00-004994 William Proctor, Jr. vs. Florida Elections Commission Status: Closed Recommended Order on Friday, January 25, 2002.

Summary: Petitioner found to have knowingly and willfully violated Florida Statutes Sections: 106.07 - 13 times; 106.011(3) - 5 times; 106.19(1)(b) - 53 times; and 106.19(1)(c) - 130 times. A substantial fine is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM PROCTOR, JR., )

)

Petitioner, )

)

vs. ) Case No. 00 - 4994

)

FLORIDA ELECTIONS COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to n otice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final hearing in this case on October 9,

2001, in Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance¹

For Respondent: Da vid F. Chester, Esquire

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUES

Whethe r 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 campaig n 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, wh ich 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 falsel y 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.

PRELIMINARY STATEMENT

On March 30, 1999, the Florida Elections Commission (the

"Commission") received a Sworn Complaint alleging that

Petitioner, William P roctor, Jr., had violated Chapter 106,

Florida Statutes. On September 29, 1999, after an investigation

by the Commission staff, the Commission staff returned to the

Commission a Statement of Findings which recommended finding

probable cause to believe Pet itioner violated Subsection

106.07(5), Florida Statutes, on 13 occasions; Subsection

106.11(3), Florida Statutes, on six occasions; Subsection

106.19(1)(a), Florida Statutes, on one occasion; Subsection

106.19(1)(b), Florida Statutes, on 56 occasions; Subs ection

106.19(1)(c), Florida Statutes, on 131 occasions; and Subsection

106.19(1)(d), Florida Statutes, on seven occasions.

On November 6, 2000, the Commission entered an Order of

Probable Cause which incorporated by reference the Sworn

Complaint, Report of Investigation, and Statement of Findings in

this matter alleging that Petitioner had 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, fals e or incomplete, on 13 occasions;

Subsection 106.11(3), Florida Statutes, which prohibits a

candidate from incurring an expense for the purchase of goods or

services without sufficient funds on deposit in the primary

campaign depository to pay the full amo unt of the authorized

expenses, to honor all outstanding checks, and to pay all

previously authorized but unpaid expenses, on six occasions;

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 failure of a person or organization to

report a contribution required to be reported by Chapter 106,

Florida Statutes, on 56 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 131 occasions; and Subsection

106.19(l)(d), Florida Statutes, which prohibits a person from

ma king or authorizing an expenditure prohibited by Subsection

106.11(3), Florida Statutes, or otherwise by Chapter 106,

Florida Statutes, on seven occasions.

The Order of Probable Cause advised Petitioner of his

entitlement to hearing before the Commission o r before the

Division of Administrative Hearings on the allegations. On

December 5, 2000, Petitioner, through counsel, filed a Petition

for Formal Administrative Hearing requesting a formal

administrative hearing. On December 11, 2000, the Commission

for warded this matter to Division of Administrative Hearings.

On January 5, 2001, an Order was entered setting this

matter for hearing on March 19 and 20, 2001. On March 19, 2001,

the hearing was continued on Petitioner's motion. On April 4,

2001, the case was rescheduled for July 9 through 12, 2001. On

July 9, 2001, Petitioner appeared for the scheduled hearing and

again requested a continuance. The request for continuance was

granted, and the case was rescheduled for October 8 through 11,

2001.

On Octobe r 4, 2001, an Order was entered establishing trial

procedure. Because Petitioner had a pending criminal trial, it

was ordered that the formal administrative hearing in this

matter was "to begin at 9:00 a.m. on the day following the

conclusion of the crimi nal matter involving Petitioner currently

pending in County Court, Leon County, Florida. The undersigned

(Administrative Law Judge) is advised by Respondent's counsel

that the criminal matter is expected to take two days (October 8

and 9 ); therefore, it is anticipated that the formal

administrative hearing will begin at 9:00 a.m., October 10,

2001; however, if the criminal matter is concluded, whether by

verdict, settlement, or continuance, on October 8, 9, 10, or 11,

2001, the formal administrative heari ng will begin at 9:00 a.m.,

the following day." Petitioner's criminal trial ended with a

verdict on October 8, 2001. Petitioner failed to appear for the

formal administrative hearing which began at 9:00 a.m., on

Tuesday, October 9, 2001.

At the hearing, the Commission presented three witnesses:

Keith Smith, an investigator for the Commission; Karen Sanders;

and Clara C. Rotruck. The Commission also introduced

31 exhibits at the hearing which were received into evidence and

numbered R1 through R31. Prio r to the close of the hearing, the

Commission's attorney requested leave to submit an additional

exhibit; that exhibit, R32, was also admitted into evidence. As

Petitioner did not appear at the hearing, no witnesses or

exhibits were presented on his behal f. Prior to the

presentation of its case, the attorney for the Commission

announced that the Commission was reducing the number of alleged

violations as follows: Subsection 106.11(3), Florida Statutes,

six alleged violations reduced to five; Subsection 1 06.19(1)(b),

Florida Statutes, 56 alleged violations reduced to 53;

Subsection 106.10(1)(c), Florida Statutes, 131 alleged

violations reduced to 130; and Subsection 106.19(1)(d), Florida

Statutes, seven alleged violations reduced to five.

