STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION. IN RE: Hal Marshall Case No.: FEC F.O. No.: DOSFEC 00-0SOW FINAL ORDER

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1 ' STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION OD FEB I 4 PM I: 5 4 IN RE: Hal Marshall Case No.: FEC F.O. No.: DOSFEC 00-0SOW FINAL ORDER THIS CAUSE came on to be heard at an informal hearing held before the Florida Elections Commission (Commission) on February 2 and 3, 2000, in Miami, Florida. APPEARANCES For Commission: For Respondent: Phyllis Hampton Assistant General Counsel Florida Elections Commission Room 2002 The Capitol Tallahassee, FL Hal Marshall 1065 North East 8ih Street Miami, Florida STATEMENT OF THE ISSUE Whether the Respondent willfully violated Sections (1), , (3), (5), (1), (4)(a), (5), (1)(a), and (1)(c), Florida Statutes. PRELIMINARY STATEMENT. On October 1, 1998, the Commission received a sworn complaint alleging violations of Florida's election laws. The staff of the Commission conducted an investigation to determine whether the facts alleged in the complaint constituted probable cause to believe that the Faa004 (1/98)

2 Respondent violated the following section(s) of Chapter 106, Florida Statutes: Section (1), Florida Statutes, prohibiting a candidate from accepting contributions or making expenditures prior to appointing a campaign treasurer and designating a campaign depository; Section , Florida Statutes, failure of the treasurer of a candidate to deposit in a campaign depository all funds received by the treasurer within five business days ofreceipt; Section (3), Florida Statutes, pro hi bi ting a candidate from making an expenditure except through the campaign treasurer; Section (5), Florida Statutes, prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete; Section (1 ), Florida Statutes, failure of a person to mark all political advertisements as a "pd. pol. adv." or a "paid political advertisement" and to identify the sponsor; Section (4)(a), Florida Statutes, failure of a person to state on a political advertisement offered by or on behalf of a candidate that the content of the advertisement was approved by the candidate and the identity of the person who paid for the advertisement; Section (5), Florida Statutes, failure of a person in a political advertisement of a candidate who is not the incumbent to use the word "for" between the candidate's name and the office for which the candidate is mnning; Section (l)(a), Florida Statutes, failure of a person or organization sponsoring a telephone call supporting or opposing a candidate, elected public official, or ballot proposal to state that the call was "paid for by" or "paid for on behalf of'' and to identify the person or organization authorizing the call; and Section (1)(c), Florida Statutes, prohibiting a person or organization from falsely reporting or failing to report information required by this chapter. On October 18, 1999, the staff drafted a Statement of Findings recommending to the Commission that there was probable cause to believe that Chapter 106, Florida Statutes, was violated. On November 16, 1999, the Commission entered an Order of Probable Cause finding Faa004 (1/98)

3 that there was probable cause to believe that the Respondent violated Section(s) (1), , (3), (5), (1), (4)(a), (5), (1)(a), and (1 )( c ), Florida Statutes. The Respondent timely requested an informal hearing and was noticed to appear before the Commission on February 2 and 3, At the informal hearing, the staff presented the undisputed facts contained in the Statement of Findings. The Respondent appeared at the hearing.. FINDINGS OF FACT 1. The Respondent was a candidate for the Miami-Dade Community Council 7. The Complainant was an incumbent candidate for the Miami-Dade Community Council The Respondent was elected to his first term on September 1, The Respondent violated Section (5), Florida Statutes, by certifying to the coitectness of campaign treasurer's reports that were incorrect, false, or incomplete. 4. There were four reporting periods during Respondent 's 1998 campaign. The first report covered the period of July 1, 1998 through July 24, Respondent filed his report for this period on July 29, There were no problems with this report. 5. The second reporting period was July 25, 1998 through August 7, Respondent filed his report for this period on August 11, The report showed no contributions and the bank records showed no deposits; however, a check dated August 3, 1998 was not been deposited until August 19, This check for S50 should have been deposited within five business days of receipt and reported on this campaign report. Failure to timely deposit contributions is a violation of Section , Florida Statutes. It appears that the Respondent violated Section , Florida Statutes, by not depositing a S50 check into the campaign account within five working days. The Respondent's report for this period showed one expenditure for S5 l. The bank records also show a $10.22 expenditure to Images on August

