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FLORIDA ELECTIONS COMMISSION vs JAMES B. DAVIS, 08-006413 (2008)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Dec. 24, 2008 Number: 08-006413 Latest Update: Mar. 04, 2011

The Issue The issues are whether Respondent accepted campaign contributions and made expenditures before designating a campaign treasurer and campaign depository, signed a check without sufficient funds written on a campaign account with insufficient funds to cover the check, and accepted a campaign contribution in excess of the legal limit in violation of Subsections 106.021(1)(a), 106.11(4), and 106.19(1)(a), Florida Statutes (2005).1

Findings Of Fact Petitioner is the state agency responsible for enforcing the campaign laws of the state. During 2006, Respondent attempted, unsuccessfully, to qualify as a candidate for the United States Congress and then campaigned for election to the state Legislature. Sometime in 2006, Respondent attempted to qualify as a candidate for the United States House of Representatives, District 12. On May 15, 2006, Respondent accepted two checks from Mr. Kent Lilly, an attorney in Bartow, Florida. One check was a campaign contribution of $500.00. Mr. Lilly intended the other check to be a loan of $5,000.00. Although the loan from Mr. Lilly satisfied the definition of a campaign contribution in Subsection 106.011(3)(a), Mr. Lilly and Respondent understood that Respondent was to repay the loan from subsequent campaign contributions. Respondent learned by letter dated May 18, 2006, that he did not qualify as a candidate for federal office because the qualifying papers he filed did not contain an original signature. Respondent decided to campaign as a candidate for the Florida House of Representatives, District 63. Respondent retained the campaign funds contributed by Mr. Lilly in a bank account divided into two sub-accounts. The two sub-accounts are identified in the record as the Sub 1 and Sub 2 accounts. The Sub 1 account contained funds collected for the Congressional campaign, and the Sub 2 account contained funds collected for the state legislative campaign. Respondent did not designate a campaign treasurer and depository for the state legislative campaign until July 19, 2006. Respondent signed the Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (the DS-DE 9) form on July 5, 2006. The DS-DE 9 form designated Ms. Shirley Goodwine as the campaign treasurer. Respondent filed the DS-DE 9 form with the state’s Division of Elections on July 13, 2006. The original DS-DE 9 form was insufficient. The original form did not include the name of the political office sought and the date of Ms. Goodwine’s signature. Respondent filed an amended DS-DE 9 form on July 19, 2006. The amended form corrected the errors in the original form and was sufficient to designate a campaign treasurer and depository for state office. On July 6, 2006, Respondent accepted a contribution to his Sub 2 account before designating a campaign treasurer and depository. Respondent transferred $2,000.00 from the Sub 1 account to his Sub 2 account. The funds came from the loan from Mr. Lilly. The $2,000.00 contribution was excessive, within the meaning of Subsection 106.19(1)(a). It exceeded the maximum allowable contribution of $500.00 by $1,500.00. On July 12, 2006, Respondent expended $16.80 from his Sub 2 account before designating a campaign treasurer and depository. The charge to his account in the amount $16.80 was for checks to be used on the account. On July 18, 2006, Respondent signed a check in the amount of $1,859.76, which was drawn on the Sub 2 account. Insufficient funds were available to cover the check. The check was payable to the state Division of Elections and was intended to pay the qualifying fee to run for state office. On July 22, 2006, Respondent signed a check drawn on the Sub 2 account without sufficient funds. The check was payable to Publix Supermarket for $100.00. Respondent has a prior disciplinary history. Petitioner previously fined Respondent for filing campaign treasurer reports late. Respondent has not paid the previous fines. Respondent reports his net worth to be $103,000.00. Respondent has not repaid the loan from Mr. Lilly. Respondent submitted no evidence of mitigating factors that may have reduced the fine proposed by Petitioner. Respondent committed the foregoing acts willfully within the meaning of former Section 106.37, which was in effect at the time Respondent committed the acts. Respondent committed the acts with reckless disregard for whether the acts were prohibited by relevant campaign laws of the state.

Florida Laws (8) 106.011, 106.021, 106.19, 106.25, 106.27, 120.57, 120.68, 45.021

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BLUE CHIP CONSTRUCTION, INC. vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 88-003820BID (1988)

Division of Administrative Hearings, Florida Number: 88-003820BID Latest Update: Jan. 11, 1989

The Issue Whether the selection was arbitrary because evaluators were not state employees and were not technically trained? Whether the selection was arbitrary to the extent non-price criteria were used in comparing proposals? Whether Urban Media's proposal was non-responsive because no organizational chart was supplied, because it contained no financial statement or any "statement of work" or a statement incorporating all specifications? Whether Blue Chip's $2500 estimate of administrative costs was responsive? Whether Blue Chip's proposal was non-responsive for failure to quote an unconditional price or to state specific objectives? Whether Blue Chip's financial statements were acceptable, being based on estimates pertaining to a construction company or to a "systems-management" company? Whether Blue Chip had adequate organizational capability to gather the staff to perform the contract? Whether its proposal was sufficiently definite or based on impermissible estimates?

