18-000513FEC Florida Elections Commission vs. John B. Riley Status: Closed DOAH Final Order on Thursday, May 24, 2018.

Summary: FEC failed to prove by clear and convincing evidence that Respondent willfully violated campaign finance laws with regard to submission of filing fee check, which was returned for insufficient funds and filing of M8 treasury report.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION,

Petitioner,

vs. Case No. 18 - 0513FEC

JOHN B. RILEY,

Respondent.

_______________________________/

FINAL ORDER

This case came before Administrative La w Judge ("ALJ")

Darren A. Schwartz of the Division of Administrative Hearings

( " DOAH " ) for final hearing by video teleconference on April 6,

2018, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Stephanie Jane Cunningham, Esqu ire

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

For Respondent: James Harrell Greason, E squire

James H. Greason, Attorney at Law

1330 Northeast 138th Street

Miami, Florida 33233

STATEMENT OF THE ISSUE S

Whether Respondent, John B. Riley ( " Respondent " ) , willfully

violated secti ons 106.11(4) and 106.19(1)(d), Florida Statutes

(2016), with regard to a check drawn on his campaign account in

the amount of $316.00, made payable to the City of Opa - Locka,

without sufficient funds on deposit to pay the $316.00 fee to run

in a special el ection for a seat on the City of Opa - Locka City

Commission; or willfully violated section 106.07(5) and willfully

and knowingly violated section 106.19(1)(c), with regard to

accurately reporting information on his September 12, 2016 ,

M8 Campaign T reasur er ' s R eport ( "M8 Report") ; and, if so , what

civil penalties are appropriate.

PRELIMINARY STATEMENT

On December 15 , 2017, Petitioner, Florida Elections

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

charging Respondent with four counts of viola ting state campaign

finance laws , specifically, sections 106.11(4), 106.19(1)(d),

106.07(5), and 106.19(1)(c) . On December 24, 2017, Respondent

requested a formal administrative hearing to contest the Order of

Probable Cause. On January 8, 2018, the Comm ission dismissed

Respondent ' s request without prejudice. On January 16, 2018,

Respondent filed an amended request for hearing and a motion to

dismiss for lack of subject matter jurisdiction .

On January 31, 2018, the Commission r eferred the matter

to DOA H to assign an A LJ to conduct the final hearing. On

February 13, 2018, the undersigned entered an Order setting the

final hearing for April 6, 2018. On February 13, 2018, the

Commission filed a response in opposition to the motion to

dismiss. On Februar y 23, 2018, a telephonic hearing was held on

the motion, and on February 26, 2018, the undersigned entered an

Order denying the motion. On March 5, 2018, Respondent filed an

amended motion to dismiss for lack of subject matter

jurisdiction. On March 12, 2018, the Commission filed a response

in opposition to the motion. On March 22, 2018, a telephonic

hearing was held on the motion, and following the hearing, the

undersigned entered an O rder denying the motion.

On March 30, 2018, the parties ' Joint Pre - he aring

Stipulation was filed. On April 6, 2018, the final hearing was

held. The Commission did not appear at the hearing, but it was

represented at the hearing through its counsel. Respondent

appeared at the hearing along with his counsel.

At the hearing , the Commission presented the testimony of

Respondent. The Commission ' s Exhibits 1 through 21 were received

in evidence upon stipulation of the parties. Respondent

testified on his own behalf and presented the additional

testimony of Joanna Flores. Res pondent ' s Exhibits A through F

were received in evidence upon stipulation of the parties.

The Commission timely filed a P roposed F inal O rder ("PFO")

on May 11, 2018 . Respondent filed a PFO on May 16, 2018, five

days late. The Commission ' s PFO was conside red in the

preparation of this Final Order. Respondent ' s untimely filed PFO

was not considered.

The facts contained in the parties ' Joint Pre - hearing

Stipulation have been incorporated into this Final Order as

indicated below. Unless otherwise indicated, citations to the

Florida Statutes are to the 2016 version.

FINDING S OF FACT

1. Respondent is a retired , disabled veteran and currently

serves part time as a n elected c i ty c ommissioner for the City of

Opa - Locka , Florida .

2. Respondent previously ran for public office on multiple

occasions beginning in 1976 . He was elected and served as a c ity

c ommissioner for the City of Opa - Locka in 1982 and as m ayor in

1984.

3. This case concerns Respondent ' s candidacy in 2016 for

Opa - Locka c ity c ommission er .

