15-005994FEC Florida Elections Commission vs. Conserve And Protect Florida's Scenic Beauty Status: Closed DOAH Final Order on Tuesday, March 22, 2016.

Summary: Respondent did not willfully violate section 106.07 by filing its notices of no activity after the deadlines.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION ,

Petitioner ,

vs. Case No. 15 - 5994 FEC

CONSERVE AND PROTECT FLORIDAÓS

SCENIC BEAUTY ,

Respondent ,

______________________________ /

FINAL ORDER

A f inal hearing was conducted in this case on January 21 ,

201 6 , in Tallahassee, Flo rida, before E. Gary Early, an

Administrative Law J udge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jaakan Ammiel Williams, Esquire

St ephanie Cunningham, Esquire

Florida Elections Commission

107 West Gaines Street , Suite 224

Tallahassee, F lorida 32399 - 1050

For Respondent: William David Brinton, Esquire 1/

Conserve and Protect Florida's

S cenic Beauty

1301 Riverplace Boulevard , Suite 1500

Jacksonville, F lorida 32207

STATEMENT OF THE ISSUES

The issue s for disposition in this case are whet her

Respondent c ommitted willful violations of s ection 106.07(7) ,

Florida Statutes (2014), when its campaign treasurer failed to

notify the filing officer that Respondent had not received

funds, made contributions, or expended reportable funds during

four 2014 reporting periods ; and, if so, whether Respondent is

subject to civil penalties in view of the holding in PAC for

Equality v. Department of State, Florida Elections Commission ,

542 So. 2d 459 (Fla. 2d DCA 1989).

PRELIMINARY STATEMENT

On September 17, 2015, Petitioner, Florida Elections

Commission (Commission) , entered an Order of Probable Cause by

which it charged Respondent, Conserve and Protect Florida's

Scenic Beauty (Respondent) , a political committee , with four

counts of failing to timely notify the filing officer that no

contribution and expenditure report would be filed because

Respondent had not received funds, made contributions, or

expended reportable funds during the identified reporting

periods.

On October 16, 2015 , Respondent filed a request for a

formal hearing to contest the Order of Probable Cause. The

request for hearing was re ferred to the Division of

Administrative Hearings on October 21, 2015.

The final hearing w as originally scheduled for December 1 1 ,

2015 , was continued at the request of the parties until

January 21, 2016 , and was then held on that date.

After having fi led a Joint Pre - hearing Stipulation, the

parties filed an Amended Joint Pre - hearing Stipulation in which

they identified stipulated facts for which no further proof

would be necessary. The stipulated facts have been accepted and

considered in the preparat ion of this Recommended Order.

At the final hearing, Petitioner presented no witnesses,

relying on unopposed affidavits of Kristi Reid Bronson, Chief of

the Bureau of Election Records of the Division of Elections;

John R. Crescimbeni, RespondentÓs treas urer; and William D.

Brinton, RespondentÓs c hairperson. The affidavits, identified

as PetitionerÓs Exhibits 1 through 3, were received in evidence

without objection .

Respondent presented the t estimony of Mr. Brinton and

Mr. Crescimbeni, and offered Res pondentÓs Exhibits 1 through 14,

which were received in evidence without objection . RespondentÓs

Exhibits 5 and 6 consisted of the affidavits of Mr. Crescimbeni

and Mr. Brinton that had been introduced as PetitionerÓs

Exhibits 2 and 3, but included the at tachments referenced

therein. Mr. Crescimbeni and Mr. Brinton ratified and adopted

their affidavits under oath, and each has been accepted as

though the statements were delivered by live testimony.

On February 24, 2016, the parties filed a Joint Stipula tion

as to 2014 Reporting Dates, which included a 2014 Calendar of

Reporting Dates for Political Committees/Independent

Expenditure - Only Organizations that file with the Division of

Elections. The 2014 Calendar is accepted in evidence, and

designated as J oint Exhibit 1. 2 / Although the calendar is

hearsay, it supplements and explains other non - hearsay evidence

regarding the 2014 reporting dates.

A one - volume Transcript of the hearing was filed on

February 10, 2015 . Post - hearing submittals were to be fil ed

10 days from the filing of the T ranscript. Two unopposed

motions to extend the filing deadline were granted, which served

to extend the filing deadline to February 29, 2016.

Petitioner timely filed its Proposed Final Order.