The Commission requested 30 days from the filing of the

Transcript of Proceedings to file its proposed recommended

order.

On October 10, 2001, Mark Herron, Esquire, Mark Herron,

P.A., entered a Notice of Appearance on behalf of Petitioner,

who had not been represented si nce his previous counsel had

withdrawn on April 3, 2001.

A Transcript of Proceedings was filed on November 8, 2001;

an Excerpt Of Proceedings was filed on November 27, 2001; in

addition, a Transcript of the "Final Hearing" of July 9, 2001,

was filed on Nov ember 5, 2001. On November 29, 2001, an Order

was entered extending the time for filing proposed recommended

orders to January 4, 2002. Both parties timely filed Proposed

Recommended Orders.

FINDINGS OF FACT

Based on the testimony, documentary evidence, entire record

of this proceeding, the following Findings of Fact are made:

1. At the time of the alleged violations, Petitioner was a

candidate for re - election to the office for the Leon County

Commission, District 1, for the general election in

November 1998. Respondent had won the primary, run - off and

general election in 1996. He had been a candidate for election

to the office of Leon County Superintendent of Schools in 1992.

2. Petitioner has a Bachelor of Arts degree from Howard

University (1981), a Doctorate of Jurisprudence from Howard

University (1984), and has done advanced studies in Theology and

Ethics at Boston University School of Theology. He has been

employed as a Legal Assistant and Training Specialist by the

State of Florida. In additi on, he has served as a Staff

Assistant to a United States Senator and a Special Assistant to

a Governor of Florida. He serves as an adjunct professor at a

local university.

3. Prior to the alleged violations, Petitioner signed a

statement indicating that he had a copy of Chapter 106, Florida

Statutes, and that he had read and understood same.

4. Petitioner is a highly educated, sophisticated

individual and an experienced candidate.

5. The charging document in this case is the Order Of

Probable Cause, wh ich set out in unnumbered paragraphs, each

statutory provision that Petitioner allegedly violated and the

number of times of each alleged statutory violation. Attached

to the Order of Probable Cause, and incorporated in the Order of

Probable Cause by refe rence, is a Statement of Findings which

lists with specificity each alleged violation.

Specifically, it alleged:

Probable cause to believe that the

Respondent[²] violated Section 106.07(5),

Florida Statutes, prohibiting a candidate

from certifying to the correctness of a

campaign treasurer's report that is

incorrect, false, or incomplete, on 13

occasions;

Probable cause to believe that the

Respondent violated Section 106.11(3),

Florida Statutes, prohibiting a candidate

from authorizing any expenses from t he

primary campaign account without sufficient

funds on deposit in the campaign account to

pay the full amount of the authorized

expenses, to honor all outstanding checks,

and to pay all previously authorized but

unpaid expenses, on six occasions;

Probabl e cause to believe that the

Respondent violated Section 106.19(1)(a),

Florida Statutes, prohibiting a person or

organization from accepting a contribution

in excess of $500 for each election, on one

occasion;

Probable cause to believe that the

Respondent violated Section 106.19(1)(b),

Florida Statutes, failure of a person or

organization to report a contribution

required to be reported by this chapter, on

56 occasions;

Probable cause to believe that the

Respondent violated Section 106.19(1)(c),

Florida St atutes, prohibiting a person or

organization from falsely reporting or

failing to report information required by

this [sic], on 131 occasions.

Probable cause to believe that the

Respondent violated Section 106.19(1)(d),

Florida Statutes, prohibiting a per son or

organization from making or authorizing any

expenditure prohibited by this chapter, on

seven occasions.

Attached to the Order of Probable Cause, and

incorporated in the Order of Probable Cause

by reference, is a Statement of Findings

which lists wi th specificity each alleged

violation.

6. As it relates to the 13 alleged violations of

Subsection 106.07(5), Florida Statutes, paragraph 17 of the

Statement of Findings lists each of the 13 Campaign Treasurer's

Reports and each alleged unreported or in correctly reported

campaign contribution or expenditure.

7. As it relates to the six alleged violations of

Subsection 106.11(3), Florida Statutes, paragraphs 19 - 26 list

each check returned for non - sufficient funds and other relevant

information to the al leged violations.

8. As it relates to the alleged violation of Subsection

106.19(1)(a), Florida Statutes, it is discussed with specificity

in paragraph 34 of the Statement of Findings.

9. As it relates to the 56 alleged violations of

Subsection 106.19(1 )(b), Florida Statutes, paragraphs 17 and 36

of the Statement of Findings specifically list each of the

unreported contributions.

10. As it relates to the 131 alleged violations of

Subsection 106.19(1)(c), Florida Statutes, paragraphs 17, 38 and

39 of the Statement of Findings specifically list the 131

unreported or incorrectly reported expenditures.

11. As it relates to the seven alleged violations of

Subsection 106.19(1)(d), Florida Statutes, each of the

prohibited expenditures is discussed with specifi city in

paragraphs 19 - 26 and 41 of the Statement of Findings.

