§ 106.265 Civil penalties.
Overview of Statute
This statute provides an outline of how civil penalties are determined for violations of Chapters 106 and 104.
(1) The commission or, in cases referred to the Division of Administrative Hearings pursuant to s.106.25(5), the administrative law judge is authorized upon the finding of a violation of this chapter or chapter 104 to impose civil penalties in the form of fines not to exceed $1,000 per count, or, if applicable, to impose a civil penalty as provided in s. 104.271 or s. 106.19.
(2) In determining the amount of such civil penalties, the commission or administrative law judge shall consider, among other mitigating and aggravating circumstances:
s. 61, ch. 77-175; s. 1, ch. 82-46; s. 2, ch. 83-265; s. 4, ch. 86-276; ss. 7, 14, 15, ch. 90-338; s. 5, ch. 91-429; s. 51, ch. 97-13; s. 36, ch. 98-129; s. 3, ch. 2000-355; s. 22, ch. 2004-252; ss. 24, 30, ch. 2011-6; s. 72, ch. 2011-40; HJR 7105, 2011 Regular Session; s. 24, ch. 2013-37.
1. Definition for Department
The Department of State. Fla. Stat. § 97.021(7).
2. Definition for Political Committee
1. A combination of two or more individuals, or a person other than an individual, that, in an aggregate amount in excess of $500 during a single calendar year:
a. Accepts contributions for the purpose of making contributions to any candidate, political committee, affiliated party committee, or political party;
b. Accepts contributions for the purpose of expressly advocating the election or defeat of a candidate or the passage or defeat of an issue;
c. Makes expenditures that expressly advocate the election or defeat of a candidate or the passage or defeat of an issue; or
d. Makes contributions to a common fund, other than a joint checking account between spouses, from which contributions are made to any candidate, political committee, affiliated party committee, or political party;
2. The sponsor of a proposed constitutional amendment by initiative who intends to seek the signatures of registered electors.
(b) Notwithstanding paragraph (a), the following entities are not considered political committees for purposes of this chapter:
1. National political parties, the state and county executive committees of political parties, and affiliated party committees regulated by chapter 103.
2. Corporations regulated by chapter 607 or chapter 617 or other business entities formed for purposes other than to support or oppose issues or candidates, if their political activities are limited to contributions to candidates, political parties, affiliated party committees, or political committees or expenditures in support of or opposition to an issue from corporate or business funds and if no contributions are received by such corporations or business entities.
3. Electioneering communications organizations as defined in subsection (9). Fla. Stat. § 106.11(16).
3. Definition for Electioneering Communication
Communication that is publicly distributed by a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, or telephone and that:
1. Refers to or depicts a clearly identified candidate for office without expressly advocating the election or defeat of a candidate but that is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate;
2. Is made within 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate; and
3. Is targeted to the relevant electorate in the geographic area the candidate would represent if elected.
The term “electioneering communication” does not include:
1. A communication disseminated through a means of communication other than a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, telephone, or statement or depiction by an organization, in existence before the time during which a candidate named or depicted qualifies for that election, made in that organization’s newsletter, which newsletter is distributed only to members of that organization.
2. A communication in a news story, commentary, or editorial distributed through the facilities of a radio station, television station, cable television system, or satellite system, unless the facilities are owned or controlled by a political party, political committee, or candidate. A news story distributed through the facilities owned or controlled by a political party, political committee, or candidate may nevertheless be exempt if it represents a bona fide news account communicated through a licensed broadcasting facility and the communication is part of a general pattern of campaign-related news accounts that give reasonably equal coverage to all opposing candidates in the area.
3. A communication that constitutes a public debate or forum that includes at least two opposing candidates for an office or one advocate and one opponent of an issue, or that solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum, provided that:
a. The staging organization is either:
(I) A charitable organization that does not make other electioneering communications and does not otherwise support or oppose any political candidate or political party; or
(II) A newspaper, radio station, television station, or other recognized news medium; and
b. The staging organization does not structure the debate to promote or advance one candidate or issue position over another.
