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1 STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION: (~, - ~ I l : ; FLORIDA ELECTIONS COMMISSION, PETITIONER, v. AGENCY CASE No.: FEC F.O. No.: DOSFEC W MARK A. ABBOTT, RESPONDENT ~/ FINAL ORDER THIS CAUSE came on to be heard at an informal hearing held before the Florida Elections Commission (Commission) on May 18, 2006, in Tallahassee, Florida. APPEARANCES For Commission For Respondent Charles A. Finkel General Counsel 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL Richard Coates, Esquire 200 West College Avenue, Suite 311B Tallahassee, Florida STATEMENT OF THE ISSUE Whether the Respondent violated Section (1 )(b), Florida Statutes, when he failed to properly report all expenditures made and all contributions received for a fund raiser; Section (1)(c), Florida Statutes, when he failed to mark the tickets for the fund raiser with the required disclaimer; and Section (5), Florida Statutes, when he certified to the correctness of a campaign treasurer's report that was incorrect, false, or incomplete. PRELIMINARY STATEMENT On May 9, 2005, the Commission received a sworn complaint alleging violations of Faa005 (5/06)

2 Florida's election laws. Staff of the Commission conducted an investigation to determine whether the facts alleged in the complaint constituted probable cause to believe that the Respondent violated The Florida Election Code. On January 12, 2006, staff drafted a Staff Recommendation recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. On February 24, 2006, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: (1)(b), Florida Statutes, by failing to properly report all expenditures made for a fund raiser held on April2, 2005, when he failed to report $6.69 spent for the purchase of bread on his 2005 G3 report. Count 2: (1)(b), Florida Statutes, by failing to properly report all expenditures made for a fund raiser held on April2, 2005, when he failed to report $39.47 spent for the purchase of grilling supplies and drinks on his 2005 G3 report. Count 3: (1 )(b), Florida Statutes, by failing to properly report all expenditures made for a fund raiser held on April2, 2005, when he failed to report $48.15 spent for the purchase of drinks on his 2005 G3 report. Count4: (1)(b), Florida Statutes, by failing to properly report all expenditures made for a fund raiser held on April2, 2005, when he failed to report $23.45 spent for the purchase condiments, hot dogs, and plastic ware on his G3 report. Count 5: Faa006 ( 5/06) 2

3 (1 )(b), Florida Statutes, by failing to properly report all contributions received from a fund raiser held on April 2, 2005, when he failed to report $78 received from the sale of hot dogs and drinks on his G3 report. Count 6: On or about April 2, 2005, Respondent violated Section (1 )(c), Florida Statutes, by failing to mark the tickets or advertising for the fund raiser with the required disclaimer, when the ticket failed to contain the following disclaimer: "The purchase of a ticket for, or a contribution to, the campaign fund raiser is a contribution to the campaign of Mark Abbott." Count 7: (5), Florida Statutes, by certifying to the correctness of his CTR covering the period from March 19, 2005 to April 7, 2005, that was incorrect, false, or incomplete, when he failed to list four expenditures made for fund raiser supplies and failed to list cash contributions of $78 received at the fund raiser. Respondent timely requested an informal hearing and was noticed to appear before the Commission on May 18. At the informal hearing, staff presented the undisputed facts contained in the Staff Recommendation. Respondent and his attorney appeared at the hearing. FINDINGS OF FACT 1. The Respondent, Mark Abbott, was elected mayor of Port Richey in the April12, 2005 election. He is a "Tech Director," registered agent, and director for Tech Net Electronics, Inc. The corporation has the same address that Respondent used when he appointed himself treasurer of his campaign. 2. The Complainant, Dennis McGill, stated that he has resided in Pasco County for 20 years. He said that he has never run for public office, has never worked for an opponent of the Respondent, and has never served as a campaign treasurer for a candidate or political committee. 3. Complainant alleged that Respondent failed to report contributions and Faa006 ( 5/06) 3

