01-003542 James P. Appleman vs. Florida Elections Commission Status: Closed Recommended Order on Monday, April 15, 2002.

Summary: Petitioner violated Sections 106.07(5) and 106.19(1)(c), Florida Statutes, by failing to report sale of campaign vehicle and reimbursement of funds as a result of the sale.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES P. APPLEMAN, )

)

Petitioner, )

)

vs. ) Case Nos. 01 - 3541

) 01 - 3542

FLORIDA ELECTIONS COMMISSION, )

)

Respondent. )

)

RECOMMENDED OR DER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on January 8 and 9, 2002, in Panama City, Florida, and on

January 23, 2002 , in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mark Herron, Esquire

Messer, Caparello and Self, P.A.

Post Office Box 1876

Tallahassee, Florida 32302 - 1876

For Respondent: David F. Chester, Esquire

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUES

Whether or n ot Petitioner, James P. Appleman, "willfully"

violated Subsections 106.021(3), 106.07(5), and Section

106.1405, Florida Statutes, as alleged by Respondent, Florida

Elections Commission, in its Order of Probable Cause; and

whether or not Petitioner, James P . Appleman, "knowingly and

willfully" violated Subsections 106.19(1)(c) and (d), Florida

Statutes, as alleged by Respondent, Florida Elections

Commission, in its Order of Probable Cause.

PRELIMINARY STATEMENT

On September 8, 2000, the Florida Elections Com mission

("FEC") received two essentially identical sworn complaints

alleging that Petitioner, James P. Appleman, had violated

Chapter 106, Florida Statutes, in his campaign for State

Attorney for the Fourteenth Judicial Circuit, which resulted in

his reele ction in November 2000. Because there were two

complaints, two cases were advanced. After an investigation by

FEC staff, on August 7, 2001, the FEC entered an Order of

Probable Cause in each case alleging that there was probable

cause to believe that Pet itioner had violated specific sections

and subsections of Chapter 106, Florida Statutes, as alleged in

the Orders of Probable Cause.

On August 31, 2001, Petitioner, through counsel, responded

to the allegations contained in the Orders of Probable Cause and

requested a formal administrative hearing in both cases.

The cases were forwarded to the Division of Administrative

Hearings on September 6, 2001. On September 7, 2001, Initial

Orders were forwarded to the parties. On September 19, 2001,

the cases were set for final hearing on November 14 and 15,

2001, in Panama City, Florida.

On October 1, 2001, in response to Petitioner's motions,

the cases were continued and rescheduled for January 6 and 7,

2002. On November 29, 2001, the cases were consolidated for

final hearing.

A two - day hearing was conducted in Panama City, Florida, on

January 6 and 7, 2002. At the hearing Petitioner presented his

own testimony and that of six additional witnesses: Anita

Goodman, Gerald Stanton, Leah Appleman, Bob Haddock, Terr ance

Guy White, and Jimmy Cauley. Petitioner offered nine exhibits,

numbered Appleman Exhibits 1 - 7, 9 and 10, which were received

into evidence. Respondent presented three witnesses: John

Newberry, Jr.; Margie Wade; and Barbara Linthicum, Esquire; and

o ffered 15 exhibits, numbered R1 - R15, which were received into

evidence. In addition, the parties offered eight Joint

Composite Exhibits, numbered Joint Composite Exhibits 1 - 8, which

were received into evidence.

The final hearing was continued to January 2 3, 2002, to

allow the testimony of Petitioner's additional witness, Connie

Evans; Respondent's Exhibit R16 was admitted into evidence at

that time.

The parties requested and received 45 days from the filing

of the transcript of testimony taken on January 2 3, 2002, to

file proposed recommended orders. The Transcript of the

testimony taken on January 8 and 9, 2002, was filed with the

Division of Administrative Hearings on January 22, 2002. The

Transcript of the testimony taken on January 23, 2002, was filed

with the Division of Administrative Hearings on February 7,

2002. Both parties timely filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the testimony and demeanor of the witnesses,

documentary evidence, record of proceedings, and the facts

agr eed to by the parties in the Joint Pre - hearing Stipulation,

the following Findings of Fact are made:

1. In 2000, Petitioner was reelected to the office of

State Attorney, Fourteenth Judicial Circuit. Prior to his

reelection in 2000, Petitioner had been e lected to the same

office in 1980, 1984, 1988, 1992, and 1996.