Respondent, having exper ienced difficulties in scanning and

uploading its completed Proposed Final Order, fil ed it at

5:08 p.m. on February 29, 2016, technically eight minutes late ,

but resulting in an ÐofficialÑ filing at 8:00 a.m. on March 1,

2016. Respondent subsequently file d an Unopposed Verified

Amended Motion Requesting Relief by Order Under Rule 28 - 106.211,

F.A.C., Conduct of Proceedings, requesting consideration of its

late - filed Proposed Final Order. That Mot ion is hereby granted,

and the Proposed Final O rders filed by each of the parties have

been considered in the preparation of this Final Order.

RespondentÓs Proposed Final Order was 42 pages i n length,

thus exceeding the 40 - page limit established in Florida

Administrative Code R ule 28 - 106.215. Petitioner did not ob ject,

and there being no discerned prejudice to any party,

RespondentÓs Proposed Final Order is accepted as filed .

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to constitute a

violation of law . See Mc Closkey v. DepÓt of Fin. Servs. ,

115 So. 3d 441 (Fla. 5th DCA 2013). Thus, references to

statutes are to Florida Statutes (2014), unless otherwise noted.

FINDINGS OF FACT

1. Petitioner is the entity responsible for investigating

complaints and enfo rcin g Florida's election and campaign

financing laws, c hapters 104 and 106, Florida Statutes.

§ 106.25, Fla. Stat.

2 . Respondent is a political committee organized for the

purpose of sponsoring and supporting a constitutional initiative

to conserve and pro tect FloridaÓs scenic beauty , which is

primarily directed to restrictions on billboards along Florida

highways. Respondent has been a registered political committee

since 2002.

3 . Prior to 2014, Respondent suspended its campaign to

gather petitions to place the constitutional initiative on the

ballot. Respondent has not abandoned the campaign, and t he

initiative remains legally active .

4 . Prior to 2014, RespondentÓs most recent financial

activity was an expenditure of $61.25 in the first quarter of

2011.

5 . Respondent Ó s assets during 2014 consisted of $157.50

held in a bank account. T here were no contributions received or

expenditures made by Respondent during the times pertinent to

this proceeding.

6 . RespondentÓs tre asurer is Mr. Crescimbeni.

Mr. Crescimbeni acknowledged his responsibility as treasurer to

accurately report to the Division of Elections the contributions

received and expenditures made by Respondent, and the dates of

each.

7 . The reporting requirements were contained in a

po litical committee handbook and copy of the Florida statutes

that are provided by Petitioner to all political committees .

Mr. Cresc i mbeni acknowledged having received and read both

documents.

8 . Although some reporting requirements have changed since

Mr. Cresc i mbeniÓs receipt of the political committee handbook,

Mr. Cresc i mbeni believed that he understood the reporting

requirements.

9 . Mr. Cresc i mbeni understood that, since Respondent

neither received contributions nor made expenditures, the

requirement to submit a treasurerÓs report was statutorily

waived, though there was a requirement to notify the filing

officer that a report was not being filed.

10 . In 2013, section 106.07 was amended , creating 33

reporting periods for calendar year 2014 , signific antly more

than existed prior to the amendments . Ch. 2013 - 37, § 9, Laws of

Fl a . 3 /

11 . Reports for the 33 reporting periods in 2014 were

statutorily waived pursuant to section 107.07(7), inasmuch as

there were no contributions or expenditures.

12 . N ot ifications of no activity were filed for each of

the 33 reporting periods in 2014 , all of which were timely ,

except the four identified in the Order of Probable C ause.

The M5 Filing Period

13 . The notification of no activity for the 2014 M5

reporting pe riod of May 1 through May 31, 2014, was due by

midnight on June 10, 2014. The notification of no activity for

the 2014 M5 reporting period was filed on Saturday, June 14,

2014, at 11:50:59 a.m.

14 . On the morning of Saturday, June 1 4, 2014,

Mr. Cresc i mbeni picked up RespondentÓs mail from the post

office . He then traveled to his office, where he opened the

mail. Among the items received was a notice from the Division

of Elections advising Respondent that its M5 report had not been

received by the fil ing deadline . The letter was dated June 11,

2014, and bore a postmark of June 12, 2014.

15 . When Mr. Cresc i mbeni realized his error, he

immediately uploaded the report of no activity at 11:50 a.m. o n

the morning of June 14, 2014.

