Order of Probable Causec~Ty rc~uc Fi~E~ rte' -#~ CsS s~~~~so~ s X08
STATE OF FLORIDA ,~ , : -. _
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FLORIDA ELECTIONS COMMISSION _ '~~ ~ ~ ~' ~ ~' '.''' g ~' `''
_I.
FLORIDA ELECTIONS COMMISSION,
PETITIONER,
v. AGENCY CASE NO.: FEC 07-274
SItVION CRUL,
RESPONDENT.
ORDER OF PROBABLE CAUSE
THIS CAUSE came on to be heard before the Florida Elections Commission at its
meeting held on August 14 & 15, 2008.
The Commission has reviewed the complaint, Report of Investigation, Staff
Recommendation, and written statements submitted by the Respondent and considered all oral
statements made at the probable cause hearing. Based on the facts set forth in the Staff
Recommendation, which is incorporated herein and attached to this order, the Commission finds
that there is probable cause that Respondent committed five counts of violating Chapter 106
106.19(1)(a), Florida Statutes:
Count 1
On or about August 2, 2006, Respondent violated Section
106.19(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Pershing Industries Inc. before the general
election held on November 6, 2007.
Count 2: ~ , ,,,,
On or about March 21, 2007, Respondent violated Section
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106.19(1}(a), Florida Statutes, by accepting a contribution in _': ~ =T"1
excess of the legal limit, when Respondent accepted a second $500 - i ~~~='
contribution from Jack Glottman before the general election held _ ~"' `~
on November 6, 2007. ~' : ~ "~
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P_0001 (S/08)
Count 3•
On or about March 21, 2007, Respondent violated Section
10619(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Ami Glottman before the general election held
on November 6, 2007.
Count 4:
On or about April 3, 2007, Respondent violated Section
106.19(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Louis Wolfson, III, before the general election
held on November 6, 2007.
Count 5:
On or about March 19, 2007, Respondent violated Section
106.19(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Michael Wohl before the general election held
on November 6, 2007.
DONE AND ORDERED by the Florida Elections Commission and filed with the
Commission Clerk on August 29, 2008, in Tallahassee, Florida.
!C:ruz-tiustillo, Chair
Elections Commission
NOTICE OF RIGHT TO A HEARING
As the Respondent, you may elect to resolve this case in several ways. First, you may elect to
resolve this case by consent order where you and Commission staff agree to resolve the
violations and agree to the amount of the fine. The agreed to consent order is then presented to
the Commission for its approval. To discuss a consent order, contact the person who signed the
Staff Recommendation attached to the Order of Probable Cause.
Second, you may request an informal hearing held before the Commission, if you do not dispute
any material fact in the Staff Recommendation. You have 30 days from the date of the Order of
Probable Cause to request such a hearing. At the hearing, you will have the right to make written
or oral arguments to the Commission concerning the legal issues related to the violations and the
potential fine. At the request of Respondent, the Commission will consider and determine
willfulness at an informal hearing. Otherwise, live witness testimony is unnecessary.
P_cooi ~sios~
Third, you may request a formal hearing held before the Commission, if you dispute any issue of
material fact in the Staff Recommendation. You have 30 days from the date of the Order of
Probable Cause to request such a hearing. At the hearing, you will have the right to present
evidence relevant to the violation(s) listed in this order, to cross-examine opposing witnesses, to
impeach any witness, and to rebut the evidence presented against you.
If you do not elect to resolve the case by consent order or request a formal or informal hearing
before the Commission within 30 days of the date of this Order of Probable Cause, the case will
be sent to the Division of Administrative Hearing for a formal hearing.
To request a hearing, please send a written request to the Commission Clerk, Patsy Rushing.
The address of the Commission Clerk is 107 W. Gaines Street, Collins Building, Suite 224,
Tallahassee, Florida 32399-1050. The telephone number is (850) 922-4539. The Clerk will
provide you with a copy of Chapter 28-106, Florida Administrative Code, and other applicable
rules upon request. No mediation is available.