4 . On A ugust 11, 2016, Respondent became a candidate in a

special election scheduled for November 8, 2016, to fill the un -

expired term of fo rmer City Commissioner Ter e nce P i nder , who died

on May 24, 2016 . The qualifying period for the November 8 , 2016,

special e lection began on August 1, 2016 , and ended on Friday,

August 12, 2016, at 12:00 p.m.

5 . Respondent appointed himself as treasurer of his

campaign and accepted his appointment as campaign treasurer on

August 10, 2016.

6 . On August 10, 2016, Respondent ope ned his campaign

account with Wells Fargo bank. On that same date, Respondent

made an initial cash contribution (loan) deposit into his

campaign account in the amount of $250.00.

7 . According to the City of Opa - Locka charter, t he

qualifying fee for the O pa - Locka City Commission seat was

$250.00. A separate state assessment fee in the amount of $66.00

was also required to be paid , for a total fee of $316 . 00.

8 . Respondent signed and issued C heck No. 100 (dated

August 9, 2016) from his Wells Fargo campaig n account to the City

of Opa - Locka in the total amount of $316.00 , for the qualifying

fee of $250.00 and state assessment fee of $66.00 .

9 . At the time he wrote the check, Respondent did not know

how much money was in his campaign account.

1 0 . Respondent had a finance committee of five volunteers

collecting campaign contributions. Respondent gave the committee

members deposit slips, and he i nstructed the m to directly deposit

the campaign contributions they received into the Wells Fargo

bank campaign acco unt. However, members of the committee bundl ed

and h el d onto contributions , failing to deposit the contributions

i nto the bank account.

1 1 . The $316.00 check was tendered by Respondent to the

City of Opa - Locka on August 11, 2016.

1 2 . The $316.00 check w as not paid from the campaign

account and was returned unpaid due to insufficient funds.

1 3 . On August 19, 2016, Respondent made a n expenditure to

Wells Fargo bank in the amount of $35.00 , which represented a

returned check fee . As indicated in the Commi ssion ' s Exhibit 18,

t he returned $316.00 check and $35.00 returned check fee are

reflected in a Wells Fargo Bank Statement covering the period of

August 10, 2016 , through August 22, 2016. However, when the

statement was sent by the bank to Respondent, and when Respondent

received the statement, is unclear based on the evidence adduced

at hearing.

1 4 . On Tuesday, September 6, 2016, Joanna Flores, CMC, c ity

c lerk , and s upervisor of e lections for the City of Opa - Locka

(Respondent ' s filing officer) , was infor med by the City of Opa -

L ocka Finance Department that Respondent ' s $316.00 check was

returned because of insufficient funds.

1 5 . On September 7, 2016, Ms. Flores sent Respondent a

letter via certified mail and electronic mail informing him that

he was disq ualified as a candidate for c ity c ommissioner on the

November 8, 2016, ballot pursuant to section 99.061(7)(a) 1. ,

Florida Statutes, because of the returned check and Respondent ' s

failure to pay the $316.00 fee by the end of the qualifying

period.

16. Afte r Respondent was disqualified, he had the committee

members who had been holding the contribution checks return the

checks to the donors.

17. Prior to his disqualification, Respondent never made

any additional deposits into his campaign account , and he ne ver

had a balance of at least $316.00.

18. Between the submission of his $316.00 check to

Ms. Flores and his disqualification, Respondent never checked his

campaign account balance to determine the amount of funds

available.

19. On September 12, 2016, af ter he had already been

disqualified, Respondent filed his M8 Report for the period of

August 1, 2016 , to August 31, 2016 . Respondent signed the report

certifying that he examined the report and that it was true,

correct, and complete.

20. On the first p age of the September 12, 2016, M8 R eport,

included within the Commission ' s Exhibit 5, Respondent i ndicated

a monetary expenditure in the amount of $316.00 , the same amount

as the required fee . However, Respondent did not identify the

$316.00 fee on the th ird page of the report, which requested a

list of " itemized " expenditure s . Respondent testified he did not

identify the $316.00 check on the list of itemized expenditures

because the check had not cleared the bank. Respondent also

reported that on August 10, 2016, he made a contribution (loan)

to his campaign in the amount of $325.00. Respondent also

reported as an itemized expenditure , that on August 20, 2016, he

made an expenditure to Wells Fargo b ank in the amount of $35.00

for a bank fee.