16 . Mr. Cresc i mbeni testified credibly that Ð[m]y delayed

filing of the M5 notification of no activity was neither

deliberate nor a repeated failure. It was simply an oversight

and nothing more.Ñ

The P1 Report

17 . The notification of no activity for the 2014 P1

reportin g period of June 1 through June 20, 2014, was due by

midnight on Friday, June 27, 2014. The notification was filed

on Saturday, June 28, 2014, at 9:34:11 a.m. The notification

was filed without any form of notification from Petitioner.

18 . Mr. Cresc i mbeni indicated that the late filing of the

PI notification of no activity, which occurred within hours of

the time due, was not deliberate, and was unintentional and an

oversight.

The G1 Report

19 . The notification of no activity for the 2014 G 1

repor ting period of August 23 through 29, 2014 , was due by

midnight on Friday, September 5, 2014. The notification was

filed on Saturday, September 6 , 2014, at 3:52:33 a.m. The

notification was filed without any form of notification from

Petitioner.

20 . Mr. Cresc i mbeni indicated that the late filing of the

GI notification of no activity, which occurred within hours of

the time due, was not deliberate, and was unintentional and an

oversight.

The D2 Report

21 . The notification of no activity for the 2014 D2

reporting period of October 25, 2014 , was due by midnight on

Sunday, October 26, 2014. The notification was filed on Monday,

October 27, 2014, at 10:12:15 a.m. The notification was filed

without any form of notification from Petitioner.

22 . Mr. Cresc i m beni indicated that the late filing of the

D2 notification of no activity, which occurred within hours of

the time due, was not deliberate, and was unintentional and an

oversight.

23 . As to each of the four notifications of no activity

referenced above, Mr. Cresc i mbeni credibly testified that the

delay was:

[T] he result of my temporary inattention and

each such delay was a simple and inadvertent

omission on my part that was promptly

remedied . . . . I was never indifferent to

the required filings of noti fications of no

activity. Each such delay by me in making

such filing of said notification was not

intentional. Each such delay was not

deliberate, purposeful, or with any intent

or consciousness on my part to avoid the

notification of ÐnoÑ activity.

M r. Cresc i mbeni Ó testimony is accepted.

24 . There was no evidence adduced at the hearing

suggesting there to have been any financial or political

advantage or benefit that could reasonably be derived from the

late filing of the four notifications of no ac tivity referenced

above.

25 . The Commission does not investigate willfulness and

does not make a finding of willfulness until after the

determination of probable cause in a Probable Cause Hearing.

CONCLUSIONS OF LAW

26 . The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

proceeding. §§ 106.25(5), 120.569 , and 120.57(1), Fla. Stat .

(2015) .

Burden of Proof

27 . The Commission must establish the elements of the

alleged violations by clear and convincing evidence. Diaz de la

Portill a v. Fl a . Elec. CommÓ n , 857 So. 2d 913, 917 (Fla . 3 d DCA

2003) , rev. den. , 872 So. 2d 899 (Fla. 2004); see also DepÓt of

Banking & Fin. v. Osborne Stern and Co. , 670 So. 2d 932, 935

(Fla. 1996); Latham v. CommÓn on Ethics , 694 So. 2d 83, 84 - 86

(Fla. 1st DCA 1997).

28 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). Th e clear and convincing

evidence level of proof :

[E] ntails both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of suffici ent weight to

convince the trier of fact without hesitancy.

Clear and convincing evidence

requires that the evidence must be

found to be credible; the facts to

which the witnesses testify must be

distinctly remembered; the testimony

must be precise and ex plicit 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, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

Ð Although [the clear and convincing] standar d of proof may be met

where the evidence is in conflict, it seems to preclude evidence

that is ambiguous. Ñ Westinghouse Elec. Corp. v. Shuler Bros. ,

590 So. 2d 986, 989 (Fla. 1st DCA 1991).

Statutory Standards

29 . Section 106.011(16)(a) defines a Ðpoli tical committeeÑ

to include Ð[t]he sponsor of a proposed constitutional amendment

by initiative who intends to seek the signatures of registered

electors.Ñ Respondent is a political committee.

