STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMENDED SUMMARY FINAL ORDER

These cases were forwarded to the Division of Administrative Hearings (DOAH) by the Florida Elections Commission (FEC) on December 22, 2008. FEC also forwarded an Order of Probable Cause in each case, each one alleging eight counts of violations of Chapter 106, Florida Statutes (2006). The undersigned was assigned to both cases and an Initial Order in each was filed with the DOAH clerk on December 22, 2008. FEC filed responses, on January 5, 2009. DOAH Case No. 08-6384 was set for hearing on March 11, 2009, and DOAH Case No. 08-6385 was set for hearing on March 12, 2009. On January 22, 2009, FEC filed a Motion to Consolidate the cases which was granted on February 3, 2009. FEC also filed a Motion To Set Final Hearing for the same day, March 11, 2009, and, accordingly, an Amended Notice of Hearing was issued on February 23, 2009, setting the hearing for March 11, 2009, at 9:00 am, at DOAH in Tallahassee, Florida.

FEC filed its First Request for Admissions on January 29, 2009, and its witness and exhibit lists on March 3, 2009. 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, 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.)

On March 10, 2009, Respondent advised the assistant to the undersigned that he had a commitment in Broward County on

March 11, 2009, and that he would prefer to have venue in Broward County. The assistant to the undersigned then conferred with Counsel for FEC, and with their concurrence, an Order Re- Scheduling Hearing By Video Teleconference was issued on

March 10, 2009, setting the hearing for March 12, 2009, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida. On the morning of March 12, 2009, Respondent telephoned the assistant to the undersigned asking for a half- an-hour delay, because he expected to be late arriving at the Lauderdale Lakes site. At approximately 9:30 am, the proceedings commenced and the Motion for Summary Final Order was considered.

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:

120.57(1)(h) 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.

Therefore, the motion should have been and is now granted pursuant to Florida Administrative Code Rule 28-106.204(4) that 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.

Accordingly, it is ORDERED:

That the Motion for Summary Final Order is granted, and this Order is amended to specify that Respondent shall remit to Petitioner a civil penalty in the amount of $16,000. The civil penalty shall be paid to the Florida Elections Commission,

107 West Gaines Street, Collins Building, Suite 224, Tallahassee, Florida 32399-1050. This Amended 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 20th 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 20th 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

J. Michael Sahm

120 East Oakland Park Boulevard Suite 105

Fort Lauderdale, Florida 33334

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: 08-006384

Orders for Case No: 08-006384