STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER

This case was forwarded to the Division of Administrative Hearings (DOAH) by the Florida Elections Commission (FEC)on December 18, 2008. FEC also forwarded an Order of Probable Cause alleging nine counts of violations of Chapter 106, Florida Statutes (2006). The case was assigned DOAH Case No. 08-6386, and was assigned to the undersigned. An Initial Order was filed with the DOAH clerk on December 22, 2008. FEC filed a response to the Initial Order on January 5, 2009. The case was set for hearing on March 24, 2009, by a Notice of Hearing issued on January 6, 2009.

FEC filed its First Set of Interrogatories on January 23, 2009, and its First Request for Admissions on January 29, 2009. FEC filed its exhibits and witness lists on March 18 and 19, 2009, respectively. No response to the Request for Admissions or any other pleading was received from Respondent. On March 9, 2009, FEC filed a Motion for Summary Final Order (Motion), based on Florida Rule of Civil Procedure Rule 1.370(a) and (b) that provide:

1. Request for Admission. --A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in

   the request. Each matter of which

   admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow ...

2. Effect of Admission. --Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. (Emphasis added.)

Attempts to contact the individual Respondent, Michael Wilhelm, in addition to the pleadings filed by the FEC, included an email on March 18, 2009, from the assistant to the undersigned, and a letter sent by overnight mail on March 19, 2009, that was returned, both requesting that the undersigned's assistant be provided a telephone number for Mr. Wilhelm, or for Mr. Wilhelm to contact her in order to ascertain whether Mr.

Wilhelm was aware of the charges against him and that he knew a hearing had been scheduled. The information was not provided and no call was received.

At 6:58 p.m. on Monday, March 23, 2009, the assistant to the undersigned received a response to the email of March 18, 2009, that also failed to provide a telephone number, but asked if the hearing was canceled. At 8:40 a.m. on March 24, 2009, the assistant replied by email that the hearing was not canceled, and requested that Mr. Wilhelm telephone her at

9:00 a.m. to participate in the hearing or provide her a number to telephone him. No response or telephone call was received during the hearing. FEC presented its Motion for Summary Final Order.

Chapter 2007-30, Section 48, Laws of Florida, effective January 1, 2008, amended existing law and granted final order authority to administrative law judges in cases brought under Chapter 106, Florida Statutes (2008), as provided in the following statute:

106.25(5) Unless a person alleged by the Elections Commission to have committed a violation of this chapter or chapter 104 elects, within 30 days after the date of the

filing of the commission's allegations, to have a formal or informal hearing conducted before the commission, or elects to resolve the complaint by consent order, such person shall be entitled to a formal administrative hearing conducted by an administrative law judge in the Division of Administrative Hearings. The administrative law judge in such proceedings shall enter a final order subject to appeal as provided in s. 120.68.

Florida Administrative Code Rule 28-106.204(4) provides:

(4) In cases in which the Division of Administrative Hearings has final order authority, any party may move for summary final order whenever there is no genuine issue as to any material fact.

Therefore, it is ORDERED:

That the Motion for Summary Final Order is granted, and that Respondent shall remit to Petitioner a civil penalty in the amount of $9,000. The civil penalty shall be paid to the Florida Elections Commission, 107 West Gaines Street, Collins Building, Suite 224, Tallahassee, Florida 32399-1050. This Summary Final Order shall take effect upon being filed with the Clerk of the Division of Administrative Hearing. The fine shall be due and owing within 30 days of entry of this Order.

DONE AND ORDERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2009.

COPIES FURNISHED:

Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224

Tallahassee, Florida 32399-1050

J. Michael Sahm

Sahm Petition Management, Etc Post Office Box 5595

Lighthouse Point, Florida 33074

Michael Wilhelm Save Our Florida

Post Office Box 50393

Lighthouse Point, Florida 33074

Barbara M. Linthicum, Executive Director Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Patsy Rushing, Clerk

Florida Elections Commission Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 08-006386

Orders for Case No: 08-006386