30 . Section 106.07 provides, in pertinent part, that :

(1) Each campaign treasurer designated by a

candidate or political committee pursuant to

s. 106.021 shall file regular reports of all

contributions received, and all expenditures

made, by or on behalf of such candidate or

political committee . . . . Monthly reports

shall include all contributions received and

expenditures made during the calendar month

which have not otherwise been reported

pursuant to this section.

(7) Notwithstanding any other provisions of

this chapter, in any reporting period during

which a candidate or political committee has

not received funds, made any contributions,

or expended any reportable funds, the filing

of the required report for that peri od 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 or

political committee not reporting by virtue

of this subsection on dates p rescribed

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.

31 . Section 106.25(3), in its current form, provides that:

For the purposes of commission jurisdi ction,

a violation shall mean the willful

performance of an act prohibited by this

chapter or chapter 104 or the willful

failure to perform an act required by this

chapter or chapter 104. The commission may

not by rule determine what constitutes

willfulne ss or further define the term

ÐwillfulÑ for purposes of this chapter or

chapter 104. Willfulness is a determination

of fact; however, at the request of the

respondent at any time after probable cause

is found, willfulness may be considered and

determined in an informal hearing before the

commission.

The ÐWillfulnessÑ Standard

32 . Prior to 2007, s ection 106.25(3) provided, in its

entirety, that:

For the purposes of commission jurisdiction,

a violation shall mean the willful

performance of an act prohibit ed by this

chapter or chapter 104 or the willful

failure to perform an act required by this

chapter or chapter 104.

33 . As it existed prior to 2007, s ection 106.37 provided

that:

A person willfully violates a provision of

this chapter if the person comm its 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 k nows 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 r equired.

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

chapt er.

34 . In const r uing s ection 106.25(3) as it existed prior to

2007 , the Commission relied on the section 106.37 definition of

Ðwillful violationsÑ to establish the bas es for violation s of

both chapter 104 and chapter 106 . See Fl a. Elec. Comm Ón v .

John J. Fugate , Case No. 04 - 117 8 (DOAH Dec. 22, 2004; FEC

June 3, 2005) (ÐThus, the Commission, consistent with its past

holdings, again holds that Section 106.37, Florida Statutes,

applies to alleged violations of Chapter 104, Florida

Statutes.Ñ) .

35 . The F irst District Court of Appeal disagreed with the

CommissionÓs construction of the scope of section 106.37 as

applying to violations of chapter 104, ruling that:

[T] he Commission erred by rejecting the

ALJ's correct conclusion that section

106.37, Florida S tatutes (2003), is

inapplicable to alleged violations of

Chapter 104 and by applying the definition

of Ð willful Ñ set forth in 106.37 to

appellant's alleged violation of section

104.31(1)(a).

Fugate v. F la. Elec. Comm Ó n , 924 So. 2d 74 , 76 (Fla. 1st DCA

200 6). The Fugate court also invited the Commission to

Ðpromulgate by rule a definition of ÒwillfulÓ to be applied to

alleged violations of Chapter 104.Ñ

36 . On September 11, 2006, the Commission promulgated

Florida Administrative Code Rule 2B - 1.002, whi ch created the

following definition of ÐwillfulÑ:

For purposes of imposing a civil penalty for

violating Chapter 104, F.S, the following

definitions shall apply:

(1) A person acts ÐwillfulÑ or ÐwillfullyÑ

when he or she showed reckless disregard for

whe ther his or her conduct was prohibited or

required by Chapter 104, F.S.

(2) ÐKnewÑ means that the person was aware

of a provision of Chapter 104, F.S.,

understood the meaning of the provision, and

then performed an act prohibited by the

provision or fail ed to perform an act

required by the provision.

(3) ÐReckless disregardÑ means that the

person disregarded the requirements of

Chapter 104, F.S., or was plainly

indifferent to its requirements, by failing

to make any reasonable effort to determine

whethe r his or her acts were prohibited by

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

failed to perform an act required by Chapter

104, F.S.

37 . In 2007, the Florida Legislature repealed section

106.37. Ch. 2007 - 30, § 51, Laws of Fla. During that same

session, the Legislature amended section 106.25 (3) as follows:

For the purposes of commission jurisdiction,

a violation shall mean the willful

performance of an act prohibited by this

chapter or chapter 104 or the willful

failure to perform an act required by this

chapter or chapter 104. Willfulness is a

determination of fact; however, at the

request of the respondent, willfulness may

be considered and determined in an informal

hearing before the commission.

