15-005995FEC Florida Elections Commission vs. Justice-2-Jesus Status: Closed DOAH Final Order on Thursday, January 28, 2016.

Summary: Respondent willfully failed on seven occasions between April 10, 2013, and January 12, 2015, to comply with the filing requirements found in section 106.07(7).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION,

Petitioner,

vs. Case No. 15 - 5995FEC

JUSTICE - 2 - JESUS,

Respondent.

_______________________________/

SUMMARY FINAL ORDER

On September 15, 2015, an Ord er of Probable Cause was

entered by Petitione r, Florida Elections Commission

(Petitioner/Commission), charging Respondent, Justice - 2 - Jesus, a

political committee (Respondent), with the following violations:

Count 1

On or about April 10, 2013, Respondent

v iolated section 106.07(7), Florida

Statutes, when Respondent failed to

notify the Division of Elections in

writing on or before April 10, 2013,

that Respondent would not be filing his

2013 Q1 Report on the prescribed due

date.

Count 2

On or about Decembe r 10, 2013,

Respondent violated Section 106.07(7),

Florida Statutes, when Respondent failed

to notify the Division of Elections in

writing on or before December 10, 2013,

that Respondent would not be filing his

2013 M11 Report on the prescribed due

date.

C ount 3

On or about August 8, 2014, Respondent

violated Section 106.07(7), Florida

Statutes, when Respondent failed to

notify the Division of Elections in

writing on or before August 8, 2014,

that Respondent would not be filing his

2014 P5 Report on the pr escribed due

date.

Count 4

On or about August 15, 2014, Respondent

violated Section 106.07(7), Florida

Statutes, when Respondent failed to

notify the Division of Elections in

writing on or before August 15, 2014,

that Respondent would not be filing his

2 014 P6 Report on the prescribed due

date.

Count 5

On or about October 26, 2014, Respondent

violated Section 106.07(7), Florida

Statutes, when Respondent failed to

notify the Division of Elections in

writing on or before October 26, 2014,

that Respondent would not be filing his

2014 D2 Report on the prescribed due

date.

Count 6

On or about October 28, 2014, Respondent

violated Section 106.07(7), Florida

Statutes, when Respondent failed to

notify the Division of Elections in

writing on or before October 2 8, 2014,

that Respondent would not be filing his

2014 D4 Report on the prescribed due

date.

Count 7

On or about January 12, 2015, Respondent

violated Section 106.07(7), Florida

Statutes, when Respondent failed to

notify the Division of Elections in

writi ng on or before January 12, 2015,

that Respondent would not be filing his

2014 M12 Report on the prescribed due

date.

Respondent was served with a copy of the Order of Probable Cause,

and on or about October 14, 2015, Respondent requested a formal

adminis trative hearing before an ALJ of the Division of

Administrative Hearings (DOAH).

This cause was set for final hearing on December 30, 2015.

On December 14, 2015, Petitioner filed a Motion for Summary

Final Order. The motion was served on Respondent via email and

U.S. M ail. On December 17, 2015, Petitioner filed an Amended

Motion for Summary Final Order, which was also served on

Respondent via email and U.S. M ail. On December 28, 2015,

Respondent filed Respondents [sic] Verified Opposition to

Summary Fi nal Order. Given the proximity of the filing of the

amended motion, and RespondentÓs response thereto, to the

scheduled date for the final hearing, the undersigned elected to

hear argument on PetitionerÓs motion at the final hearing. For

the reasons set forth below, PetitionerÓs Amended Motion for

Summary Final Order is GRANTED.

FINDINGS OF FACTS

1 . On November 3, 2015, Petitioner filed and served its

First Request for Admissions upon Respondent by U.S. Mail and

electronic mail. Florida Rule of Civil Pr ocedure 1.370(a), which

is adopted in Florida Administrative Code Rule 28 - 106.206,

provides:

Each matter of which an admission is

requested shall be separately set forth.

The matter is admitted unless the party

to whom the request is directed serves

upon the party requesting the admission

a written answer or objection addressed

to the matter within 30 days after

service of the request . . . .

2 . Additionally, r ule 1.370(b) provides that Ð[a]ny matter

admitted under this rule is conclusively established u nless the

court on motion permits withdrawal or amendment of the

admission.Ñ Respondent neither responded to PetitionerÓs First

Request for Admissions nor sought relief from the matters deemed

admitted by operation of law.

