08-003373 Florida Elections Commission vs. Kentward C. Forbes Status: Closed DOAH Final Order on Wednesday, May 27, 2009.

Summary: Petitioner met its burden to demonstrate that Respondent committed violations of the election laws.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-3373

)

KENTWARD C. FORBES, )

)

Respondent. )

)

FINAL ORDER

June C. McKinney, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida on February 18, 2009.

The parties, attorneys for the parties, witnesses, and court

reporter participated by videoconference in Miami, Florida.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399

For Respondent: Charles McKinnon

Law Offices of Charles McKinnon

12789 SW 280th Street

Naranja, Florida 33032

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the violations

alleged in the Order 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 May 30, 2008, that there was

probable cause to believe that Respondent violated Section

106.07(5), Florida Statutes on two counts. Count one alleges

that on or about July 29, 2005, Respondent violated Section

106.07(5), Florida Statutes, by certifying to the correctness of

South Bay Community Political Action Committee's (SBPAC) amended

2004 F1 CTR, when he incorrectly reported and failed to include

items. Count two alleges that on or about July 29, 2005,

Respondent violated Section 106.07(5), Florida Statutes, by

certifying to the correctness of SBPAC amended 2004 Q4 CTR, when

he incorrectly reported and failed to include items.

Respondent did not timely request a formal or informal

hearing before the Commission or elect to resolve the complaint

by a consent order. Therefore, Respondent was entitled to a

formal administrative hearing conducted by an administrative law

judge. On July 14, 2008, this matter was referred to the

Division of Administrative Hearings (DOAH).

On November 26, 2208, a Notice of Hearing was issued

scheduling the final hearing for February 18, 2009. On

December 15, 2008, an Amended Notice of Hearing by Video

Teleconference was issued. The final hearing was held as

scheduled. Respondent did not appear but was represented by

counsel. Respondent did not present any evidence. The

Commission presented the testimony of Maria Acosta and Keith

Smith. The Commission’s Exhibits 1 through 18 were received

into evidence.

A Transcript was filed on April 10, 2009. Respondent did

not file a proposed final order. Petitioner filed a Proposed

Final Order on April 30, 2009, which has been duly considered in

this matter.

FINDINGS OF FACT

1. On May 20, 2004, SPCPC registered with the Miami-Dade

County Supervisor of Elections Office as an issues-only

political committee.

2. On or about November 11, 2004, Respondent signed an

Appointment of Campaign Treasurer and Designation of Campaign

Depository form, accepting the position of committee campaign

treasurer. Respondent served as treasurer of SBCPC until it

dissolved.

3. The SPCPC is required to file campaign treasurer’s

reports (CTR) detailing all contributions and expenditures.

CTRs contain a summary page on which the committee chairperson

and the committee treasurer certify the report is true, correct,

and complete.

4. The letter “Q” before a number indicates that a CTR is

a quarterly report. The “F” series reports are filed before a

primary election and the “G” series reports are filed prior to

the general election. In 2004, SBCPC should have filed an F1

CTR 32 days prior to the primary election, and F2 CTR 18 days

prior to the primary election, and an F3 CTR 4 days prior to the

primary election.

5. The Miami-Dade Elections Department provides written

resource materials for political committees. Candidates and

committees have available to them election law books and the

Division of Elections’ Committee and Campaign Treasurer

Handbook.

6. Respondent obtained a copy of Chapter 106, Florida

Statutes in 2002, but no longer has it and he received the

Committee and Campaign Treasurer Handbook 1 prior to his

appointment as SBCPC’s treasurer. The handbook explains the

rules for properly reporting contributions and expenditures and

another copy was available to Respondent upon his appointment as

treasurer for SBCPC.

7. The Miami-Dade Ethics Committee also provides training

seminars for candidates and committees on Florida’s election

laws at least once a year. Acosta, a 20-year veteran clerk with

the Miami-Dade Elections Department, teaches campaign financing

as part of the training. The training seminars were offered on

May 5, 2004 and August 23, 2006. Respondent attended at least

one ethics training seminar.

8. Candidates or committees that have questions about

filing campaign reports may contact Acosta for elections

assistance or questions. Acosta and Respondent know each other

and have spoken several times when Respondent has worked on

previous campaigns and committees.

9. David Smith, an Investigations Specialist II with the

Commission, was assigned to investigate FEC07-192, Respondent

Kenneth Forbes, regarding allegations that several CTRs were

incorrect, incomplete, or false.