Findings Of Fact By request for proposals No. 88-277, HRS solicited offers to create a statewide media campaign publicizing its "One Church, One Child Program," an effort to enlist churches with African American congregations in placing African American children for adoption with African American families. Proposals Responsive Three days after the June 24, 1988 deadline, Pamela Ann Eby opened every proposal that had been filed on time. She and two other HRS employees reviewed the proposals for responsiveness. Before referring them to an evaluation committee, comprised principally of members of the One Church, One Child Program Board of Directors, they determined that all four were "technically adequate." This included Urban Media's proposal, Joint Exhibit No. 1, which contained a "statement of work," HRS Exhibit No. 9, financial statements, HRS' Exhibit No. 10, a statement of objectives, HRS' Exhibit No. 12, and a timetable both for production and for media exposure. HRS' Exhibit No. 13. Blue Chip's own witness acknowledged that signing the proposal, including ancillary forms, as Urban Media's representatives did, incorporated all specifications called for in the request for proposals, by reference. Nothing was improper or deficient about the "administrative expense" Urban Media budgeted. Although Blue Chip produced a witness who took issue with the level of detail in some items of Urban Media's proposal, the witness testified that he could not say any deviations he perceived were material. Urban Media's proposal was responsive to the request for proposals. Clear Choice Before deliberating as a group, each committee member evaluated each proposal individually, using the form "proposal rating sheet" that had been furnished to the proposers as part of the request for proposals. The Rev. Messrs. R. B. Holmes, W. O. Granger, Elroy Barber, Willie C. Bell, Jr., the Rev. Ms. Cynthia Parker, who has had experience with media and public relations, and Dr. Juanita Clay, the HRS employee who is state coordinator of the Program, served as the committee that assessed the proposals' comparative merits. The proposal rating sheets asked raters to assign points for various criteria. Of 104 possible points, Blue Chip received scores ranging from 21 to The lowest score any committee member gave Urban Media exceeded Blue Chip's highest score by 27 points. At least one committee member gave Urban Media a perfect 104 score. When they met to make their decision, the committee unanimously chose Urban Media. The committee wanted a "top quality" media campaign. Blue Chip is a construction company that has also installed computers. They questioned Blue Chip's ability to deliver at all, and remarked the lack of any previous work of this kind. One committee member reportedly said, "If we're adding on to a building, maybe Blue Chip is who we want to use." The committee recommended that new proposals be solicited, if necessary, rather than making an award to Blue Chip, even though they ranked Blue Chip's Second. By letter dated July 6, 1988, Ms. Eby notified Urban Media that its proposal had been selected. Award of the contract has not been accomplished pending the present proceedings.

Florida Laws (1) 120.53

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FLORIDA ELECTIONS COMMISSION vs JOHN MANDUJANO, 10-002331 (2010)

Division of Administrative Hearings, Florida Filed:St. Petersburg, Florida Apr. 27, 2010 Number: 10-002331 Latest Update: Jul. 02, 2010

Florida Laws (2) 106.141, 120.68

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IN RE: WILLIAM "BILL" HARRISON vs *, 94-001787EC (1994)

Division of Administrative Hearings, Florida Filed:Crestview, Florida Apr. 06, 1994 Number: 94-001787EC Latest Update: Mar. 15, 1995

Florida Laws (6) 104.31, 112.061, 112.312, 112.313, 112.322, 120.57 Florida Administrative Code (1) 34-5.0015

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FLORIDA ELECTIONS COMMISSION vs RODERICK HARVEY, 07-000099 (2007)

Division of Administrative Hearings, Florida Filed:Miami, Florida Jan. 09, 2007 Number: 07-000099 Latest Update: Dec. 03, 2007

The Issue The issue is whether Respondent, as campaign treasurer, signed two checks drawn on the candidate's primary campaign account when such account lacked sufficient funds to cover the checks and, if so, what penalty should be imposed.