Ch. 2007 - 30, § 48, Laws of Fla.

38 . Chapter 2007 - 30 , Laws of Florida , was signed into law

on May 21, 2007. By its terms, it became effective on

January 1, 2008.

39 . On December 25, 2007, one wee k before the effective

date of c hapter 2007 - 30, Laws of Florida, the Commission amended

rule 2B - 1.002 as fol lows:

For purposes of imposing a civil penalty for

violating Chapter 104 or 106 , F.S., the

following definitions shall apply:

(1) A person acts ÐwillfulÑ or ÐwillfullyÑ

when he or she knew that, or showed reckless

disregard for whether his or her conduct was

prohibited or required by Chapter 104 or

106 , F.S.

(2) ÐKnewÑ means that the person was aware

of a provision of Chapter 104 or 106 , F.S.,

understood the meaning of the provision, and

then performed an act prohibited by the

provision or failed to per form an act

required by the provision.

(3) ÐReckless disregardÑ means that the

person disregarded the requirements of

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

indifferent to its requirements, by failing

to make any reasonable effort to determine

whether his or her acts were prohibited by

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

she failed to perform an act required by

Chapter 104 or 106 , F.S.

40 . Rule 2B - 1.002 survived a challenge to the CommissionÓs

authority to promulgate the rule. Fla. Elec. Comm Ó n v. Blair ,

52 So. 3d 9 (Fla. 1st DCA 2010). In its opinion, the court held

that:

[W] e do not construe the repeal of section

106.37 and the amendments to section

106.25(3) as either a legislative

prohibition against the adoption of a

definition of "willf ul" by rule or an

indication of a legislative preference that

there not be a uniform standard against

which alleged violations of chapter 106

would be judged . . . . Moreover, in light

of the clear, long - standing legislative

preference that agency policie s be expressed

in rules, it seems unlikely that the

Legislature would have intended that the

legal definition of Ð willful Ñ be developed

through adjudication.

Id. at 15.

41 . In 2011, the Florida L egislature prohibited the

Commission from adopting a defin ition of ÐwillfulÑ by rule,

amending section 106.25(3) as follows:

(3) For the purposes of commission

jurisdiction, a violation shall mean the

willful performance of an act prohibited by

this chapter or chapter 104 or the willful

failure to perform an act required by this

chapter or chapter 104. The commission may

not by rule determine what constitutes

willfulness or further define the term

ÐwillfulÑ for purposes of this chapter or

chapter 104. Willfulness is a determination

of fact; however, at the requ est of the

respondent at any time after probable cause

is found, willfulness may be considered and

determined in an informal hearing before the

commission.

Ch. 2011 - 40, § 70, Laws of Fla.

42 . On June 2, 2013, the Commission repealed rule 2B -

1.002.

43 . It is clear from the foregoing that a Ðwillful

failure Ñ to comply with the campaign financing law must be more

than a Ð failure Ñ to comply with the campaign financing law . The

repeal of section 106.37 , along with subsequent enactments

designed to supers ede the regulatory definitions in rule 2B -

1.002, is persuasive evidence that something more than a n

awareness and understanding of the campaign financing law , and a

subsequent failure to perform some required act, is necessary to

prove a violation.

44 . Based on the foregoing history, t he construction to be

applied to the term ÐwillfulÑ for purposes of the campaign

financing law is best established by Fugate v. Fl orida Elections

Comm ission , 924 So. 2d at 75, which serves to :

define a willful act as one that is

voluntarily and intentionally performed with

specific intent and bad purpose to violate

or disregard the requirements of the law.

Id . at 75 4 / ; see also Sanders v. Fla. Elec. Comm Ó n , 407 So. 2d

1069 , 1070 (Fla 4th DCA 1981) (Ð A careless and negli gent failure

to comply with [the campaign financing law ] does not constitute

a Ò willful Ó violation as required by the statute. Ñ).

45 . Based on the F indings of F act herein, the Commission

failed to prove , clearly and convincingly, that Respondent

voluntar ily and intentionally , and with specific intent and bad

purpose to violate or disregard the requirements of the law ,

failed to notify the filing officer in writing on the prescribed

reporting date that no report of contributions and expenditures

was being filed on that date . Thus, the Commission failed to

establish that Respondent willful ly violated section 106.07(7). 5 /

46 . Given the findings and conclusions in this case, it is

unnecessary to reach the issue of whether civil penalties for a

failure to ti mely file a notification of no activity under

section 106.07(7) is authorized under PAC for Equality v.