2. Petitioner, on February 1, 1999, signed a Statement of

Candidate indicating that he had received, read, and understood

Chapter 106, Florida Statutes.

3. During the 2000 campaign, Petitione r made the following

purchases using his personal funds in the form of cash, check or

charge upon his personal credit card:

a. Purchase 1: 7/12/99 Down payment/purchase of vehicle -

$525.00

b. Purchase 2: 7/12/99 Purchase of vehicle/tax and

title - $602.85

c. Purchase 3: 1/07/00 Bay Pointe Properties - $100.35

d. Purchase 4: 1/13/00 Delchamps Liquors - $58.50

e. Purchase 5: 1/22/00 Delchamps Liquors - $135.10

f. Purchase 6: 1/22/00 Cafe ¢ Thirty A - $144.11

g. Purchase 7: 1/30/00 Pineapple Willy's - $17 .45

h. Purchase 8: 5/05/00 Skirt/Jones of New York - $104.00 -

blouse/Jones of New York - $63.00

i. Purchase 9: 5/09/00 Tie/Dillards - $30.00 - tie/Dillards -

$40.00 - misc. Big & Tall/Dillards -

$8.75

j. Purchase 10: 5/23/00 Blazer/Polo Store - $199.99 - short

sleev e shirt/Polo Store - $39.99 -

short sleeve shirt/Polo Store -

$39.99 - short sleeve shirt/Polo

Store - $39.99 - shorts/Polo Store -

$29.99

k. Purchase 11: 5/05/00 Casual bottoms/Brooks Brothers -

$34.90 - casual bottoms/Brooks

Brothers - $34.90 casual

bottoms/Brooks Brothe rs - $34.90

l. Purchase 12: 5/05/00 Shorts/Geoffrey Beene - $24.99 -

shorts/Geoffrey Beene - $24.99

m. Purchase 13: 5/05/00 Sport coat/Dillards - $195.00

n. Purchase 14: Telephone expense - $23.49

o. Purchase 15: 8/11/00 Tie down/Wal - Mart - $19.96 - security

c hain/Wal - Mart - $19.26

p. Purchase 16: 8/11/00 Trailer hitch ball - $16.99

q. Purchase 17: 8/12/00 Event admission - $60.00

r. Purchase 18: 8/23/00 Liquor purchase/Delchamps - $37.41

s. Purchase 19: 8/30/00 Gas purchase/Shop a Snack - $20.00

t. Purcha se 20: 8/30/00 Event admission - $40.00

u. Purchase 21: 8/30/00 Event admission/DEC - $15.00

v. Purchase 22: 8/26/00 Sign charge - $20.64

w. Purchase 23: 8/30/00 Auto insurance charge - $100.00

x. Purchase 24: 9/02/00 Gas purchase/Happy Stores - $34.00

y. Purchase 25: 9/02/00 Campaign staff/meal/food - $140.00

z. Purchase 26: 9/04/00 Ice purchase/Winn Dixie - $6.36

aa. Purchase 27: 9/05/00 Gas purchase/Swifty Store - $25.00

bb. Purchase 28: 9/06/00 Meal purchase/ St. Andrews

Seafood House - $27.52

cc. Purchase 29: 9/08/00 Posthole digger - $42.90

dd. Purchase 30: 9/08/00 Lunch for sign crew - $20.14

None of these purchases were individually listed on Petitioner's

Campaign Treasurer's Reports.