3 . RespondentÓs failure to prov ide a written answer or

objection to the CommissionÓs request for admissions conclusively

establishes the following facts:

a. Justice - 2 - Jesus is a political

committee registered with the Division

of Elections;

b. Brian Pitts is the chairman and

treasure r of Justice - 2 - Jesus;

c. By letter dated December 14, 2007,

Kristi Reid Bronson, Chief, Bureau of

Election Records of the Division sent

Brian Pitts, as chairperson of Justice -

2 - Jesus, an acknowledgement that the

organization, Justice - 2 - Jesus, had been

pl aced on PetitionerÓs list of active

political committees that support

issues;

d. Brian Pitts, as chairperson of

Justice - 2 - Jesus, received Kristi Reid

BronsonÓs December 14, 2007,

acknowledgment letter;

e. The 2013 Calendar of Reporting Dates

was availa ble on - line to Brian Pitts, as

chairman and treasurer of Justice - 2 -

Jesus, on the Division of ElectionÓs

website;

f. The 2014 Calendar of Reporting dates

for Political Committees/Independent

Expenditures - Only Organizations that

file with the Division of E lections was

available on - line to Brian Pitts, as

chairman and treasurer of Justice - 2 -

Jesus, on the Division of ElectionÓs

website;

g. Justice - 2 - JesusÓ 2013 Q1 Report was

due on April 10, 2013;

h. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jes us failed to

file Justice - 2 - JesusÓ 2013 Q1 Report on

April 10, 2013;

i. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

notify the filing officer in writing on

April 10, 2013, that Justice - 2 - Jesus

would not be filing a report for the

2013 Q1 reporting period;

j. Justice - 2 - JesusÓ 2013 M11 Report was

due on December 10, 2013;

k. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

file Justice - 2 - JesusÓ 2013 M11 Report on

December 10, 2013;

l . Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

notify the filing officer in writing on

December 10, 2013, that Justice - 2 - Jesus

would not be filing a report for the

2013 M11 reporting period;

m. Justice - 2 - JesusÓ 2014 P5 Report was

due on August 8, 2014;

n. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

file Justice - 2 - JesusÓ 2014 P5 Report on

August 8, 2014;

o. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

notify the filing officer in writing on

August 8, 2014, tha t Justice - 2 - Jesus

would not be filing a report for the

2014 P5 reporting period;

p. Justice - 2 - JesusÓ 2014 P6 Report was

due on August 15, 2014;

q. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

file Justice - 2 - JesusÓ 2014 P6 Report on

August 15, 2014;

r. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

notify the filing officer in writing on

August 15, 2014, that Justice - 2 - Jesus

would not be filing a report for the

2014 P6 reporting period;

s. Justice - 2 - JesusÓ 2014 D2 Report was

due on October 26, 2014;

t. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

file Justice - 2 - JesusÓ 2014 D2 Report on

October 26, 2014;

u. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus s failed to

notify the filing officer in writing on

October 26, 2014, that Justice - 2 - Jesus

would not be filing a report for the

2014 D2 reporting period;

v. Justice - 2 - JesusÓ 2014 D4 Report was

due on October 28, 2014;

w. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

file Justice - 2 - JesusÓ 2014, D4 Report on

October 28, 2014;

x. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

notify the filing officer in writing on

October 28, 2014, that Justice - 2 - Jesus

would not be filing a repo rt for the

2014 D4 reporting period;

y. Justice - 2 - JesusÓ 2014 M12 Report was

due on January 12, 2015;

z. Brian Pitts, as chairman and

treasurer of Justice - 2 - Jesus failed to

file Justice - 2 - JesusÓ 2014 M12 Report on

January 12, 2015; and

aa. Brian Pitt s, as chairman and

treasurer of Justice - 2 - Jesus failed to

notify the filing officer in writing on

January 12, 2015, that Justice - 2 - Jesus

would not be filing a report for the

2014 M12 reporting period.

4 . One of the purposes of the disclosure requirements that

Respondent failed to adhere to is to ensure that the public is

appropriately informed that Respondent had no reportable

contributions or expenditures during the 2013 Q1, 2013 M11,

2014 P5, 2014 P6, 2014 D2, 2014 D4, and 2014 M12 reporting

periods.

5 . RespondentÓs filing history with the Division of

Elections (Division) demonstrates that Respondent knows how to

use the DivisionÓs electronic filing system (EFS) , as it has

previously filed documents using the system. See , e.g. , Fl a .

Elec. Comm Ó n v. Br ian Pitts, Treasurer for Justice - 2 - Jesus ,

Case No. 09 - 2806 (Fla. DOAH Oct. 7, 2009)(ÐRespondent testified

that he has assisted several other persons in preparing and

filing their electronic reports to the Division.Ñ).

