Senate Bill sb1696

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    Florida Senate - 2002                                  SB 1696

    By Senator Diaz de la Portilla





    34-767-02

  1                      A bill to be entitled

  2         An act relating to the Florida Elections

  3         Commission; providing legislative findings and

  4         intent; repealing s. 106.24, F.S., relating to

  5         the Florida Elections Commission; amending s.

  6         106.25, F.S.; assigning jurisdiction for

  7         violations of campaign-financing and election

  8         laws to the Department of Legal Affairs and the

  9         Division of Administrative Hearings;

10         prescribing responsibilities for the department

11         and the division; conforming provisions;

12         eliminating authority for a hearing by the

13         Division of Administrative Hearings in addition

14         to a hearing by the Florida Elections

15         Commission; amending s. 106.26, F.S.;

16         transferring to the Department of Legal Affairs

17         and the Division of Administrative Hearings

18         powers relating to the conduct of hearing on

19         violations of campaign-financing and election

20         laws; eliminating a prohibition against certain

21         communications among members of the Florida

22         Elections Commission and witnesses under

23         specified circumstances; amending s. 106.265,

24         F.S.; authorizing the Division of

25         Administrative Hearings to impose certain

26         fines; providing for payment of the proceeds to

27         the Department of Legal Affairs; assigning

28         responsibility for collection of the fines to

29         the department; amending s. 106.27, F.S.;

30         authorizing the department to initiate certain

31         civil actions; amending s. 106.29, F.S.,

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  1         relating to reports by political parties;

  2         conforming provisions to the elimination of the

  3         Florida Elections Commission; amending s.

  4         106.35, F.S., relating to the distribution of

  5         certain campaign-financing funds; conforming

  6         provisions to the elimination of the Florida

  7         Elections Commission; amending s. 104.271,

  8         F.S., relating to false charges against

  9         opposing candidates; conforming provisions to

10         the elimination of the Florida Elections

11         Commission; providing for aggrieved candidates

12         to file complaints with the Department of Legal

13         Affairs; providing for assessment of penalties

14         by the Division of Administrative Hearings;

15         requiring the Department of Legal Affairs and

16         the Division of Administrative Hearings to

17         submit funding recommendations; prescribing

18         terms and conditions governing the transfer or

19         reassignment of functions under the act;

20         providing effective dates.

21

22  Be It Enacted by the Legislature of the State of Florida:

23

24         Section 1.  The Legislature finds that, in light of the

25  expected decline in revenue growth for the state, it is in the

26  public interest to reduce the size of state government and to

27  identify means of improving the operation of state government

28  and its agencies for the benefit of the residents of the

29  state. The Legislature further finds that the current process

30  governing the prosecution of alleged violations of campaign

31  financing and election laws, as well as governing the

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  1  determination of whether such violations have occurred,

  2  through the Florida Elections Commission is unnecessarily

  3  cumbersome, is vulnerable to political interference, and is an

  4  inefficient use of limited public resources. The Legislature

  5  further finds that the presence on the commission of

  6  individuals who, as part of their regular occupations,

  7  frequently lobby elected officials undermines public

  8  confidence in the ability of the commission to evaluate

  9  alleged violations in an objective manner that serves the

10  electorate and that ensures elected officials a fair and

11  impartial hearing. It is, therefore, the intent of the

12  Legislature to abolish the Florida Elections Commission,

13  eliminate its staff, eliminate or redirect its other budgetary

14  resources, and reassign its responsibilities to the Department

15  of Legal Affairs and the Division of Administrative Hearings.

16  It is the intent of the Legislature that the Division of

17  Administrative Hearings shall be responsible for determining

18  whether a violation of campaign financing or election laws has

19  occurred and that the Department of Legal Affairs shall be

20  responsible for the functions currently assigned to the

21  commission relating to the prosecution of violations of such

22  laws.

23         Section 2.  Effective July 1, 2002, section 106.24,

24  Florida Statutes, is repealed.

25         Section 3.  Effective July 1, 2002, section 106.25,

26  Florida Statutes, is amended to read:

27         106.25  Reports of alleged violations to Florida

28  Elections Commission; disposition of findings.--

29         (1)  Jurisdiction to investigate and determine

30  violations of this chapter and chapter 104 is vested in the

31  Department of Legal Affairs and the Division of Administrative

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  1  Hearings Florida Elections Commission; however, nothing in

  2  this section limits the jurisdiction of any other officers or

  3  agencies of government empowered by law to investigate, act

  4  upon, or dispose of alleged violations of this code.