4 expenditures from a fundraiser held on April 2, Complainant attached to the complaint a copy of the ticket for the fundraiser and three of Respondent's campaign treasurer's reports (CTR), covering the period from February 11, 2005 to April 7, Complainant alleged that water, soda, hotdogs, hamburgers, and oysters were sold by Respondent's campaign at the fundraiser. He stated that he purchased a hotdog and saw a cash drawer with money in it. During a telephone interview, Complainant said that he did not pay for the ticket to the fundraiser and, to his knowledge, tickets were not sold by Respondent's campmgn. 5. In his response to the complaint, Respondent provided details about the fundraiser. Respondent stated that he had campaign volunteers purchase supplies for the fundraiser and told them to get receipts so that he could repay them. With his response, Respondent included a handwritten list of the supplies purchased and copies of receipts from himself, his Mother, and a campaign volunteer named Jodi Midkiff. Respondent also provided a copy of the campaign check used to pay for the rental of the grill used at the fundraiser. 6. A review of the receipts provided by Respondent shows that a total of $ was spent on supplies for the fundraiser, but only $77.98 of that amount was actually used. Respondent noted on each receipt the amount of the item purchased that was used at the fundraiser. The following table shows the fundraiser expenses that Respondent listed in his response. 1. EXPENSES FOR FuNDRAISER 2. Purchaser 1. Method 1. Description 1. Amount 1. Used of Purchase of Purchase for Fundraiser 3.. Respondent 2. Debit 2. Grilling Supplies & 2.. $ $ Jodi 3. Cash 3.. Bread 3. $ $ R's Mother 4. Debit 4. Condiments, hot 4 $ $ Respondent 5.. Debit 5 Drinks 5. $ $ Faa006 ( 5/06) 4

5 7. R's I 6. Campaign j6 Grill Rental 6.. $ $ $ $77.98 TOTALS: 7. Of the fundraiser expenses, only the $39.90 grill rental expenditure was reported. Respondent failed to report the four other expenses listed in the table in paragraph 7. Respondent stated that he, his Mother, and Ms. Midkiff were not reimbursed for the out-ofpocket expenses paid on behalf of Respondent's campaign. 8. In his response to the complaint, Respondent stated that various food items and beverages were sold at the April 2, 2005 fundraiser. Respondent said that campaign volunteer Jodi Midkiff collected a total of $78 in cash paid by the public for the items on sale. 9. Respondent did not report the $78 on his 2005 G3 report, the proper report for campaign activity that occurred on April 2, Respondent listed the contributions on his original2005 TR report covering April 8, 2005 through July 11, 2005, as follows: TR REPORT- ITEMIZED CONTRIBUTION Date Contributor Full Name Sequence Street Address & Contribution In-Kind Amount Number City, State, Zip Code Type Occupation Type Description -- 04/07/05 Dog Party.. I CAS $78.00 (No Seq #) 10. In his sworn questionnaire affidavit, Respondent stated that he did not realize that this activity had to be reported during the campaign. Respondent also said that volunteer Ms. Midkiff s handling of the fundraiser proceeds created a delay as well. 11. In a telephone interview, Ms. Midkiff said that she has no political experience, has never run for political office, and has never served as a campaign treasurer. Ms. Midkiff stated that she served as a volunteer for Respondent's April 2, 2005 fundraiser, selling food and Faa006 (5/06) 5

6 beverages to the public. She further said that no records were kept that would allow Respondent to separately report each individual who purchased items. 12. According to Ms. Midkiff, not many people carne to the fundraiser because of the bad weather and the same people kept buying the food and beverages. When asked whether she knew at the time that each fundraiser purchase was considered a contribution to Respondent's campaign, Ms. Midkiff said that the fundraiser was meant to raise money for Respondent's campaign. Ms. Midkiff further stated that she considered the items she purchased for the fundraiser a donation to Respondent's campaign. 13. In an affidavit, Shirley Dresch, City Clerk of Port Richey, stated that on February 11, 2005, Respondent was provided with copies of Chapter 106, Florida Statutes, a Calendar of Election Dates, and a Municipal Election Questions & Answers Guide (MEQ&A Guide). Ms. Dresch said that in lieu of providing a handbook for candidates, her office provides candidates with the MEQ&A Guide. 14. In the section of the MEQ&A Guide entitled, "What Is A Fund Raiser," the following information is provided: All money and other contributions collected with respect to a campaign fund raiser shall be deemed to be campaign contributions. All such contributions shall be accounted for and are subject to the limits of all other contributions. All expenditures made with respect to the campaign fund raiser which are made or reimbursed are to be paid for with a check drawn on the campaign depository of the candidate for whom the funds are to be used and shall be deemed to be campaign expenditures, accounted for and subject to the same restrictions as other campaign expenditure. Respondent failed to report four expenditures and the contributions from the fundraiser in his Faa006 (5/06) 6