4. Petitioner was reimbursed for each of the above -

referenc ed expenditures by a check written on the campaign

account, which was listed as an expenditure on Petitioner's

Campaign Treasurer's Reports filed with the Division of

Elections as follows:

Date Name and Address of Purpose Am ount

Person Receiving

Reimbursement

07 - 17 - 99 Appleman, Jim Reimb. Cmpgn. $1,127.85

PO Box 28116 Vehicle Expenses

Panama City, FL 32411

02 - 11 - 00 Appleman, Jim Reimb. Cmpgn. $830.81

PO Box 28116 Expenses

Panama City, FL 32411

06 - 10 - 00 Appleman, Jim Reimb. Cmpgn. $1,000.00

PO Box 28116 Expenses

Panama City, FL 3241 1

08 - 07 - 00 Appleman, Jim Reimburse vehicle $400.00

PO Box 28116 & Phone exp.

Panama City, FL 32411

08 - 30 - 00 Appleman, Jim Reimbursement/ $670.51

PO Box 28116 Campaign Expense

Panama City, FL 32411

09 - 08 - 00 Applema n, Jim Reimbursement $295.92

PO Box 28116 Camp. Expense

Panama City, FL 32411

5. On July 18, 2000, a campaign check for $140.99 was

written to Winn Dixie. This check was reported on Petitioner's

Campaign Treasurer's Report with the purpose listed as being

"Campaign Social Supplies." The Winn Dixie purchase included

the following items:

a. A cat pan liner.

b. 4 cans of cat food.

c. A box of dryer sheets.

d. A package of kitty litter.

f. A jug of laundry detergent.

The total cost of these ite ms was $33.88.

6. Petitioner signed all of his Campaign Treasurer's

Reports, certifying as to their accuracy.

7. The July 18, 2000, purchases at Winn Dixie were made by

Mrs. Appleman, Petitioner's wife, and were a result of an

inadvertent error. Immedia tely realizing that she had purchased

personal items with campaign funds, she brought the matter to

Petitioner's attention. Petitioner took possession of the Winn

Dixie cash register receipt for the purchases; on the receipt he

circled the inappropriate p urchases with a pen, noted the total

amount of inappropriate purchases on the receipt adding his

initials, submitted the cash register receipt to his campaign

treasurer, and several days later wrote a check reimbursing the

campaign for the inappropriate pu rchases.

8. During the campaign, Petitioner made 30 purchases

listed in paragraph 3, supra , with personal funds, i.e. , cash,

personal check, or personal credit card, for which he provided

receipts, and sought and received reimbursement from campaign

fund s by campaign check.

9. These 30 purchases were not individually reported as

expenditures on Campaign Treasurer's Reports during the

reporting periods during which the purchases were made, but were

reported as reimbursements as reflected in paragraph 4, s upra .

10. No evidence was presented that suggested that

Purchases 3 - 7, Purchase 14, Purchases 17 - 22, or Purchases 24 - 30

listed in paragraph 3, supra , were not for campaign - related

purposes.

11. During the April 1 through June 30, 2000, campaign

reporting period, Petitioner purchased 16 items of clothing

(listed in paragraph 3, supra , as Purchases 8 - 13) for which he

received reimbursement from campaign funds by campaign check.

Petitioner and his wife testified that these items of clothing

were used exclus ively for campaign functions and purposes.

Admittedly, each of the items of clothing could be used for non -

campaign functions and purposes. However, the Campaign

Treasurer's Reports reflect that in excess of $1,100 of

"campaign shirts" were purchased dur ing the campaign, supporting

Petitioner's contention that he, his wife and campaign workers

were all attired, while campaigning, in a color - coordinated

"uniform of the day": red shirts, and tan/khaki trousers or

walking shorts. This is further supported by photographs

admitted into evidence. I find credible and accept the

testimony of Petitioner and his wife that the items of clothing

in the questioned purchases were used exclusively for campaign

functions and purposes and not to "defray normal living

ex penses."

12. During the August 12 through August 31, 2000, campaign

reporting period, Petitioner purchased the following items for

which he received reimbursement from campaign funds by campaign

check: trailer hitch ball, trailer security chain, and sign

tie - downs (listed in paragraph 3, supra , as Purchases 15 and

16). These three items were clearly used for campaign purposes

and not to "defray normal living expenses."