Findings Of Fact Respondent has been a certified public accountant since 1996. Since 2000, Respondent has been employed with a Hollywood, Florida accounting firm, where he is now a partner. Respondent has been licensed since 1996 to practice accounting in Florida. Sometime prior to June 2005, a friend of Respondent told him that a candidate for office in Miami needed help with his campaign. Respondent agreed to meet with the candidate, Richard Dunn, who was running for the District 5 seat on the City of Miami Commission. At the meeting, Respondent became acquainted with Mr. Dunn, who is a minister and an experienced candidate for public office. During the meeting, Mr. Dunn asked Respondent to serve as his campaign treasurer. Mr. Dunn explained that his main duty would be to maintain the campaign checkbook and make deposits of campaign contributions. Respondent also understood that he would have to attend some fundraising events. Respondent had never previously served as a campaign treasurer, but the parties agreed upon a satisfactory payment, and Respondent assumed his duties as campaign treasurer in July 2005. When Respondent started as treasurer, Mr. Dunn's campaign staff gave him checkbooks and deposit slips. At no time did Respondent ever investigate whether the election laws imposed upon him any special requirements. No one on Mr. Dunn's campaign staff gave Respondent a copy of the explanatory campaign materials provided each campaign by the Clerk's Office of the City of Miami. These materials include all relevant campaign finance laws. Respondent's lack of familiarity with the duties of a campaign treasurer emerged early. He learned that he had to file campaign treasurer reports when campaign staff informed him of this responsibility. At the same time, Respondent learned that campaign staff, including Mr. Dunn, were not careful in the management of the campaign's finances. In trying to prepare his first report, Respondent had problems obtaining all of the necessary information, such as all of the checks that had been written. Despite his lack of familiarity with campaign finance laws, Respondent knew that he could not write a check if an account had insufficient funds. Respondent assumed (wrongly, as noted below in the Conclusions of Law) that he could sign a check, even if the account lacked funds to cover it, as long as sufficient funds would be deposited before the check was presented for payment at the payor's bank. Respondent was not the first campaign treasurer for this campaign. However, the existence of a prior treasurer did not make it any easier for Respondent to assemble the necessary documents, such as copies of bank statements, so that he could do his job. Also, 30-45 days after taking over as treasurer, Respondent learned that the campaign maintained at least one other checking account. In short order, Respondent learned that the bank mailed the statements to Mr. Dunn, not the treasurer. Respondent suggested to Mr. Dunn that the bank issue a copy to Respondent. Mr. Dunn agreed with this proposal, but the bank, Wachovia Bank, said that it could not do so. Respondent never suggested to Mr. Dunn that he direct the bank to mail the statements to Respondent, who would then send a copy to Mr. Dunn. Quickly, Respondent also learned that Mr. Dunn was writing most of the checks, including counter checks. Respondent repeatedly impressed upon Mr. Dunn the importance of keeping Respondent informed about these checks, but Mr. Dunn and his campaign staff did not routinely do so. After failing to convince Mr. Dunn to restrict check- issuing privileges to Respondent, Respondent prepared a check authorization form that Mr. Dunn and his campaign staff could use each time that they issued checks. However, despite all of these efforts, consisting of five to ten telephone calls and meetings, Respondent never succeeded in obtaining Mr. Dunn's cooperation for very long. On the 10-15 occasions that Respondent wrote and signed campaign checks, he often, but not invariably, contacted the bank and asked it to fax transaction reports or partial statements to cover a specific date range. On those 10-15 occasions, Respondent often, but not invariably, called Mr. Dunn for confirmation of deposits before writing. If Respondent ever attempted to obtain this information by online banking, he never so indicated during the hearing. Although Respondent did something to update himself on current activity in the checking account each time that he had to write and sign a check, his information was necessarily incomplete. Overall, Respondent admits that he never was able to get the accounting problem within the campaign under control. Although Respondent wrote and signed relatively few checks, he wrote and signed the two checks at issue in this case many months after discovering the problems described above. On October 27, 2005, Respondent signed a check to The Miami Times for $3625.63 and drawn on the campaign account. Account balances were $542.34, $792.34, and $1892.34 on October 26, 27, and 28, 2005, respectively. Clearly, Respondent signed this check at a time that the account lacked sufficient funds to cover it. Respondent delivered the $3625.63 check to a member of the Dunn campaign and instructed her to ensure that the account had sufficient money before giving it to the payee. He added that she should deliver the check only to Mr. Dunn. On the same day, Mr. Dunn signed a check drawn on the same account in the amount of $500 and payable to the prior campaign treasurer, Johnny Studstill. Although the October bank records reveal no insufficient funds fees, the November bank records reveal seven instances of insufficient funds: November 10, 21, 22, and 30 (four times). Respondent explained that the bank imposed these fees because deposits had not yet cleared, but the imposition of these fees was sufficient to alert Respondent to mounting problems, and two of these instances had arisen prior to the date on which he signed the November 22 check, which is the second check at issue in this case. On November 22, 2005, Respondent signed a check to radio station WMBM for $2000 and drawn on the campaign account. Account balances were $694.25, $2909.25, and $6091.84, on November 21, 22, and 23, 2005, respectively. The relevant day is November 22, so it would appear that the bank balance was sufficient to cover this check. However, on the same day, Respondent signed checks in the amounts of $1065 and $1492.65 and payable to ASAP Mailing Service and Dodd Printing, although the latter check was marked void shortly after Respondent signed it. Thus, the total of the $2000 check to WMBM and $1065 check to ASAP (counsel for Petitioner conceding at the hearing that a voided check should not count) exceeded the account balance of $2909.25. On the same day, Mr. Dunn signed three checks drawn on the same account. One was in the amount of $850 and payable to radio station WEDR, one was in the amount of $185 and payable to Isaiah Walker, and the third was in the amount of $2000 and payable to radio station WHQT. About three weeks prior to the end of the campaign, Respondent realized that the situation was unworkable, even though his administrative assistant at the accounting firm was devoting 20 hours weekly to campaign-related bookkeeping work. Respondent remained with the campaign only to avoid the negative appearance that would be created by his leaving his post in the days running up to the election. Respondent asked Mr. Dunn not to leave him "high and dry," but Respondent was never paid for his services to the campaign, beyond a single $1000 check to cover costs. When signing the October 27 check, Respondent knew that, due to the campaign's poor financial management practices, he lacked even the information to determine whether the account balance would be sufficient when the check was presented to Wachovia. He did not consider whether the account balance was sufficient when he signed the check because he was not aware of this requirement of law. Respondent's violation of law was willful when signing the October 27 check. By this time, Respondent had been serving as campaign treasurer for nearly four months. He was increasingly aware that he did not have the full cooperation of the candidate. Although he did not know the relevant requirement of law, Respondent recklessly disregarded this requirement because he had never made any effort--let alone a reasonable effort--to inform himself of this legal requirement. The circumstances likewise establish recklessness in the signing of the November 22 check. Factually, Respondent's acts and omissions on November 22 were less defensible because the account had twice incurred insufficient-funds fees in the two weeks preceding the signing of the November 22 check, and he had another month to see that Mr. Dunn and the campaign staff would not agree to reasonable financial-management controls. Legally, Respondent's ongoing failure to inform himself of the applicable legal requirements imposed upon him as a campaign treasurer remained entirely unreasonable, with the passing of another month, the incurring of insufficient-funds fees, and the repeated confirming that Respondent would not have any significant cooperation from Mr. Dunn as his campaign approached its completion. The key factual determination in this case is that Respondent willfully violated the legal requirement that sufficient funds be in the account when the checks were signed. Respondent was understandably unfamiliar with this requirement, which is different from the more common requirement, with which he was familiar, that sufficient funds must be available when a check is presented to the issuing bank for payment. The requisite finding of Respondent's recklessness in failing to exercise any apparent effort to inform himself of this requirement of law is facilitated by the manner in which he handled the more common responsibilities of bookkeeping. Respondent proceeded recklessly in this area, as well. Respondent knew that the probability of bounced checks elevated considerably, the longer that more than one person wrote checks and the campaign staff was so lax in getting him the information on their activity in the account. Reckless disregard for the proper discharge of basic bookkeeping responsibilities is evidence of Respondent's overall state of mind at the relevant time. If Respondent did not initially realize his ignorance of campaign finance laws, he had to understand the limits of his knowledge when campaign staff told him he had to file campaign treasurer reports. By not informing himself of Section 106.11(4), Florida Statutes, by the time that he signed the two checks that are the subject of this case, Respondent displayed reckless disregard of his legal obligations. Under the law set forth below, Respondent's reckless disregard of the law constitutes a willful violation of the law. Here, Respondent, an accountant, has wholly disregarded Section 106.11(4), Florida Statutes, without making any reasonable inquiry into the limitations on check signing in a campaign.