Fl orida Elections Comm ission , 542 So. 2d 459 (Fla. 2d DCA 1989).

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the Order of Probable Cause entered

against Conserve and Protect FloridaÓs Scenic Beauty, FEC 15 -

164, is DISMISSED.

D ONE AND ORD ERED this 22nd day of March , 201 6 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of March , 201 6 .

ENDNOTE S

1/ Mr. Brinton is a member of the Florida Bar and registered

with eALJ as ÐWilliam David Brinton, EsquireÑ. However,

Mr. Brinton appeared as RespondentÓs Chairperson and qualified

representative and not as RespondentÓs attorney, and was

accepted as such.

2 / In the lexicon of the Commission, ÐMÑ reports are monthly

reports filed before the requirement to file weekly primary and

general election period reports and after the general election

has been held, ÐPÑ reports are weekly p rimary election reports,

ÐGÑ reports are weekly general election reports, and ÐDÑ reports

are daily reports.

3 / T he 2013 amendment revised s ection 106.07(1) to require

monthly , rather than quarterly , contribution and expenditure

reports ; to replace sev en primary and general election reports

( filed on the 32nd, 18th, and 4th days immediately preceding the

primary and on the 46th, 32nd, 18th, and 4th days immediately

preceding the general election) with 19 weekly reports ( to

commence 60 days before the pr imary , with the last weekly report

due on the 4th day preceding the general election) ; and to

require six daily reports starting on the 10 th day and going

through the 5t h day prior to the general election .

4 / T he First District Court of Appeal specifical ly acknowledged

Administrative Law Judge Lawrence StevensonÓs analysis of the

willfulness standard as reasonable . His analysis included the

following:

The determination of ÐwillfulnessÑ is a

question of fact. McGann v. Florida

Elections Commission , 803 So. 2d 763,

764 (Fla. 2001). For purposes of this case,

the term Ðwillful,Ñ as used in Subsection

106.25(3), Florida Statutes (2003), is

essentially an undefined term. In

Metropolitan Dade County v. Department of

Environmental Protection , 714 So. 2d 512,

516 (Fla. 3d DCA 1998), the court faced the

question of interpreting the undefined

statutory term Ðwillful violationÑ and

reasoned as follows:

In construing an undefined term, we

must look to the common or usual

meaning of the term . State Dept. of

Admin istration v. Moore , 524 So. 2d

704 (Fla. 1st DCA 1988) . . . The

court in [ Thunderbird Drive - In

Theatre, Inc. v. Reed , 571 So. 2d

1341, 1344 (Fla. 4th DCA 1990] relied

on W. Page Keeton, et al., Prosser &

Keeton Handbook of the Law of Torts

§ 34, at 213 ( 5th ed. 1984), in

concluding that the usual meaning

assigned to "willful" Ð[i]s that the

actor has intentionally done an act

of an unreasonable character in

disregard of a known or obvious risk

that was so great as to make it

highly probable that harm woul d

follow . . .Ñ Thus, the Thunderbird

Drive - In court concluded that when

the legislature uses the word

"willful" in a statute it

demonstrates the legislature's

intention that the actor possess

Ðmore than mere knowledge or

awarenessÑ for the statute to be

applicable . . . . The Thunderbird

Drive - In definition is not an unusual

or extraordinary interpretation of

the term Ðwillful.Ñ

Black's Law Dictionary defines

ÐwillfulÑ as:

An act or omission is ÒwillfullyÓ

done, if done voluntarily and

intentionally an d with the

specific intent to do something

the law forbids, or with the

specific intent to fail to do

something the law requires to be

done; that is to say, with bad

purpose either to disobey or to

disregard the law.

Black's Law Dictionary 1434 (5th ed.

1 979) (same definition at 1599 (6th

ed. 1990)) . This definition mirrors

the Thunderbird Drive - In definition .

Other courts have ascribed to a

similar definition of Ðwillful

violation.Ñ In Hazen Paper Co. v.

Biggins , 507 U.S. 604, 617, 113 S.Ct.