  5         (a)  The Department of Legal Affairs is responsible for

  6  receiving and investigating complaints alleging violations of

  7  this chapter and chapter 104, including, but not limited to,

  8  determining whether a complaint is legally sufficient,

  9  preparing a report to the Attorney General on the results of

10  the investigation, and, through the Attorney General,

11  submitting a statement of findings and a recommendation to the

12  Division of Administrative Hearings as to whether there is

13  probable cause or no probable cause to believe that there has

14  been a violation of this chapter or chapter 104.

15         (b)  The Division of Administrative Hearings is

16  responsible for making final determinations, subject to appeal

17  to courts of competent jurisdiction, as to whether there has

18  been a violation of this chapter or chapter 104, including,

19  but not limited to, reviewing statements of findings submitted

20  by the Department of Legal Affairs, issuing orders relating to

21  the finding by the Division of Administrative Hearings of

22  probable cause or no probable cause, conducting hearings as

23  provided under this chapter and chapter 120, and issuing

24  final, written orders as provided in s. 106.26.

25         (2)  The Department of Legal Affairs commission shall

26  investigate all violations of this chapter and chapter 104,

27  but only after having received either a sworn complaint or

28  information reported to it by the Division of Elections. Any

29  person, other than the Division of Elections, having

30  information of any violation of this chapter or chapter 104

31  shall file a sworn complaint with the Department of Legal

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  1  Affairs commission.  Such a sworn complaint must shall state

  2  whether a complaint of the same violation has been made to any

  3  state attorney. Within 5 days after receipt of a sworn

  4  complaint, the Department of Legal Affairs commission shall

  5  transmit a copy of the complaint to the alleged violator. All

  6  sworn complaints alleging violations of the Florida Election

  7  Code over which the Department of Legal Affairs and the

  8  Division of Administrative Hearings have commission has

  9  jurisdiction shall be filed with the Department of Legal

10  Affairs commission within 2 years after of the alleged

11  violations take place.  The period of limitations is tolled on

12  the day a sworn complaint is filed with the Department of

13  Legal Affairs commission.

14         (3)  For the purposes of commission jurisdiction by the

15  Department of Legal Affairs and the Division of Administrative

16  Hearings, a violation shall mean the willful performance of an

17  act prohibited by this chapter or chapter 104 or the willful

18  failure to perform an act required by this chapter or chapter

19  104.

20         (4)  The Department of Legal Affairs commission shall

21  undertake a preliminary investigation to determine if the

22  facts alleged in a sworn complaint or a matter initiated by

23  the Division of Elections constitute probable cause to believe

24  that a violation has occurred.  Upon completion of the

25  preliminary investigation, the Department of Legal Affairs

26  commission shall submit to the Division of Administrative

27  Hearings a written recommendation finding probable cause to

28  believe that this chapter or chapter 104 has been violated.

29  Upon reviewing the recommendation and supporting documents

30  from the department, the Division of Administrative Hearings

31  shall, by written report, find probable cause or no probable

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  1  cause to believe that this chapter or chapter 104 has been

  2  violated.

  3         (a)  If no probable cause is found, the Division of

  4  Administrative Hearings commission shall dismiss the case and

  5  the case shall become a matter of public record, except as

  6  otherwise provided in this section, together with a written

  7  statement of the findings of the preliminary investigation and

  8  a summary of the facts which the Division of Administrative

  9  Hearings commission shall send to the complainant and the

10  alleged violator.

11         (b)  If probable cause is found, the Division of

12  Administrative Hearings commission shall so notify the

13  complainant and the alleged violator in writing.  All

14  documents made or received in the disposition of the complaint

15  shall become public records upon a finding by the Division of

16  Administrative Hearings commission.

17

18  With respect to a case in which In a case where probable cause

19  is found, the Division of Administrative Hearings commission

20  shall make a preliminary determination to consider the matter

21  or to refer the matter to the state attorney for the judicial

22  circuit in which the alleged violation occurred.