6 . In Florida Elections Commission v . Brian Pitts,

Treasurer, Justice - 2 - Jesus , Case No. 10 - 9927 (Fla. DOAH Jan. 3,

2011; Fla. Elec. CommÓn May 24, 2011) , the Commission entered a

Final Order Imposing Fine in the amount of $1,000 due to

RespondentÓs failure to file a quarterly report of all

c ontributions received. Through this case, Respondent was again

reminded of the DivisionÓ s filing requirements.

7 . In both DOAH cases referenced above, the Commission

filed in the Circuit Court of the Second Judicial Circuit, in and

for Leon County Florid a, petitions to enforce the final o rders.

On January 13, 2011, and October 1, 2012, the Circuit Court

entered Final Judgment s in favor of the Commission and against

Brian Pitts, Justice - 2 - Jesus , for $2,362.50 and $2,426.30,

respectively. Respondent has failed to satisfy the final

judgments.

8 . Given RespondentÓs previous course of dealings with the

Division and the Commission, Respondent knew or should have known

that it was required to notify the filing officer in writing on

the prescribed due date tha t it would not be filing a report when

Respondent had no reportable transactions during the applicable

reporting periods. RespondentÓs actions in this case were

willful.

9 . At the hearing on the Amended Motion for Summary Final

Order, Respondent asserted that Justice - 2 - Jesus is indigent, but

offered no financial data to support the assertion.

CONCLUSIONS OF LAW

1 0 . The Division of Administrative Hearings has

jurisdiction over this matter pursuant to sections 120.57(1) and

106.25(5), Florida Statutes (201 5), the latter of which states:

A person alleged by the Elections

Commission to have committed a violation

of this chapter or chapter 104 may

elect, as a matter of right, within 30

days after the date of the filing of the

commissionÓs allegations, to have a

formal administrative hearing conducted

by an administrative law judge in the

Division of Administrative Hearings.

The administrative law judge in such

proceedings shall enter a final order,

which may include the imposition of

civil penalties, subject t o appeal as

provided in s. 120.68. If the person

does not elect to have a hearing by an

administrative law judge and does not

elect to resolve the complaint by a

consent order, the person is entitled to

a formal or informal hearing conducted

before the co mmission.

1 1 . The Commission has the burden to prove the violations

alleged in the Order of Probable Cause by clear and convincing

evidence. Diaz de la Portilla v. Fla. Elec. Comm'n , 857 So.

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

1 2 . In Evans Packing Co. v. D epartment of Agriculture and

Consumer Services , 550 So. 2d 112, 116 n. 5 (Fla. 1st DCA 1989),

the court defined clear and convincing evidence as follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to w hich the

witnesses testify must be distinctly

remembered; the evidence 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 f act the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429

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

1 3 . Section 106.07(7), Florida Statutes (2012), provides as

follows: 1/

Not withstanding 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 t he

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 contin uous 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.

1 4 . Section 106.07(7), Florid a Statutes (2014), provides

as follows: 2/

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 fi ling 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 or political committee not

reportin g 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.

1 5 . The Commission must prove not only that Respondent

vi olated a provision of the campaign finance laws but that the

act or omission constituting the violation was "willful."

§ 106.25(3), Fla. Stat. (2015). Willfulness is a question of

fact. § 106.25(3), Fla. Stat. See Beardslee v. Fla. Elec.

Comm'n , 962 So . 2d 390, 393 (Fla. 5th DCA 2007); McGann v. Fla.

Elec. Comm'n , 803 So. 2d 763, 764 (Fla. 1st DCA 2001). The

matters deemed admitted by Respondent due to the failure to

respond to PetitionerÓs request for admissions, along with the

undisputed matters cont ained in PetitionerÓs Amended Motion for

Summary Final Order, establish that Respondent was well aware of

the requirements of section 106.07(7) and acted willfully when

violating the said requirements, as alleged in the Order of

Probable Cause.

PENALTY

1 6 . Section 106.265, Florida Statutes (2015), provides in

part as follows:

(1) The commission or, in cases

referred to the Division of

Administrative Hearings pursuant to s.

106.25(5), the administrative law judge

is authorized upon the finding of a

viola tion of this chapter or chapter 104

to impose civil penalties in the form of

fines not to exceed $1,000 per count,

or, if applicable, to impose a civil

penalty as provided in s. 104.271 or s.

106.19.