4 2, The Respondent said not reporting the expenditure was an oversight and the expenditure was for photocopying. 6. The third report covered the period of August 8, 1998 through August 27, The report discloses six contributions that total $550. Bank records show one deposit of $904. However, five contributions totaling $354 were not listed. 2 On November 30, 1998, Respondent filed an amended report that showed three additional contributions totaling S60. None of the three additional contributions were contributions that were previously omitted from this report. The Respondent's report for this period showed five expenditures for $ Bank records show an additional two expenditures totaling $45. Respondent stated the two expenditures were mistakenly omitted. Three of the reported expenditures do not show up in the bank records. These expenditures total $ The expenditures included a $4.95 expenditure to "Metro- Dade" for "Absentee Daily Rpt," $6.40 to "US Postal" for postage, and $36 to "Home Depot" for "Wood for Signs." Respondent stated these expenditures were paid in cash. There is no record in the campaign reports that the Respondent established a petty-cash fund. 7. The report also discloses a $600 expenditure to "US Postal" for "Postage." The bank had no record of this expenditure. However, there is a campaign check issued on September 24, 1998 made payable to Chase Gold Visa for $600. Respondent explained that when he purchased stamps to mail political postcards, the purchase was made on his credit card, and he paid the credit card bill out of the campaign account. 1 The Respondent incorrectly reported the reporting period to be August 7, 1998 through August 28, The Respondent also made an addition error on the summary page. Section 6 on the summary page summarizes contributions during the reporting period: cash and checks are to be added together with loans for a total monetary amount. In-kind contributions are then shown. This report shows cash and checks of $1300 and no loans, for a total monetary amount of$550. He then reports in-kind contributions of$ Four of the contr ibutions were by check; the fifth \Vas a "cash in debit" Respondent explained the "cash in debit" as "Anonymous, miscellaneous cash donations." Faa004 ( 1198)

5 8. Respondent filed an amended campaign report for this reporting period on November 30, He stated he filed the report "to include a good faith estimate for some miscellaneous in-kind costs" that he had incurred but not reported. He said that he did not realize that these personal costs needed to be documented. 9. The Respondent paid for expenditures with "cash, out of pocket" on three occasions and paid for postage with his personal credit card on one occasion. It is a violation of Section (3), Florida Statutes, for a candidate to make expenditure except through the campaign treasurer. 10. The fourth reporting period was August 28, 1998 through November 30, Respondent filed his report on November 30, No contributions were reported during this period, but bank records show a deposit of $60 on November 25, The deposit included three contributions that were reported in the amended report for the August 8, 1998 through August 27, 1998 reporting period. Respondent's report for this period showed three expenditures for $503-a $500 expenditure to the Respondent for "campaign fund reimbursal" and two $1.50 bank charges. The Respondent stated in a sworn affidavit that, "The $500 was the candidate's money used to open the bank account." Bank records for this period disclose the expenditure to Chase Gold Visa for $600 on September 24, 1998, and this expenditure is not reflected in the report for this period. Bank records for this period also disclose an expenditure to "Harold Marshall" for $ to "close-account" on December 9, Respondent's termination report was filed with the filing officer on November 30, In his affidavit, the Respondent stated, "$500 reimbursement was listed in 8/28-11/30 report. Remainder of balance used to reimburse candidate for costs which are reflected on amended report." 11. The following chart summarizes the errors on Respondent's reports: Faa004 (}/98)