13. On August 30, 2001, Petitioner received a campaign

check from the campaign treasu rer reimbursing him for several

campaign expenses he had paid. Among these campaign expenses,

Petitioner sought reimbursement for $100 for "auto insurance"

(listed in paragraph 3, supra , as Purchase 23). From the onset

of his campaign, Petitioner had con sistently either paid his

automobile liability insurer, United Services Automobile

Association, directly with a campaign check or sought

reimbursement for payments he personally made for liability

insurance on his personal vehicle or the "campaign Jeep" fo r

automobile liability insurance cost attributable to the use of

the motor vehicles in the campaign. Automobile liability

insurance expense is a legitimate campaign expense and can

reasonably be considered an actual transportation expense exempt

from the statutory prohibition against payments made to "defray

normal living expenses."

14. On July 12, 1999, Petitioner purchased a 1997 Jeep to

be used as a campaign vehicle (the down payment, tax and tag are

listed in paragraph 3, supra , as Purchases 1 and 2); thereafter,

loan payments to Tyndall Federal Credit Union and automobile

liability insurance payments to United Services Automobile

Association for the campaign vehicle were paid by the campaign

treasury.

15. On December 7, 1999, the 1997 Jeep was sold/t raded to

a third party for a 1999 Honda which was not used as a campaign

vehicle. The Tyndall Federal Credit Union lien was transferred

to the 1999 Honda.

16. After December 7, 1999, the 1999 Honda was driven by

Petitioner's adult stepdaughter. At the t ime of the transfer of

the vehicles, Petitioner and his wife agreed that she would

reimburse the campaign $800 which was determined to be the value

lost by the campaign when the 1997 Jeep was traded.

17. Petitioner later determined that he should reimburs e

the campaign an additional $525, the amount of the down payment

paid when the 1997 Jeep was purchased in July 1999.

18. On June 2, 2000, Petitioner's wife tendered a personal

check drawn on her personal account to the campaign account for

$800, which wa s reported under an entry date of June 5, 2000, on

the Campaign Treasurer's Report for the period ending June 30,

2000, as a "REF" made by Petitioner. On March 14, 2001,

Petitioner tendered a personal check to the campaign account for

$617. This included $525 for the 1999 Jeep down payment

reimbursement and an automobile liability insurance refund.

19. Prior to the June 5, 2000, "REF" entry on the Campaign

Treasurer's Report, there had been no report reflecting the sale

of the campaign vehicle.

20. The sale of the 1999 Jeep should have been

reported on the Campaign Treasurer's Report for the period

ending December 31, 1999; it was not. Petitioner certified that

he had examined the subject Campaign Treasurer's Report and that

it was "true, correct and co mplete" when, in fact, it was not as

it did not reflect the sale of the campaign vehicle or the

failure of Petitioner to pay the campaign treasury either $800

or $1,325, the amount Petitioner ultimately determined the

campaign treasury should have been rei mbursed as reflected by

his late reimbursements.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Subsection 106.25(5) and Sections 120.569 and 120.57,

Florida Statutes.

22. The FEC in its Order of Probable Cause asserts that

"Respondent violated Section 106.021(3), Florida Statutes,

prohibiting a candidate from making an expenditure except

through the campaign treasurer, on 30 separate occasions";

" . . . violated Sect ion 106.07(5), Florida Statutes,

prohibiting a candidate from certifying the correctness of a

campaign treasurer's report that is incorrect, false, or

incomplete, on seven separate occasions"; " . . . violated

Section 106.1405, Florida Statutes, prohibitin g a candidate from

using funds from his campaign account to defray normal living

expenses, on 30 separate occasions"; " . . . violated Section

106.19(1)(c), Florida Statutes, prohibiting a person or

organization from falsely reporting or failing to report

information required by this Chapter, on 30 separate occasions";

and " . . . violated Section 106.19(1)(d), Florida Statutes,

prohibiting a person or organization from making or authorizing

any expenditure prohibited by this chapter, on 60 separate

occasio ns."

