09-002806 Florida Elections Commission vs. Brian Pitts, Treasurer For Justice-2-Jesus Status: Closed DOAH Final Order on Wednesday, October 7, 2009.

Summary: Respondent committed a willful violation of campaign finance law by failing to file quarterly campaign treasurer's report.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 09-2806

)

BRIAN PITTS, TREASURER FOR )

JUSTICE-2-JESUS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, this cause came on for formal

proceeding before Lawrence P. Stevenson, a duly-designated

Administrative Law Judge, via video teleconference from sites in

St. Petersburg and Tallahassee, Florida, on August 13, 2009.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission

107 West Gaines Street, Suite 224

Tallahassee, Florida 32399-1050

For Respondent: Brian Pitts, pro se

Justice-2-Jesus

1119 Newton Avenue

St. Petersburg, Florida 33705

STATEMENT OF THE ISSUE

At issue in this proceeding is whether the Respondent,

Brian Pitts, treasurer for Justice-2-Jesus, a political

committee, willfully violated Section 106.07(1), Florida

Statutes, by failing to file a Campaign Treasurer's Report for

the first quarter of 2008 (referred to herein as the 2008 Q1

CTR).

PRELIMINARY STATEMENT

In an Order of Probable Cause dated March 18, 2009, the

Florida Elections Commission (the Commission) determined there

was probable cause to believe that Respondent violated Section

106.07(1), Florida Statutes, 1 / by failing to file the 2008 Q1 CTR

for Justice-2-Jesus, a political committee for which Respondent

served as treasurer. Because Respondent did not timely request

a formal or informal hearing before the Commission or elect to

resolve the complaint by consent order, the Commission forwarded

the case to the Division of Administrative Hearings (DOAH)

pursuant to Section 106.25(5), Florida Statutes, on May 20,

2009.

In an order dated July 30, 2008, the facts set forth in

paragraphs 7a through 7f of the Commission's motion to establish

facts were deemed admitted for purposes of the final hearing.

Counsel for the Commission read those facts into the record at

the final hearing.

At the final hearing, the Commission presented the

testimony of Christie Reed Bronson, Chief of the Bureau of

Election Records in the Department of State, Division of

Elections. By stipulation, the Commission entered into evidence

the deposition testimony of Erin NeSmith, a senior management

analyst in the Bureau of Election Records. The Commission's

Exhibits 1 through 10 were admitted into evidence without

objection. Respondent testified on his own behalf and offered

no exhibits into evidence.

The one-volume Transcript of the final hearing was filed at

DOAH on August 26, 2009. The Commission timely filed a Proposed

Final Order on September 8, 2009. Respondent did not file a

proposed final order.

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:

1. Respondent is the treasurer for Justice-2-Jesus, a

political committee that registered with the Division of

Elections (Division) on December 12, 2007.

2. Justice-2-Jesus registered by filing an "Appointment of

Campaign Treasurer and Designation of Campaign Depository for

Political Committees and Electioneering Communication

Organizations" form, or Form DS-DE-6. Justice-2-Jesus

designated Respondent, Brian Pitts, as its treasurer.

Respondent signed the document, giving as his address

1119 Newton Avenue South, St. Petersburg, Florida.

3. Also on December 12, 2007, Justice-2-Jesus filed a

"Registered Agent Statement of Appointment," Form DS-DE 41,

naming Calvester Benjamin-Anderson as its registered agent.

Respondent signed the document and gave 1119 Newton Avenue

South, St. Petersburg, Florida as the address of the registered

agent.

4. The Division sent a letter, dated December 14, 2007, to

Respondent acknowledging receipt of the Form DS-DE-6 and

providing information about the Division's electronic filing

system for CTRs. The letter informed Respondent that all

political committees that file reports with the Division are

required to do so by means of the electronic filing system.

5. The Division's letter concluded with the following

paragraph, set out in bold type:

All of the Division's publications and

reporting forms are available on the

Division of Elections' web site at

http://election.dos.state.fl.us. It is your

responsibility to read, understand, and

follow the requirements of Florida's

election laws. Therefore, please print a

copy of the following documents: Chapter

106, Florida Statutes, 2006 Committee and

Campaign Treasurer Handbook, 2007-2008

Calendar of Reporting Dates, and Rule 1S-

2.017, Florida Administrative Code.