6 REPORTING PERIOD TYPE OF REPORT MISSI:--;G INFORMATION INCORRCT INFORMATION 7 /1/98-7 /24/98 REGULAR NONE NONE 7125/98-817/98 REGULAR ONE CHECK FOR $50 NONE WAS NOT DEPOSITED NOR REPORTED ONE EXPENDITURE FOR SI 0 22 MISSING 8/8/98-8/27 /98 REGULAR FIVE CONTRIBUTIONS THREE REPORTED FOR S354 MISSING EXPENDITURES DO NOT SHOW UP IN BANK RECORDS (PAID IN CASH BY RESPONDENT) THREE ADDITIONAL CONTRIBUTIONS WERE NOT REPORTED FOR $60 (BUT WERE REPORTED ON AMENDED REPORT) 1\VO EXPENDITURES FOR $45 MISSING S600 EXPENDITURE REPORTED AS MADE TO US POSTAL WAS ACTUALLY MADE BY RESPONDENT ON HIS CREDIT CARD - AMENDED REPORT TWO EXPENDITURES NONE FOR 8/8/ /98 FOR S45 PREVIOUSLY MISSING ARE STILL MISSING 8/28/98-11/30/98 $ EXPENDITURE NONE TO RESPONDENT 10 "CLOSE OUT" ACCOUNT NOT LISTED THE THREE ADDITIONAL CONTRIBUTIONS FOR $60 WHICH WERE REPORTED ON AMENDED REPORT WERE ACTUALLY DEPOSITED As can be seen from the chart, the Respondent submitted one amended and three regular campaign reports that he certified as correct when the reports were incorrect, false, or incomplete in violation of Section (5), Florida Statutes. 13. The Respondent violated Section (1), Florida Statutes, by not marking all political advertisements as a "pd. pol. adv." or a "paid political advertisement" and not Faa004 (l/98)

7 identifying the sponsor. Respondent had a political advertisement published in the August 1998 issue of the Shorecrest Homeowner's Association, Inc., newsletter. The Y.i page advertisement read: Hal MARSHALL Community Council 7 Vote September 1st! Punch Ballot #216 Paid for by HAL MARSHALL CAMPAIGN FUND, Ernest Gonzalez, Treasurer. 14. The newsletter was mailed to 1,000 households. The advertisement did not contain the statement "pd. pol. adv." or "paid political advertisement" signs read: 15. Respondent had between 20 and 25 signs made for his campaign. The campaign COMMUNITY COUNCIL 7 Elect Hal MARSHALL Punch Ballot #216 Vote Tuesday, September 1 Paid for by HAL MARSHALL CAMPAIGN FlTh"'D, Ernest Gonzalez, Treasurer. 16. The signs do not contain the statement "pd. pol. adv." or "paid political advertisement." Respondent's campaign treasurer's report for the reporting period covering August 8, 1998 through August 27, 1998 shows a $350 in-kind contribution from A Sign-Pro, Inc., for "signs." Respondent stated that it was an oversight that the signs did not include a statement that they were provided for in-kind. 17. Respondent distributed approximately 40 fliers by hand during the last two weeks of August At the top of the flier advertisement was the statement, "Elect Hal MARSHALL Community Council 7." At the bottom, was the statement, "Vote September 1st! Hal MARSHALL Community Council 7." "Paid for by HAL MARSHALL CAMPAIGN FUND, Ernest Gonzalez, Treasurer." The advertisement does not contain the statement "pd. pol. adv." or "paid political advertisement." 18. Respondent also distributed 30 copies of a second flier during the last two weeks F aa004 ( 1/98)