10. During Smith’s investigation, he reviewed the

complaint, the attachments to the complaint, Section 106.07(5),

Florida Statutes, as the applicable section of the law that was

alleged to have been violated, and obtained and reviewed the

bank statements, deposit items and checks issued for SBCPC for

the dates covering Amended F1 report for 2004 and the Amended Q4

report for 2004. Smith then compared the bank records to the

information reported on the campaign treasurer’s report item-by-

item, including checks written and deposits made.

11. Smith summarized his findings and sent Respondent an

affidavit to complete as part of the investigation. Respondent

Forbes completed, signed, and returned to Smith the affidavit

with his notarized signature. Smith reviewed the responses and

finalized his Report on Investigation. After Smith drafted his

final findings, he called Respondent to discuss the findings and

to see if Respondent had anything else to add. Respondent never

returned his call.

12. Respondent’s signature on the affidavit is the same

signature that appears above his name on the cover page

certification of SBCPC’s 2004 Amended F1 and 2004 Amended Q4

CTR, and the form appointing Respondent as Treasurer of SBCPC.

13. Respondent certified that SPCPC’s 2004 Amended F1

Report was true, correct, and complete when it was not.

Respondent also certified that SPCPC’s 2004 Q4 CTR was true,

correct, and complete when it was not.

14. Smith detailed his investigatative findings of

Respondent's violations of Section 106.07(5), Florida Statutes,

in two tables. Table one demonstrates Respondent failed to

report, or misreported, the following transactions on the 2004

Amended F1 CTR that he certified were true, correct, and

complete:

MISSING AND INCORRE CT INFORMATI O N ON 200 4 AMENDED F1 REP O RT

Date Reporting Missing Information Incorre ct Inf o rmation

Filed Period

07/29/ 05 07/01 to 0 7 /2 3/04 Failed to repo rt $50 0 contri bution Reported $10 00 loan i n

2004 F1 - from Sandy Walker; check dated Respondent’s name; bank records

Am ended 07/07/ 04. are void of a check fro m

Failed to repo rt $50 0 contri bution Respondent.

from Canco Rentals; check dated

07/07/ 04.

Reported $20 0 expendit u re to

“Patricia A. Forbes” for the purpose

of “Stipend.” Check #1008 was

made pay a ble to “Cash” an d the

mem o line included the notation,

“Focus Group.”

15. Table two demonstrates Respondent failed to report, or

misreported, the following transactions on the 2004 Amended Q4

CTR that he certified was true, correct, and complete:

MISSING AND INCORRE CT INFORMATI O N ON 2004 AMENDED Q4 REPORT

Date Reporting Missing Information Incorre ct/In c omplete Inf o rmation

Filed Period

07/29/ 05 1 0 / 2 9 t o Reported $86 0 expendit u re to

12/31/ /04 “Fran Mar B u s Service, Inc.,” rather

2004 Q4 - than “Franma r Corporation.”

Am ended Failed to repo rt $60 0 expen d iture Reported a single expendit u re to

to Enid Demps; check #1049 dated Enid Dem p s in the am ount of

as 10/30/0 4 . $5,490 rather than three separate

Failed to repo rt $4,7 70 checks totaling $5, 490 .

expenditure to Enid Dem p s; check

#105 0 dated as 10/30/0 4 .

Failed to repo rt $12 0 expen d iture

to Enid Demps; check #1051 dated

as 10/30/0 4 .

Reported $4, 386 expen d it ure to

FL E.E.E. Holding, L L C – Ken

Forbes; Check #1 053 issue d to Ken

Forbes. Reported incorrect address.

Failed to repo rt a $150 Reported a single expendit u re to

expenditure t o “Mae Matchum ” on South Ba y C o mmunity P A C in the

11/03/ 04 am ount of $3 65. Bank rec o rds

Failed to repo rt a $100 show six checks issued to various

expenditure t o “Diana Price” on indivi duals to taling $3 65.

11/03/ 04

Failed to repo rt a $50 expe nditure

to “Jam a l Flo yd” on 11/0 3 / 04

Failed to repo rt a $25 expe nditure

to “Sheri Seed” on 1 1 /03/ 0 4

Failed to repo rt a $20 expe nditure

to “Effie R. Russell” on 11/ 03/04

Failed to repo rt a $20 expe nditure

to “Doroth y Clarke” on 11/03/0 4

Reported $20 0 expendit u re to

South Ba y C o mmunity P A C on

11/05/ 04; Ch eck #1062 issued to

Patricia A. Forbes

Reported $35 0 expendit u re to GK

Enterprises on 12/12/04; Check

#106 6 issued to Patricia A. Forbes.

