STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORDER ON AMENDED MOTION FOR SUMMARY FINAL ORDER

This matter comes before the undersigned on a Second Amended Motion for Summary Final Order filed by the Petitioner, the Florida Elections Commission (Commission). It was thus alleged in essence that as to the counts in the Order of Probable Cause, charging the violations therein, that on October 14, 2008, the Petitioner filed its First Request for Admissions in the above cases (now consolidated). From that date the Respondent had 35 days, including mailing time, to respond to the request for admissions or either admit or deny each request. The cases were consolidated by Order entered October 29, 2008. 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 (including mailing time) from October 14, 2008, was November 18, 2008. The Respondent made no response to the Request for Admissions by November 18, 2008, or since.

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.

The Respondent, Randall Terry, never responded to the Amended Motion for Summary Final Order or the Second Amended Motion for Summary Final Order.

On the 21st of November 2008, an Order was entered by the undersigned referencing the filing of the Second Amended Motion for Summary Final Order. That Order stated that there were allegations in the Motion, concerning the Request for Admissions, which, if granted, might result in closure of the case. The Order then informed the Respondent that it had a right to respond to that Motion within seven days of the filing date, which was November 19, 2008, plus the five days allowed for mailing time for a total of 12 days, if the response was served by United States mail. That Order then cancelled the hearing then scheduled, because the hearing was scheduled to occur before the response time to the Motion would elapse.

Nonetheless, after being so informed the Respondent still failed to respond to the Second Amended Motion for Summary Final Order.

Because of the averments of the Motion concerning the Request for Admissions and because the Motion has not been responded to, after an extended period of time beyond the normal response time, it must be concluded that the Respondent's failure to provide written answers or objections to the Request for Admissions conclusively establishes the facts set forth in the Second Amended Motion for Summary Final Order. Those facts are deemed established. Because those facts are established it has become obvious that all necessary factual elements for proof of the violations charged by the Petitioner Commission have been established. Thus, there are no factual disputes remaining as a basis for jurisdiction in this forum and to continue forward with this proceeding.

Because the Respondent failed to identify any disputed facts or to allege ultimate facts or facts warranting dismissal of the Commission's case, and because the necessary facts to establish the violations have been proven conclusively, it is

ORDERED:

1. That the violations charged in the Commission's Order of Probable Cause have been established and proven, and that a fine of $1,000.00 be imposed.

2. That the files of the Division of Administrative Hearing in the above-captioned matter are hereby closed.

DONE AND ORDERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 Clerk of the

Division of Administrative Hearings this 23rd day of January, 2009.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-1050

Randall Terry

3501-B Ponce de Leon Boulevard, Suite 394 St. Augustine, Florida 32084

Barbara M. Linthicu, Executive Director Florida Election Commission

The Collins Building, Suite 224

107 West Gaines Street Tallahassee, Florida 32399-1050

Patsy Rushing, Clerk Florida Election Commission

The 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 agency 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: 08-005009

Orders for Case No: 08-005009