21. On Sep tember 15, 2016, the Florida Supreme Court

issued its opinion in Wright v. City of Miami Gardens , 200 So. 3d

765 (Fla. 2016). In Wright , the Supreme Court held section

99.061(7)(a)1., as amended by the Florida Legislature in 2011,

facially unconstitutiona l. The 2011 version of section

99.061(7)(a)1., in effect at the time of Ms. Flores ' decision to

disqualify Respondent, provided in pertinent part:

(7)(a) In order for a candidate to be

qualified, the following items must be

received by the filing officer by the end of

the qualifying period:

1. A properly executed check drawn upon the

candidate ' s campaign account payable to the

person or entity as prescribed by the filing

officer in an amount not less than the fee

required by s. 99.092, unless the candid ate

obtained the required number of signatures on

petitions pursuant to s. 99.095. The filing

fee for a special district candidate is not

required to be drawn upon the candidate ' s

campaign account. If a candidate ' s check is

returned by the bank for any r eason, the

filing officer shall immediately notify the

candidate and the candidate shall have until

the end of qualifying to pay the fee with a

cashier ' s check purchased from funds of the

campaign account. Failure to pay the fee as

provided in this subpar agraph shall

disqualify the candidate.

§ 99.061(7)(a)1., Fla. Stat. (2011) (emphasis added) .

22. Respondent was disqualified by the City of Opa - Locka

based on the 2011 version of section 99.061(7)(a)1., because the

$316.00 check was returned, and Respond ent failed to pay the

required fee before the end of the qualifying period.

23. After striking down the aforementioned version of the

statute as unconstitutional, however, the Supreme Court, in

Wright , went on to revive the prior version of section

99.061 (7)(a)1., in existence before the 2011 amendments. Wright ,

200 So. 3d at 779. The prior version provided, in pertinent

part, that if a candidate ' s qualifying check was returned, the

candidate was allowed 48 hours after being notified of that fact

by the filing officer to pay the fee by cashier ' s check, " the end

of the qualifying period notwithstanding. " § 99.061(7)(a)1.,

Fla. Stat. (2010); Wright , 200 So. 3d at 768.

24. Based on the Supreme Court ' s decision in Wright and

upon advice from the City of Opa - Locka c ity a ttorney, on

September 15, 2016, Ms. Flores informed Respondent that he could

resubmit a check and be allowed to qualify for the special

election. On September 16, 2016, Respondent tendered to the City

of Opa - Locka two personal money orders is sued by Wells Fargo b ank

in the amount of $316.00 and $20.00, respectively. Accordingly,

Ms. Flores, once again, qualified Respondent as a candidate. 1/

25. Against this backdrop, on September 23, 2016, Anna M.

Alvarado, an opponent of Respondent in the s pecial election for

the City Commissioner seat, filed a sworn complaint with the

Commission, alleging that Respondent committed certain campaign

finance law violations.

26. On September 28, 2016, the City of Opa - Locka adopted

Resolution 16 - 9249, resetting the special election that had been

set for November 8, 2016, and calling for a special election to

be held on November 29, 2016, to fill the unexpired term of

Commissioner Pinder.

27 . Respondent filed an other Campaign Treasurer's Report on

October 11, 20 16, for the period of September 1, 2016 , through

September 30, 2016. In this report, Respondent reported as an

itemized expenditure the $316.00 qualifying fee.

28 . Respondent filed an amended M8 Report on October 17,

2016, for the period of August 1 , 201 6, through August 30, 2016.

In the itemized contributions section of the amended report,

Respondent deleted the August 10, 2016, $325.00 loan and added

the August 10, 2016, $250.00 loan . In the itemized expenditures

section of the amended report, Respond ent deleted the August 20,

2016, $35.00 bank fee and added the August 19, 2016, $35.00 bank

fee.

29 . Respondent knew that he was required to report all

contributions received and all expenditures made by the campaign

on his Campaign Treasurer's Report . R espondent ' s filing officer

notified Respondent that he was required to certify to the

correctness of each C ampaign T reasurer ' s R eport and that he bears

the responsibility for the accuracy and veracity of each report.

3 0 . Respondent ' s filing officer provid ed him with a copy of

c hapter 106 and The Candidate and Campaign Treasurer ' s Handbook .

Respondent read c hapter 106.

3 1 . In sum, t he Commission failed to demonstrate, by clear

and convincing evidence, that Respondent willfully violated

sections 106.11(4) and 106.19(1)(d), when he signed the $316.00

check drawn on his campaign account without sufficient funds on

deposit to pay the amount of the fee.

