, WKDR submitted a petition for a chapter 120 administrative hearing to challenge the NOPA. WKDR's petition challenging the Department's NOPA was filed with the Department 403 days after the date on the NOPA (January 13, 2020) and 286 days after the deadline for filing a petition to request an administrative hearing had passed. On February 23, 2021, WKDR timely filed a petition for an administrative hearing to dispute the NIL. WKDR's dispute of the NIL is solely based on its challenge to the NOPA, and its claim that it did not receive the NOPA when issued the year before. WKDR failed to timely exercise its opportunity to protest the amount of the Department's assessment, the underlying audit findings, and the methods the Department used to reach the amount in the assessment. There is no claim by WKDR in this case that the content of the Notice of Taxpayer Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested; its claim is solely that it did not receive the NOPA and the accompanying Notice of Taxpayer Rights, a claim which is not credible. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department sent the NOPA to WKDR's representative by USPS first-class mail, e-mail, and fax, and to WKDR directly by USPS first-class mail; and that Mr. Smith received the NOPA by USPS first-class mail, e-mail, and fax, and that WKDR received the NOPA by USPS first-class mail. WKDR did not submit a timely request for hearing to dispute the NOPA.
Conclusions For Petitioner: Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 For Respondent: J. Clifton Cox, Esquire John G. Savoca, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order dismissing DOAH Case Nos. 21-0844 and 21-0845. DONE AND ENTERED this 30th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2021. Mark S. Hamilton, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Kristian Oldham, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Jacek Stramski, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Doug Plattner 3118 Walter Travis Drive Sarasota, Florida 34240 James H. Sutton, Esquire Moffa, Sutton & Donnini, PA 8875 Hidden River Pkwy, Suite 230 Tampa, Florida 33637-2087 J. Clifton Cox, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Allison M. Dudley, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 John G. Savoca, Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 James A. Zingale, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Order of Probable Cause issued June 1, 2007, and, if so, what action should be taken.
Findings Of Fact In the 2006 election, Mr. Lunkins was a candidate for the Florida Senate, District 32. On or about April 20, 2005, Mr. Lunkins filed a State of Florida Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates form (DS-DE-9), designating himself as his campaign treasurer. By letter dated April 26, 2005, and sent on the same date, to Mr. Lunkins from Kristi Reid Bronson, Chief, Bureau of Election Records, Division of Elections, Ms. Bronson provided Mr. Lunkins with a user identification number and initial password, which allowed him to access the Division of Elections’ electronic filing system. The letter from Ms. Bronson was sent to the address provided to the Division of Elections. Further, Ms. Bronson’s letter contained information about filing campaign treasurer reports. She advised Mr. Lunkins that all candidates filing their campaign treasurer’s reports with the Division of Elections were required to file the reports using the electronic filing system. Also, she advised him that Chapter 106, Florida Statutes, the 2005 Calendar of Reporting Dates, and the 2004 Candidate and Campaign Treasurer Handbook were available for printing on the Division of Elections' website. By letter dated July 12, 2006, and sent on the same date, from Ms. Bronson to Mr. Lunkins, she notified him, among other things, that he had failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. By a second letter dated August 30, 2006, and sent the same date by certified mail, from Ms. Bronson to Mr. Lunkins, she notified him, among other things, that he had failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. On September 1, 2006, Mr. Lunkins claimed and received Ms. Bronson’s certified letter dated August 30, 2006. Mr. Lunkins failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. Mr. Lunkins’ failure to file his 2006 Q2 Campaign Treasurer’s Report was willful.