12. In his Petition for Formal Administrative Hearing,

Petitioner "disputes issues of material fact" listed in

paragraphs 3 - 6, 8 - 10, 13 - 20, 22 - 28, 30, and 33 - 43 of the

Statement of Findings wh ich is incorporated by reference into

the Order Finding Probable Cause. In so doing, Petitioner

specifically delineates his denial of each of the specifically

alleged violations incorporated in the Order of Probable Cause

by the Statement of Findings and demonstrates his awareness of

the specific number of alleged violations and that the

Commission intended to impose a fine for each violation.

13. On June 17, 1996, Petitioner opened a campaign account

at the Florida A & M University Credit Union which was given the

account number 9174. This account was opened for Petitioner's

1996 campaign. The only bank signature card on file for the

campaign account is the original card dated June 17, 1996. It

designates two signatories: William Proctor and Fredrick T.

Smith, campaign treasurer. Although account 9174 was inactive

after the end of the 1996 campaign, it was activated for the

1998 campaign.

14. On May 19, 1997, on opening his re - election campaign,

Petitioner filed form DS - DE 9 designating himself Campa ign

Treasurer and the Florida A & M University Credit Union as

campaign depository. On January 12, 1998, he filed a second

form DS - DE 9 designating Thomas Rollins as Campaign Treasurer.

None of the campaign checks or deposit slips offered into

evidence w ere signed by Tom Rollins.

15. An examination of records of the campaign account

records produced by representatives of the Florida A & M

University Credit Union indicate that Petitioner personally

handled essentially all campaign banking activities. In his

sworn responses to inquiries directed to unreported transfers of

funds from the campaign account to Petitioner's personal

accounts, unreported cash received by Petitioner at the time he

deposited checks payable to the campaign account, cash

withdrawals , unreported campaign contributions, and other

financial irregularities, Petitioner typically gave the

following answer:

My campaign staff was instructed to record

all expenditures [or contributions ] for

reporting purposes. However, this

expenditure wa s not reported because the

campaign staff included inexperienced, non -

professional clerical and bookkeeping

personnel who did not always follow

instructions to record the contributions and

expenditures for reporting purposes. In

addition, the campaign had a high turnover

of staff, which further complicated efforts

to insure that staff properly followed

instructions.

16. The Florida A & M University Credit Union will, at any

time during business hours, print - out the last 30 days' account

activity for a $3 .00 fee. This allows an account holder to keep

track of deposits, paid checks, issued checks that have not yet

been paid, etc. Campaign account records show that this was

done in August 1998.

17. On July 27, 1998, prior to the first primary election,

a $500 transfer was made from the account of William Proctor,

Sr. and Patricia Proctor, account number 5016, to Petitioner's

campaign account. This transfer is not reported in the campaign

treasurer's report.

18. Petitioner's campaign account records indic ate that a

transfer of $1,000 was made to Petitioner's campaign account

from the account of William Proctor, Sr., and Patricia Proctor,

account number 5016, which was maintained at the Florida A & M

University Credit Union, on October 12, 1998, after the f irst

primary and prior to the general election. This transfer is not

reported in the campaign treasurer's report.

19. In addition to the $1,500 in unreported contributions

that were transferred from an individual account within the

Florida A & M Univers ity Credit Union mentioned in paragraphs 17

and 18, an examination of the campaign account records reveals

an additional $4,900 in unreported contributions was transferred

into the campaign account from another account maintained by

Petitioner within the F lorida A & M University Credit Union.

20. Petitioner's campaign account records indicated that

the following 53 contributions totaling $8,075 were received by

the campaign but were not reported in the campaign treasurer's

reports:

DATE CONTRIBUTOR AMOUN T

7 - 11 - 97 1996 Bill Proctor Campaign, Account $345.00

No. 5016

10 - 6 - 97 Eight Star Land Company $50.00

10 - 6 - 97 A. L. Buford, Jr. $50.00

10 - 9 - 97 Lewis Buford $100.00

10 - 19 - 97 Barbara Rouse $25.00

10 - 23 - 97 Charles Lockhart $150.00

10 - 28 - 97 Dr. Cli nitia Ford $50.00

12 - 19 - 97 R & R Corporate Systems $200.00

2 - 10 - 98 Rudolf Maloy $100.00

4 - 13 - 98 Mitchell Asphalt $450.00

4 - 14 - 98 Hannah Plumbing $100.00

4 - 14 - 98 Suber & Weaver Equipment Repair $50.00

4 - 16 - 98 Tallahassee Mack Sales $250.00

4 - 16 - 98 Capital City Lawn Care $100.00

4 - 22 - 98 Eli Roberts & Sons, Inc. $100.00

4 - 27 - 98 Fort Knox Center $250.00

4 - 30 - 98 McKenzie Tank Lines $150.00

5 - 7 - 98 Gilbert Brown $50.00

6 - 5 - 98 Jimmy R. Jones Construction $250.00

7 - 17 - 98 Walter T. Mathi s $100.00

7 - 20 - 98 Ron and/or Wanda Brafford $125.00

7 - 24 - 98 William and/or Deborah Grudice $100.00

7 - 27 - 98 Transfer from Patricia Proctor Account $500.00

No. 1912

7 - 27 - 98 Transfer from Patricia Proctor Account $400.00

No. 1912

7 - 27 - 98 Transfer fr om William Proctor Account $500.00

No. 5016

7 - 28 - 98 Jessie Dennis $100.00

7 - 29 - 98 Mary Middlebrooks $300.00

8 - 1 - 98 John and/or Phyllis Green $100.00

8 - 6 - 98 James H. Tookes $100.00

8 - 6 - 98 Charles Lockhart $100.00

8 - 7 - 98 Angela McNair $15.00

8 - 8 - 98 Marion Camps $100.00

8 - 9 - 98 Estate of Reginal Settles - Yolanda Foutz $100.00

Settles

8 - 11 - 98 Ruby Seymour Bass $100.00

8 - 12 - 98 Martin and/or Susan Proctor $100.00

8 - 13 - 98 Cherry Bluff $200.00

8 - 13 - 98 Realtors PAC of Florida $500.00

8 - 18 - 98 Alfreda Blackshear $100.00

8 - 19 - 98 Davis Insurance Agency $25.00

8 - 19 - 98 John Haughabrook $50.00

8 - 19 - 98 Brown's Paint and Body Shop $100.00

8 - 20 - 98 Winnie Davis $100.00

8 - 24 - 98 Limm - Ann Griffin $50.00

9 - 4 - 98 Charles A. Francis $100. 00

9 - 22 - 98 Allan Franklin $50.00

9 - 23 - 98 Marie Roy $50.00

9 - 24 - 98 Mitchell Asphalt $500.00

10 - 8 - 98 Marcus Robinson $25.00

10 - 9 - 98 Michael Moore $150.00

10 - 17 - 98 Sharon Durham $15.00

10 - 27 - 98 Catherine Gretsch $50.00

10 - 27 - 98 Catherine Gre tsch $50.00

11 - 1 - 98 Rev. Jaycee Oliver $300.00

21. Petitioner's campaign account records indicated that

the following 35 expenditures totaling $11,149.11 were made by

campaign check but were not reported in the campaign treasurer's

reports:

D ATE PAYEE AMOUNT

7 - 24 - 98 Lamar Advertising (Check No. 1003) $3,930.00

7 - 24 - 98 Sears (Check No. 1004) $26.92

8 - 5 - 98 Bill Doolin (Check No. 1003) $25.00

8 - 15 - 98 Petrandis Realty (Check No. 1004) $700.00

8 - 6 - 98 Morrison's (Check No. 1007) $12.38

8 - 12 - 98 Sprint (Check No. 514) $280.00

8 - 18 - 98 Bethel Family (Check No. 1012) $30.25

8 - 21 - 98 Feron Jones (Check No. 1030) $100.00

8 - 26 - 98 Gallery Graphics (Check No. 1076) $350.00

8 - 18 - 98 Payee Illegible (Check No. 516) $401 .25

8 - 29 - 98 Jumbo Sports (Check No. 1077) $121.79

8 - 29 - 98 Knights of Pythias (Check No. 1078) $85.00

9 - 2 - 98 Sprint (Check No. 520) $269.78

9 - 2 - 98 Sprint (Check No. 521) $30.00

9 - 23 - 98 Zakiya Williams (Check No. 1079) $300.00

9 - 23 - 98 Arthur Gaines (Check No. 1080) $50.00

9 - 27 - 98 Angelo's Seafood (Check No. 1102) $68.81

9 - 28 - 98 Books - A - Million (Check No. 1103) $29.10

9 - 28 - 98 Morrison's (Check No. 1093) $10.93

10 - 2 - 98 Zakiya Williams (Check No. 1105) $150.00

10 - 7 - 98 All - World (Check No. 1106) $565.00

10 - 8 - 98 Comcast (Check No. 1107) $350.00

10 - 8 - 98 Comcast (Check No. 1108) $2,023.00

10 - 9 - 98 Danny Harris (Check No. 1081) $300.00

10 - 14 - 98 CUP, Inc. (Check No. 1109) $25.00

10 - 20 - 98 Ada Ibraahim (Ch eck No. 1114) $70.00

10 - 2 - 98 Zakiya Williams (Check No. 1086) $125.00

10 - 26 - 98 Olive Garden (Check No. 1129) $13.67

10 - 27 - 98 Morrison's (Check No. 1091) $12.10

11 - 5 - 98 Aaron Rental (Check No. 1093) $310.92

11 - 5 - 98 Sprint (Check No. 109 4) $245.80

11 - 9 - 98 Morrison's (Check No. 1115) $22.26

11 - 17 - 98 Ming - Tree (Check No. 1095) $20.80

11 - 24 - 98 Gene Sutton (Check No. 1116) $75.00

11 - 28 - 98 Soft - Touch (Check No. 1098) $20.00

22. Petitioner's campaign account records indicate d that

56 cash withdrawals were made from the campaign account totaling

$20,070.10. None of these cash withdrawals were listed on the

campaign treasurer's reports.