Recommendation It is RECOMMENDED that the Florida Elections Commission enter a final order finding Respondent guilty of two counts of violating Section 106.11(4), Florida Statutes, and imposing a civil penalty of $500. DONE AND ENTERED this 21st day of August, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 August, 2007. COPIES FURNISHED: Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317

Florida Laws (5) 106.021, 106.11, 106.25, 106.265, 120.57

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WKDR II, INC. vs DEPARTMENT OF REVENUE, 21-000844 (2021)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Mar. 04, 2021 Number: 21-000844 Latest Update: Sep. 20, 2024

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

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FLORIDA ELECTIONS COMMISSION vs ADRIANNA NARVAEZ, 06-001644 (2006)

Division of Administrative Hearings, Florida Filed:Miami, Florida May 09, 2006 Number: 06-001644 Latest Update: Sep. 20, 2024

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DUVAL COUNTY SCHOOL BOARD vs THOMAS CAGGIANO, 20-005259TTS (2020)

Division of Administrative Hearings, Florida Filed:Atlantic Beach, Florida Dec. 04, 2020 Number: 20-005259TTS Latest Update: Sep. 20, 2024

The Issue Whether just cause exists to reprimand and suspend Respondent, Thomas Caggiano, for five days without pay from his position as a teacher with Petitioner, the School Board of Duval County (School Board),1 for the reasons set forth in the March 26, 2021, correspondence from the School Board, which contained an April 6, 2021, Amended Step III Progressive Discipline Petition.

Conclusions For Petitioner: Derrel Q. Chatmon, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street, Jacksonville, Florida 32202 For Respondent: Kelly B. Mathis, Esquire Mathis Law Firm 3577 Cardinal Point Drive Jacksonville, Florida 32257

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the School Board of Duval County enter a final order that: (1) finds that Mr. Caggiano violated rule 6A- 5.056(1) and (2)(b); rule 6A-10.081(1)(b), (c), (2)(a)1., (2)(a)5., and (2)(b)1.; and Duval County School Board Policy 10.10(IV)(A) for two public Facebook posts or reposts associated with his Facebook account; (2) finds that Mr. Caggiano did not violate section 1006.147(2), rules 6A-10.081(2)(a)6. or 6A- 10.081(2)(c)1., or any remaining portions of Duval County School Board Policy 10.10(IV); (3) issues a written reprimand; (4) suspends Mr. Caggiano, without pay, for three days; and (5) requires Mr. Caggiano to complete a course in Culture Diversity. DONE AND ENTERED this 15th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S ROBERT J. TELFER III 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 15th day of November, 2021. Derrel Q. Chatmon, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street Jacksonville, Florida 32202 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Diana Greene, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8152 Kelly B. Mathis, Esquire Mathis Law Firm 3577 Cardinal Point Drive Jacksonville, Florida 32257 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400

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WILLIAM PROCTOR, JR. vs FLORIDA ELECTIONS COMMISSION, 00-004994 (2000)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Dec. 13, 2000 Number: 00-004994 Latest Update: Jan. 18, 2006

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.

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.

Florida Laws (13) 106.011, 106.07, 106.08, 106.11, 106.125, 106.19, 106.25, 106.265, 120.569, 120.57, 775.021, 775.082, 775.083

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IN RE: JOHN MARKS vs *, 12-002508EC (2012)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jul. 23, 2012 Number: 12-002508EC Latest Update: Feb. 01, 2013

The Issue The issues are whether Respondent, John Marks, committed the following violations as alleged in the Ethics Commission's two Orders Finding Probable Cause, both dated June 20, 2012: As to DOAH Case No. 12-2508EC, whether Respondent violated section 112.3143(3)(a), Florida Statutes, by voting on September 15, 2010, on a measure that would inure to the special private gain or loss of the Alliance for Digital Equality ("ADE"), a principal by which Respondent was retained. As to DOAH Case No. 12-2509EC, whether Respondent violated s ection 112.3143(3)(a), Florida Statutes, by voting on March 28, 2007, September 19, 2007, June 13, 2007, and June 18, 2008, in connection with matters that inured to the special private gain or loss of Honeywell, a principal by which Respondent was retained.