The Issue The issues are whether Petitioner effectively elected to move her retirement account from the Florida Retirement System (“FRS”) Pension Plan to the FRS Investment Plan prior to her retirement from state employment or, if not, whether Respondent, State Board of Administration (“SBA”) is estopped from claiming that Petitioner did not successfully elect to move her retirement account into the FRS Investment Plan.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Adrian Wagner began her state employment on April 22, 1994, with the Department of Health and Rehabilitative Services, which was renamed the Department of Children and Family Services after a 1996 reorganization. Since 2012, the agency has been named the Department of Children and Families. Upon her hiring, Ms. Wagner was enrolled in the Pension Plan, which was the only retirement program available for eligible employees in 1994. In 2002, the Investment Plan was made available for employees participating in the FRS. Ms. Wagner was provided a three month window, from December 1, 2002, through February 28, 2003, to switch to the Investment Plan. The Plan Choice Administrator did not receive an election from Ms. Wagner during the three month period. Therefore, Ms. Wagner remained in the Pension Plan by statutory default. See § 121.4501(4)(a), Fla. Stat. Ms. Wagner changed employers but remained in the FRS system until her last day of employment on April 3, 2019. At the time of her retirement from FRS-eligible employment, Ms. Wagner was working for the Alachua County Sheriff’s Office. On March 4, 2019, Ms. Wagner logged onto the FRS website, MyFRS.com, from her home computer. Her intention was to use the second election opportunity afforded by section 121.4501(4)(f), Florida Statutes, to move from the Pension Plan to the Investment Plan. Ms. Wagner recalled clicking a green button to change her plan, which took her to a page that read, “ready to make a decision” to change from the Pension Plan to the Investment Plan. It set out the steps needed to make the change. Ms. Wagner testified that she clicked on a green arrow that said, “change your plan,” which took her to a page that set forth the amount of money she would have in the Investment Plan. She continued to a page showing the different plans available to participants in the Investment Plan. The website advised her to contact an Ernst and Young (“EY”) financial planner to discuss her plan options. Ms. Wagner testified that a few minutes later she used the phone number provided by the MyFRS.com website to contact the EY financial planners. She testified that the EY planner with whom she spoke was named “Josh.” The EY call summary log for Ms. Wagner was entered into evidence. The log is a record of every phone call between EY and Ms. Wagner. It includes the date and time of the call, the name of the EY employee who spoke to Ms. Wagner, and a brief summary of their discussion. The EY call summary log identified the EY planner who spoke with Ms. Wagner at 12:10 p.m., on March 4, 2019, as Joshua Kantrowitz. Ms. Wagner testified that Mr. Kantrowitz told her that he could not see in his computer that she had made the switch to the Investment Plan. While Mr. Kantrowitz waited, Ms. Wagner clicked several “back” buttons on the MyFRS.com website. She then went through the same page progression she had done previously to make her plan selection. Ms. Wagner recalled finalizing her decision by clicking a button that read “send,” or “submit,” or “continue.” Ms. Wagner testified that Mr. Kantrowitz told her that he could now see that she had elected to change her retirement from the Pension Plan to the Investment Plan. They discussed fund options, tax questions, and penalties for taking funds out of the Investment Plan. Mr. Kantrowitz verified Ms. Wagner’s email address so that he could send her an FRS Investment Beneficiary Form. Ms. Wagner understood Mr. Kantrowitz to say that she would not be able to see that she had changed to the Investment Plan on the website for about a month. The conversation was interrupted when the phone connection was lost. Ms. Wagner testified that it was her understanding that she had successfully changed her retirement from the Pension Plan to the Investment Plan, and that this change had been confirmed by Mr. Kantrowitz. A transcript of the conversation between Ms. Wagner and Mr. Kantrowitz was entered into evidence. The transcript does not confirm every aspect of Ms. Wagner’s recollection. The transcript records that Ms. Wagner told Mr. Kantrowitz that she “just switched over from the FRS Pension Plan to the Investment Plan.” Mr. Kantrowitz asked when she made the switch. Ms. Wagner responded, “I just hit it today. Did it today.” She added that she made the election “about ten minutes ago.” The transcript clarifies that Mr. Kantrowitz accepted, but did not confirm, Ms. Wagner’s statement that she made the switch to the Investment Plan. After Ms. Wagner told him that she made the switch only 10 minutes ago, Mr. Kantrowitz stated: Okay. And you did it by--basically, you know, if you do--you know, it’s still being processed at the moment. Basically, you know, in the next month, it’s going to make that conversion. In order to, you know, switch and make that choice, you know, the types of investments you’re putting into. Okay. So I do want to keep you aware of that if you did fill it out today, okay. Mr. Kantrowitz