23         (5)  When there are disputed issues of material fact in

24  a proceeding conducted under ss. 120.569 and 120.57, a person

25  alleged by the Elections Commission to have committed a

26  violation of this chapter or chapter 104 may elect, within 30

27  days after the date of the filing of the commission's

28  allegations, to have a hearing conducted by an administrative

29  law judge in the Division of Administrative Hearings.

30         (5)(6)  It is the duty of a state attorney receiving a

31  complaint referred by the Division of Administrative Hearings

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  1  commission to investigate the complaint promptly and

  2  thoroughly; to undertake such criminal or civil actions as are

  3  justified by law; and to report to the Division of

  4  Administrative Hearings and the Department of Legal Affairs

  5  commission the results of such investigation, the action

  6  taken, and the disposition thereof.  The failure or refusal of

  7  a state attorney to prosecute or to initiate action upon a

  8  complaint or a referral by the Division of Administrative

  9  Hearings commission shall not bar further action by the

10  Department of Legal Affairs or the Division of Administrative

11  Hearings commission under this chapter.

12         (6)(7)  Every sworn complaint filed pursuant to this

13  chapter with the Department of Legal Affairs commission, every

14  investigation and investigative report or other paper of the

15  Department of Legal Affairs or the Division of Administrative

16  Hearings commission with respect to a violation of this

17  chapter or chapter 104, and every proceeding of the Division

18  of Administrative Hearings commission with respect to a

19  violation of this chapter or chapter 104 is confidential, is

20  exempt from the provisions of ss. 119.07(1) and 286.011, and

21  is exempt from publication in the Florida Administrative

22  Weekly of any notice or agenda with respect to any proceeding

23  relating to such violation, except under the following

24  circumstances:

25         (a)  As provided in subsection (5) (6);

26         (b)  Upon a determination of probable cause or no

27  probable cause by the Division of Administrative Hearings

28  commission; or

29         (c)  For proceedings conducted with respect to appeals

30  of fines levied by filing officers for the late filing of

31  reports required by this chapter.

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  1

  2  However, a complainant is not bound by the confidentiality

  3  provisions of this section.  In addition, confidentiality may

  4  be waived in writing by the person against whom the complaint

  5  has been filed or the investigation has been initiated.  If a

  6  finding of probable cause in a case is entered within 30 days

  7  prior to the date of the election with respect to which the

  8  alleged violation occurred, such finding and the proceedings

  9  and records relating to such case shall not become public

10  until noon of the day following such election.  When two or

11  more persons are being investigated by the Department of Legal

12  Affairs or the Division of Administrative Hearings commission

13  with respect to an alleged violation of this chapter or

14  chapter 104, the Division of Administrative Hearings

15  commission may not publicly enter a finding of probable cause

16  or no probable cause in the case until a finding of probable

17  cause or no probable cause for the entire case has been

18  determined. However, once the confidentiality of any case has

19  been breached, the person or persons under investigation have

20  the right to waive the confidentiality of the case, thereby

21  opening up the proceedings and records to the public.  Any

22  person who discloses any information or matter made

23  confidential by the provisions of this subsection commits a

24  misdemeanor of the first degree, punishable as provided in s.

25  775.082 or s. 775.083.

26         (7)(8)  Any person who files a complaint pursuant to

27  this section while knowing that the allegations contained in

28  such complaint are false or without merit commits a

29  misdemeanor of the first degree, punishable as provided in s.

30  775.082 or s. 775.083.

31

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  1         Section 4.  Effective July 1, 2002, section 106.26,

  2  Florida Statutes, is amended to read:

  3         106.26  Powers of Department of Legal Affairs and

  4  Division of Administrative Hearings commission; rights and

  5  responsibilities of parties; findings by division

  6  commission.--

  7         (1)  The Department of Legal Affairs commission shall,

  8  pursuant to rules adopted and published in accordance with

  9  chapter 120, consider all sworn complaints filed with it and

10  all matters reported to it by the Division of Elections.  In

11  order to carry out the responsibilities prescribed by this

12  chapter, the Division of Administrative Hearings commission is

13  empowered to subpoena and bring before it, or its duly

14  authorized representatives, any person in the state, or any

15  person doing business in the state, or any person who has

16  filed or is required to have filed any application, document,

17  papers, or other information with an office or agency of this

18  state or a political subdivision thereof and to require the

19  production of any papers, books, or other records relevant to

20  any investigation, including the records and accounts of any

21  bank or trust company doing business in this state.  Duly

22  authorized representatives of the Division of Administrative

23  Hearings commission are empowered to administer all oaths and

24  affirmations in the manner prescribed by law to witnesses who

25  shall appear before them concerning any relevant matter.