Findings Of Fact At the time of the hearing, Respondent was serving as Mayor of the City, a position he has held since March 2003. The City has a commission/manager form of government. The City Manager is the chief executive officer in control of the day-to- day operations of the City government. The City Commission ("Commission") is the legislative arm of the government. The Mayor is a voting member of the Commission. He presides at Commission meetings, but otherwise has no more power than any other member of the Commission. As Mayor and a member of the Commission, Respondent is subject to the requirements of section 112.3143(3)(a), which, among other things, prohibits a local public officer from voting in an official capacity upon any measure that he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained. Facts as to DOAH Case No. 12-2508EC Pursuant to the American Recovery and Reinvestment Act of 2009, the BTOP was established as a grant program administered by the National Telecommunications and Information Administration ("NTIA") within the U.S. Department of Commerce. The BTOP funded projects to bring broadband internet infrastructure and service to underserved communities in both rural and urban areas. In 2009, the City made an application for a BTOP grant toward establishing the City as a hub for providing technology services to surrounding cities and counties. The City would establish a shared services platform to bring information technology services to smaller communities unable to obtain such services on their own. This application was turned down. The City's BTOP application had been prepared by Donald DeLoach, the City's chief information systems officer, and Carrie Blanchard, Respondent's chief of staff. After the grant application was rejected, Respondent suggested to Ms. Blanchard that ADE had experience in putting together such grants and that she "might want to consider them for something in the future." ADE is an Atlanta-based not-for-profit organization established to assist in the development and deployment of broadband technology to underserved communities. Between April 2007, and October 2010, Respondent served as a member of ADE's "Board of Advisors," a body separate from ADE's Board of Directors. Respondent advised ADE's staff on telecommunications and broadband technology issues but was not involved in the operational aspects of the company. For his continuing availability as a consultant, Respondent was paid $2,000 per month by ADE. Respondent's annual CE Form 1, Statement of Financial Interests, disclosed ADE as a primary source of income for the years 2007, 2008, 2009 and 2010. Ms. Blanchard passed Respondent's recommendation on to Mr. DeLoach, who testified that they took a look at the company and liked what they saw. They decided to involve ADE in the new project that was taking shape for the City's second BTOP application. Both Ms. Blanchard and Mr. DeLoach testified that Respondent was not involved in preparing the second BTOP application, and that they felt absolutely no pressure from Respondent to use ADE in the project. ADE was contacted and agreed to participate in the project. Claire Lawson of ADE spoke with Mr. DeLoach and Ms. Blanchard on numerous occasions to clarify points in the application regarding ADE's participation. In March 2010, the City submitted its BTOP grant application to the NTIA. The executive summary of the proposed project described its intent as follows: The Apalachee Ridge neighborhood and the Southside of Tallahassee have been historically underserved in terms of technology and access to broadband. Many of the area's residents are minority, low- income families with limited opportunities to access the wide variety of advantages offered by a high-speed internet connection. By enhancing the technological outreach and skills training at the existing Apalachee Ridge Technology Center in combination with targeting at-risk student populations throughout Leon County this project will expose and train a group of underserved individuals and thereby increase the adoption and utilization of broadband technology. The BTOP grant application identified three "partners" that would contribute products or services to the proposed project: Florida State University, the Go Beyond Foundation, and ADE. Throughout the application, ADE and its "Learning Without Walls" initiative are promoted as a central and essential part of the proposed project. The BTOP grant application included a letter to Ms. Blanchard from Julius H. Hollis, ADE's Chairman and CEO, expressing support for the application and confirming ADE's involvement in the project, including "an in-kind contribution of computers to support your application." If the grant were awarded and implemented as proposed, ADE would have been obligated to provide $36,109 worth of software and $40,000 worth of computer equipment. Mr. Hollis was the person who hired Respondent to work for ADE. On or about August 19, 2010, the NTIA awarded the grant to the City. The award documents stated that the grant required compliance with various federal regulations including 15 C.F.R. § 24.31(d), which provides, in relevant part: (d) Programmatic changes. Grantees or subgrantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated: * * * (3) Changes in key persons in cases where specified in an application or a grant award.... On September 15, 2010, an agenda item was placed before the City Commission regarding this matter. The "recommended action" was to "[a]pprove the City's participation in the BTOP grant and allow the City Manager to execute the agreement with the [NTIA]." Respondent passed the presiding officer's gavel to Commissioner Lightsey so that he could make the motion that the Commission adopt the recommended action. In his comments, Respondent mentioned that he was familiar with ADE because he "had helped them out a little bit" and that ADE was a "solid non-profit organization." Respondent voted in favor of the motion, which passed unanimously. James English, the City Attorney,2/ testified that there is nothing in the City's charter or ordinances that required this matter to go before the City Commission for a vote. Other, smaller grants do not come before the Commission for a vote but are handled administratively by the City Manager. Mr. English stated that this item was put to a vote because it was a "good-news story and something you'd want to have on the agenda. It's a public meeting and it's on live television and we celebrate . . . [It was] totally non-controversial, a happy event, a unanimous vote." Mr. English stated that, while it is "customary" to bring such items to the Commission, it was not necessary to do so. He did concede that had the Commission voted not to accept the grant, the City Manager could not have moved forward in the contracting process. The September 15, 2010, Commission vote did not establish a contract between the City and any of its partners in the BTOP grant application. The purpose of the vote was simply to accept the grant from the NTIA. Before they could enter a contract with the City, the grant partners still had to demonstrate that they were in compliance with federal regulations and that they were financially able to fulfill their obligations as outlined in the grant application. Ms. Blanchard testified that the City Commissioners were usually thorough in reviewing the details of proposed contracts. She testified that as of the September 15, 2010, vote no contractual details had been provided to the Commissioners because none had yet been outlined by staff. In her briefing of Commissioner Andrew Gillum prior to the vote, Ms. Blanchard confined herself to a general description of the roles to be played by each partner in the grant application.3/ Three of the Commissioners at the time of the September 15, 2010, vote, Mark Mustian, Gil Ziffer, and Debbie Lightsey, testified that they had made no commitments or decisions regarding contracts with any of the partners as of the time of their vote. Respondent proffered that Commissioner