6. The Division's letter also enclosed a sealed envelope

containing PIN numbers to allow Respondent secure access to the

Division's electronic filing system in order to submit CTRs for

Justice-2-Jesus.

7. A CTR lists all contributions received and expenditures

made during a given reporting period. The 2008 Q1 CTR is the

report that a campaign treasurer should have filed on behalf of

his committee at the close of the first quarter of 2008.

Respondent's 2008 Q1 CTR was due to be filed on or before

April 10, 2008.

8. Candidates and political committees have been required

to file their CTRs electronically since 2004. § 106.0705(2),

Fla. Stat. The CTR data may be uploaded using any of several

proprietary programs that have been approved by the Division.

These programs carry a fee for their use. As an alternative,

the treasurer may enter the CTR information directly into the

Division's electronic filing system at no cost.

9. The Division has published an online "Electronic Filing

System (EFS) User's Guide" (the Guide) to explain the use of the

electronic filing system. The Guide contains help menus to

assist the user in completing the data entry for a CTR. The

Guide is available in a PDF format that can be read online or

downloaded to the user's computer at no cost.

10. A user may also make a public records request to the

Division for a hard copy of the Guide. The Division will

provide the hard copy at a cost of $0.20 per double-sided page,

or approximately $4.80 for the 47-page Guide.

11. On or about April 11, 2008, the Division sent

Respondent a letter informing him that it had not received the

2008 Q1 CTR for Justice-2-Jesus, which had been due on April 10,

2008.

12. On or about April 25, 2008, the Division sent

Respondent a second letter informing him that it had not

received the 2008 Q1 CTR for Justice-2-Jesus.

13. Both letters were sent to 1119 Newton Avenue South,

St. Petersburg, Florida, the address provided by Respondent on

the Form DS-DE-6 for Justice-2-Jesus. Neither letter was

returned to the Division as undeliverable or unclaimed. At the

hearing, Respondent did not deny receiving these letters in

April 2008.

14. On or about July 10, 2008, the Division sent to

Calvester Benjamin-Anderson, the registered agent for Justice-2-

Jesus, a final notice that Respondent had failed to file the

2008 Q1 CTR for Justice-2-Jesus. The letter was sent certified

mail, return receipt requested. Ms. Benjamin-Anderson signed

for the letter on or about July 14, 2008.

15. Respondent testified that he attempted to hand-deliver

a paper copy of the 2008 Q1 CTR to the Division, but that a

Division employee told him that he was required to file all

reports for his committee electronically.

16. The Division's records indicate that Respondent had

filed Justice-2-Jesus' 2007 Q4 CTR and its 2007 SR2 report 2 /

electronically, prior to the due date for the 2008 Q1 CTR.

17. Erin NeSmith, a supervisor in the Bureau of Election

Records, testified that Respondent came into the Division's

offices on November 20, 2008. Respondent asked Ms. NeSmith

questions about the 2008 Q1 CTR. She told him that the matter

had already been referred to the Commission because Respondent

had not filed the report despite repeated notices, but that

Respondent still needed to file the 2008 Q1 CTR. Respondent

explained to Ms. NeSmith that he had not filed the report

because he had been busy and had a lot of items to pull together

for the report.

18. As of August 10, 2009, Respondent had yet to file the

2008 Q1 CTR for Justice-2-Jesus.

19. At the hearing, Respondent testified that he had at

least 50 contributions and 80 to 100 expenditures to report for

the first quarter of 2008.

20. Respondent testified that the due date for the 2008 Q1

CTR fell during the legislative session, when Respondent was

extremely busy at the Florida Capitol. The Division's offices

are open only during normal business hours, when Respondent was

unavailable, and thus Respondent was unable to phone the

Division for assistance in preparing the reports.

21. Respondent defended his subsequent failure to file the

report as something in the nature of a protest against the

Division's electronic filing requirement and its alleged refusal

to provide him with a paper copy of the Guide to facilitate his

preparation of the report.

22. Respondent complained that the vendors who provide

Division-approved data uploading programs charge prohibitively

expensive fees. He further complained that the alternative

means of filing, direct entry of the data onto the Division's

electronic filing system, is difficult and confusing without a

paper copy of the Guide for assistance.

23. Respondent acknowledged the availability of the Guide

in printable PDF format, but asserted that purchasing printer

cartridges and paper sufficient to print the Guide and other

necessary Division handbooks would cost between $80.00 and

$120.00. Respondent did not acknowledge the Division's

willingness to print the Guide for $0.20 per double-sided page

pursuant to a public records request.

24. Respondent testified that he has assisted several

other persons in preparing and filing their electronic reports

to the Division. On behalf of Justice-2-Jesus, Respondent has

electronically filed several reports to the Division subsequent

to the due date for 2008 Q1 CTR.

25. Willfulness is a question of fact. § 106.25(3), Fla.

Stat. See Beardslee v. Fla. Elections Comm'n , 962 So. 2d 390,

393 (Fla. 5th DCA 2007); McGann v. Fla. Elections Comm'n , 803

So. 2d 763, 764 (Fla. 1st DCA 2001).

26. Florida Administrative Code Rule 2B-1.002 provides:

For purposes of imposing a civil penalty for

violating Chapter 104 or 106, F.S, the

following definitions shall apply:

(1) A person acts "willful" or

"willfully" when he or she knew that, or

showed reckless disregard for whether his or

her conduct was prohibited or required by

Chapter 104 or 106, F.S.

(2) "Knew" means that the person was

aware of a provision of Chapter 104 or 106,

F.S., understood the meaning of the

provision, and then performed an act

prohibited by the provision or failed to

perform an act required by the provision.

(3) "Reckless disregard" means that the

person disregarded the requirements of

Chapter 104 or 106, F.S., or was plainly

indifferent to its requirements, by failing

to make any reasonable effort to determine

whether his or her acts were prohibited by

Chapter 104 or 106, F.S., or whether he or

she failed to perform an act required by

Chapter 104 or 106, F.S.

27. The evidence established that Respondent was well

aware of the requirement to file the 2008 Q1 CTR on behalf of

Justice-2-Jesus. Shortly after Respondent filed the committee's

initial paperwork, the Division sent him an acknowledgement

letter directing him to the Division's website for information

about the electronic filing of campaign treasurer's reports.

Respondent could have downloaded the Guide or any other Division

publication.

28. At the hearing, Respondent claimed no lack of

knowledge of the filing requirements. After he failed to file

the 2008 Q1 CTR, Respondent received two letters from the

Division notifying him of the failure. Despite these notices,

Respondent never filed the report.

29. The evidence established that Respondent

electronically filed two reports with the Division prior to the

due date of the 2008 Q1 CTR, and filed several electronic

reports after the due date of the 2008 Q1 CTR. These facts

demonstrate Respondent's knowledge of the filing requirements

and ability to prepare an electronic report.

30. Respondent has acted willfully in his failure to file

the 2008 Q1 CTR for Justice-2-Jesus.

31. At the hearing, Respondent asserted that Justice-2-

Jesus was indigent, but offered no financial data to support the

assertion.

CONCLUSIONS OF LAW

32. DOAH has jurisdiction of the subject matter of and the

parties to this proceeding. § 106.25(5), Fla. Stat.

33. The Commission has the burden to prove the violations

alleged in the Order of Probable Cause by clear and convincing

evidence. Diaz de la Portilla v. Fla. Elections Comm'n , 857 So.

2d 913, 917 (Fla. 3d DCA 2003).

34. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court defined clear and convincing evidence as

follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

35. Judge Sharp, in her dissenting opinion in Walker v.

Florida Department of Business and Professional Regulation , 705

So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting),

reviewed recent pronouncements on clear and convincing evidence:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano , 696

So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L.Ed.2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the fact

finder a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davey , 645

So. 2d 398, 404 (Fla. 1994).

36. The Commission must prove not only that Respondent

violated a provision of the campaign finance laws but that the

act or omission constituting the violation was "willful."

§ 106.25(3), Fla. Stat.

37. Section 106.07(1), Florida Statutes, provides as

follows, in relevant part:

Each campaign treasurer designated by a

candidate or political committee pursuant to

s.106.021 shall file regular reports of all

contributions received, and all expenditures

made, by or on behalf of such candidate or

political committee.

38. Justice-2-Jesus was a political committee. As the

campaign treasurer for Justice-2-Jesus, Respondent had the legal

obligation to file the campaign treasurer's reports required by

Section 106.07(1), Florida Statutes.

39. Section 106.0705(2)(b), Florida Statutes, provides as

follows:

Each political committee, committee of

continuous existence, electioneering

communications organization, or state

executive committee that is required to file

reports with the division under s. 106.04,

s. 106.07, s. 106.0703, or s. 106.29, as

applicable, must file such reports with the

division by means of the division's

electronic filing system.

40. Respondent was required to file the 2008 Q1 CTR by

means of the Division's electronic filing system.

Notwithstanding his attempt to file a paper report, Respondent

knew and understood the electronic filing requirement.

41. Respondent knew and understood when and how he was

required by law to file the 2008 Q1 CTR on behalf of Justice-2-

Jesus. Respondent failed to file the report despite numerous

notices from the Division.

42. The Commission has met its burden in this case. It

has proven by clear and convincing evidence that Respondent

willfully violated Section 106.07(1), Florida Statutes, by

failing to file Justice-2-Jesus' 2008 Q1 CTR.

43. Section 106.265, Florida Statutes, prescribes civil

penalties for violations of the campaign finance laws, and

provides as follows, in relevant part:

(1) The Commission is authorized upon the

finding of a violation of this chapter or

chapter 104 to impose civil penalties in the

form of fines not to exceed $1,000 per

count. In determining the amount of such

civil penalties, the Commission shall

consider, among other mitigating and

aggravating circumstances:

(a) The gravity of the act or omission;

(b) Any previous history of similar acts or

omissions;

(c) The appropriateness of such penalty to

the financial resources of the person,

political committee, committee of continuous

existence, or political party; and

(d) Whether the person, political

committee, committee of continuous

existence, or political party has shown good

faith in attempting to comply with the

provisions of this chapter or chapter 104.

44. Full disclosure to the public of "who gave it, who got

it" has long been understood as the spirit of Chapter 106,

Florida Statutes. See , e.g. , Division of Elections Advisory

Opinions DE 89-02 (April 5, 1989) and DE 77-10 (March 22, 1977).

Reporting campaign contributions is one of the most basic

requirements of the election laws. Therefore, the knowing and

willful failure to file a required campaign treasurer's report

constitutes a serious violation.

45. Respondent has no previous history of violating

Chapter 106, Florida Statutes.

46. Respondent has claimed that Justice-2-Jesus is

indigent, but presented no evidence to demonstrate the

committee's financial situation. If Respondent wishes his

financial situation to be taken into account in mitigation, he

must produce evidence of his financial resources. Diaz de la

Portilla , 857 So. 2d at 925.

47. Respondent failed to show good faith in attempting to

comply with the requirement to file Justice-2-Jesus' 2008 Q1

CTR. Respondent received three letters reminding him of his

obligation. He spoke to Ms. NeSmith at the Division, who

reminded him of his continuing obligation to file the report.

Respondent has filed other reports for Justice-2-Jesus and has

assisted other committees in preparing their electronic reports.

Yet Respondent failed to file the required report that was the

subject of this proceeding.

CONCLUSION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

ORDERED that:

1. Respondent is guilty of willfully violating Section

106.07(1), Florida Statutes, as alleged in the Order of Probable

Cause.

2. Respondent is assessed an administrative fine of

$1,000.00, which must be paid to the Florida Elections

Commission within 30 days of the date of this Final Order.

DONE AND ORDERED this 7th day of October, 2009, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of October, 2009.

ENDNOTES

1 / All references to the Florida Statutes are to the 2008

edition, unless noted otherwise.

2 / "SR2" was not explained at the hearing. The Division's on-

line reference sources provide no ready explanation for much of

the jargon employed in campaign reporting. A glossary of terms

would be helpful.

COPIES FURNISHED :

Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

Tallahassee, Florida 32399

Brian Pitts

Justice-2-Jesus

1119 Newton Avenue South

St. Petersburg, Florida 33705

Patsy Rushing, Clerk

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Barbara M. Linthicum, Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.