26  Should any witness fail to respond to the lawful subpoena of

27  the Division of Administrative Hearings commission or, having

28  responded, fail to answer all lawful inquiries or to turn over

29  evidence that has been subpoenaed, the division commission may

30  file a complaint before any circuit court of the state setting

31  up such failure on the part of the witness.  On the filing of

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  1  such complaint, the court shall take jurisdiction of the

  2  witness and the subject matter of said complaint and shall

  3  direct the witness to respond to all lawful questions and to

  4  produce all documentary evidence in the witness's possession

  5  which is lawfully demanded.  The failure of any witness to

  6  comply with such order of the court shall constitute a direct

  7  and criminal contempt of court, and the court shall punish

  8  said witness accordingly.  However, the refusal by a witness

  9  to answer inquiries or turn over evidence on the basis that

10  such testimony or material will tend to incriminate such

11  witness shall not be deemed refusal to comply with the

12  provisions of this chapter. The sheriffs in the several

13  counties shall make such service and execute all process or

14  orders when required by the Division of Administrative

15  Hearings commission.  Sheriffs shall be paid for these

16  services by the Division of Administrative Hearings commission

17  as provided for in s. 30.231. Any person who is served with a

18  subpoena to attend a hearing of the Division of Administrative

19  Hearings commission also shall be served with a general

20  statement informing him or her of the subject matter of the

21  division's commission's investigation or inquiry and a notice

22  that he or she may be accompanied at the hearing by counsel of

23  his or her own choosing.

24         (2)  All witnesses summoned before the Division of

25  Administrative Hearings commission, other than on the request

26  of the subject of a hearing, shall receive reimbursement for

27  travel expenses and per diem at the rates provided in s.

28  112.061.  However, the fact that such reimbursement is not

29  tendered at the time the subpoena is served shall not excuse

30  the witness from appearing as directed therein.

31

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  1         (3)  Upon request of any person having business before

  2  the Division of Administrative Hearings, the administrative

  3  law judge commission, and with the approval of a majority of

  4  the commission, the chair or, in the chair's absence, the vice

  5  chair shall instruct all witnesses to leave the hearing room

  6  and retire to a designated place.  The witness will be

  7  instructed by the administrative law judge chair or, in the

  8  chair's absence, the vice chair not to discuss his or her

  9  testimony or the testimony of any other person with anyone

10  until the hearing has been adjourned and the witness

11  discharged by the administrative law judge chair. The witness

12  shall be further instructed that should any person discuss or

13  attempt to discuss the matter under investigation with him or

14  her after receiving such instructions the witness shall bring

15  such matter to the attention of the Division of Administrative

16  Hearings commission.  No member of the commission or

17  representative thereof may discuss any matter or matters

18  pertinent to the subject matter under investigation with

19  witnesses to be called before the commission from the time

20  that these instructions are given until the hearing has been

21  adjourned and the witness discharged by the chair.

22         (4)  The administrative law judge commission, when

23  interrogating witnesses as provided herein, shall cause a

24  record to be made of all proceedings in which testimony or

25  other evidence is demanded or adduced.  This record shall

26  include rulings of the administrative law judge chair,

27  questions of the administrative law judge or other staff of

28  the Division of Administrative Hearings commission and its

29  counsel, testimony or responses of witnesses, sworn written

30  statements submitted to the Division of Administrative

31  Hearings commission, and all other pertinent matters.  A

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  1  witness at a hearing, upon his or her advance request and at

  2  his or her own expense, shall be furnished a certified

  3  transcript of all testimony taken at the hearing.