23. Sixteen "official checks" ( i.e. , guaranteed payment

checks paid for by withdrawals fro m the campaign account for

which his campaign account paid the amount of the check plus a

fee of $2 per check, similar to a cashier's check issued by a

bank), totaling $9,000.10 were issued by the Florida A & M

University Credit Union, and apparently used to pay campaign

debts. None of these official checks were reported in the

campaign treasurer's reports.

A listing of these "official checks" follows:

DATE PAYEE AMOUNT

4 - 21 - 98 Eugene Stanton (Check No. 144650) $300.00

4 - 21 - 98 Ricky Coring (Check No. 144716) $1,750.00

6 - 28 - 98 Lamar Advertising $500.00

7 - 1 - 98 Gene Sutton (Check No. 145837) $100.00

7 - 1 - 98 Lamar Advertising (Check No. 145843) $530.00

7 - 1 - 98 Rugenia Speight (Check No. 145844) $200.00

7 - 7 - 98 Lamar Advertising (Check No. 146 000) $130.00

7 - 20 - 98 Augustus Colston (Check No. 146159) $600.00

9 - 1 - 98 The Links, Inc. (Check No. 146837) $150.00

9 - 1 - 98 Aaron Roberts (Check No. 146838) $675.10

9 - 30 - 98 WHBX Radio (Check No. 147256) $1,700.00

10 - 1 - 98 M. Feron Jones (Check No. 147305) $210.00

10 - 1 - 98 WHBX Radio (Check No. 147306) $70.00

10 - 14 - 98 Zakiya Williams (Check No. 147507) $150.00

10 - 16 - 98 Zakiya Williams (Check No. 147528) $350.00

11 - 4 - 98 Petrandis Realty (Check No. 147835) $1,585.00

24. Alth ough the evidence is inconclusive, it appears that

all or most of the "official checks" were the result of cash

withdrawals from the campaign account. Assuming that to be the

case, approximately $11,000 in cash withdrawals remain

unaccounted for.

25. In connection with making 12 deposits to the campaign

account, cash was deducted from each deposit. The amount of

cash received totaled $1,460. The use of this cash was not

shown in the campaign treasurer's reports.

26. Four transfers totaling $2,900 were made from the

campaign account to accounts numbered 9120 - 2 and 6038 - 2 which

are Petitioner's personal accounts. These transfers were not

listed in the campaign treasurer's reports.

27. The records of Petitioner's campaign account indicate

that the follo wing checks in the total amount of $4,132.93 were

presented and returned for insufficient funds:

CHECK NO. PAYEE AMOUNT OF CHECK

1002 Unknown $319.93

1016 WHBX $1,170.00

1017 WHBX $600.00

1108 Comcast $2,023.00

1097 Unknown $20.00

28. An ex amination of campaign checking account records

reveal that fees were charged by the campaign depository for

returned checks and other special banking services, totaling

$165.00, which were not listed in the campaign treasurer's

reports.

29. In sum, 123 ex penditures (excluding bank fees),

amounting to $44,579.31 were not listed in Petitioner's campaign

treasurer's reports during the 1998 campaign.

30. On March 2, 1999, Petitioner filed an amended campaign

treasurer's report for the period October 10, 1998 to

October 29, 1998, indicating that he had loaned his campaign

$8,000 on October 12, 1998. The campaign account does not

reflect such a loan. The original campaign treasurer's report

for the period October 10, 1998 to October 29, 1998, reflects

"loans $8,000” without further documentation.

31. Petitioner certified the correctness of 13 campaign

treasurer's reports each of which was incorrect, false, or

incomplete.

32. On October 8, 2001, Petitioner was convicted of

8 counts of violating Section 106.1 9(1)(a), Florida Statutes

(failure to report campaign contributions during the 1998

campaign), adjudicated guilty, and sentenced to 12 months

probation, to be served concurrently, and 100 hours of community

service.

CONCLUSIONS OF LAW

33. The Division o f Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Subsections 106.25(5) and 120.57(1) and Section 120.569,

Florida Statutes.

34. The burden of proof, absent a statutory directive to

the contrary, is on the p arty asserting the affirmative of the

issue in the proceeding. Department of Banking and Finance v.

Osborne Stern & Company , 670. So. 2d 932, 934 (Fla. 1996);

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); and Ba lino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977). In

this proceeding, it is the Commission that is asserting the

affirmative, namely, that Petitioner either "willfully" or

"knowingly and willfully" violated Chap ter 106, Florida

Statutes, as alleged.

35. The Commission seeks to impose a civil penalty on

Petitioner, pursuant to Section 106.265, Florida Statutes, in

the form of a fine not to exceed $1,000 per count. The

Commission has alleged that Petitioner has v iolated six

Subsections of Chapter 106, Florida Statutes, on 207 occasions.

In addition, the Commission seeks to impose a civil penalty

equal to three times the amount involved for the alleged

violations of Subsections (1)(a), (1)(b), and (1)(d) of

Secti on 106.19, Florida Statutes, pursuant to Subsection

106.19(2), Florida Statutes. The imposition of an

administrative fine or a civil penalty, like those sought by the

Commission in this case, is punitive and penal in nature.

