STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER

This case is before Administrative Law Judge June C. McKinney, who was assigned to preside in the matter. As explained below, a formal hearing to contest the factual allegations has been waived, and the matter is ready for final disposition.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission

107 West Gaines Street, Suite 224 Tallahassee, Florida 32399-1050

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Petitioner's Renewed Second Amended Motion for Summary Final Order should be granted.

PRELIMINARY STATEMENT AND FINDINGS OF FACT

On June 11, 2008, Petitioner, Florida Elections Commission (Petitioner or Commission) forwarded this case to the Division of Administrative Hearings for formal proceedings. Along with the referral the Commission filed two Orders of Probable Cause dated November 30, 2007, and May 26, 2006, together with the Staff Recommendations. An Initial Order was entered on June 11, 2008, and was provided to Bruce Calvin Trask (Respondent). On June 30, 2008, a Notice of Hearing was issued setting the final hearing for September 16, 2008. Neither was returned undeliverable.

On July 11, 2008, Petitioner filed a Motion for Summary Final Order. Subsequently, on July 24, 2008, Petitioner filed an Amended Motion for Summary Final Order. Consequently, on August 12, 2008, the undersigned entered an Order to Show Cause that directed Petitioner to clarify some issues. More specifically, the Order to Show Cause provided:

1. No later than August 25, 2008, Petitioner shall respond to this order to show cause in writing as to why the case shall not be held in abeyance until Petitioner demonstrates Respondent has received the appropriate service.

   
   

2. No later than August 25, 2008, Petitioner shall notify the undersigned if the Amended Motion contains a scrivener's error and correct it for the record, if necessary.

On August 25, 2008, Petitioner Responded to the Order to Show Cause and requested that the case be placed in abeyance. On November 20, 2008, Petitioner served Respondent with

Petitioner's First Request for Admissions and filed Petitioner's Second Amended Motion for Summary Final Order. Consequently, on January 8, 2009, the undersigned entered an Order to Show Cause that directed Respondent to file a response to the allegations. More specifically, The Order to Show Cause provided:

1. The ruling on Petitioner's Motion for Summary Final Order is reserved.

   
   

2. No later than January 16, 2009, Respondent shall file, with the Division of Administrative Hearings, a written answer or other pleading setting forth the disputed issues of fact with reference to the factual allegations of the two counts of the Orders of Probable Cause dated

   May 26, 2006, and November 30, 2007, and/or the factors in Section 106.265(1), Florida Statutes, which include, but are not limited to, mitigation issues. Respondent's answer or other pleading shall simultaneously be served upon Petitioner's counsel of record.

   
   

3. The failure to file a response to this order will be deemed an admission of the information set forth in the Order of Probable Cause and can result in the Motion for Summary Final Order being granted. If the motion is granted, the Respondent can be found guilty of the two violations charged in the Orders of Probable Cause, and a civil penalty up to an amount of $2,000 can be imposed against Respondent.

The Order to Show Cause was provided to Respondent's correct address of record. The Order was not returned

undeliverable. It is presumed Respondent received a copy of the Order. To date, Respondent has not responded to the Order to Show Cause.

On February 6, 2009, Petitioner filed a Renewed Second Amended Motion for Summary Final Order. Petitioner confirmed contact with Bruce Trask through Respondent's brother who gave Respondent documents related to the instant case, which had been served. Respondent has never responded to the Motion for Summary Final Order, Amended Motion for Summary Final Order, the Second Amended Motion for Summary Final Order, or the Renewed Second Amended Motion for Summary Final Order.

Respondent has not disputed any of the material facts at issue in this proceeding. Notice of the allegations was provided to Respondent. Respondent has not responded to Petitioners First Request for Admissions. 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.

CONCLUSIONS OF LAW

Section 106.25, Florida Statutes (2008), authorizes an administrative law judge to enter a final order in this proceeding. The statute provides:

(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 x.

120.68.

Petitioner must prove the material allegations by clear and convincing evidence. Diaz de la Portilla v. Florida Elections

Commission, 857 So. 2d 913 (Fla. 3d DCA 2003). If Respondent wishes to litigate the appropriateness of the penalty given his financial resources, though, he has the burden of proof as to this issue. Id.

Since an extended period of time beyond the normal response time has lapsed, it must be concluded that Respondent's failure to respond to the Order to Show Cause and Renewed Second Amended Motion for Summary Final Order, and to provide written answers or objections to Petitioner's Request for Admissions conclusively establishes the facts set forth in the Renewed Second Amended Motion for Summary Final Order. Those facts are deemed established.

Petitioner met its burden to demonstrate with clear and convincing evidence that Respondent violated Section 106.07(1), Florida Statutes, when Respondent failed to file with the

candidate's filing officer the candidate's campaign report due on October 11, 2005, listing all contributions received, and all expenditures made, by or on behalf of the candidate.

Petitioner also met its burden to demonstrate with clear and convincing evidence that Respondent violated Section 106.07(1), Florida Statutes, when Respondent failed to file with his filing officer his 2005 Q4 report due on January 10, 2006, listing all contributions received, and all expenditures made, by or on behalf of the candidate.

Section 106.265, Florida Statutes, provides that Respondent can be fined up to $1000 for each violation committed.

Respondent presented no evidence on this issue.

Therefore, the undersigned concludes that with the aforementioned facts established, all the necessary factual elements for proof of the violations charged by the Commission have also been established. Without Respondent identifying any disputed issues of fact or alleging any mitigating circumstances to warrant consideration, the undersigned finds that Respondent has violated Section 106.07(1), Florida Statutes, on two occasions. Therefore, it is

ORDERED:

1. Petitioner's Renewed Second Amended Motion for Summary Final Order is granted.

2. That the two violations of Section 106.07(5), Florida Statutes charged in the Commission's Orders of Probable Cause have been established and proven, and that a fine of $1,000.00 be imposed for each count.

3. Respondent shall remit to Petitioner a civil penalty of

   
   

   $2000.00. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida 32399-1050. This Final Order shall take effect upon being filed with the Clerk of the Division of the Administration Hearings. The fine shall be due and owing within 30 days of entry of this order.

4. That the file of the Division of Administrative hearing in the above-captioned matter is hereby closed.

DONE AND ORDERED this 18th day of February, 2009, in Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2009.

COPIES FURNISHED:

Barbara M. Linthicum, Executive Director Florida Elections Commissions

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Patsy Rushing, Clerk

Florida Elections Commissions The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Charles A. Finkle, Esquire Florida Elections Commission Collins Building, Suite 224 Tallahassee, Florida 32399-1050

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

Tallahassee, Florida 32399-1050

Bruce Calvin Trask 8306 Mills Drive 126

Miami, Florida 33183

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: 08-002764

Orders for Case No: 08-002764