3 2 . Respondent did not voluntarily and intentionally bounce

the $316.00 f iling fee check to the City of Opa - Locka with

specific intent and bad purpose to violate or disregard the

requirements of the law. Respondent credibly and persuasively

testified that he had a committee of volunteers collect campaign

contributions; he instructed the committee members to dir ectly

deposit the contributions into the Wells Fargo bank account; the

committee members failed to deposit contributions into the

account; and he was unaware of the account balance when he

tendered the fee to Ms. Flores on August 11, 2016. Respondent ' s

te stimony was unrefuted.

3 3 . Moreover, it makes no sense that Respondent would

intentionally bounce his filing fee check he tendered to

Ms. Flores on the last day of the qualifying period, knowing that

the consequence of such action would disqualify him fro m the race

under the law existing at that time.

3 4 . Th e Commission also failed to demonstrate, by clear and

convincing evidenc e, that Respondent willfully and knowingly

omitted information from his September 12, 2016, M 8 C ampaign

T reasur er's R eport. The Commission contends Respondent failed to

disclose the $316.00 filing fee on the report. As detailed

above, that check bounced. Nevertheless, Respondent, in fact,

reported the $316.00 filing fee check as an expenditure on the

first page of the report, alt hough Respondent did not identify

the check on the third page of the report as an " itemized "

expenditure. Respondent also filed an other Campaign Treasurer ' s

Report on October 11, 2016, for the period of September 1, 2016 ,

through September 30, 2016. In t his report, Respondent reported

as an itemized expenditure the $316.00 qualifying fee.

3 5 . The Commission also contends that although Respondent

made a contribution (loan) to his campaign account in the amount

of $250.00 on August 10, 2016, he willfully a nd knowingly

reported the amount as $325.00. The Commission further contends

that although Respondent made an expenditure to Wells Fargo bank

on August 19, 2016, in the amount of $35.00, he willfully and

knowingly reported that the expenditure had been ma de on

August 20, 2016. As detailed above, Respondent corrected these

errors in an amended report.

3 6 . The Commission also failed to demonstrate, by clear and

convincing evidence, that Respondent willfully certified that the

campaign ' s September 12, 2016 , M8 Report was true, correct, and

complete, when it was not.

CONCLUSIONS OF LAW

37 . DOAH has jurisdiction over the parties and the subject

matter of this proceeding. §§ 106.25(5), 120.569, and 120.57(1),

Fla. Stat. (2017).

38 . The Commission has the bur den to prove the violations

alleged in the Order of Probable Cause by clear and convincing

evidence. The " clear and convincing evidence " standard requires

that the evidence be found credible, the facts to which the

witnesses testify must be distinctly rem embered, the testimony

must be precise and explicit, and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in the mind of the trier of fact a

firm belief or conviction, without hesita ncy, as to the truth of

the allegations sought to be established. In re Davey , 645 So.

2d 398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

39 . Section 106.11(4) provides:

(4) No candidate, campaign manager,

treasurer , deputy treasurer, or political

committee or any officer or agent thereof, or

any person acting on behalf of any of the

foregoing, shall authorize any expenses, nor

shall any campaign treasurer or deputy

treasurer sign a check drawn on the primary

campaig n account for any purpose, unless

there are sufficient funds on deposit in the

primary depository account of the candidate

or political committee to pay the full amount

of the authorized expense, to honor all other

checks drawn on such account, which check s

are outstanding, and to meet all expenses

previously authorized but not yet paid.

However, an expense may be incurred for the

purchase of goods or services if there are

sufficient funds on deposit in the primary

depository account to pay the full amount of

the incurred expense, to honor all checks

drawn on such account, which checks are

outstanding, and to meet all other expenses

previously authorized but not yet paid,

provided that payment for such goods or

services is made upon final delivery and

accep tance of the goods or services; and an

expenditure from petty cash pursuant to the

provisions of s. 106.12 may be authorized, if

there is a sufficient amount of money in the

petty cash fund to pay for such expenditure.

Payment for credit card purchases sha ll be

made pursuant to s.106.125. Any expense

incurred or authorized in excess of such

funds on deposit shall, in addition to other

penalties provided by law, constitute a

violation of this chapter. As used in this

subsection, the term " sufficient funds on

deposit in the primary depository account of

the candidate or political committee " means

that the funds at issue have been delivered

for deposit to the financial institution at

which such account is maintained. The term

shall not be construed to mean t hat such

funds are available for withdrawal in

accordance with the deposit rules or the

funds availability policies of such financial

institution.