Department of Banking and Fin ance v. Osborne Stern & Company ,

670 So. 2d 932, 935 (Fla. 1996).

36. The Commission has the burden of establishing by clear

and convincing evidence that Petitioner willfully violated

Chapter 106, Florida Statutes, as alleged. Latham v. Commission

on Eth ics , 694 So. 2d 83 (Fla. 1st DCA 1997), citing Department

of Banking and Finance v. Osborne Stern , 670 So. 2d 932, 935

(Fla. 1996); and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). See also Subsection 120.57(1)(j), Florida Statutes,

which provides th at: "Findings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . ." Inasmuch the potential fine and civil penalty

makes this proceeding penal in nature, the appropriate standard

of proof is "clear and convincing evidence."

37. As noted by the Florida Supreme Court:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify m ust be distinctly remembered; the

testimony 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 a firm belief or

convic tion, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

38. Section 106.37, Florida Statutes, provides as fo llows:

Willful violations. -- A person willfully

violates a provision of this chapter if the

person commits an act while knowing that, or

showing reckless disregard for whether, the

act is prohibited under this chapter, or

does not commit an act while knowin g that,

or showing reckless disregard for whether,

the act is required under this chapter. A

person knows that an act is prohibited or

required if the person is aware of the

provision of this chapter which prohibits or

requires the act, understands the me aning of

that provision, and performs the act that is

prohibited or fails to perform the act that

is required. A person shows reckless

disregard for whether an act is prohibited

or required under this chapter if the person

wholly disregards the law withou t making any

reasonable effort to determine whether the

act would constitute a violation of this

chapter.

39. Subsection 106.265(1), Florida Statutes, provides as

follows:

(1) The commission is authorized upon the

finding of a violation of this chapt er 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 o f 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.

40. Subsection 106.07(5), Florida Statutes, provides as

follo ws:

The candidate and his or her campaign

treasurer, in the case of a candidate, or

the political committee chair and campaign

treasurer of the committee, in the case of a

political committee, shall certify to the

correctness of each report; and each perso n

so certifying shall bear the responsibility

for the accuracy and veracity of each

report. Any campaign treasurer, candidate,

or political committee chair who willfully

certifies to the correctness of any report

while knowing that such report is incorrec t,

false, or incomplete commits a misdemeanor

of the first degree, punishable as provided

in s.775.082 or s. 775.083.

41. Subsection 106.11(3), Florida Statutes, provides as

follows:

No candidate, campaign manager, treasurer,

deputy treasurer, or politic al committee or

any officer or agent thereof, or any person

acting on behalf of any of the foregoing,

shall authorize any expenses, nor shall any

campaign treasurer or deputy treasurer sign

a check drawn on the primary campaign

account for any purpose, unl ess there are

sufficient funds on deposit in the primary

campaign depository account of the candidate

or political committee to pay the full

amount of the authorized expense, to honor

all other checks drawn on such account,

which checks are outstanding, an d to meet

all expenses previously authorized but not

yet paid. However, an expense may be

incurred for the purchase of goods or

services, if there are sufficient funds on

deposit in the primary depository account to

pay the full amount of the incurred exp ense,

to honor all checks drawn on such account,

which checks are outstanding, and to meet

all other expenses previously authorized but

not yet paid, provided that payment for such

goods and services is made upon final

delivery and acceptance of the goods or

services; and an expenditure from petty cash

pursuant to the provisions of s.106.012 may

be authorized, if there is a sufficient

amount of money in the petty cash fund to

pay for such expenditure. Payment for

credit card purchases shall be made pursuan t

to s. 106.125. Any expense incurred or

authorized in excess of such funds, on

deposit shall, in addition to other

penalties provided by law, constitute a

violation of this chapter.

42. Subsections 106.19(1) and (2), Florida Statutes,

provide as follow s:

(1) Any candidate; campaign manager,

campaign treasurer, or deputy treasurer of

any candidate; committee chair, vice chair,

campaign treasurer, deputy treasurer, or

other officer of any political committee;

agent or person acting on behalf of any

can didate or political committee; or other

person who knowingly and willfully:

(a) Accepts a contribution in excess of

the limits prescribed by s. 106.08;

(b) Fails to report any contribution

required to be reported by this chapter;

(c) Falsely repor ts or deliberately fails

to include any information required by this

chapter; or

(d) Makes or authorizes any expenditure

in violation of s. 106.11(3) or any other

expenditure prohibited by this chapter;

is guilty of a misdemeanor of the first

degree, pu nishable as provided in s. 775.082

and s. 775.083.

(2) Any candidate, campaign treasurer, or

deputy treasurer; any chair, vice chair, or

other officer of any political committee;

any agent or person acting on behalf of any

candidate or political committ ee; or any

other person who violates paragraph (1)(a),

paragraph (1)(b), or paragraph (1)(d) shall

be subject to a civil penalty equal to three

times the amount involved in the illegal

act. Such penalty may be in addition to the

penalties provided by subs ection (1) and

shall be paid into the General Revenue Fund

of this state.