never confirmed that the second election had been completed nor did he state whether he could or could not see the change on his computer. Mr. Kantrowitz simply accepted Ms. Wagner’s word and went on to tell her what would happen next if she indeed made the change. Mr. Kantrowitz did state that the conversion would be made in the next month, confirming in part Ms. Wagner’s recollection that she was told that it would be a month before she could see the switch to the Investment Plan on the website. Again, however, this statement was contingent: if Ms. Wagner made the change, the conversion would take about a month. The EY call summary log entry for the March 4, 2019, conversation, presumably completed by Mr. Kantrowitz, records Ms. Wagner’s “Question or Problem” as “made a switch to the FRS IP. [D]oesn’t plan to work in the FRS anymore.” The log records the “Resolution” with a series of four bullet points: talked about IP. taxation, timelines, HIS. says she spoke with admin and they said she would hit NRA at April 1 for 25 YOS SR. she did the 2nd election online and was defaulted into the FRS RDF. needs to set up beneficiaries sending out beneficiary form It could be argued that the second bullet point confirms that Ms. Wagner successfully completed the second election into the Investment Plan. However, when read in tandem with the transcript, Mr. Kantrowitz’s notes clearly set forth his summary of the conversation as it occurred, not his independent conclusion that Ms. Wagner had completed the second election. After the call with Mr. Kantrowitz was dropped, Ms. Wagner called back to inquire as to her exact retirement date. She spoke briefly with another EY planner, Zach Brown, who told her that the Division of Retirement keeps the record of official years of service for employees. Mr. Brown transferred the call to the Division of Retirement. The transcript indicates that Ms. Wagner remained on hold for some time, then hung up before speaking with a Division of Retirement representative. Ms. Wagner testified that on March 18, 2019, she again contacted the EY financial planners. She spoke for roughly a half-hour with a woman whose name she did not recall. The woman verified Ms. Wagner’s personal account information. After being verified, Ms. Wagner asked tax and health care subsidy questions and stated that she planned eventually to move her Investment Plan account from EY to an outside investment firm. Ms. Wagner testified that the EY planner never stated that she was not enrolled in the Investment Plan. The EY call summary log does not show a phone call from Ms. Wagner on March 18, 2019. Ms. Wagner testified that on March 19, 2019, she met with Shawn Powers, the human resources manager for the Alachua County Sheriff’s Office, to discuss Ms. Wagner’s impending retirement. As Ms. Powers filled out a retiree insurance data sheet, Ms. Wagner told her that she had enrolled in the Investment Plan. Ms. Powers cautioned her about the risks involved in the Investment Plan. Ms. Wagner assured her that she understood the risks. Ms. Powers checked the “Investment Plan” box on the insurance form. Ms. Wagner signed the form, attesting to her understanding that she had made the election to move from the Pension Plan to the Investment Plan. Ms. Wagner testified that, after the March 4, 2019, conversation with Mr. Kantrowitz, she received several emails from EY financial planners. She understood these emails as indirect confirmation that she had successfully elected to move to the Investment Plan. During cross-examination, Ms. Wagner conceded that none of these communications affirmatively stated that she was now in the Investment Plan. The third-party Plan Choice Administrator for the Investment Plan is Alight Solutions. FRS members who wish to utilize their second election have multiple options: they may complete and mail in a hard copy form; they may submit a second election form on the MyFRS.com website; or they may log into their account on the MyFRS.com website and go through the process of submitting and confirming their second election online. Fla. Admin. Code R. 19-11.007(3). If an FRS member successfully utilizes the online MyFRS.com process for submitting a second election, an “election confirmation” page appears that informs the member that the election has been received by Alight Solutions. Ms. Wagner had no specific recollection of receiving an electronic confirmation that her election to move to the Investment Plan had been successfully submitted or that it had been received by Alight Solutions. If an FRS member successfully submits an election form to Alight Solutions, a hard copy letter is mailed to the member confirming receipt. Ms. Wagner had no specific recollection of receiving any type of correspondence confirming receipt of her Investment Plan election via conventional mail. Ms. Wagner retired from the Alachua County Sheriff’s Office on April 3, 2019. The parties stipulated that the SBA has no record of receiving a second election from Ms. Wagner during her term of employment with an FRS-participating employer. On April 8, 2019, Ms. Wagner logged onto the MyFRS.com website and saw that she was still enrolled in the Pension Plan. Ms. Wagner immediately phoned the number for the EY financial planners and was transferred to a “solutions person” named Nichole. Ms. Wagner explained to Nichole that on March 4, 2019, she had elected to move her