Copies furnished to:
Charles A. Finkel, General Counsel
Simon Cruz, Respondent (certified mail)
Carl Zablotny, Complainant
Miami Beach City Clerk, Filing Officer
Attachment: Staff Recommendation
P_cao~ ~siog~
FLORIDA ELECTIONS COMMISSION
STAFF RECOMMENDATION
CASE NUMBER: FEC 07-274
RESPONDENT: Simon Cruz
COMPLAINANT: Carl Zablotny
On November 15, 2007, the Florida Elections Commission received a sworn complaint alleging
that the Respondent violated Chapter 106, Florida Statutes. The Commission staff investigated
the allegations and based on the facts and conclusions of law contained in the Complaint, the
Report of Investigation, and this statement, the staff recommends that there is probable causer
to charge the Respondent with:
Five counts of violating Section 106.19(1)(a), Florida Statutes,
prohibiting a person or organization from accepting a contribution
in excess of the legal limits.
SUMMARY OF FACTS AND CONCLUSIONS OF LAW.
1. Respondent, Simon Cruz, ran unsuccessfully for mayor for the City of Miami
Beach in the November 20, 2007, run-off election. Respondent was elected Miami Beach City
Commissioner on November 4, 1997, and re-elected in 1999 and 2003. Respondent is President
and CEO of Plus International Bank in Miami, Florida.
2. Complainant, Carl Zablotny, is a concerned citizen, and publisher and editor of
The Wire, a newspaper in Miami Beach, Florida.
3. Complainant alleged that Respondent accepted five excessive contributions.
I. Section 106.19(1)(a), Florida Statutes. (Counts 1 -- 5)
4. Investigator Helen Hinson examined whether the Respondent violated this section
of the election laws by accepting contributions in excess of the Legal limit of $500 per person per
election.
5. Complainant alleged that Respondent accepted two $500 contributions from
Pershing Industries Inc., Jack Glottman, Ami Glottrnan, Louis Wolfson, III, and Michael Wohl
during the same election cycle. The contributions were listed on Respondent's 2006 Q1, Q2 and
i The term probable cause means a reasonable ground of suspicion supported by circumstances sufficiently strong
to warrant a cautious person in the belief that the person has committed the offense charged. Schmitt v. State, 590
So.2d 404, 409 (Fla. 1991). Probable cause exists where the facts and circumstances, of which an [investigator] has
reasonably trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an
offense has been comrnitted. Department of Highway Safety and Motor Vehicles v. Favino, 667 Sold 305, 309
(Fla. ls` DCA 1995).
Sof001 (3/08)
Q3 campaign treasurer's reports (CTR) prior to the November 6, 2007 general election. Copies
of Respondent's 2006 Q2 CTR, 2006 Q3, and 2007 Q1 CTRs are attached to the complaint.
6. The City of Miami Beach held two elections for mayor. The general election was
held on November 6, 2007, and the run-off election was held on November 20, 2007. Table 1
lists contributions Respondent accepted from Pershing Industries Inc. before the general election.
TABLE l: CONTRIBUTIONS ACCEPTED FROM PERSHING INllUSTRIES INC.
Date Contributors Name Contributor Contribution Amount
Sequence # & Address Type Occupation Type
6/7/2006 Pershing Industries Inc. B Funeral Home Check ,~~00.00
52 14200 N.W. 57t1i Ave.
2006 Q2 Miami Lakes, FL
6/7/2006 Vista Funeral Home Inc. B Funeral Home Check $500.00
54 14200 N.W. 57"' Ave.
2006 Q2 Miami Lakes, FL
7/28/2006 Pershing Industries Inc. B Medical Check $500.00
16 14200 N.W. 57~' Ave.
2006 Q3 Miami Lakes, FL
Excessive Contribution Total $1,000.00
7. Mariana Cruz, Respondent's wife and deputy treasurer stated that the entry for
Pershing Industries, Inc., sequence #52, on the 2006 Q2 CTR should have been reported as Vista
Memorial Gardens. Mrs. Cruz provided check images of check #012310 from Pershing
Industries Inc., and check #033852 from Pershing Industries Inc. d/b/a Vista Memorial Gardens.
8. On check image #033852, Mrs. Cruz provided the notation stating, "This check
should have been inputted as Vista Memorial Gardens so as not to be a repeat. (this was a
clerical error.)" However, the account name on check #033852 was Pershing Industries, Inc.
d/b/a Vista Memorial Gardens.2 Vista Memorial Gardens is a fictitious name; it is not a legal
entity.3 Therefore, the second contribution of $500 violated the legal limits.