(c) For purposes of chapter 106, an expenditure made for, or in furtherance of, an electioneering communication is not considered a contribution to or on behalf of any candidate.
(d) For purposes of this chapter, an electioneering communication does not constitute an independent expenditure and is not subject to the limitations applicable to independent expenditures.
4. Definition for Electioneering Communications Organization
Any group, other than a political party, affiliated party committee, or political committee, whose election-related activities are limited to making expenditures for electioneering communications or accepting contributions for the purpose of making electioneering communications and whose activities would not otherwise require the group to register as a political party or political committee under this chapter.
5. Definition for Person
An individual or a corporation, association, firm, partnership, joint venture, joint stock company, club, organization, estate, trust, business trust, syndicate, or other combination of individuals having collective capacity. The term includes a political party, affiliated party committee, or political committee. Fla. Stat. § 106.011(14).
6. Definition for Division
The Division of Elections of the Department of State. Fla. Stat. § 97.021(8).
7. Definition for Election
Any primary election, special primary election, special election, general election, or presidential preference primary election. Fla. Stat. § 97.021(12).
Case Name: Florida Elections Commission v. Davis
Citation: 44 So.3d 1211
Case Summary: Florida Elections Commission v. Davis held that ALJ did not have statutory authority to levy civil penalties against a candidate who violated Florida election laws.
Case Name: Browning v. Florida Hometown Democracy, Inc., PAC
Citation: 29 So.3d 1053
Case Summary: Browning v. Florida Hometown Democracy, Inc., PAC held that the statute establishing petition signature revocation procedures violated the citizen initiative provision of the state constitution and as such were unconstitutional, since it was neither neutral nor nondiscriminatory, nor was it necessary to ensure ballot integrity. The case further held that the state supreme court had mandatory appellate jurisdiction because the district court of appeal implemented regulations that impacted the citizen initiative process.
Case Name: Diaz de la Portilla v. Florida Elections Commission
Citation: 857 So.2d 913
Case Summary: Diaz de la Portilla v. Florida Elections Commission held that the standard for chapter 106 cases is clear and convincing evidence, not a preponderance of the evidence. Also, candidates are allowed to rely on their campaign treasurers to maintain campaign records and prepare treasurer's reports, as long as all contributions and expenditures are routed through the campaign depository and the treasurer is actually qualified.
Case Name: Secretary of State v. Milligan
Citation: 704 So.2d 152
Case Summary: Secretary of State v. Milligan held that the termination of the Election Campaign Financing Trust Fund did not change the Secretary of State's duty to collect and deposit filing fees.
Case Name: Smith v. Crawford (campaign finance)
Citation: 645 So.2d 513
Case Summary: Smith v. Crawford held that defendant was still qualified to receive public financing in his campaign for commissioner of agriculture, even though he had received public financing in his race for governor and had spent more than $2,000,000 in that race, because the contributions received and expenditures made in the gubernatorial race should not be treated as though they had been made in the race for commissioner of agriculture.
Case Name: McArthur v. Firestone
Citation: 817 F.2d 1548
Federal Circuit Court: 11th Circuit Court
Case Summary: McArthur v. Firestone held that although the most recent election had passed, proceedings against plaintiffs were not moot, since they were possibly subject to both civil and criminal penalties in failing to comply with Florida's campaign disclosure requirements. (This was resolved in McArthur v. Smith.)
Case Name: McArthur v. Smith
Citation: 716 F.Supp. 592
Federal District Court: Southern District of Florida
Case Summary: McArthur v. Smith held that Florida's campaign disclosure statutes did not apply to plaintiffs, a Socialist Workers' Party candidate and his supporters, because compelled disclosure would have subjected them to harassment and threats from private parties.
Regulations & Guidance
Fla. Jur. 2d Constitutional Law s 16, Initiative sponsored by political committee
Fla. Jur. 2d Elections s 101, Advertising
Fla. Jur. 2d Elections s 219, Offenses relating to campaign financing
Fla. Jur. 2d Elections s 222, Offenses relating to campaign literature and political advertisements
Lobbying, PACs, and Campaign Finance s 11:106, Special state issues