Reported incorrect address .

16. Respondent has been involved in several other

political committees and is not new to the political process.

Respondent's failure to report or misreport transactions was

clearly more than an oversight. Respondent was aware of the

requirement to file a complete and accurate CTR by virtue of

previously having been before the Commission before for

violations of Florida's election laws.

17. The Commission has entered at least 10 Final Orders

against Respondent upholding fines for filing reports late and

assessing fines for willfully violating the election laws.

18. Respondent even has violated the same statute that he

is charged with violating in this case. The Commission found

that the Respondent violated Section 106.07(5), Florida

Statutes, and assessed civil penalties against him both in case

number FEC 06-206 and case number FEC 06-334 and 06-403

combined.

19. When Respondent failed to report or misreport

transactions on the 2004 Amended F1 CTR and 2004 Amended Q4 CTR,

he knew what was required of him when filing such reports.

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the parties to and subject

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

Statutes(2008).

21. The Commission has the burden to prove the violations

alleged in the Order 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).

22. 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:

[T]he 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).

23. 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." Willfulness is a question of fact. 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 Order of Probable Cause. See Diaz de la Portilla , 857

So. 2d at 917 n.2; McGann v. Fla elections Comm'n , 803 So. 2d

763, 764 (Fla. 1st DCA 2004). 2

24. 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 a

reasonable effort to determine whether the

act would constitute a violation of this

chapter. . . .

25. The Commission alleged that Respondent violated

Section 106.07(5), Florida Statutes, which provides:

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. . . .

26. The Commission met its burden to prove that Respondent

violated the statutory provision.

27. The evidence clearly and convincingly establishes that

(1) Respondent failed to report two expenditures on SBCPC's 2004

Amended F1 CTR; (2) Respondent incorrectly reported two other

transactions on SBCPC's 2004 Amended F1 CTR; (3) Respondent

failed to report nine expenditures on SBPC's 2004 Amended Q4

CTR; and (4) Respondent incorrectly reported 12 expenditures on

SBPC's 2004 Amended Q4 CTR.

28. Respondent had the responsibility for the accuracy and

veracity of both the 2004 Amended F1 CTR and the 2004 Amended Q4

CTR. Respondent is not new to the political process and his

prior 10 cases in which the Commission found Respondent violated

election laws including the two cases where Respondent violated

the same statute alleged in this matter demonstrates that

Respondent knew or should have known that he was required to

report proper expenditures and contributions on SBCPC's CTRs but

he failed to do so.

29. Respondent also had the resources that he had used in

the past with other campaigns and committees such as the

Committee and Campaign Treasurer Handbook and personnel at

Miami-Dade Elections Office that he could have called upon to

assist him in correctly filling out the amended CTRs but he did

not.

30. Respondent's violations in this case are willful

because he knew what was required of him as campaign treasurer

and yet he still failed to report or misreported numerous

contributions and expenditures in the CTRs.

31. Each violation that was proven was contained in a

separate count of the Order 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 765-766.

32. 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 of

omissions;

(c) The appropriateness of such penalty to

the financial resources of the person . . .

(d) Whether the person . . . has shown good

faith in attemption to comply with the

provision of this chapter . . . .

33. Properly reporting campaign contribution 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).

34. 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.

35. 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(5), Florida

Statutes (2004), as alleged in Count 1 of the Order of Probable

Cause dated May 30, 2008.

(b) Willfully violating Section 106.07(5), Florida

Statutes (2004), as alleged in Count 2 of the Order of Probable

Cause dated May 30, 2008.

2. Respondent is assessed a civil penalty of $2,000

($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 27th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 27th day of May, 2009.

ENDNOTES

1 / Respondent attested to receipt of Chapter 106, Florida

Statutes and reading the Committee and Campaign Treasurer

Handbook in an affidavit dated October 17, 2007.

2 / Section 106.37, Florida Statutes (2006), was repealed

effective January 1, 2008, after the events giving rise to this

case.

COPIES FURNISHED :

Barbara M. Linthicum, Executive Director

Florida Elections Commissions

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Patsy Rushing, Clerk

Florida Elections Commissions

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Charles McKinnon, Esquire

Law Offices of Charles McKinnon

12789 SW 280th Street

Naranja, Florida 33032

Kentward C. Forbes

25121 Southwest 120th Place

Princeton, Florida 33032

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by filing

the original Notice of Appeal with the agency clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

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

the Appellate District where the party resides. The notice of

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

be reviewed.