7 2005 G3 CTR Complainant submitted a ticket from Respondent's fundraiser that included the following disclaimer: "political advertisement paid for and approved by Mark Abbott for port richey mayor" 16. In the section of the MEQ&A Guide entitled, "What Is A Fund Raiser," the following information is provided: Tickets and advertising sold for a campaign fund raiser must contain the disclaimer and other information required of political advertising. The tickets and advertising must contain the following statement: "The purchase of a ticket for, or a contribution to, the campaign fund raiser is a contribution to the campaign of (candidate's name)." 17. Respondent stated that he never contacted a professional about the proper disclaimer and he never consulted the literature given to him by the filing officer. 18. In FEC , the Commission reviewed Respondent's CTRs for reporting inaccuracies made during his 2005 campaign. At its meeting on November 17 and 18, 2005, the Commission found probable cause that Respondent violated Section (5), Florida Statutes, on two occasions and entered an Order of Probable Cause. Because a civil penalty was assessed against Respondent in FEC for violating Section (5), Florida Statutes, resulting fi:um the inaccuracies on his 2005 G3 report, the count alleging the violation of this section herein shall be dismissed. 19. Respondent stated that he possesses a copy of and has read Chapter 106, Florida Statutes. Respondent also confirmed that he received a copy of the MEQ&A Guide provided by his filing officer. When asked what action he had taken to determine his responsibilities under 1 Due to his lack of proper record keeping, Respondent can only be charged with one violation for failing to report Faa006 (5/06) 7

8 Florida's election laws, Respondent stated that he opened a campaign checking account and did not mix campaign funds with any other accounts, and "asked helpers to keep a close tab on expenses and any donations." 20. Respondent was asked whether he had ever sought the advice of his filing officer or an attorney qualified to render advice on election law issues.. Respondent stated that he never contacted a professional regarding the reporting of campaign activity associated with a fundraiser. Respondent also said that he did read through the literature, but explained that he was very busy during his campaign. 21. The Respondent willfully violated Sections (1)(b) and (1)(c), Florida Statutes. 2 CONCLUSIONS OF LAW 22. The Commission has jurisdiction over the parties to and subject matter of this cause, pursuant to Section , Florida Statutes. 23. The Respondent committed five counts of violating Section (1)(b), Florida Statutes, when he failed to properly report all expenditures made and all contributions received for a fund raiser; and committed one count of violating Section (1)(c), Florida Statutes, when he failed to mark the tickets for the fundraiser with the proper disclaimer. 24. Respondent's conduct was willful. Respondent committed the acts while the contributions , Fla.. Stat, provides that a person willfully violates Ch. 106, Fla.. Stat: If the person commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited or does not commit an act while knowing that, or showing reckless disregard for whether the act is required.. A person knows that an act is prohibited or required if the person is aware of the provision which prohibits or required the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required.. A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation. Faa006 (5/06) 8

9 knowing that, or showing reckless disregard for whether, the acts were prohibited or failed to commit an act while knowing that, or showing reckless disregard for whether, the acts were required. 25. Respondent did not violate Section (5), Florida Statutes, as charged in Count 7 of the Order of Probable Cause. 26. In determining the amount of the civil penalty, the Commission considered the mitigating and aggravating circumstances set forth in Section , Florida Statutes. Respondent filed an affidavit listing a monthly cash flow deficit in excess of $2, The Commission finds that Respondent has sufficient financial resources to pay the fine imposed by the Commission. ORDER WHEREFORE the Commission finds that Respondent has violated the following provisions of Chapter 106, Florida Statutes, and imposes the following fines, inclusive of fees and costs: A) Respondent violated Section (1 )(b), Florida Statutes, on five occasions. Respondent is fined $10 for each ofthe five counts for a total of$50. B) Respondent violated Section (1)(c), Florida Statutes, on one occasion. Respondent is fined $10 for this count. Therefore, it is ORDERED that Respondent shall remit a civil penalty in the amount of $60. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida, , within 30 days of the date this Final Order is received by Respondent. Faa006 ( 5/06) 9

10 It is further, ORDERED that Count 7 of the Order of Probable Cause is DISMISSED. DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on May 26, 2006, in Tallahassee, Florida. Chance Irvine, Chairman Florida Elections Commission NOTICE OF RIGHT TO APPEAL Pursuant to Section , Florida Statutes, the Respondent may appeal the Commission's Final Order to the appropriate district court of appeal by filing a notice of appeal both with the Clerk of the Florida Elections Commission and the Clerk of the district court of appeal. The notice must be filed within 30 days of the date this Final Order was filed and must be accompanied by the appropriate filing fee. Copies furnished to: Charles A. Finkel, General Counsel Mark A. Abbott, Respondent (certified mail) Richard Coates, Attorney for Respondent (certified mail ) Dennis McGill, Complainant Port Richey City Clerk, Filing Officer Faa006 ( 5/06) 10

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FLORIDA ELECTIONS COMMISSION, PETITIONER, v. STATE OF FLORIDA ~ f 1 UG 26 i!.rci 10: II FLORIDA ELECTIONS COMMISSION JEFFREY D. PORTER, RESPONDENT. ----------------------------~/ FINAL ORDER.. - ' l ',