08-002765 Florida Elections Commission vs. Charles J. Grapski Status: Closed DOAH Final Order on Tuesday, March 31, 2009.

Summary: Respondent violated election laws by failing to file campaign treasurer`s reports. No mitigating evidence was presented. A maximum fine of $1,000 per count is imposed, for a total fine of $4,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case Nos. 08-2765

) 08-3375

CHARLES J. GRAPSKI, )

)

Respondent. )

)

FINAL ORDER

A duly-noticed final hearing was held in these cases by

Administrative Law Judge T. Kent Wetherell, II, on March 30,

2009, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the violations alleged in the Orders of Probable Cause, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Florida Elections Commission (Commission) determined in

an Order of Probable Cause dated June 1, 2007, that there was

probable cause to believe that Respondent violated Section

106.07, Florida Statutes (2006), by failing to timely file a

quarterly campaign treasurer’s report for the 2006 election in

which he was a candidate for state office. On June 11, 2008, 1 /

this matter was referred to the Division of Administrative

Hearings (DOAH) and designated DOAH Case No. 08-2765.

The Commission determined in an Order of Probable Cause

dated May 30, 2008, that there was probable cause to believe

that Respondent violated Section 106.07, Florida Statutes

(2007), by failing to file two campaign treasurer’s reports and

by filing an incomplete report for the 2007 election in which he

was a candidate for local office. On July 14, 2008, this matter

was referred to DOAH and designated DOAH Case No. 08-3375.

The final hearing in DOAH Case No. 08-2765 was initially

scheduled for August 28, 2008. The hearing was subsequently

rescheduled for September 29, 2008, based upon the Commission’s

motion.

The final hearing in DOAH Case No. 08-3375 was initially

scheduled for October 7, 2008. The hearing was subsequently

rescheduled for October 13, 2008.

On September 11, 2008, the cases were consolidated “for all

further proceedings, including the final hearing scheduled for

September 29, 2008.” The hearing was subsequently rescheduled

for October 28 and 29, 2008, based upon Respondent’s unopposed

motion.

Respondent’s motion to strike two counts of the Order of

Probable Cause in DOAH Case No. 08-3375 was denied in an Order

dated October 6, 2008. Reconsideration of that Order was denied

in an Order dated October 16, 2008.

On October 24, 2008, the final hearing was cancelled

because the Commission informed the undersigned in writing that

Respondent was being held in jail without bond on several

criminal charges. On December 1, 2008, the cases were placed

into abeyance pending Respondent’s release from jail. The cases

remained in abeyance until March 2, 2009, when the Commission

advised the undersigned in a status report that Respondent had

been released from jail.

On March 3, 2009, a Notice of Hearing was issued scheduling

the final hearing for March 30, 2009. The Notice of Hearing was

mailed to Respondent at his address of record, Post Office Box

190, Alachua, Florida 32616.

The final hearing was held as scheduled. Respondent did

not appear at the hearing. The Commission presented the

testimony of Erin Nesmith, Malcolm Chellman, Diane Morgan, Alan

Henderson, and Donna Maphurs. The Commission’s Exhibits 1

through 5 were received into evidence.

No transcript of the final hearing was filed. The

Commission presented an oral closing argument in lieu of filing

a proposed final order.

FINDINGS OF FACT

1. Respondent was a candidate for election to the Florida

House of Representatives in 2006.

2. The Division of Elections (Division) was the filing

office for that election.

3. On March 27, 2006, the Division sent a letter to

Respondent acknowledging his candidacy and informing him of the

filing deadline for the first campaign treasurer’s report. The

letter also informed Respondent that all of the Division’s

publications, including the “2006 Calendar of Reporting Dates,”

were available on the Division’s website.

4. The filing deadline for the campaign treasurer’s report

July 10, 2006.

5. Respondent did not file his Q2 report by that deadline.

6. On July 12, 2006, the Division sent Respondent a letter

informing him that his Q2 report had not been received. The

Division sent a second letter (by certified mail) on October 17,

2006, and the Commission sent several additional follow-up

certified letters in November and December 2006.

7. Respondent filed his Q2 report on February 9, 2007,

which is 214 days after the deadline.

8. Respondent was a candidate for election to the Alachua

City Council in 2007.

9. The City Clerk was the filing officer for that

election.

10. Respondent submitted his campaign paperwork to the

City Clerk on February 23, 2007. 2 / The paperwork included a

“Statement of Candidate” form signed by Respondent stating that

he “received, read, and understand[s] the requirements of

Chapter 106, Florida Statutes.”

11. On February 23, 2007, the City Clerk’s office provided

Respondent a copy of Chapters 104 and 106, Florida Statutes, a

and a calendar of the election dates. The handbook contained

the applicable filing deadlines for the campaign treasurer’s

reports that Respondent was required to file.