retirement account from the Pension Plan to the Investment Plan via the MyFRS.com website. She provided Nichole with the chronology of events from March 2019 as she remembered them. Nichole told Ms. Wagner that she would research the matter and get back to her within two weeks. Ms. Wagner testified that on or about April 22, 2019, Nichole phoned her to say that she could find no record of anything Ms. Wagner claimed to have done on the MyFRS.com website. Nicole told Ms. Wagner that she would need more time, possibly another two weeks, to do further research on the matter. Ms. Wagner told Nichole how upset she was. Nichole assured Ms. Wagner that she would do her best to find out what happened. Nichole also stated that she would send Ms. Wagner a form to request that the SBA intervene. Ms. Wagner subsequently filed a Request for Intervention, which was received by the SBA on May 17, 2019. Ms. Wagner testified that after she filed her Request for Intervention, but before the SBA responded, she attempted to contact Nichole. Her call was answered by an unnamed EY planner who stated that he would remain on the line while putting her through to a solutions person. Ms. Wagner began speaking with the solutions person but was interrupted by the EY financial planner, who stated that he had found notes by Mr. Kantrowitz indicating that she had changed from the Pension Plan to the Investment Plan. It is highly likely that the unnamed EY financial planner was referencing the EY call summary log notes quoted at Finding of Fact 18. As found above, Mr. Kantrowitz’s contemporary notes reflected what he was told by Ms. Wagner. The notes do not constitute an independent confirmation that Ms. Wagner successfully completed her second election. The SBA submitted into evidence a spreadsheet titled “Participant Web Activity Detail.” SBA witness Allison Olson testified that this document was produced by Alight Solutions in response to her request for all records of Ms. Wagner’s March 4, 2019, activity on the MyFRS.com website. Ms. Olson is the Director of Policy, Risk Management, and Compliance in the Office of Defined Contribution Programs. She credibly testified that she is familiar with reading the Alight Solutions spreadsheets and that she saw nothing on Ms. Wagner’s page indicating that Alight Solutions received her Investment Plan election. Petitioner’s information technology expert, Philip Schwartz, testified that the document provided by Alight Solutions was a “program log,” a high level program that runs to handle a particular task such as an accounting function. Mr. Schwartz testified that he suggested to his client that she request the “server log” for the relevant date. The server log captures every keystroke and click made by a user such as Ms. Wagner, even in situations in which the server is too busy to complete the requested function. Mr. Schwartz believed the program log was insufficient because it showed only which page of the website Ms. Wagner was on at a given moment, not which buttons she clicked or whether she had hit the “send” button. Mr. Schwartz’s suggestion was that Ms. Wagner might have done everything necessary to complete the second election but that the MyFRS.com server may not have recorded her election. The server log would have provided a more accurate representation of Ms. Wagner’s intentions. Ms. Olson testified that, after an informal hearing attempting to resolve the case, she requested a server log from Alight Solutions. The company responded that it did not have the server log. Ms. Olson testified that the program log would indicate the second election had it been completed by Ms. Wagner. Ms. Olson stated that FRS members are always advised to follow through and make sure their election has been received. Mr. Schwartz testified that there is no industry standard as to the length of time a program log should be kept. He has known companies to hold them for as long as a year, but has also known companies to keep them for only 90 days. Mr. Schwartz testified that there is no legal requirement for a company such as Alight Solutions to maintain a program log at all. Mr. Schwartz testified that he did not have enough knowledge of Alight Solutions’ terminology to state whether the program log indicated that Ms. Wagner’s election had been received. Thus, there is no evidence to contradict Ms. Olson’s credible testimony that the Alight Solutions program log did not indicate receipt of Ms. Wagner’s Investment Plan election. The preponderance of the evidence establishes that Ms. Wagner intended to make her second election on March 4, 2019, and to move her retirement account from the Pension Plan to the Investment Plan. The preponderance of the evidence also establishes that Ms. Wagner failed to complete her second election and that Alight Solutions, the Plan Choice Administrator for the Investment Plan, did not receive her election.1/ The evidence was insufficient to show that the SBA or any entity or person acting on its behalf or as its agent made any representation to Ms. Wagner that her second election had been received by the Plan Choice Administrator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the State Board of Administration enter a final order dismissing Petitioner’s Florida Retirement System Investment Plan Petition for Hearing. DONE AND ENTERED this 8th day of January, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2020.