1701, 123 L.Ed.2d 338 (1993), the

Supreme Court determined that a

"willful" violation, as the term is

used in federal statutes, requires a

showing that the actor Ðeither knew

or showed reckless disregard for the

matter of whether its conduct was

prohibited. . . . Ñ This definition

conveys the same idea that the act be

intentional and accompanied by the

actor's intent and purpose that the

prohibited conduct take place. Ñ

(Some citations omitted).

Florida Elec. CommÓ n v. John J. Fugate , Case No. 04 - 1178, ¶ 25

(Fla. DO AH Dec. 22, 2004; FEC FO after Remand June 26, 2006).

Judge Stevenson concluded that, in order for the Commission to

prove a violation of the election code, it must demonstrate that

the alleged violator Ðacted Òwith bad purpose either to disobey

or to d isregard the law,Ó or that it was his Òintent and purpose

that the prohibited conduct take place.ÓÑ Id. at ¶ 28.

5 / The undersigned recognizes that in some cases there may be a

paucity of direct evidence of willful intent, but substantial

circumstantial evidence. In such cases, willfulness may be

inferred from the totality of the facts in a given case. See

Lear v. Lear , 95 So. 2d 519, 521 (Fla. 1957) (ÐThis inference so

dignified, considered in connection with the evidence as a

whole, gives rise to the further inference that such desertion

was willful and obstinate , . . . . Such reasonable inference

preponderates over all other reasonable inferences.Ñ); J.D.J.

v. State , 120 So. 3d 229, 231 (Fla. 4th DCA 2013)

(ÐCircumstantial evidence may form a suffi cient basis to

demonstrate the necessary intent. In certain cases, this means

that the action which leads to the finding of contempt may

itself infer willfulness . . . . We held that in such

circumstances, it is proper to infer the intent to obstruct the

administration of justice and find willfulness.Ñ ) (citations

omitted); Odom v. Unemplm t . App. Comm'n , 586 So. 2d 504, 507

(Fla. 5th DCA 1991)(Sharp, J., dissenting) ( Ð An inference of

willfulness and culpability may be based on an employee's

grossly defect ive performance, or on a performance so fraught

with errors that the fact - finder concludes they were

intentional. However, this is primarily a determination for the

fact - finder. Ñ ); Schwartz v. Zippy Mart, Inc. , 470 So. 2d 720,

725 (Fla. 1st DCA 1985) (Wen tworth, J, specially concurring)

(ÐThe complaints against Zippy Mart are phrased in terms

normally associated with negligence claims. The complaints do

not specifically allege, and the record does not otherwise

indicate, any intentional tort or conduct on the part of Zippy

Mart which might support a finding of willful intent . . . [but]

I perceive no legislative intent to shield employers . . . based

on employer conduct which might inferentially support a finding

of willful intent.Ñ); Smith v. Fortune Ins. Co. , 404 So. 2d 821 ,

823 (Fla. 1st DCA 1981) ( A prior statement of a young woman

accused of setting a fire in the family home, along with the

potential for financial gain from the payment of insurance

proceeds and other arguably incriminating acts, Ðconst ituted

substantive evidence that she started the fire, upon which the

jury could base an inference that she did so willfully and

maliciously.Ñ) .

In a proceeding regarding alleged violations of the election

code or campaign financing law , circumstantial e vidence, which

could include some demonstrable financial or political gain from

the failure to comply with the Ð w ho g ave it , w ho g ot it Ñ law,

could rise to the level to which an inference of willful conduct

could be derived. In addition, evidence of seria l non -

compliance might, under the proper circumstances, support an

inference of willfulness. See , e.g. , Fla. Elec. CommÓn v .

Justice - 2 - Jesus , Case No. 15 - 5995FEC (DOAH Jan. 28, 2016).

Evidence sufficient to support an inference of willfulness does

no t exist in this case .

COPIES FURNISHED:

William David Brinton, Esquire

Conserve and Protect Florida's Scenic Beauty

1301 Riverplace Boulevard , Suite 1500

Jacksonville, Florida 32207

(eServed)

Jaakan Ammiel Williams, Esquire

S tephanie Cunningham, Esqu ire

Florida Elections Commission

107 West Gaines Street , Suite 224

Tallahassee, Florida 32399 - 1050

(eServed)

Donna Malphurs, Agency Clerk

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

Amy McKeever Toman, Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affec ted 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 c opy of a Notice of Administrative 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 Appe al in the appellate district where the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.