  4         (5)  Before or during a hearing, any person noticed to

  5  appear before the Division of Administrative Hearings

  6  commission, or the person's counsel, may file with the

  7  Division of Administrative Hearings commission, for

  8  incorporation into the record of the hearing, sworn written

  9  statements relevant to the purpose, subject matter, and scope

10  of the Department of Legal Affairs' or the division's

11  commission's investigation or inquiry. Any such person shall,

12  however, prior to filing such statement, consent to answer

13  questions from the Division of Administrative Hearings

14  commission regarding the contents of the statement.

15         (6)  Any person whose name is mentioned or who is

16  otherwise identified during a hearing being conducted by the

17  Division of Administrative Hearings commission and who, in the

18  opinion of the Division of Administrative Hearings commission,

19  may be adversely affected thereby may, upon his or her request

20  or upon the request of the Division of Administrative Hearings

21  any member of the commission, appear personally before the

22  Division of Administrative Hearings commission and testify on

23  his or her own behalf or, with the division's commission's

24  consent, file a sworn written statement of facts or other

25  documentary evidence for incorporation into the record of the

26  hearing. Any such person shall, however, prior to filing such

27  statement, consent to answer questions from the Division of

28  Administrative Hearings commission regarding the contents of

29  the statement.

30         (7)  The Division of Administrative Hearings Upon the

31  consent of a majority of its members, the commission may

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  1  permit any other person to appear and testify at a hearing or

  2  submit a sworn written statement of facts or other documentary

  3  evidence for incorporation into the record thereof.  No

  4  request to appear, appearance, or submission shall limit in

  5  any way the commission's power of subpoena of the Division of

  6  Administrative Hearings.  Any such person shall, however,

  7  prior to filing such statement, consent to answer questions

  8  from the Division of Administrative Hearings commission

  9  regarding the contents of the statement.

10         (8)  Any person who appears before the Division of

11  Administrative Hearings commission pursuant to this section

12  shall have all the rights, privileges, and responsibilities of

13  a witness appearing before a court of competent jurisdiction.

14         (9)  If the Division of Administrative Hearings

15  commission fails in any material respect to comply with the

16  requirements of this section, any person subject to subpoena

17  or subpoena duces tecum who is injured by such failure shall

18  be relieved of any requirement to attend the hearing for which

19  the subpoena was issued or, if present, to testify or produce

20  evidence therein; and such failure shall be a complete defense

21  in any proceeding against such person for contempt or other

22  punishment.

23         (10)  Whoever willfully affirms or swears falsely in

24  regard to any material matter or thing before the Division of

25  Administrative Hearings commission shall be guilty of a felony

26  of the third degree and punished as provided by s. 775.082, s.

27  775.083, or s. 775.084.

28         (11)  At the conclusion of its hearings concerning an

29  alleged violation, the Division of Administrative Hearings

30  commission shall immediately begin deliberations on the

31  evidence presented at such hearings and shall proceed to

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  1  determine by affirmative vote of a majority of the members

  2  present whether a violation of this chapter or chapter 104 has

  3  occurred. Such determination shall promptly be made public.

  4  The order shall contain a finding of violation or no

  5  violation, together with brief findings of pertinent facts,

  6  and the assessment of such civil penalties as are permitted by

  7  this chapter or no such assessment and shall bear the

  8  signature or facsimile signature of the administrative law

  9  judge chair or vice chair.

10         (12)  The Division of Administrative Hearings

11  commission by rule may determine violations which constitute

12  minor offenses that can be resolved without further

13  investigation by means of a plea of nolo contendere and

14  payment of a fine.

15         (13)  The Division of Administrative Hearings

16  commission may not issue advisory opinions and must, in all

17  its deliberations and decisions, adhere to statutory law and

18  advisory opinions of the Division of Elections.

19         Section 5.  Effective July 1, 2002, section 106.265,

20  Florida Statutes, is amended to read:

21         106.265  Civil penalties.--

22         (1)  The Division of Administrative Hearings commission

23  is authorized upon the finding of a violation of this chapter

24  or chapter 104 to impose civil penalties in the form of fines

25  not to exceed $1,000 per count.  Fines imposed under this

26  section must be paid to the Department of Legal Affairs. In

27  determining the amount of such civil penalties, the Division

28  of Administrative Hearings commission shall consider, among

29  other mitigating and aggravating circumstances:

30         (a)  The gravity of the act or omission;

31         (b)  Any previous history of similar acts or omissions;

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  1         (c)  The appropriateness of such penalty to the

  2  financial resources of the person, political committee,

  3  committee of continuous existence, or political party; and

  4         (d)  Whether the person, political committee, committee

  5  of continuous existence, or political party has shown good

  6  faith in attempting to comply with the provisions of this

  7  chapter or chapter 104.