The Issue Whether Respondent, John J. Fugate, Sheriff of DeSoto County, willfully violated Subsection 104.31(1)(a), Florida Statutes (2003), which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At the time of hearing, Respondent, John J. Fugate, was the incumbent Sheriff of DeSoto County, Florida. He was first elected in November 2000 and took office in January 2001. At the times pertinent to this case, Sheriff Fugate was a candidate for re-election, having filed the initial paperwork appointing a campaign treasurer and naming a depository for campaign contributions on May 20, 2003. Also on May 20, 2003, Sheriff Fugate submitted his signed "Statement of Candidate," pursuant to Section 106.023, Florida Statutes (2003). This document attested that Sheriff Fugate had received, read, and understood "the requirements of Chapter 106, Florida Statutes (2003)." These statutory provisions were included in the "2000 Candidate Handbook On Campaign Financing," published by the state Division of Elections and given to Sheriff Fugate by the local Supervisor of Elections, when Sheriff Fugate filed his paperwork for the 2000 election. The "2004 Candidate and Campaign Treasurer Handbook" was given to Sheriff Fugate when he filed his re-election paperwork with the local Supervisor of Elections and also included the provisions of Chapter 106, Florida Statutes (2003). During the Commission's investigation, Sheriff Fugate admitted that he had also read Chapter 104, Florida Statutes (2003), and believed he understood its provisions. Though Sheriff Fugate had filed the papers establishing his candidacy for re-election, some Sheriff's Office employees openly questioned whether he really intended to stand for re-election. These questions stemmed from the fact that Sheriff Fugate's teenage son had been killed in an automobile accident in 2002. Sheriff Fugate was aware of these questions and was concerned that loyal employees were unsure of his intentions. For some time, Sheriff's Office employees had also been discussing the status of Major William Wise, the second-in- command to Sheriff Fugate. Major Wise had been the chief deputy under Sheriff's Fugate's predecessor, was kept in that position by Sheriff Fugate, and was very popular among the Sheriff's Office employees. Major Wise was a participant in the State of Florida's Deferred Retirement Option Program ("DROP"), which he believed would require him to separate from the Sheriff's Office for one year upon his official retirement in October 2004. However, in October 2003, Major Wise learned that there was a way for him to reduce his separation to 30 days and still retain his full retirement benefit. Sheriff Fugate decided to prepare a letter to all Sheriff's Office employees that would convey both his re-election intentions and the good news concerning the fact that Major Wise would not have to vacate his position. The letter was written on stationery with a header reading, "Re- Elect Fugate for Sheriff," along with Sheriff Fugate's mailing address and phone number. The text of the letter read as follows: It hardly seems possible that the second half of the third year of this term of office is upon us and I can only concur with the saying that "time stands still for no one." For those that have been here for a while, we have made giant strides for the DeSoto County Sheriff's Office in the past two and a half years and for the newer employees, with your help and our combined efforts, I look forward to more success in the future. Thank you for your help and I truly appreciate the service given to the citizens of DeSoto County. In anticipation of running for a second term of office and as legally required, I have opened my official campaign account. This is the first step in any campaign and this announcement is not to be construed as a request for a contribution to my campaign. I, like you, have been in an employment position when the incumbent was seeking another term of office and can personally relate to pressure applied to assist with the campaign. Please understand that I will, and do value your support in any way that you may be inclined to offer. I also encourage anyone that feels that I have not earned your support in any way in the performance of my duty to feel free to talk to me and you can be assured that it will remain professional and will not be made personal. On another note, I know that there has been some question as to what was going to happen to the position of Major due to Major Wise being in the Drop program and it coming to an end. It is with great pleasure that I announce that a way has been found for Major Wise to continue in his position and he has made the decision to do so. Major Wise has contributed a great deal to this office and I am very pleased that he will be staying with us. If anyone has any questions about this letter, I remind you of our "open door" policy and invite you to feel free to stop by and visit with me. Again, thank you and I look forward to our working together to build a better office for the employees and the community. Beneath Sheriff Fugate's signature was the following: "Pd. Pol. Adv. Paid For In-Kind By John J. Fugate. Approved by John J. Fugate (D)." Sheriff Fugate's review of the Candidate Handbooks led him to conclude that he should not use the Sheriff's Office or DeSoto County resources in preparing or distributing his letter and that none of the costs involved in preparing or distributing the letter should be borne by the Sheriff's Office or the County. Thus, Sheriff Fugate drafted the letter on his home computer. He printed approximately 120 copies of the letter on his home printer, using paper and ink that he purchased at Wal- Mart. On his campaign treasurer's report for the third quarter of 2003, Sheriff Fugate reported the cost of ink and paper associated with this letter as an in-kind contribution from himself to his campaign. Sheriff Fugate brought the copies of the letter to the Sheriff's Office and placed one copy in the pay envelope of each Sheriff's Office employee. At the DeSoto