Gillum would have given the same testimony. The proffer was accepted without objection from the Advocate. Mr. English testified that none of Commissioners had indicated to him that they had decided to vote for any particular partner named in the grant application. Mr. English testified that about one month after the September 15 vote, he attended a meeting of city staff to commence contract negotiations with the partners named in the grant application. This was the first face-to-face meeting between City representatives and those from ADE's Atlanta home office. At this meeting, the ADE representatives advised Mr. English that ADE could not be the contracting party because it was a 501(c)(4) corporation engaged in a lobbying activities that rendered it ineligible to accept federal funds. Someone at the meeting mentioned Partners for Digital Equality ("PDE"), a separate 501(c)(3) corporation that was closely affiliated with ADE. As a 501(c)(3), PDE would be eligible to participate in the grant. Mr. English observed that all of the ADE people at the table during the meeting also appeared to be involved with PDE, and verified that PDE could step into the role envisioned for ADE in the BTOP grant application. Mr. English concluded that the City would be dealing with more or less the same people under a different corporate umbrella. The decision was made to replace ADE with PDE for purposes of the City's negotiating contracts with its partners for the BTOP grant. An item was placed on the agenda for the December 8, 2010, City Commission meeting recommending that the Commission "[p]rovide authority for the City Manager to negotiate and execute three year contracts with Go Beyond Foundation not to exceed $600,187, and [PDE] not to exceed $761,609, in accordance the provisions [sic] of the grant." Mr. English testified that shortly before the December 8, 2010, Commission meeting, Respondent advised him that he was affiliated with ADE. Mr. English described the conversation as follows: He approached me, as you commonly do on conflict questions, and said, “Look, Jim, I am on the Board of Advisors or Board-- on the Board of ADE.4/ This vote is coming up again, the December vote. Is that a problem, is that a conflict? It's a not-for profit.” And I advised him at that point I would say, yes, it's a conflict, don't vote. Mr. English understood that the vote would be to negotiate with PDE rather than ADE, but this understanding did not change his advice to Respondent that he should abstain from voting on the matter. Following Mr. English's advice, Respondent filed a Form 8B, Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officers ("Memorandum of Conflict"), disclosing that the agenda item providing the City Manager authority to negotiate and execute contracts with the BTOP grant partners "inured to the special gain or loss of The Alliance for Digital Equality (ADE), by whom I am retained as a member of its Board of Directors."5/ Respondent also noted that "ADE is a 501C(3) non-profit [sic] entity and provides a stipend to its board members." It was a few weeks or a month after his conflict discussion with Respondent that Mr. English learned Respondent was being paid by ADE. Ms. Blanchard testified that she knew at the time of the application that Respondent served on a board of ADE, but she did not know that it was a paid position. At its December 8, 2010, meeting, the City Commission voted 4-0, with Respondent abstaining, to authorize the City Manager to negotiate contracts with the BTOP grant partners. Mr. English testified that any contracts negotiated by the City Manager would have had to come before the City Commission for another vote of ratification. No contract was ever entered into between the City and any of the partners. The partners were unable to demonstrate their financial ability to meet the commitments they undertook in the grant application. Respondent also pointed to the publicity after ethics complaints were filed against Respondent as having "soured" the partners on the project. The City eventually notified the NTIA that it was waiving its right to accept the grant. In summary, Respondent knew at the time of the September 15, 2010, vote that ADE was a named partner of the City in the BTOP grant application, and that he was being paid $2,000 per month by ADE to sit on its Board of Advisors. Respondent listed ADE as a primary source of income on his Statement of Financial Interests for the years 2007 through 2010. Respondent did not conceal his involvement with ADE, but the record discloses no affirmative efforts on his part to dispel what appeared to be the general impression that his work for ADE was gratis, until his expression of concern to Mr. English just before the December 8, 2010 vote. However, the facts also indicate that at the time of the September 15, 2010, vote there was no contractual relationship between ADE and the City, and that at least two more Commission votes would be required before ADE could enter a contract and participate in the BTOP grant. Of decisive significance is the fact that, as a 501(c)(4) organization engaged in lobbying activities, ADE could not accept the federal grant money sought by the BTOP application. 2 U.S.C. § 1611. Thus, a separately incorporated affiliated 501(c)(3) organization, PDE, was substituted as the entity proposed to contract with the City and to receive the BTOP grant funds.6/ No evidence was provided to show a relationship between Respondent and PDE. Facts as to DOAH Case No. 12-2509EC Respondent entered into a written employment agreement dated June 1, 2004, with the law firm Adorno & Yoss. The firm was based in Miami, and Respondent was to open the firm's Tallahassee office. Throughout his tenure at Adorno & Yoss, Respondent was the sole attorney in the Tallahassee office. The employment agreement provided that Respondent would be a "contract partner" paid at the rate of $12,500 per month. The contract made no provision for Respondent to share in the profits of the firm. Adorno & Yoss partner George Yoss, who was Respondent's main contact with the firm, confirmed that Respondent was never a "partner" or "shareholder" in the sense of having an ownership interest in the firm. Respondent confirmed that he had no ownership interest in Adorno & Yoss. He testified that the employment agreement used the term "managing partner" because Adorno & Yoss "wanted to make the office in Tallahassee look as though it was really an operation that people can depend on." Respondent stated that Adorno & Yoss exercised no control over his relationships with the clients he represented or over the cases he handled.7/ He never had access to the books and records of Adorno & Yoss, and the firm never requested access to Respondent's books.8/ On average, Respondent spent 20-to-25 hours per week on Adorno & Yoss work. By its terms, the employment agreement was to expire on December 31, 2008. Mr. Yoss testified that Respondent remained with the firm past the expiration of the written agreement, but that in March 2009, Respondent's status was changed to "of counsel" because his financial performance was insufficient for the amount of salary he was receiving. The "of counsel" arrangement based Respondent's compensation on the amount of work he generated for the firm, rather than paying him a fixed salary.9/ On September 22, 2004, Respondent abstained from a Commission vote to approve the award of a guaranteed energy savings contract to Johnson Controls, Inc. and Honeywell International, Inc. ("Honeywell"10/). In his Memorandum of Conflict dated September 24, 2004, Respondent stated that the measure in question "inured to the special gain or loss of Honeywell, Inc. and Johnson Controls, Inc., by whom I am retained." Respondent testified that when this vote came up, he was concerned that a law firm as large as Adorno & Yoss might have some involvement with the contracting entities. He called the Miami office for a client check. Respondent was told that the firm did not represent Honeywell, but that it did represent