12. The first report was due on March 14, 2007, and

covered the period between the candidate’s filing date and

March 14.

13. The second report was due on March 23, 2007, and

covered the period of March 15 to March 23.

14. The third report was due on April 6, 2007, and covered

the period of March 24 to April 6.

15. Respondent did not file the first report even though

he had contributions and expenditures during the period covered

by the report.

16. On March 15, 2007, the City Manager sent a certified

letter to Respondent informing him that his first campaign

treasurer’s report had not been received. The letter advised

Respondent that fines had started to accrue.

17. Respondent did not file the second report, nor did he

file a “waiver report” reflecting that he did not have any

contributions or expenditures during the period covered by the

report.

18. On March 27, 2007, the City Manager sent a certified

letter to Respondent informing him that his second campaign

treasurer’s report had not been received. The letter advised

Respondent that fines were accruing.

19. On April 9, 2007, Respondent filed an untimely and

incomplete report for the third reporting period. The report

included only the itemized contribution page and the itemized

expenditure page; it did not include the required summary page

that contains the candidate’s certification of the report’s

truth, correctness, and completeness.

20. On April 9, 2007, the City Manager sent a certified

letter to Respondent informing him that his third campaign

treasurer’s report was incomplete. The letter gave Respondent

three days to submit a complete report.

21. To date, Respondent has not filed the first or second

reports or a complete third report.

22. In each of the circumstances described above,

Respondent was aware of the requirement to file a complete

campaign treasurer’s report as well as the deadline for doing so

by virtue of having been provided copies of the applicable laws

and the candidate’s handbook.

23. Respondent’s failure to file complete and timely

reports was clearly more than an oversight. Indeed, even though

Respondent was sent certified letters by the filing officer on

each occasion advising him that the reports had not been

received, he did not make any subsequent filings with the City

Clerk and it took him over six months to file his Q2 report with

the Division.

24. Respondent was provided notice of the date, time, and

location of the final hearing, through a Notice of Hearing

mailed to his address of record.

25. Respondent failed to appear at the final hearing

despite having been provided proper notice of the hearing.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Section 106.25(5), Florida

Statutes (2008).

27. The Commission has the burden to prove the violations

alleged in the Orders of Probable Cause by clear and convincing

evidence. See Diaz de la Portilla v. Fla. Elections Comm’n , 857

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

28. The clear and convincing standard of proof is greater

than the preponderance of the evidence standard that applies in

most civil cases, but it is less than the beyond a reasonable

doubt standard that applies in criminal cases; it requires that:

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking 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).

29. The Commission must not only prove that Respondent

violated a provision of the campaign finance laws, but also that

the act or omission that resulted in the violation was

“willful.” See § 106.25(3), Fla. Stat. (2008); Diaz de la

Portilla , 857 So. 2d at 916-17.

30. Willfulness is a question of fact. See § 106.25(3),

Fla. Stat. (2008); McGann v. Fla. Elections Comm’n , 803 So. 2d

763, 764 (Fla. 1st DCA 2001).

31. The determination of willfulness in this case is

governed by the definition in Section 106.37, Florida Statutes

(2006), which was in effect at the time of the acts and

omissions that gave rise to the Orders of Probable Cause. 3 / See

Diaz de la Portilla , 857 So. 2d at 917 n.2; McGann , 803 So. 2d

at 764.

32. Section 106.37, Florida Statutes (2006), provided:

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 knowing 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 meaning 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 without making any

reasonable effort to determine whether the

act would constitute a violation of this

chapter.

33. The Commission alleged that Respondent violated

Subsections (1), (5), and (7), of Section 106.07, Florida

Statutes (2006 and 2007), which provide:

(1) Each campaign treasurer designated by

a candidate . . . shall file regular reports

of all contributions received, and all

expenditures made, by or on behalf of such

candidate . . . . Reports shall be filed on

the 10th day following the end of each

calendar quarter from the time the campaign

treasurer is appointed, except that, if the

10th day following the end of a calendar

quarter occurs on a Saturday, Sunday, or

legal holiday, the report shall be filed on

the next following day which is not a

Saturday, Sunday, or legal holiday.

Quarterly reports shall include all

contributions received and expenditures made

during the calendar quarter which have not

otherwise been reported pursuant to this

section.

* * *

(5) 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 as to the

correctness of each report; and each person

so certifying shall bear the responsibility

for the accuracy and veracity of each

report. . . .