County Sheriff’s Office, it was common practice for items other than pay checks to be included in the pay envelopes. Such items had included advertising circulars and public service memoranda, but not political advertisements. The Sheriff's Office had no specific policy setting forth what may or may not be placed in the pay envelopes, nor was there any particular procedure for obtaining approval of what was to be placed in the pay envelopes. Neither Sheriff Fugate, Major Wise, nor payroll supervisor Kathy Willcutts could recall a request to place an item in the pay envelopes ever having been denied. The pay envelopes, including Sheriff Fugate's letter, were distributed to the Sheriff's Office employees in the usual manner, either at the front desk in the Records Division for pickup or in the employee's mail slot. The employees received Sheriff Fugate's letter upon retrieving their paychecks on or about October 2, 2003. Several Sheriff's Office employees testified at the hearing. None of these employees felt that Sheriff Fugate was attempting to influence their vote or pressuring them to make a monetary contribution to his campaign. Lieutenant Carol Williamson is a 28-year Sheriff's Office employee and has worked for five different sheriffs. Lt. Williamson testified that in the past, she has been essentially ordered to campaign for her bosses, but that she did not consider Sheriff Fugate's letter to be anything other than informational. Deputy Mark Lawrence testified that "I read it, said 'okay,' and threw it away." Sheriff Fugate disclaimed any intent to influence his employees' votes or pressure them for campaign contributions. During his career, he had been forced to campaign for his elected superiors. Because of this experience, Sheriff Fugate did not wish to place his own employees in the position of feeling coerced to support him. Sheriff Fugate testified that he used campaign letterhead and included the "paid political advertisement" disclaimer because his reading of the statutes led him to conclude that those items were legally required on any correspondence referencing his campaign. Nevertheless, Sheriff Fugate maintained that his letter was intended solely to convey information, not to coerce or influence anyone's vote. Sheriff Fugate's testimony is supported by the letter itself, which expressly stated that he was not seeking contributions to his campaign and that employees should feel no pressure to support his candidacy. Nonetheless, Sheriff Fugate's letter was clearly an attempt to favorably influence his employees, albeit a low-key one that did not demand support in the apparent manner of previous sheriffs. The letter solicited the support of Sheriff's Office employees, "in any way that you may be inclined to offer." The letter may not have been coercive, but it was disingenuous for Sheriff Fugate to suggest that the letter was not designed to influence his employees in the upcoming election. Sheriff Fugate was cognizant of Section 104.31, Florida Statutes (2003), and its prohibition on the use of "official authority or influence for the purpose of . . . coercing or influencing another person's vote . . . ." However, Sheriff Fugate believed, mistakenly but in all good faith, that his placement of the letters was allowed under another provision of Section 104.31, Florida Statutes (2003): The provisions of this section shall not be construed so as to prevent any person from becoming a candidate for and actively campaigning for any elective office in this state. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For reasons expressed in the Conclusions of Law below, Sheriff Fugate's good faith belief that his actions were within the ambit of the statute negates any suggestion that he "willfully" violated Subsection 104.31(1)(a), Florida Statutes (2003). Sheriff Fugate did not seek advice from the local Supervisor of Elections or an advisory opinion from the state Division of Elections pursuant to Subsection 106.23(2), Florida Statutes (2003), because he believed that he understood the application of the relevant statutes to his situation, including Section 104.31, Florida Statutes (2003).
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 Respondent, John J. Fugate, did not violate Subsection 104.31(1)(a), Florida Statutes (2003), as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 22nd day of December, 2004.
The Issue The issue is whether or not Respondent's Law Enforcement Officer Certification should be revoked for alleged conduct which was below the minimum qualifications for law enforcement officers as required in that he failed to maintain good moral character.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. The Respondent was certified by the Criminal Justice Standards and Training Commission on January 13, 1973, and was issued Certificate Number 02- 6995. At all times material to the allegations of the Amended Administrative Complaint, the Respondent maintained a personal checking account at a bank known as Bankers Trust, located in North Charleston, South Carolina under the name Charles H. Wardlow, Jr. At all times material to the allegations of the Amended Administrative Complaint, the Respondent was employed by Rice Business College in North Charleston, South Carolina as an Admission Representative and Counselor. On or about July 1980, the Respondent personally assisted Roger G. Clemmons, a U.S. Armed Forces Veteran, in filling out and submitting to the Veterans Administration the appropriate Veterans Administration forms to obtain federal financial assistance in attending Rice Business College as a student. Roger Clemmons did not attend classes at Rice Business College in 1980 or 1981. Mr. Clemmons did attend Rice Business College beginning in January 1982 but withdrew after the completion of approximately one half of the quarter term which began in January of 1982. In apparent response to Mr. Clemmons' submission of the forms described in paragraph 4 above, the United States Treasury Department, Fiscal Service Division of Disbursement in Kansas City, Kansas, forwarded four checks payable to the order of Roger G. Clemmons. The checks were mailed to Rice Business College. 7. The checks, numbered 49,762,137; 18,537,709; 18,669,713; and 18,895,582 were drawn on September 19, 1980, December 1, 1980, December 31, 1980, and February 27, 1981 respectively and were in the amounts of $331.73, $327.00, $218.00, and $342.00 respectively. On December 24, 1980, December 15, 1980, January 5, 1981, and a date in March 1981, respectively, each of the four checks was deposited into the Respondent's personal checking account at Bankers Trust, North Charleston, South Carolina. Upon deposit in the Respondent's account, each of the four checks bore the endorsement of Roger G. Clemmons, followed by the endorsement of Charles H. Wardlow, Jr. Roger G. Clemmons did not receive nor deposit any of the four checks prior to their deposit in the Respondent's account. Mr. Clemmons did not endorse his name on any of the four checks nor did he cash any of the checks or receive any proceeds from any of the checks. Mr. Clemmons did not give anyone authority or permission to endorse his name on any of the four checks. On September 6, 1983, the Respondent voluntarily provided handwriting samples to Special Agents Bert J. Steves and Louis R. Cruz of the U.S. Secret Service On February 17, 1985 Special Agent Thomas J. Smith, an examiner of questioned documents employed by the U.S. Secret Service, examined the Respondent's handwriting samples and compared them with the endorsements on the four checks described herein. Agent Smith is an expert qualified to give an opinion in the area of handwriting comparison and questioned documents. Agent Smith has been employed as an examiner of handwriting and questioned documents by the U.S. Secret Service for approximately ten years. Prior to this employment, Agent Smith was employed by the Federal Bureau of Investigation where he also worked as an examiner of handwriting and questioned documents, for approximately ten years. Agent smith was trained at the Federal Bureau of Investigation laboratory in document and handwriting examination prior to his beginning work with this agency. Agent Smith has been held to be an expert in his field and permitted to give his expert opinion regarding the examination of questioned documents in a total of approximately forty to fifty cases tried in United States district courts and the trial courts of several states including Florida, Alabama, Georgia and California. Upon Agent Smith's comparison of the Respondent's handwriting samples with the handwriting which appeared in the endorsements on the backs of each of the four checks, Agent Smith concluded that Charles H. Wardlow had written the endorsements on the checks bearing the name Charles H. Wardlow, Jr. Agent Smith was of the opinion that Charles H. Wardlow had also written the endorsement bearing the name Roger G. Clemmons on check number 18,537,709. Agent Smith was of the opinion that Charles H. Wardlow had probably written the endorsement bearing the name Roger G. Clemmons on the remaining three checks. In August, 1986, four warrants were filed against the Respondent in Charleston County South Carolina on four counts of forgery regarding the four checks described herein. In January 1987, the Respondent entered into a pretrial intervention agreement with the Solicitor's Office in Charleston, South Carolina. The Respondent has since paid, in compliance with the agreement, $1,218.73 in restitution to the United States Government. Special Agent Mark Parkman of the United States Department of the Treasurer, Secret Service Bureau, was assigned the case involving Respondent during August, 1982. Special Agent Parkman was then employed at the Charleston, South Carolina office of the Secret Service. Special Agent Parkman was referred the case from the Department's Check Claims Division. The investigation involved the total of twenty-two (22) checks from the Veterans Administration (VA) payable to a total of nine payees, including Roger Clemmons, all of which had been forwarded to Rice Business College. Respondent was not a payee on any of the checks. The purpose of the investigation was to ascertain if, and under what circumstances, the checks were negotiated into the Respondent's checking account. Subsequent investigation by Agent Parkman revealed that the Respondent had since left the Charleston area and relocated in Miami. During the course of the investigation, Agent Parkman contacted the Miami Office of the Secret Service and requested that agents make contact with the Respondent. Respondent was interviewed concerning the checks and handwriting exemplars were obtained. On September 6, 1987, Agents Cruz and Steves interviewed Respondent in Miami at Agent Parkman's request. On this occasion, Respondent denied having committed any forgeries while at Rice Business College. Agents Cruz and Steves forwarded the handwriting samples in a report of the interview to Agent Parkman. Upon receipt of the report and handwriting samples Agent Parkman forwarded the samples as well as the checks to the Secret Service questioned documents laboratory in Washington, D. C. for analysis. Upon receipt of the laboratory's report, Agent Parkman requested that agents in the Miami office of the Secret Service conduct a second interview of Respondent. On January 22, 1987, a second interview was conducted in Miami by Agent Laura Bykowski of the Secret Service's Miami office. The Respondent at first denied that he signed any payees' name on the checks in question, but thereafter admitted that it was possible that he had signed the payee's name and endorsed the checks. (TR 39-40).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent's Certification Number 02-6995 as a law enforcement officer be REVOKED. RECOMMENDED this 13th day of June, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1988. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles H. Wardlow 1280 North West 17th Avenue Miami, Florida 33167 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