Bendix, a subsidiary of Honeywell. Respondent decided that it would be prudent to recuse himself from the vote. Respondent testified that he named Honeywell rather than Bendix on the Memorandum of Conflict because Honeywell was the entity with which the City was contracting. Respondent testified that in August 2006, another matter involving Honeywell was coming before the City Commission. By this time, he had met Bueno Prades, an account executive for Honeywell. Mr. Prades was involved in the sales of energy projects to entities such as the City, and introduced himself to Respondent in the course of pursuing an energy performance contract with the City in 2004. Mr. Prades made frequent sales calls on Respondent, but did not otherwise meet or socialize with Respondent. Respondent testified that in August 2006, he asked Mr. Prades to determine whether Honeywell or any of its subsidiaries was represented by Adorno & Yoss. Mr. Prades sent an email to his manager Steve Borden and Honeywell government relations manager Paul Boudreau asking them to "check into Honeywell's involvement with Adorno & Yoss and provide your input as to any potential conflict." Mr. Borden and Mr. Boudreau circulated the request to Honeywell's legal and accounting departments, which responded that there was no record of a relationship with or payment to Adorno & Yoss as to Honeywell or its subsidiaries. Mr. Prades relayed this information to Respondent. Respondent testified that the matter involving Honeywell never came to a vote in 2006 and that was the end of the matter for the time being. In an "urgent" email to Mr. Boudreau and Honeywell in- house attorney Jennifer Eastman, dated March 1, 2007, at 4:08 p.m., Mr. Prades wrote as follows, in relevant part: Need your prompt help . . . We're getting ready to go to the Commission with this project, but the Mayor recently indicated that he may have a potential conflict and may have to recuse himself on issues dealing with Honeywell. He also mentioned this last August, and Paul Boudreau conducted a search (see e-mail trail below) but found no record of Honeywell doing business with the Mayor's firm (Adorno & Yoss). We have contacted the Mayor's office to get some clarification regarding his concern, but would like your assistance in researching this matter from Honeywell's side.... Note that Mayor Marks is also on the Board of Directors of Fringe Benefits Management, a private financial services company headquartered in Tallahassee.... Does Honeywell International have any business relationship (either as a client or vendor) with Adorno & Yoss or Fringe Benefits Management? If so, to what extent are we connected-- with which A&Y office do we have a contract? Which Hwl business unit? Is the contract active? Also on March 1, 2007, at 11:35 p.m., Mr. Prades sent an email to: Kevin Madden, vice president of global sales; Vince Rydzewski, south region vice president and general manager; John Carter, national energy manager; Kent Anson, vice president in charge of Honeywell's utility business; Steve Smith, sales leader in the utility business; Kevin McDonough, a manager of the utility business; Kevin Colores, south region sales manager; Mr. Borden; and Frank Tsamoutales, an outside consultant. The email, with the subject line, "City of Tallahassee-- New issue may change strategy," stated as follows: The Mayor indicated he may have to recuse himself on a vote concerning Honeywell. In August and again yesterday,11/ a check of the Honeywell supply management system yielded no record of any business with the Mayor's law firm (Adorno & Yoss) or the firm he serves on the Board of Directors (Fringe Benefits Mgmt). Steve Borden has contacted [Respondent's aide] Alan Williams to determine why the Mayor feels there may be a conflict, and will find out by Monday [March 5]. On March 13, 2007, Mr. Borden sent an email to Messrs. Rydzewski, Tsamoultes and Prades, indicating that he had received a call from Respondent's office requesting information regarding the business relationship between Bendix and Honeywell. Mr. Borden also wrote that Ms. Eastman had informed Mr. Tsamoultes "that we have no record that the mayor's firm has any relationship with Bendix or Honeywell. I further understand that a plan is in place to deal with this issue directly with the mayor." Mr. Prades testified that his only direct meeting with Respondent concerning the Adorno & Yoss issue was in August 2006. In March 2007, he met with Respondent's aide, Alan Williams, to inform him that Honeywell had been unable to find any indication that it or any of its subsidiaries had a business relationship with Adorno & Yoss. Mr. Williams confirmed the substance of this conversation, and the fact that it occurred prior to the March 28, 2007, vote involving Honeywell. Mr. Williams passed on Mr. Prades' findings to Respondent. The City Commission's March 28, 2007, agenda included an item related to smart metering. One of the options before the Commission would be a staff recommendation to authorize City staff to negotiate a contract with Honeywell to provide contract management services for the full deployment of a smart metering network and smart thermostats for the City's utility system. This was the matter that was the subject of Mr. Prades' urgent inquiries. He believed it essential that Respondent vote on the motion. With the agenda item pending, Respondent sent Mr. English a short letter from Honeywell (no longer available and therefore not part of the record of this proceeding) stating that Honeywell "does not have any record of a conflict of interest with Adorno & Yoss." In an email sent on the afternoon of March 21, 2007, Respondent asked Mr. English whether he had seen the Honeywell letter and further requested, "Please advise." About a half-hour later, Mr. English replied: Yes-- and I did verify from the public records the sale by Honeywell of Bendix several years ago. Otherwise the letter isn't helpful. The issue isn't "conflict of interest with Adorno & Yoss" but representation by Adorno & Yoss. What you will need to do is the standard check by having your folks at Adorno & Yoss run the client check for Honeywell International and its wholly owned subsidiaries. I have the list per Honeywell's latest 10k filing and will forward it this afternoon. A few minutes later, Mr. English sent a follow-up email to Respondent: Sorry -- I should have added a time period for the check. Current plus within the last two years should be adequate. Let me know if you need any assistance or have any questions. On March 28, 2007, Respondent voted in favor of the motion to authorize the City's staff to negotiate a contract with Honeywell to provide contract management services for the full deployment of a smart metering network and smart thermostats for the City's utility system. The vote was 3-1 in favor of the motion, with then-Commissioner Allan Katz abstaining because his law firm represented Honeywell. The minutes of the March 28, 2007, Commission meeting provide as follows: Mayor Marks stated for the record that there had been some question at one point as to whether he had a conflict of interest on this issue; however, after extensive investigation and discussion with the City Attorney, a determination had been made that there was no conflict. Mr. English wrote a memorandum to Respondent, dated June 20, 2007, and titled, "Honeywell Conflict of Interest Check." The memorandum provided as follows: This will serve to confirm that several weeks prior to the March 28, 2007, vote on pursuing the City's automatic metering infrastructure project, you asked that I research the issue as [to] whether or not you had any conflict of interest in voting on that matter. In pursuance of that effort, I secured from the U.S. Securities and Exchange Commission website a list of all materially owned Honeywell subsidiaries and pursuant to receipt of that data, you had your law firm perform a client check to ensure that the firm did not represent, nor had it in recent years represented, any of the entities on that