23. Subsection 106.021(3), Florida Statutes, reads as

follows:

106.021 Campaign treasurers; deputies;

primary and secondary depositories. –

* * *

(3) Except for independent expenditures,

no contribution or expenditure, including

contri butions or expenditures of a candidate

or of the candidate's family, shall be

directly or indirectly made or received in

furtherance of the candidacy of any person

for nomination or election to political

office in the state or on behalf of any

political co mmittee except through the duly

appointed campaign treasurer of the

candidate or political committee. However,

expenditures may be made directly by any

political committee or political party

regulated by chapter 103 for obtaining time,

space, or services in or by any

communications medium for the purpose of

jointly endorsing three or more candidates,

and any such expenditure shall not be

considered a contribution or expenditure to

or on behalf of any such candidates for the

purposes of this chapter.

24. Subsection 106.07(5), Florida Statutes, reads as

follows:

106.07 Reports; certification and

filing. –

* * *

(5) The candidate and his or her campaign

treasurer, in the case of a candidate, or

the political committee chair and campaign

treas urer of the committee, in the case of a

political committee, shall certify as to the

correctness of each report; and each person

so certifying shall bear the responsibility

for the accuracy and veracity of each

report. Any campaign treasurer, candidate,

o r political committee chair who willfully

certifies the correctness of any report

while knowing that such report is incorrect,

false, or incomplete commits a misdemeanor

of the first degree, punishable as provided

in s. 775.082 or s. 775.083.

25. Section 106.1405, Florida Statutes, reads as follows:

106.1405 Use of campaign funds. –

A candidate or the spouse of a candidate

may not use funds on deposit in a campaign

account of such candidate to defray normal

living expenses for the candidate or the

ca ndidate's family, other than expenses

actually incurred for transportation, meals,

and lodging by the candidate or a family

member during travel in the course of the

campaign.

26. Subsections 106.19(1)(c) and (d) and 106.19(2),

Florida Statutes, read as follows:

106.19 Violations by candidates, persons

connected with campaigns, and political

committees. –

(1) Any candidate; campaign manager,

campaign treasurer, or deputy treasurer of

any candidate; committee chair, vice chair,

campaign treasurer, de puty treasurer, or

other officer of any political committee;

agent or person acting on behalf of any

candidate or political committee; or other

person who knowingly and willfully:

* * *

(c) Falsely reports 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, punishable as provided in s. 775.082

or 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 committee; 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 subsection (1) and

shall be paid into the General Revenue Fund

of this state.

27. Section 106.265(1), Florida Statutes, reads as

follows:

106.265 Civil penalties. –

(1) The commission is authorized upon the

finding of a violation of this chapter or

chapter 104 to impose civ il 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, politica l

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.

28. Section 106.25(3), Florida Statutes, reads, in

pertinent part, as follows: "[A] viol ation shall mean the

willful performance of an act prohibited by this chapter . . .

or the willful failure to perform an act required by this

chapter . . ."

29. Section 106.37, Florida Statutes, reads as follows:

106.37 Willful violations. –

A perso n 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 knowing that, or showing reckless

disrega rd 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 meaning of that provision,

and perfor ms 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 without making any

reasonable effort to d etermine whether the

act would constitute a violation of this

chapter.

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

the contrary, is on the party asserting the affirmative of the

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

Osborne Stern and 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 Balino v. Department of Health and

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

31. While Section 106.265(1), Florida Statutes, authorizes

a $1,000 civil penalty per "count," the Order of Probable Cause,

which is the charging document in this case, does not contain

"counts." Instead, it contains several paragraphs which allege

that there is probable cause to believe that Petitioner violated

Subsection 106.021(3), Florida Statutes, on 30 separate

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

seven separate occasions; violated Section 106.1405, Florida

Statutes, on 30 separ ate occasions; violated Subsection

106.19(1)(c), Florida Statutes, on 30 separate occasions;

violated Subsection 106.19(1)(d), Florida Statutes, on 60

separate occasions. In addition, the Order of Probable Cause

incorporates by reference the Statement of Findings which

specifically delineates each alleged violation, giving an

individual accused of Chapter 106, Florida Statutes, violations

adequate notice as to what he or she is charged with and what

must be defended against.

32. In its Order of Probable C ause, the FEC has alleged

157 separate violations, some of which allow enhanced penalties

of more than $1,000 per violation; therefore, Petitioner faces a

significant civil penalty if the FEC proves its entire case. In

addition to the civil penalty, the r uinous effect of a

determination that a candidate has violated the Florida

elections law has on an individual's reputation for personal

integrity makes the penalty in this case punitive and penal in

nature.

33. Section 120.57(1)(j), Florida Statutes, read s as

follows:

120.57 Additional procedures for

particular cases. –

(1) ADDITIONAL PROCEDURES APPLICABLE TO

HEARINGS INVOLVING DISPUTED ISSUES OF

MATERIAL FACT. –

* * *

(j) Findings of fact shall be based upon

a preponderance of the evide nce, except in

penal or licensure disciplinary proceedings

or except as otherwise provided by statute,

and shall be based exclusively on the

evidence of record and on matters officially

recognized.

In addition, existing case law establishes that the FEC has the

burden of proving by clear and convincing evidence that

Petitioner willfully violated Section 106.021(3), Florida

Statutes. Department of Banking and Finance v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2 d 292 (Fla. 1987); and Latham v. Florida Commission on

Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997).

34. 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 wi tnesses

testify must 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

conviction, 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).

35. Subsection 106.07(4)(a)7, Flori da Statutes, reads as

follows:

106.07 Reports; certification and

filing. –

* * *

(4)(a) Each report required by this

section shall contain:

* * *

7. The full name and address of each

person to whom an expenditure for personal

services, salary, or reimbursement for

authorized expenses has been made and which

is not otherwise reported, including the

amount, date, and purpose of such

expenditure. However, expenditures made

from the petty cash fund provided for in s.

106.12 need not be reported individually.

36. Petitioner made 30 purchases during his reelection

campaign with personal funds for which he was reimbursed from

his campaign treasury . The reimbursements were made by six

checks that were drawn on the campaign account. The

reimbursements were reported in accordance with Subsection

106.07(4)(a)7, Florida Statutes.

37. There is an apparent conflict between Section

106.021(3), Florida S tatutes, "no . . . expenditure . . . shall

be . . . made . . . except through the duly appointed campaign

treasurer," and Subsection 106.07(4)(a)7, Florida Statutes,

"[E]ach report required by this section shall contain: [T]he

full name . . . of each pers on to whom an expenditure for . . .

reimbursement for authorized expenses has been made and which is

not otherwise reported."

38. It is understandable that Petitioner, given this

apparent conflict and the permissive language of Subsection

106.07(4)(a)7, F lorida Statutes, in his consideration of

Chapter 106, Florida Statutes, deemed it appropriate to make

campaign - related expenditures using cash, personal check or

credit card and then seek reimbursement from the campaign

treasury.

39. It is well settled t hat a statute should be construed

in its entirety and as a harmonious whole. Further, where two

laws are in conflict, courts should adopt an interpretation that

harmonizes the laws, for the Legislature is presumed to have

intended that both laws are to op erate coextensively and have

the fullest possible effect. Palm Beach County Canvassing Board

v. Harris , 772 So. 2d 1273 (Fla. 2000); T.R. v. State , 677 So.

2d 270 (Fla. 1996); Sun Insurance Office, Ltd. v. Clay , 133 So.

2d 735 (Fla. 1961).

40. Viewed coe xtensively, Subsections 106.021(3) and

106.07(4)(a)7, Florida Statutes, allow a candidate to pay for

campaign - related purchases with personal funds and to be

reimbursed from the campaign treasury as long as the

reimbursement is appropriately reported in th e Campaign

Treasurer's Report. This was done in the instant case; there

was no violation.

41. No clear and convincing evidence has been presented

that the purchase at various times of clothing during the

reporting period ending June 30, 2000, and the pur chase of a

trailer hitch ball, tie - downs, a safety chain, and automobile

liability insurance during the reporting period ending

August 31, 2000, were to "defer a normal living expenses," to

the contrary, the evidence supports the contention that all had

l egitimate, campaign - related purposes.