2 Respondent also reported a $500 contribution from Vista Funeral Home, Inc., in his 2006 Q2 CTR. Vista Funeral
Home, Inc., is a fictitious name, not a registered corporation, and is owned by Pershing Industries Inc., according to
the Division of Corporations. The address on the check is the same as Pershing Industries Inc. Although it appears
to be an additional excessive contribution, staff is not recommending probable cause because the violation was not
alleged in the complaint. Further, the three checks were dated May 9, 2006. Two checks were deposited in
Respondent's campaign account on June 12, 2006, and one check on August 2, 2006. Section 106.05, Florida
Statutes requires that all funds received by the campaign be deposited by the 5"' business day following the receipt
thereof. However, since this possible violation was not alleged in the complaint, Investigator Hinson did not further
investigate this issue.
3 FEC 02-141 (Neal) default ($44,300 fine) a contribution from a candidate's "dba" business is a contribution from
the candidate.
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9. Table 2 lists excessive contributions Respondent accepted from four individuals
before the general election.
TABLE 2: ADDLTiONAL EXCESSIVE CONTRIBUTfONS ACCT+~I'TLll BY RESPONDENT
Date Accepted4 Contributor AIr10Ullt Total
06/12/06 Pershing Industries Inc. $500.00 $1,000.00
08/02/06 14200 N.W. 57"` Ave.
Miami Lakes, FL $500.00
I
06/14/06 Jack Glottman $500.00 $1,000.00
~
03/21/07 $500.00
06/14/06 Ami Glottman $500.00 $1,000.00
03/21/07 $500.00
06/12/06 Louis Wolfson, III $500.00 $1,000.00
04/03/07 $500.00
06/12/06 Michael Wohl $500.00 $1,000.00
03/19/07 $500.00
10. Respondent stated that his campaign accepted the contributions because no one
realized that the contributors had made a previous contribution. Respondent said that the four
excessive contributions were returned to the four contributors from Respondent's campaign
account in February of 2008. However, the four checks ($500.00 to each contributor) were each
dated December 14, 2007. Nevertheless, Respondent accepted five excessive contributions from
the individuals listed in Table 2 and did not return them until after the elections and after the
complaint was filed.
11. Section 106.08(1)(a), Florida Statutes, limits the amount of "contributions" that an
individual or corporation can make to a candidate in any election to $500. Section 106.19(1)(x),
Florida Statutes, prohibits a person from accepting a contribution in excess $500 from any one
person per election, as prescribed in Section 106.08.
12. Under these circumstances, I recommend that the Commission find probable
cause that Respondent violated Section 106.19(1)(a}, Florida Statutess, on five occasions.
4 Date deposited in campaign account.
~' Any candidate;...or other person who knowingly and willfully: (a) [a]ccepts a contribution in excess of the limits
prescribed by s. 106.08;... is guilty of a misdemeanor of the first degree....
In FEC 99-65 (Proctor), the Commission stated in its Final Order:
However, the `knowing and willful' standard articulated in Section 106.19, Florida Statutes, is a
necessary prerequisite to the finding of a criminal violation of the law. However, when the
Connnission exercises its jurisdiction over Section 106.19, Florida Statues, the standard is that of
`willfulness' as defined provided (sic) in Section 106.25(3), Florida Statutes. The Commission
has long held this position, see Florida Police Benev. Association Political Action Committee v.
SofD01 {3/08)
II. Conclusion.
13. Respondent's actions in this case were willful.
14. Robert E. Parcher, Miami Beach City Clerk and filing officer, provided
Respondent with Chapter 106, Florida Statutes, 2006 Candidate and Campaign Treasurer
Handbook, and the calendar of important dates. See Exhibit 9 [4 of 9], Report of Investigation.
The filing officer also informed Respondent that the candidate handbook was available at the
Division of Elections' website.
15. The filing officer notified Respondent that the Miami-Dade County Commission
on Ethics and Public Trust was offering a special "Campaign Skills Seminar" on March 29,
2007. See Exhibit 9 [6, 7, 8 of 9], Report of Investigation. The purpose of the workshop was to
provide essential information for declared candidates and others planning to run for office about
their legal and ethical obligations while seeking elected office. The filing officer had no
information regarding Respondent's attendance.
Florida Elections Com'n, 430 So.2d 483 (Fla. 1st DCA 1983), Pasquale v. Florida Elections
Com'n, 759 So.2d 23(Fla. 4a' DCA 2000), McGann v. Florida Elections Com'n, 803 Sold 763,
(Fla. 15` DCA 2001). Of course, as provided in Section 106.37, Florida Statutes, "willfulness" can
be proven by a showing of `reckless disregard."'
6 § 106.37, Fla. Stat. (2006) (repealed effective January 1, 2008), 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.
The FEC rule defining "willful" reads as follows:
2B-1.002 Definitions. For purposes of imposing a civil penalty for violating Chapter
104, or 106, F.S., the following definitions shall apply:
(1) A person acts "willful" or "willfully" when he or she knew that, or showed
reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or
106, F.S.
(2) "Knew" means that the person was aware of a provision of Chapter 104 or 106,
F.S., understood the meaning of the provision, and then performed an act prohibited by the
provision or failed to perform an act required by the provision.
(3) "Reckless disregard" means that the person disregarded the requirements of
Chapter 104 or 106, F.S., or was plainly indifferent to its requirements, by failing to make any
reasonable effort to determine whether his or her acts were prohibited by Chapter 104 or 106, F.S.,
or whether he or she failed to perform an act required by Chapter 104 or 106, F.S.
Specific Authority: 106.26 FS. Law Implemented: Section 106.25(3), FS. History-New 9-11-
06, Amended 12-25-07.
SofU01 (3/08)
16. On April 27, 2006, Respondent signed the Statement of Candidate form and filed
it with his filing officer on May 1, 2006. The form states that Respondent has received, read, and
understand the requirements of Chapter 106. Florida Statutes.
17. Respondent was an experienced candidate. In an affidavit, dated January 29,
2008, Respondent stated that he received from the Miami Beach City Clerk a copy of Chapters
144, and 106, Florida Statutes, and the 2006 Candidate and Campaign Treasurer Handbook and
read each item. Pages 24 and 26 of the handbook set forth the contribution limits for candidates.
Respondent did not recall obtaining additional candidate training.
18. Respondent should note that Section 106.265(1), Florida Statutes, provides that
the Commission is authorized upon finding a violation of Chapter 104 and 106, Florida Statutes,
to impose civil penalties in the form of fines not to exceed $1000 per count.
19. Respondent stated he first learned about his excessive contributions in September
2007 from the Miami Herald. However, his father had died and his mother was diagnosed with
cancer. He said that the campaign took a back seat to those events. Respondent further stated
the oversight was unintentional but driven by very traumatic circumstances.
20. Respondent should note that in addition to the penalty provided for in Section
106.265(1), Florida Statutes, Section 106.19(2), Florida Statutes, provides for a civil penalty
equal to three times the amount involved in the illegal act if a Respondent is found to have
violated Section 106.19(1)(a), 106.19{1)(b), or 106.19(1)(d), Florida Statutes.
21. During the investigation of the allegations contained in the sworn complaint, the
investigator found that Respondent contributed $2,000 to his campaign on February 6, 2008,
after he was defeated. She also found that Respondent did not dispose of all of the funds in his
campaign account within 90 days after being eliminated as a candidate, as required by Section
106.141(1), Florida Statutes. However, because these violations were not alleged in the
complaint, she did not further investigate this information.
22. On April 28, 2008 staff mailed a copy of the Report of Investigation to
Respondent in accordance with Section 106.25(4)(a) and (b), Florida Statutes (2007). As of the
date of this Staff Recommendation, Respondent has not filed a written response with the
Commission.
III. Summary of Charges.
23. Under these circumstances, I recommend that the Commission find probable
cause that Respondent committed five counts of violating Chapter 106, Florida Statutes.
Count 1:
On or about August 2, 2006, Respondent violated Section
106.19(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Pershing Industries Inc. before the general
election held on November 6, 2007.
SofUO] (3/08) 5
Count 2:
On or about March 21, 2007, Respondent violated Section
106.19(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Jack Glottman before the general election held
on November 6, 2007.
Count 3:
On or about March 21, 2007, Respondent violated Section
106.19(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Ami Glottman before the general election held
on November 6, 2007.
Count 4-
On or about April 3, 2007, Respondent violated Section
106.19(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Louis Wolfson, III, before the general election
held on November 6, 2007.
Count 5•
On or about March 19, 2007, Respondent violated Section
106.19(1)(a), Florida Statutes, by accepting a contribution in
excess of the legal limit, when Respondent accepted a second $500
contribution from Michael Wohl before the general election held
on November 6, 2007.
Copy furnished to:
Barbara M. Linthicum, Executive Director
Helen Hinson, Investigator Specialist
Respectfully submitted on June 16, 2008,
~~
Charles A. Finke
General Counsel
Sof001 (3/08) 6