  8         (2)  If any person, political committee, committee of

  9  continuous existence, or political party fails or refuses to

10  pay to the Department of Legal Affairs commission any civil

11  penalties assessed under pursuant to the provisions of this

12  section, the Department of Legal Affairs commission shall be

13  responsible for collecting the civil penalties resulting from

14  such action.

15         (3)  Any civil penalty collected pursuant to the

16  provisions of this section shall be deposited into the

17  Election Campaign Financing Trust Fund.

18         (4)  Notwithstanding any other provisions of this

19  chapter, any fine assessed pursuant to the provisions of this

20  chapter, which fine is designated to be deposited or which

21  would otherwise be deposited into the General Revenue Fund of

22  the state, shall be deposited into the Election Campaign

23  Financing Trust Fund.

24         Section 6.  Effective July 1, 2002, section 106.27,

25  Florida Statutes, is amended to read:

26         106.27  Determinations by commission; legal

27  disposition.--

28         (1)  Criminal proceedings for violations of this

29  chapter or chapter 104 may be brought in the appropriate court

30  of competent jurisdiction. Any such action brought under this

31

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  1  chapter or chapter 104 shall be advanced on the docket of the

  2  court in which filed and put ahead of all other actions.

  3         (2)  Civil actions may be brought by the Department of

  4  Legal Affairs on its own behalf or on behalf of the Division

  5  of Administrative Hearings commission for relief, including

  6  permanent or temporary injunctions, restraining orders, or any

  7  other appropriate order for the imposition of civil penalties

  8  provided by this chapter.  Such civil actions shall be brought

  9  by the Department of Legal Affairs commission in the

10  appropriate court of competent jurisdiction, and the venue

11  shall be in the county in which the alleged violation occurred

12  or in which the alleged violator or violators are found,

13  reside, or transact business.  Upon a proper showing that such

14  person, political committee, committee of continuous

15  existence, or political party has engaged, or is about to

16  engage, in prohibited acts or practices, a permanent or

17  temporary injunction, restraining order, or other order shall

18  be granted without bond by such court, and the civil fines

19  provided by this chapter may be imposed.

20         (3)  Civil actions may be brought to enjoin temporarily

21  the issuance of certificates of election to successful

22  candidates who are alleged to have violated the provisions of

23  this chapter or chapter 104. Such injunctions shall issue upon

24  a showing of probable cause that such violation has occurred.

25  Such actions shall be brought in the circuit court for the

26  circuit in which is located the officer before whom the

27  candidate qualified for office.

28         Section 7.  Effective July 1, 2002, subsection (3) of

29  section 106.29, Florida Statutes, is amended to read:

30         106.29  Reports by political parties; restrictions on

31  contributions and expenditures; penalties.--

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  1         (3)(a)  Any state or county executive committee failing

  2  to file a report on the designated due date shall be subject

  3  to a fine as provided in paragraph (b) for each late day.  The

  4  fine shall be assessed by the filing officer, and the moneys

  5  collected shall be deposited in the Elections Commission Trust

  6  Fund.

  7         (b)  Upon determining that a report is late, the filing

  8  officer shall immediately notify the chair of the executive

  9  committee as to the failure to file a report by the designated

10  due date and that a fine is being assessed for each late day.

11  The fine shall be $1,000 for a state executive committee, and

12  $50 for a county executive committee, per day for each late

13  day, not to exceed 25 percent of the total receipts or

14  expenditures, whichever is greater, for the period covered by

15  the late report.  However, if an executive committee fails to

16  file a report on the Friday immediately preceding the general

17  election, the fine shall be $10,000 per day for each day a

18  state executive committee is late and $500 per day for each

19  day a county executive committee is late.  Upon receipt of the

20  report, the filing officer shall determine the amount of the

21  fine which is due and shall notify the chair.  The filing

22  officer shall determine the amount of the fine due based upon

23  the earliest of the following:

24         1.  When the report is actually received by such

25  officer.