* * *

(7) Notwithstanding any other provisions

of this chapter, in any reporting period

during which a candidate, political

committee, or committee of continuous

existence has not received funds, made any

contributions, or expended any reportable

funds, the filing of the required report for

that period is waived. However, the next

report filed must specify that the report

covers the entire period between the last

submitted report and the report being filed,

and any candidate, political committee, or

committee of continuous existence not

reporting by virtue of this subsection on

dates prescribed elsewhere in this chapter

shall notify the filing officer in writing

on the prescribed reporting date that no

report is being filed on that date.

34. The Commission met its burden to prove that Respondent

violated these statutory provisions.

35. The evidence clearly and convincingly establishes that

(1) Respondent failed to timely file the Q2 report due on

July 10, 2006, for the 2006 House of Representatives election;

(2) Respondent failed to file the campaign treasurer’s report

due on March 14, 2007, for the 2007 City Council election;

(3) Respondent failed to file the campaign treasurer’s report

due on March 23, 2007, for the 2007 City Council election, or a

“waiver report” for that period; (4) Respondent filed an

incomplete campaign treasurer’s report for the third reporting

period for the 2007 City Council election; and (5) Respondent’s

failure to file these reports was willful, as defined in Section

106.37, Florida Statutes (2006).

36. Each violation that was proven was contained in a

separate count of the Orders of Probable Cause, and, therefore,

a separate fine may be imposed for each violation. See Diaz de

la Portilla , 857 So. 2d at 924; McGann , 803 So. 2d at 765-66.

37. Section 106.265(1), Florida Statutes (2006, 2007, and

2008), provides:

(1) The commission is authorized upon the

finding of a violation of this chapter . . .

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 . .

.; and

(d) Whether the person . . . has shown

good faith in attempting to comply with the

provisions of this chapter . . . .

38. Properly reporting campaign contributions and filing

campaign treasurer’s reports go to the heart of the campaign

finance laws, and, as a result, a candidate’s willful failure to

comply with the statutory reporting requirements justifies the

imposition of the maximum fine of $1,000 per count. See , e.g. ,

Beardslee v. Fla. Elections Comm’n , 962 So. 2d 390 (Fla. 5th DCA

2007) (affirming $1,000 fine for candidate’s willful failure to

report a $143 contribution).

39. Respondent has the burden to prove the existence of

any mitigating circumstances that would justify imposition of a

lesser fine. See Diaz de la Portilla , 857 So. 2d at 925.

40. No mitigating evidence was presented at the final

hearing.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that:

1. Respondent is guilty of:

(a) willfully violating Section 106.07(1), Florida

Statutes (2006), as alleged in Count 1 of the Order of Probable

Cause dated June 1, 2007;

(b) willfully violating Section 106.07(1), Florida

Statutes (2007), as alleged in Count 1 of the Order of Probable

Cause dated May 30, 2008;

(c) willfully violating Section 106.07(7), Florida

Statutes (2007), as alleged in Count 2 of the Order of Probable

Cause dated May 30, 2008; and

(d) willfully violating Section 106.07(5), Florida

Statutes (2007), as alleged in Count 3 of the Order of Probable

Cause dated May 30, 2008.

2. Respondent is assessed an administrative fine of $4,000

($1,000 for each count), which must be paid to the Florida

Elections Commission within 30 days of the date of this Final

Order.

DONE AND ORDERED this 31st day of March, 2009, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March, 2009.

ENDNOTES

1 / An explanation of the more than one-year delay between the

first Order of Probable Cause and the referral of the case to

DOAH is contained in the Motion for Summary Final Order filed by

the Commission on July 11, 2008.

2 / The record also includes campaign paperwork submitted by

Respondent on March 7, 2007. The February 23 paperwork

identifies the office that Respondent was seeking as

“Commissioner Group 2,” whereas the March 7 paperwork identifies

the office that Respondent was seeking as “Commissioner Group

1.” An explanation of these different sets of paperwork is

contained in Exhibit 2, at page P39.

3 / Section 106.37, Florida Statutes, was repealed effective

January 1, 2008. See Ch. 2007-30, Laws of Fla., at §§ 51, 57.

Because the statute was still in effect at the time of the acts

and omissions that gave rise to the Orders of Probable Cause, it

is unnecessary to consider whether, in light of the repeal of

Section 106.37, Florida Statutes, it is appropriate to resort to

case law or other sources to define “willful” for purposes of

Chapter 106, Florida Statutes. Cf. Fugate v. Fla. Elections

Comm’n , 924 So. 2d 74, 75 (Fla. 1st DCA 2006) (“In the absence

of a statute or properly promulgated rule defining the term

[‘willful’ for purposes of Chapter 104, Florida Statutes], the

case-law derived definition used by the ALJ was reasonable.”).

COPIES FURNISHED :

Charles J. Grapski

Post Office Box 190

Alachua, Florida 32616

Eric M. Lipman, Esquire

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

Patsy Rushing, Clerk

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 one copy of a Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second 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.