4 0 . Section 106.19(1) (c) and ( d) and section 106.19 (2)

provide, in pertinent part:

(1) Any candidate; camp aign manager,

campaign treasurer, or deputy treasurer of

any candidate; committee chair, vice chair,

campaign treasurer, deputy treasurer, or

other officer of any political committee;

agent or person acting on behalf of any

candidate or political committee ; or other

person who knowingly and willfully:

* * *

(c) Falsely reports or deliberately fails to

include any information required by this

chapter; or

( d) Makes or authorizes any expenditure in

violation of s. 106.11(4) or any other

expenditur e prohibited by this chapter; is

guilty of a misdemeanor of the first degree,

punishable as provided in s. 775.082 or

s. 775.083.

(2) Any candidate, campaign treasurer, or

deputy treasurer; any chair, vice chair, or

other officer of any political committ ee; any

agent or person acting on behalf of any

candidate or political committee; or any

other person who violates paragraph (1)(a),

paragraph (1)(b), or paragraph (1)(d) shall

be subject to a civil penalty equal to three

times the amount involved in the i llegal act.

Such penalty may be in addition to the

penalties provided by subsection (1) and

shall be paid into the General Revenue Fund

of this state.

4 1 . Section 106.07(5) provides:

(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 an d veracity of each report.

Any campaign treasurer, candidate, or

political committee chair who willfully

certifies the correctness of any report while

knowing that such report is incorrect, false,

or incomplete commits a misdemeanor of the

first degree, p unishable as provided in

s. 775.082 or s. 775.083.

4 2 . The Commission must prove not only that Respondent

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

action or omission constituting the violation was " willful. "

Section 106.25(3) prov ides:

(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

" willful " 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 fou nd, willfulness may be considered and

determined in an informal hearing before the

commission.

4 3 . Because these civil statutes are penal in nature, they

must be strictly construed in favor of Respondent and against the

Commission. Diaz de la Portilla v . Fla. Elec . Comm ' n , 857 So. 2d

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

4 4 . The term " willful " is not defined by Florida statute or

administrative rule . A willful act is therefore best defined by

Florida case law " as one that is voluntarily and intentionally

perfor med with specific intent and bad purpose to violate or

disregard the requirements of the law. " Fugate v. Fla. Elec .

Comm ' n , 924 So. 2d 74, 75 (Fla. 1st DCA 2006); Fla . Elec . Comm ' n

v. Conserve & Protect Fla . ' s Scenic Beauty , 2016 Fla. Div. Adm.

Hear. LEXI S 123, *21 (Fla. DOAH Mar . 22, 2016) (Final Order) .

4 5 . The Commission ' s contention that Fugate is inapplicable

is without merit. Fugate clearly recognizes that in the absence

of a statutory or rule definition of the term " willful, " it is

proper for an AL J to utilize the above definition. T h us, th e

Commission ' s reliance on other non - Florida cases outside the

Florida campaign finance context is misplaced .

4 6 . The Commission also relies on Beardslee v. Fl orida

Elec tions Comm ission , 962 So. 2d 390 (Fla. 5th DCA 2007) , and

McGann v. Fl orida Elec tions Comm ission , 803 So. 2d 763 (Fla. 1st

DCA 2007). However, both of these cases were decided based on a

statutory definition of the term " willful, " which has been

repealed.

4 7 . The Commission also relies on an ALJ 's S ummary F inal

O rder issued in Fl orida Elec tions Comm ission v. Justice - 2 - Jesus ,

2016 Fla. Div. Adm. Hear. LEXIS 31 (Fla. DOAH Jan . 28, 2016).

There, Judge Bogan found, based on the undisputed facts, that the

r espondent ' s conduct was willful. In reachin g this conclusion ,

Judge Bogan cited to Beardslee and McGann , but only for the

proposition that willfulness is a question of fact. Judge

Bogan ' s O rder contains no citation to Fugate . Moreover, it

appears that some of the conduct at issue in Justice - 2 - Jes us

occurred prior to the effective date of the repeal of the

agency ' s rule defining the term " willful. " In any event, the

First District ' s decision in Fugate and Judge Early ' s thorough

analysis of the issue in his F inal O rder , in Conserve and Protect

Flor ida ' s Scenic Beauty , are the more reasoned and applicable

decisions.

4 8 . The Commission also argues that " the parties stipulated

to Beardslee and McGann as the standard of willfulness. " The

Commission reads the Joint Pre - hearing S tipulation too broadly.