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
Findings Of Fact On November 3, 2015, Petitioner filed and served its First Request for Admissions upon Respondent by U.S. Mail and electronic mail. Florida Rule of Civil Procedure 1.370(a), which is adopted in Florida Administrative Code Rule 28-106.206, provides: Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request . . . . Additionally, rule 1.370(b) provides that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Respondent neither responded to Petitioner’s First Request for Admissions nor sought relief from the matters deemed admitted by operation of law. Respondent’s failure to provide a written answer or objection to the Commission’s request for admissions conclusively establishes the following facts: Justice-2-Jesus is a political committee registered with the Division of Elections; Brian Pitts is the chairman and treasurer of Justice-2-Jesus; By letter dated December 14, 2007, Kristi Reid Bronson, Chief, Bureau of Election Records of the Division sent Brian Pitts, as chairperson of Justice- 2-Jesus, an acknowledgement that the organization, Justice-2-Jesus, had been placed on Petitioner’s list of active political committees that support issues; Brian Pitts, as chairperson of Justice-2-Jesus, received Kristi Reid Bronson’s December 14, 2007, acknowledgment letter; The 2013 Calendar of Reporting Dates was available on-line to Brian Pitts, as chairman and treasurer of Justice-2- Jesus, on the Division of Election’s website; The 2014 Calendar of Reporting dates for Political Committees/Independent Expenditures-Only Organizations that file with the Division of Elections was available on-line to Brian Pitts, as chairman and treasurer of Justice-2- Jesus, on the Division of Election’s website; Justice-2-Jesus’ 2013 Q1 Report was due on April 10, 2013; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2013 Q1 Report on April 10, 2013; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on April 10, 2013, that Justice-2-Jesus would not be filing a report for the 2013 Q1 reporting period; Justice-2-Jesus’ 2013 M11 Report was due on December 10, 2013; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2013 M11 Report on December 10, 2013; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on December 10, 2013, that Justice-2-Jesus would not be filing a report for the 2013 M11 reporting period; Justice-2-Jesus’ 2014 P5 Report was due on August 8, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014 P5 Report on August 8, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on August 8, 2014, that Justice-2-Jesus would not be filing a report for the 2014 P5 reporting period; Justice-2-Jesus’ 2014 P6 Report was due on August 15, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014 P6 Report on August 15, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on August 15, 2014, that Justice-2-Jesus would not be filing a report for the 2014 P6 reporting period; Justice-2-Jesus’ 2014 D2 Report was due on October 26, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014 D2 Report on October 26, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus s failed to notify the filing officer in writing on October 26, 2014, that Justice-2-Jesus would not be filing a report for the 2014 D2 reporting period; Justice-2-Jesus’ 2014 D4 Report was due on October 28, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014, D4 Report on October 28, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on October 28, 2014, that Justice-2-Jesus would not be filing a report for the 2014 D4 reporting period; Justice-2-Jesus’ 2014 M12 Report was due on January 12, 2015; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014 M12 Report on January 12, 2015; and aa. Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on January 12, 2015, that Justice-2-Jesus would not be filing a report for the 2014 M12 reporting period. One of the purposes of the disclosure requirements that Respondent failed to adhere to is to ensure that the public is appropriately informed that Respondent had no reportable contributions or expenditures during the 2013 Q1, 2013 M11, 2014 P5, 2014 P6, 2014 D2, 2014 D4, and 2014 M12 reporting periods. Respondent’s filing history with the Division of Elections (Division) demonstrates that Respondent knows how to use the Division’s electronic filing system (EFS), as it has previously filed documents using the system. See, e.g., Fla. Elec. Comm’n v. Brian Pitts, Treasurer for Justice-2-Jesus, Case No. 09-2806 (Fla. DOAH Oct. 7, 2009)(“Respondent testified that he has assisted several other persons in preparing and filing their electronic reports to the Division.”). In Florida Elections Commission v. Brian Pitts, Treasurer, Justice-2-Jesus, Case No. 10-9927 (Fla. DOAH Jan. 3, 2011; Fla. Elec. Comm’n May 24, 2011), the Commission entered a Final Order Imposing Fine in the amount of $1,000 due to Respondent’s failure to file a quarterly report of all contributions received. Through this case, Respondent was again reminded of the Division’s filing requirements. In both DOAH cases referenced above, the Commission filed in the Circuit Court of the Second Judicial Circuit, in and for Leon County Florida, petitions to enforce the final orders. On January 13, 2011, and October 1, 2012, the Circuit Court entered Final Judgments in favor of the Commission and against Brian Pitts, Justice-2-Jesus, for $2,362.50 and $2,426.30, respectively. Respondent has failed to satisfy the final judgments. Given Respondent’s previous course of dealings with the Division and the Commission, Respondent knew or should have known that it was required to notify the filing officer in writing on the prescribed due date that it would not be filing a report when Respondent had no reportable transactions during the applicable reporting periods. Respondent’s actions in this case were willful. At the hearing on the Amended Motion for Summary Final Order, Respondent asserted that Justice-2-Jesus is indigent, but offered no financial data to support the assertion.