43. Statutes that authorize the imposition of a penal

sanction must be strictly construed and any ambiguity must be

construed in favor of Petitioner. Elmariah v. Department of

Pr ofessional Regulation , 574 So. 2d 164, 165 (Fla. 1st DCA

1990). Moreover, Subsection 775.021(1), Florida Statutes,

provides that "offenses" defined by any Florida statutes must be

construed most favorably to the offender if the language is

susceptible to different meanings.

44. The Commission is authorized, upon a finding of a

violation of Chapter 106, Florida Statutes, to impose civil

penalties in the form of fines not to exceed $1,000 per count.

Subsection 106.265(1), Florida Statutes. The charging do cument,

which in this case is the Order of Probable Cause, does not

allege separate counts. Each separate paragraph of the Order of

Probable Cause cites a particular Subsection of Chapter 106,

Florida Statutes, alleged to have been violated and the specif ic

number of violations of the particular Subsection. The Order of

Probable Cause incorporates by reference the Statement of

Findings which lists with specificity each alleged violation.

45. This case is distinguishable from McGann v. Florida

Elections Commission , Case No. 1D00 - 3494 (Fla. 1st DCA Nov. 6,

2001) wherein the First District Court of Appeal recently

stated:

[W]e hold that a statute authorizing a

maximum fine "per count" does not authorize

a fine in excess of that maximum amount for

(a) violat ion(s) set out in a single

paragraph in the charging document, which

gives no indication that separate counts are

intended. Any agency seeking fines in excess

of a statutory maximum "per count" would do

well to set out discrete allegations in

multiple coun ts so designated.

In McGann the charging language was that Dr. McGann "violated

the following section(s) of Chapter 106, Florida Statutes:

. . . Section 106.19(1)(b), Florida Statutes, failure of a

person to report a contribution required to be reported by this

chapter on multiple occasions . . ." Clearly, "on multiple

occasions" does not give an indication that separate counts are

intended. In the instant case the Order of Probable Cause lists

each statutory violation and the number of violations alle ged.

Petitioner is further advised of the number of violations by the

incorporation by reference of the Statement of Findings which

lists with specificity each violation. By clearly indicating

the specific number of violations per count and listing each

violation with specificity in the Statement of Findings,

Petitioner is given ample notice of the number of violations he

is charged with and that the Commission intends separate counts

and a fine for each violation.

46. With respect to the alleged violati on of Section

106.07(5), Florida Statutes, the Commission proved by clear and

convincing evidence, that Petitioner willfully certified to the

correctness of 13 incorrect or incomplete campaign treasurer's

reports. This is a non - delegable duty whose import ance is

obvious. Given the facts that Petitioner had signed a statement

indicating that he had read and understood Chapter 106, Florida

Statutes, that he was an highly - educated, experienced candidate,

having run for office twice prior to the election that is the

subject of this proceeding and that Subsection 106.07(5),

Florida Statutes, requires the candidate to sign the campaign

treasurer's report and to "bear the responsibility for the

accuracy and veracity of each report," Petitioner's

responsibility is clear. Petitioner was directly involved with

essentially all unreported campaign financial transactions as he

endorsed all contribution checks, effected all unreported

transfers to and from the campaign account to other accounts in

the Florida A & M Univ ersity Credit Union, was personally

involved, in most of the instances, where cash was taken

directly from a campaign deposit, issued unreported "official

checks," and was personally involved in other questionable

campaign financing activities, as a result , his willfulness is

clearly demonstrated.

47. With respect to the alleged violation of Section

106.11(3), Florida Statutes, the Commission proved by clear and

convincing evidence, that Petitioner willfully authorized

expenses without having sufficient fu nds 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. The evidence showed that five

campaign checks were presented to the campaign depository and

returned for insufficient funds; the total amount of these

checks was $4,132.93.

48. With respect to the alleged violation of

Section 106.19(1)(a), Florida Statutes, the Commission has

failed to prove by clear and convincing evidence that Petitioner

accepted "a contribution in excess of the limits prescribed by

s. 106.08." Section 106.08, Florida Statutes, essentially

limits contributions to $500 per individual per election. The

primary and general elections are considered separate electi ons

by Subsection 106.08(1)(c), Florida Statutes. Five - hundred

dollars was transferred from Petitioner's parents' account to

the campaign account prior to the primary election and $1,000

was transferred from his parents' account prior to the general

elect ion. These transfers do not exceed the per individual

limit proscribed by Section 106.08, Florida Statutes. Even

though, in a sworn statement, Petitioner characterizes these

transfers as unreported "loans," a loan is a "contribution"

subject to the $500 limit. Nevertheless, because the "loans"

came from a joint account, they do not exceed the $500 limit per

election when divided between Petitioner's parents.

49. The alleged violations of Subsection 106.19(1)(b),

Florida Statutes, are proved by clear an d convincing evidence.

The only evidence received from Petitioner in response to

inquiries directed to the 53 unreported campaign contributions

was the following self - serving statement:

My campaign staff was instructed to record

all contributions for rep orting purposes.

However, this contribution was not reported

because the campaign staff included

inexperienced, non - professional clerical and

bookkeeping personnel who did not always

follow instructions to record the

contributions and expenditures for repo rting

purposes. In addition, the campaign had a

high turnover of staff, which further

complicated efforts to insure that staff

properly followed instructions.

It is clear from the campaign account records that Petitioner

was intimately involved in every aspect of campaign financing:

he wrote campaign checks, he endorsed deposits, he effected

unreported cash withdrawals and endorsed deposit slips that

evidenced cash being taken from the campaign account deposits,

and he transferred campaign funds to his pe rsonal accounts.

Almost 20 percent of campaign contributions went unreported. A

candidate cannot simply turn his or her back on the statutorily -

mandated reporting responsibility and lay the blame on campaign

staff. Petitioner, except on one occasion, fa iled to use the

readily available thirty - day activity print - out from the Florida

A & M University Credit Union. Petitioner's failure to report

this significant number of campaign contributions evidences

reckless disregard for the law and demonstrates that he ignored

his overall supervisory responsibility for his campaign.

50. The Commission has established by clear and convincing

evidence that Petitioner violated Subsection 106.19(1)(c),

Florida Statutes, on 130 separate occasions in that

53 contributio ns totaling $8,075 were not listed in Petitioner's

campaign treasurer's reports; that 35 expenditures amounting to

$11,149.11 were made by campaign check but not listed in

Petitioner's campaign treasurer's reports; that Petitioner's

parents made two unrepo rted transfers to the campaign account

totaling $1,500 and that an additional $4,900 was transferred

into the campaign account without being reported in the campaign

treasurer's report; that on 56 occasions cash was withdrawn from

the campaign account in a total amount of $20,070.10 without

being reported in the campaign treasurer's report; that 16

"official checks" totaling $9,000.10 were uttered to pay

campaign expenses without being reported in the campaign

treasurer's report; that there were 12 instance s where cash was

taken from campaign checks being deposited in the campaign

account in a total amount of $1,460 without the transactions

being reported in the campaign treasurer's report; that on four

occasions Petitioner transferred a total of $2,900 from the

campaign account to his personal accounts without the

transactions being reported in the campaign treasurer's report;

and on at least five occasions $20 bank charges for checks

returned for non - sufficient funds were not reported in the

campaign treasu rer's report. The total number of instances

where Petitioner "falsely reports or deliberately fails to

include any information required by this chapter" exceeds the

130 violations alleged and totals more than $59,000. The

totality of unreported transacti ons, particularly where evidence

clearly shows Petitioner's extensive, personal involvement with

most of the unreported transactions, demonstrates that

Petitioner knowingly and willfully violated Subsection

106.19(1)(c), Florida Statutes, as alleged.

51. The foundation of the Commission's prosecution of the

alleged violation of Subsection 106.19(1)(d), Florida Statutes,

lies in the five campaign checks that were presented to the

campaign depository and returned for insufficient funds, which

is prohibited by Section 106.11(3), Florida Statutes. The

difference between the two statutory prohibitions is that

Subsection 106.19(1)(d), Florida Statutes, permits an enhanced

penalty, if it can be established that Petitioner's conduct was

"knowing and willful." P etitioner signed essentially all

campaign checks and handled essentially all campaign banking

transactions. He had the ability to ascertain whether funds

were available to pay the campaign checks he wrote. He uttered

five checks that were returned for in sufficient funds. Because

Petitioner was intimately familiar with his campaign finances,

his conduct is "knowing and willful."

52. Subsection 106.265(1), Florida Statutes, advises that

in determining the amount of a civil penalty, the Commission

shall c onsider, among other mitigating and aggravating factors:

(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,

. . . ; and

(d) Whether the person . . . has shown

good faith in attempting to comply with the

provisions of this chapter or chapter 104.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

Recommended that the Florida Electio ns Commission enter a

final order:

A. Imposing a civil penalty in the amount of $13,000 for

13 violations of Subsection 106.07(5), Florida Statutes.

B. Imposing a civil penalty in the amount of $2,500 for

five violation of Subsection 106.011(3), Florid a Statutes.

C. Imposing a civil penalty in the amount of $5,300 for

53 violations of Subsection 106.19(1)(b), Florida Statutes.

D. Imposing a civil penalty in the amount of $59,000 for

130 violations of Subsection 106.19(1)(c), Florida Statutes.

E. 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.

F. Dismissing the alleged violations of Subsection

106.19(1)(a), Florida Statutes.

DONE A ND 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.

ENDNOTES

1/ Subsequent to final hearing , Mark Herron, Esquire, Mark

Herron, P.A., appeared on behalf of Petitioner in this

proceeding.

2/ Petitioner is referred to as "Respondent" in the Order of

Probable Cause and Statement of Findings.

COPIES FURNISHED :

David F. Chester, Esquire

Florida Elections Commission

10 7 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

Mark Herron, Esquire

Mark Herron, P.A.

Post Office Box 1701

Tallahassee, Florida 32302 - 1701

Barbara M. Linthicum, Executive Director

Florida Elections Commission

107 W est Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

Patsy Rushing, Clerk

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.