(2) In determining the amount of such

civil penalties, the commission or

administrative law judge 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

t o the financial resources of the

person, political committee, affiliated

party committee, electioneering

communications organization, or

political party; and

(d) Whether the person, political

committee, affiliated party committee,

electioneering communic ations

organization, or political party has

shown good faith in attempting to comply

with the provisions of this chapter or

chapter 104.

1 7 . In the Final Order in Florida Elections Commission v.

Brian Pitts, Treasurer for Justice - 2 - Jesus , Case No. 09 - 280 6,

ALJ Stevenson, in support of the imposition of a $1,000 fine,

wrote:

Full disclosure to the public of "who

gave it, who got it" has long be en

understood as the spirit of c hapter

106, Florida Statutes. See, e.g. ,

Division of Elections Advisory Opinions

DE 89 - 02 (April 5, 1989) and DE 77 - 10

(March 22, 1977). Reporting campaign

contributions [and expenditures] is one

of the most basic requirements of the

election laws. Therefore, the knowing

and willful failure to file a required

campaign treasurer's re port constitutes

a serious violation.

1 8 . Similar to cases in which entities fail to file a

campaign report required by section 106.07(1), RespondentÓs

failure in the instant case to provide written notice to its

filing officer on the prescribed due date s indicating it had no

reportable financial transactions during seven reporting periods

as required by section 106.07(7) also frustrates the intent of

Ðwho gave it, and who got itÑ in FloridaÓs elections.

19 . In Florida Elections Commission v. Brian Pitts ,

Treasurer for Justice - 2 - Jesus , Case No. 09 - 2806, Respondent

willfully violated section 106.07(1) by failing to file a

campaign treasurerÓs report for the first quarter of 2008. In

Florida Elections Commission v. Brian Pitts, Treasurer, Justice -

2 - Jesus , Case No. 10 - 9927, Respondent was found to have willfully

violated section 106.07(1) by failing to file, once again, a

quarterly campaign treasurerÓs report of all contributions

received. These cases are similar to the instant case in that

they also involv e instances where Respondent willfully failed to

adhere to the filing requirements found in chapter 106.

RespondentÓs repeated conduct of willful non - compliance

justifies, in the present case, the imposition of the maximum

fine allowed by statute.

2 0 . In reviewing the record of the instant proceeding in

its entirety, including RespondentÓs Verified Opposition to

Summary Final Order and his arguments related thereto at the

hearing on PetitionerÓs Amended Motion for Summary Final Order,

it is determined tha t Respondent has not shown good faith in

attempting to comply with section 106.07(7). There are no

factors of record that mitigate in favor of a reduced fine.

2 1 . Finally, as noted in the Findings of Fact, Respondent

claims that it is indigent, but offer ed no financial data to

support the assertion. At the hearing on the PetitionerÓs

Amended Motion for Summary Final Order, Respondent was given

multiple opportunities to present financial data supporting its

claim of indigence. RespondentÓs only response to the request

for supporting financial data, was to state that the information

Ðis available on the internet.Ñ If Respondent wishes its

financial situation to be taken into account in mitigation,

Respondent must produce evidence of its financial resource s.

Diaz de la Portilla , supra at 925 .

CONCLUSION

Having considered the foregoing Findings of Fact,

Conclusions of Law, and the evidence of record, it is, therefore,

ORDERED that:

1. Respondent is guilty of willfully violating s ection

106.07(7), Florida S tatutes, as alleged in the Order of Probable

Cause.

2. Respondent is assessed a fine of $1,000.00, for each of

the seven counts, for a total of $7,000.00, which must be paid to

the Florida Elections Commission within 30 days of the date of

this Summary Fi nal Order.

DONE AND ORDERED this 28th day of January , 2016 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative H earings

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 28th day of January , 2016 .

ENDNOTE S

1/ RespondentÓs violations cover statutory years 2012, 2013, a nd

2014. Accordingly, RespondentÓs violations are governed by the

version of section 106.07(7) in effect at the time of

RespondentÓs non - compliant conduct.

2/ Section 106.07(7) was last amended on November 1, 2013, by

striking Ðor committee of continuo u s existenceÑ from the text.

The amendment does not impact the violations established herein.

COPIES FURNISHED:

Eric M. Lipman, General Counsel

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 3 2399 - 1050

(eServed)

Brian Pitts

Justice - 2 - Jesus

1119 Newton Avenue South

St. Petersburg, Florida 33705

(eServed)

Amy McKeevers Toman, Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

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)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affecte d 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 administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.