In the Joint Pre - h e aring Stipulation, the parties cited to

Beardslee and McGann only in support of the proposition that

" [w]illfulness is a question of fact. " Nowhere in the Joint Pre -

hearing S tipulation is there a statement of law concerning the

standar d for determining whether an act or omission is willful.

Even if the parties stipulated to a standard of willfulness set

out in a statute which has since been repealed, the undersigned

would not be bound by the parties ' stipulation on such a question

of l aw. Diaz de la Portilla , 857 So. 2d at 917, n. 3

(recognizing that the parties ' stipulation that the case would be

governed by the preponderance of the evidence standard, a

question of law, was not binding on the ALJ ).

4 9 . As detailed above, the Commissi on failed to

demonstrate, by clear and convincing evidence, that Respondent

willfully violated sections 106.11(4) and 106.19(1)(d) , when he

signed the $316.00 check drawn on his campaign account without

sufficient funds on deposit to pay the amount of the fee.

50 . The Commission also failed to demonstrate, by clear and

convincing evidence, that Respondent willfully violated sections

106.07(5) and 106.19(1)(c) , and knowingly violated section

106.19(1) (c) , by omitt ing or misreport ing information on his

Septe mber 12, 2016, M8 Report ; or that Respondent willfully

certified that the campaign ' s September 12, 2016, M8 Report was

true, correct, and complete, when it was not. 2/

ORDER

Based on the foregoing Findings of Fact and Conclusions of

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

against Petitioner is DISMISSED. 3/

DONE AND ORDERED this 24th day of May , 2018 , in Tallahassee,

Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administr ative 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 24th day of May , 2018 .

ENDNOTE S

1/ Respondent testified that Wells Fargo bank would not issue a

cashier ' s check for under $500.00, and that is why he obtained

the two money orders from the bank. The $20.00 money order was

for the returned check fee charged to the City of Opa - locka w hen

the $316.00 check was returned for insufficient funds.

2/ Because the undersigned has concluded that Respondent did not

commit any willful violations of the alleged statute s , it is

unnecessary to analyze separately the additional question of

whether Respondent ' s conduct was " knowingly " in violation of

section 106.19(1)(c). In any event, had the undersigned reached

this issue, the Commission failed to demonstrate, by clear and

convincing evidence, that Respondent ' s conduct was knowingly in

violation o f section 106.19(1)(c).

3/ Throughout this proceeding, Respondent has contended that the

Commission lacks subject matter jurisdiction because all of the

charges relate to a campaign expenditure which was reimbursed by

Respondent prior to the date of fili ng of the sworn complaint.

The undersigned addressed this issue in an O rder denying

Respondent ' s amended motion to dismiss for lack of subject matter

jurisdiction issued on March 22, 2018. Respondent again raised

the issue at hearing. In support of his position, Respondent

relies on s ection 106.25(2), which provides, in pertinent part,

as follows:

(2) The commission shall investigate all

violations of this chapter and chapter 104,

but only after having received either a

sworn complaint or information r eported to it

under this subsection by the Division of

Elections. . . . If the complaint includes

allegations of violations relating to expense

items reimbursed by a candidate, committee,

or organization to the campaign account

before a sworn complaint is filed, the

commission shall be barred from investigating

such allegations.

§ 106.25(2), Fla. Stat. (2017) (emphasis added).

Again, Respondent ' s reliance on section 106.25(2) is

misplaced. Contrary to Respondent ' s assertion, the complaint

does not alleg e a violation relating to an expense item

" reimbursed by a candidate. " Reimburse means: " to pay back to

someone: REPAY. " Merriam - Webster Online Dictionary ,

https://www.merriam - webster.com/dictionary/reimburse (last

visited Mar. 1, 2018). The act of sig ning a bad check from a

campaign account and subsequently making good on the payment does

not qualify as " reimbursement of an expense item. "

Respondent also relies on Wright v. City of Miami ,

200 So. 3d 765 (Fla. 2016) , and section 99.061(7)(a)1. Section

99.061(7)(a)1. and Wright apply to situations where a candidate

is disqualified from running for office because of a returned

check. Whether or not Respondent should have been disqualified

for office is not an issue before the undersigned. The

undersign ed ' s discussion of Wright in the Findings of Fact is

meant to simply provide the reader with an understanding of why

Re spondent was disqualified and then requalified after the

Supreme Court ' s decision.

COPIES FURNISHED:

Stephanie Jane Cunningham, Esquir e

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

James Harrell Greason, Esquire

James H. Greason, Attorney at Law

1330 Northeast 138th Street

Miami, Florida 33233

(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 2 24

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

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 proceeding s 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.