8 of August The flier read: COMMUNITY COUNCIL 7 Elect Hal MARSHALL Vote Tuesday, Sept.1st! Punch Ballot #216 Paid for by HAL MARSHALL CAMPAIGN Ernest Gonzalez, Treasurer. 19. This advertisement also does not contain the statement "pd. pol. adv." or "paid political advertisement." postcard read: 20. Respondent mailed 400 political postcards the week of August 24, The Hal MARSHALL for Community Council 7 Vote Tuesday; September 1st! Punch #216 Paid for by HAL MARSHALL CAMPAIGN FUND, Ernest Gonzalez, Treasurer. 21. The post cards do not contain the statement "pd. pol. adv." or "paid political advertisement." Respondent also distributed 100 postcards on election day. 22. The postcards were provided to his campaign as an in-kind contribution and did not include a statement that they were provided in-kind. 23. Respondent's five political advertisements violated Section (1), Florida Statutes, because none were marked "pd. pol. adv." or a "paid political advertisement" and two did not state that the advertisements were provided in-kind and did not identify who had provided the in-kind services. Respondent's political advertisements should have contained the following information: Hal MARSHALL for Community Council 7 Vote Tuesday, September 1st! Punch #216 Paid for and Approved by HAL MARSHALL Faa004 (1/98)

9 Pd. Pol. Adv. or Hal MARSHALL for Community Council 7 Vote Tuesday, September 1st! Punch #216 Paid for in-kind by XXXXXXXXX and Approved by HAL MARSHALL Pd. Pol. Adv. 24. None of the political advertisements contained a statement that the candidate approved the content of the advertisement or identified the sponsor of the advertisement as required by Section (4)(a), Florida Statutes. 25. In addition to violating Sections (1) and (4)(a), Florida Statutes, four of Respondent's five political advertisements also violated Section (5), Florida Statutes, since they did not contain the wo.rd "for" between Respondent's name and the office he was seeking. These four advertisements included: the newsletter advertisement, the campaign signs, and the two sets of fliers. 26. Respondent violated Section (1)(c), Florida Statutes, by falsely reporting or failing to report information required of this chapter. The Respondent falsely reported or failed to report information on four different campaign treasurer's reports. See Paragraphs 4 through The Respondent admits that the allegations occurred. CONCLUSIONS OF LAW 28. The Commission has jurisdiction over the parties to and subject matter of this cause, pursuant to Section , Florida Statutes. 29. The Respondent violated Section , Florida Statutes, by failure of the treasurer of a candidate to deposit in a campaign depository all funds received by the treasurer Faa004 ( 1198)

10 within five business days of receipt; Section (3), Florida Statutes, by making expenditures other than through the campaign treasurer; Section (5), Florida Statutes, by certifying to the conectness of a campaign treasurer's report that is incorrect, false, or incomplete; Section (1), Florida Statutes, by failure of a person to mark all political advertisements as a "pd. pol. adv." or a "paid political advertisement" and to identify the sponsor; Section (4)(a), Florida Statutes, by failure of a person to state on a political advertisement offered by or on behalf of a candidate that the content of the advertisement was approved by the candidate and the identity of the person who paid for the advertisement; Section (5), Florida Statutes, by failure of a person in a political advertisement of a candidate who is not the incumbent to use the word "for" between the candidate's name and the office for which the candidate is running; and Section (1 )( c ), Florida Statutes, by falsely reporting or failing to report information required by this chapter. 30. The violations were willful as defined in Section , Florida Statutes.. ORDER Based upon the foregoing facts and conclusions of law, the Commission finds that the Respondent violated Section(s) Section , (3), (5), (1), (4)(a), (5), and (1)(c), Florida Statutes. Therefore, it is ORDERED that the Respondent shall remit a civil penalty in the amount of $100 for all violations. The civil penalty shall be paid to the Commission, Room 2002, the Capitol, Tallahassee, Florida , within 30 days of the date this Final Order is received by the Respondent. Faa004 (J/98)

11 DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on February 14, 2000, in Tallahassee, Florida. 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: Phyllis Hampton, Assistant General Counsel Hal Marshall, Respondent (certified mail) Carol Cord, Complainant Supervisor of Elections, Dade County, Filing Officer Faa004 (1/98)

STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION

STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION,,. ~"-,- f'e'i1,... ~: ') ;.~' ~! f : i ~ ~- L... ~- "",J ' FLORIDA ELECTIONS COMMISSION, PETITIONER, v. ORESTES J. JIMENEZ, RESPONDENT../ AGENCY CASE No.: