This cause came on for consideration upon Petitioner Florida Elections Commission's (FEC's) Motion for Summary Final Order and upon the terms of the Order to Show Cause entered on April 3, 2009.
On May 30, 2008, FEC entered an Order of Probable Cause charging Respondent with the following violations:
Count 1:
On or about January 10, 2007, Respondent violated Section 106.07(1), Florida Statutes, when he failed to file with the filing office his 2006 Q4 CTR due on that date, listing all contributions received and all expenditures made, by or on behalf of the candidate.
Count 2:
On or about May 7, 2007, Respondent violated Section 106.141(1), Florida Statutes, by failing to properly dispose of surplus campaign funds within 90 days after he was eliminated and to file a report reflecting the disposition of those funds, when Respondent failed to qualify between
January 30, 2007 and February 6, 2007, and failed to dispose of funds in his campaign
account and file a report reflecting the disposition of the funds on or before May 7, 2007.
On or about December 16, 2008, Respondent was personally served with the Order of Probable Cause by process server.
Because Respondent neither elected to have a formal or informal hearing conducted before FEC nor elected to resolve the complaint by consent order within 30 days after the date of the filing of FEC's allegations, on January 30, 2009, FEC referred the case to the Division of Administrative Hearings (DOAH), pursuant to Section 106.25(5), Florida Statutes (2007).
The case was filed at DOAH on February 2, 2009.
On February 6, 2009, Petitioner filed and served its First Requests for Admission upon Respondent. Respondent had 35 days, including time for mailing, to either admit or deny each of the Requests for Admission.
Rule 1.370(a), Florida Rules of Civil Procedure provides:
Each matter of which an 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
. .
Thirty-five days from February 6, 2009, was March 13, 2009. Respondent failed to file a response to FEC's Requests for Admission by March 13, 2009.
Additionally, Rule 1.370(b), Florida Rules of Civil Procedure, provides:
Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.
On March 17, 2009, Petitioner filed its Motion for Summary Final Order, based on the unanswered Requests for Admission, and, therefore, based upon the conclusively established admissions of fact. Respondent filed no response in opposition to the Motion for Summary Final Order, as permitted by Florida Administrative Code Rule 28-106.204.
On April 3, 2009, an Order to Show Cause was entered, requiring Respondent to show cause by April 10, 2009, why a Summary Final Order should not be entered against Respondent. Respondent did not file any response.
The April 3, 2009, Order to Show Cause gave Respondent a final opportunity to dispute any or all facts, to set aside the Requests for Admission, or to otherwise show cause why the Motion for Summary Final Order should not be granted.
Respondent has not shown good cause.
Respondent's failure to provide a written answer or objection to FEC's Requests for Admission conclusively establishes the following determinative facts, which prove the charges herein:1/
Respondent signed a Statement of Candidate form for Jacksonville City Council, District 7, on June 8, 2005.
Respondent filed an Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (DS-DE-9) on or about June 8, 2005, designating himself as the treasurer of his campaign.
Respondent did not file his 2006 Q4 Campaign Treasurer's report by January 10, 2007.
Respondent received a Memorandum from Beth Fleet, Director of Candidate Administration, dated January 12, 2007, notifying him that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007.
Respondent received an April 27, 2007, Memorandum from Jerry Holland, Duval County Supervisor of Elections, notifying Respondent that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007.
Respondent's failure to file his 2006 Q4 Campaign Treasurer's Report is a violation of Section 106.07(1), Florida Statutes.
Respondent's Termination Report (TR) was due on May 7, 2007.
Respondent received a letter dated April 27, 2007, from Jerry Holland, Duval County Supervisor of Elections, notifying him that his TR was due on May 7, 2007.
Respondent did not file his TR with the Duval County Supervisor of Elections by May 7, 2007.
Respondent's failure to file his TR by May 7, 2007, is a violation of Section 106.141(1), Florida Statutes.
CONCLUSIONS OF LAW
Section 106.265, Florida Statutes, provides that Respondent can be fined up to $1,000 for each violation committed. That section also lists several factors to be considered when setting the amount of a fine. Respondent bears the burden of raising and presenting evidence of mitigating circumstances. Diaz de la Portilla v. Florida Elections Commission, 958 So. 2d 913, 924 (Fla. 3rd DCA 2003), rev. den. Florida Elections Commission v. Diaz de la Portilla, 872 So. 2d 898 (Fla. 2004); and rev. den., Diaz de la Portilla v. Florida Elections Commission, 872 So. 2d 899 (Fla. 2004) (If a defending party wishes his or her financial position to be taken into account as a matter in mitigation, that party should produce evidence of his or her financial resources.). Respondent has not requested that his financial position be taken into account as a matter in mitigation.
Florida Administrative Code Rule 28-106.204(4), requires that:
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. The Motion may be accompanied by supporting affidavits. All other parties, may, within seven days of service, file a response in opposition, with or without supporting affidavits.
Respondent has failed to identify any facts that are in dispute or to allege any facts that, in Respondent's opinion,
warrant a formal administrative proceeding in this case. Sections 120.54(5)(a)(4) and 120.569(2)(c), Florida Statutes; Florida Administrative Code Rule 28-106.201(2), and Brookwood Extended Care Center of Homestead, LLP v. Agency for Healthcare Administration, 870 So. 2d 834 (Fla. 3rd DCA 2003) (in a proceeding governed by Florida Administrative Code Rule 28- 106.201, the burden is on the person or entity petitioning for an administrative hearing to state the ultimate facts, to identify the facts that are in dispute, and to allege the facts that warrant, in the petitioner's opinion, reversal).
In the instant case, Respondent stands in the shoes of the party requesting the hearing.
Petitioner FEC has conclusively established that Respondent committed the violations alleged in its May 30, 2008, Order of Probable Cause, and that there are no disputed material issues of fact remaining in this consolidated case.
Because Respondent did not identify disputed facts, allege ultimate facts, or allege facts warranting dismissal, and because Petitioner has proven conclusively that Respondent committed the violations, he is charged with, this Summary Final Order is entered.
Accordingly, pursuant to Section 120.57(1)(h), Florida Statutes, and Florida Administrative Code Rule 28-106.204, it is determined and ORDERED:
DONE AND ORDERED this 1st day of May, 2009, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2009.
1/ FEC's other Requests for Admission which related to a definition of "willful" violations are omitted because the charges herein were brought pursuant to Sections 106.07(1) and 106.141(1), Florida Statutes, neither of which statutes specifically require that violation be "willful," and because Respondent has mounted no affirmative defense that his failures to file reports were not willful.
Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224
Marc A. McCullough, Sr. 2512 Gallidia Road
Barbara M. Linthicum, Executive Director Florida Elections Commission
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.