list. Additionally, prior to that time, you had advised me that in the past your law firm had represented Bendix. Prior to the specific conflict check research, I had inquired of that matter, checked the public information, and confirmed that Bendix previously had been a subsidiary of Honeywell but had been sold by Honeywell to a German company a number of years ago. In summary, I advised you at the time, and I can still confirm, that you have no prohibited conflict of interest with regard to any votes with regard to Honeywell. As always, I appreciate your apprising me of any potential conflicts that may arise from law firm representation. Mr. English testified that Respondent had "asked me to write him a memo confirming our previous discussions." Mr. English testified that his advice as to the Honeywell relationship was always based on the information that Respondent had provided. The only independent research performed by Mr. English was to confirm that Honeywell had sold Bendix and to find a list of Honeywell's subsidiaries in its 10-K filings with the S.E.C. Mr. English testified that the statement in his memo regarding the client check by Adorno & Yoss was "based on the Mayor advising me prior to the meeting that he had checked and that his law firm did not represent Honeywell." In fact, Respondent did not have Adorno & Yoss run a client check on Honeywell and its subsidiaries prior to the March 28, 2007 vote, despite the fact that his usual practice was to check with the law firm regarding conflicts. He relied solely on the information provided by Honeywell through Mr. Prades, as described above. At the hearing, Respondent explained his rationale as follows: Well, Honeywell had a lot of subsidiaries, quite a few subsidiaries that I was-- Jim English told me about and others, a lot of subsidiaries. So I thought it would be a lot more efficient and effective if I asked Honeywell if there are any conflicts where Adorno & Yoss was representing not only Honeywell, but any of the myriad of subsidiaries Honeywell had. Respondent testified that Honeywell was "really a reputable company" and that he had no reason to believe the company would "try and do anything untoward regarding this contract or any other contract." The testimony of Mr. Prades and the Honeywell emails introduced at the hearing support Respondent's belief that Honeywell made a good faith effort to discover whether it had a relationship with Adorno & Yoss. Despite the failure of Mr. Prades' inquiries to discover it, Honeywell was a client of Adorno & Yoss at the time of the March 28, 2007 vote. Anthony Upshaw, the Adorno & Yoss partner who brought Honeywell to the firm in 2003 or 2004, estimated that Honeywell was one of the firm's top fifteen clients. (Mr. Upshaw took Honeywell with him when he left Adorno & Yoss in late 2010.) Bob Kulpa, Adorno & Yoss's comptroller, testified that Honeywell was one of the firm's top ten clients. Julie Feigeles was one of the three Adorno & Yoss lawyers who worked on Honeywell matters. Ms. Feigeles testified that the firm's representation of Honeywell was limited to asbestos litigation related to Honeywell's ownership of Bendix, and that the work was handled exclusively in the Miami office. She recalled that she worked with Honeywell lawyers in the "Bendix litigation group" and that there were many defendants and many law firms involved in the litigation. Mr. Yoss, Mr. Kulpa, Mr. Upshaw, and Ms. Feigeles each testified that he or she never spoke with Respondent about Honeywell during the time frame relevant to this proceeding. Respondent testified that his contacts with Adorno & Yoss's Miami office were minimal. As noted above, Respondent's role was to provide Adorno & Yoss a presence in Tallahassee, but he mostly serviced his own clients and kept his own accounts. He estimated that he spoke to someone from Adorno & Yoss, usually Mr. Yoss, about twice per month. Respondent visited the firm's Miami office a few times. He recalled having spent a total of about 20 hours in the Miami office. The question naturally arises: why did Mr. Prades' efforts within Honeywell reveal no relationship with Adorno & Yoss, when everyone from Adorno & Yoss who testified stated that Honeywell was a major client of the firm? Mr. Prades testified that he learned later that Adorno & Yoss had been hired not by Honeywell but by the insurance company that was defending the asbestos litigation on Honeywell's behalf. This attenuation of the relationship apparently meant that Honeywell had no internal record of dealings with Adorno & Yoss, despite the fact that Ms. Feigeles recalled working with in-house Honeywell lawyers. Honeywell's accounts showed no payments to Adorno & Yoss because the payments were being made through the insurance company. From the perspective of the Adorno & Yoss lawyers, Honeywell was nonetheless their client. At the hearing, Mr. English was queried about his March 21, 2007, email advising Respondent to have Adorno & Yoss "run the client check" for Honeywell and his June 20, 2007, memo stating that Respondent had his law firm perform a client check. Mr. English did not testify that Respondent directly told him that he had run the client check with Adorno & Yoss. Rather, Respondent told Mr. English prior to the March 28, 2007 Commission meeting "that he had checked and that his law firm did not represent Honeywell." Mr. English assumed that Respondent ran a conflict check through his law firm, when in fact Respondent was relying on information obtained from Honeywell. Mr. English did not believe it mattered so long as the information was accurate. He knew of "no legal reason" why Respondent should check with Adorno & Yoss as opposed to Honeywell. He stated that, although the usual course is to check with one's law firm, "It would work either way." Mr. English noted that section 286.012, Florida Statutes, forbids a public official from abstaining to avoid a tough vote. The statute requires the official to vote unless there is a possible conflict of interest, and the presence of a conflict can constitute a "very difficult" judgment call. He testified that Respondent has "always been very, very conscientious . . . to the point of being a bit paranoid" about avoiding voting conflicts. At the time of the March 28, 2007, vote and the later votes at issue in this proceeding, Respondent did not know that Adorno & Yoss represented Honeywell. Honeywell's good faith in attempting to ascertain its relationship with Adorno & Yoss is not in doubt, and in most cases would have been sufficient to reveal the true state of affairs. With benefit of hindsight, Respondent may be criticized for failing to complete the circle of inquiry by asking Adorno & Yoss to perform a client check, a check that would have immediately informed Respondent of the representation. However, it cannot be found that Respondent's reliance on Honeywell was so unreasonable as to constitute an effort on his part to shield himself from knowledge of Adorno & Yoss's representation of the company.12/

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a public report finding: That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent's vote on September 15, 2010, inured to the special private gain or loss of the Alliance for Digital Equality, a principal by which Respondent was retained, in violation of section 112.3143(3)(a); and That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent cast votes on March 28, 2007, September 19, 2007, June 13, 2007, and June 18, 2008, in connection with matters that inured to the special private gain or loss of Honeywell, a principal by which Respondent was retained, in violation of section 112.3143(3)(a). DONE AND ENTERED this 27th day of November, 2012, 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 27th day of November, 2012.

USC (1) 2 U.S.C 1611 CFR (2) 15 CFR 24.31(d), 15 CFR 24.31(d)(3) Florida Laws (8) 112.312, 112.313, 112.3143, 112.322, 120.569, 120.57, 120.68, 286.012 Florida Administrative Code (1) 34-5.0015

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