26         2.  When the report is postmarked.

27         3.  When the certificate of mailing is dated.

28         4.  When the receipt from an established courier

29  company is dated.

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    Florida Senate - 2002                                  SB 1696
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  1  Such fine shall be paid to the filing officer within 20 days

  2  after receipt of the notice of payment due, unless appeal is

  3  made to the Division of Administrative Hearings Florida

  4  Elections Commission pursuant to paragraph (c).  An officer or

  5  member of an executive committee shall not be personally

  6  liable for such fine.

  7         (c)  The chair of an executive committee may appeal or

  8  dispute the fine, based upon unusual circumstances surrounding

  9  the failure to file on the designated due date, and may

10  request and shall be entitled to a hearing before the Division

11  of Administrative Hearings Florida Elections Commission, which

12  shall have the authority to waive the fine in whole or in

13  part.  Any such request shall be made within 20 days after

14  receipt of the notice of payment due.  In such case, the chair

15  of the executive committee shall, within the 20-day period,

16  notify the filing officer in writing of his or her intention

17  to bring the matter before the Division of Administrative

18  Hearings commission.

19         (d)  The appropriate filing officer shall notify the

20  Division of Administrative Hearings Florida Elections

21  Commission of the repeated late filing by an executive

22  committee, the failure of an executive committee to file a

23  report after notice, or the failure to pay the fine imposed.

24         Section 8.  Effective July 1, 2002, subsection (1) of

25  section 106.35, Florida Statutes, is amended to read:

26         106.35  Distribution of funds.--

27         (1)  The Division of Elections shall review each

28  request for contributions from the Election Campaign Financing

29  Trust Fund and certify whether the candidate is eligible for

30  such contributions. Notice of the certification decision shall

31  be provided to the candidate.  An adverse decision may be

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    Florida Senate - 2002                                  SB 1696
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  1  appealed to the Division of Administrative Hearings Florida

  2  Elections Commission.  The Division of Elections shall adopt

  3  rules providing a procedure for such appeals.

  4         Section 9.  Effective July 1, 2002, subsection (2) of

  5  section 104.271, Florida Statutes, is amended to read:

  6         104.271  False or malicious charges against, or false

  7  statements about, opposing candidates; penalty.--

  8         (2)  Any candidate who, in a primary election or other

  9  election, with actual malice makes or causes to be made any

10  statement about an opposing candidate which is false is guilty

11  of a violation of this code.  An aggrieved candidate may file

12  a complaint with the Department of Legal Affairs under Florida

13  Elections Commission pursuant to s. 106.25 for hearing by the

14  Division of Administrative Hearings. The Division of

15  Administrative Hearings commission shall adopt rules to

16  provide an expedited hearing of complaints filed under this

17  subsection. Notwithstanding any other provision of law, the

18  Division of Administrative Hearings commission shall assess a

19  civil penalty of up to $5,000 against any candidate found in

20  violation of this subsection, which shall be deposited to the

21  account of the General Revenue Fund of the state.

22         Section 10.  By January 15, 2002, the Division of

23  Administrative Hearings and the Department of Legal Affairs

24  shall submit to the Governor, the President of the Senate, and

25  the Speaker of the House of Representatives recommendations on

26  the levels of staffing and other funding or resources needed

27  by the division and the department to implement the provisions

28  of this act during the 2002-2003 fiscal year.

29         Section 11.  The transfer or reassignment of any

30  program, activity, or function under this act must include the

31  transfer of any records or unexpended balances of

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    Florida Senate - 2002                                  SB 1696
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  1  appropriations, allocations, or other funds related to the

  2  program, activity, or function. The transfer or reassignment

  3  of any program, activity, or function under this act must not

  4  include the automatic transfer of personnel of the Florida

  5  Elections Commission.

  6         Section 12.  Except as otherwise expressly provided in

  7  this act, this act shall take effect upon becoming a law.

  8

  9            *****************************************

10                          SENATE SUMMARY

11    Eliminates the Florida Elections Commission and transfers
      jurisdiction over violations of campaign-financing and
12    election laws from the elections commission to the
      Department of Legal Affairs and the Division of
13    Administrative Hearings. (See bill for details.)

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