42. Evidence is clear that Petitioner's wife purchased cat

food, detergent, and other items which had no legitimate,

campaign - related purpose, while purchasing significant other

campaign - related items at a Winn Dixie on July 18, 2000. Within

days of learning of inappropriate purchases, Petitioner wrote a

personal check to the campaign treasury fully repaying it for

the non - campaign purchases. While Section 106.1405, Florida

Statutes, prohibits a candidate's spouse fr om using campaign

funds in this way, Petitioner's wife has not been charged in

this matter, nor should she be. Her oversight does not meet the

definition of "willful" as defined in Section 106.37, Florida

Statutes, nor does Petitioner's reaction to learni ng that

inappropriate items had been purchased with a campaign check; he

immediately remedied his wife's inadvertent error by presenting

a personal check to the campaign account. Petitioner's actions

were appropriate under the circumstances; he did not wi llfully

violate Section 106.1405, Florida Statutes, when his wife made

the purchases.

43. The FEC has failed to present clear and convincing

evidence that Petitioner's failure to report the sale of the

campaign vehicle (1997 Jeep) during the reporting per iod ending

December 31, 1999, resulted in "personal benefit . . . to defray

the normal living expenses of car ownership and the tax thereon,

this transaction also forms the basis for two violations of

Section 106.1405," as alleged. However, Petitioner's f ailure to

report the sale of the campaign vehicle which would have been

reflected by a reimbursement to the campaign of $800 or $1,325

in the Campaign Treasurer's Report for the period ending

December 31, 1999, does violate Subsection 106.07(5), Florida

St atutes.

44. Petitioner had full knowledge of the sale of the 1997

Jeep; he knew that the sale occurred on December 7, 1999. At

the time he certified that the Campaign Treasurer's Report for

the period ending December 31, 1999, was "true, correct and

comp lete," he knew, having certified that he examined the

report, or could have inquired of his wife and discovered, that

his wife had not paid the campaign treasury $800 initially

determined to be the financial effect of the sale of the 1997

Jeep. Petitioner effectively "falsely reported or deliberately

failed to include information required by this chapter" in

violation of Subsection 106.19(1)(c), Florida Statutes.

45. Having determined that none of the 30 purchases made

without campaign checks which were r eimbursed by checks drawn on

the campaign account, violated Subsection 106.021(3), Florida

Statutes, and that none of the 30 purchases suggested to have

violated Section 106.1405, Florida Statutes, were used to

"defray normal living expenses," Petitioner n either made or

authorized "any expenditure in violation of s. 106.11(3) or any

other expenditure prohibited by this chapter." Therefore,

Petitioner did not violate Subsection 106.19(1)(d), Florida

Statutes. Similarly, Petitioner did not violate Subsectio n

106.19(c), Florida Statutes, with the exception of the one

occasion when he failed to include information related to the

sale of the 1997 Jeep on the Campaign Treasurer's Report for the

period ending December 31, 1999.

RECOMMENDATION

Based upon the foreg oing Findings of Facts and Conclusions

of Law, it is

RECOMMENDED that the Florida Elections Commission enter a

final order finding that Petitioner, James P. Appleman, violated

Subsection 106.07(5), Florida Statutes, on one occasion and

Subsection 106.19(1 )(c), Florida Statutes, on one occasion and

assess a civil penalty of $1,000 for the violation of Subsection

106.07(5), Florida Statutes, and a civil penalty of $2,400 for

violation of Subsection 106.19(1)(c), Florida Statutes; and

dismissing the remaining alleged violations of Chapter 106,

Florida Statutes, against him as asserted in the Order of

Probable Cause.

DONE AND ENTERED this 15th day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrat ive 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 Administr ative Hearings

this 15th day of April, 2002.

COPIES FURNISHED :

David F. Chester, Esquire

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

Mark Herron, Esquire

Messer, Caparello and Self, P .A.

Post Office Box 1876

Tallahassee, Florida 32302 - 1876

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 Electio ns Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO S UBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. A ny exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.