08-002766 Florida Elections Commission vs. Kenneth S. Lunkins Status: Closed DOAH Final Order on Thursday, January 14, 2010.

Summary: Petitioner demonstrated that Respondent failed to file his 2006 Q2 Campaign Treasurer's Report. Imposed a $1,000 civil penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-2766

)

KENNETH S. LUNKINS, )

)

Respondent. )

________________________________)

SUMMARY FINAL ORDER

This cause is before Errol H. Powell, an Administrative Law

Judge of the Division of Administrative Hearings, on the Florida

Elections Commission’s Second Motion for Summary Final Order.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission

107 West Gaines Street, Suite 224

Tallahassee, Florida 32399-1050

For Respondent: Kenneth S. Lunkins, pro se

No. 530800339

Joseph V. Conte Facility

1351 Northwest 27th Avenue

Pompano Beach, Florida 33069

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Order of Probable Cause issued June 1, 2007, and, if so, what action should be taken.

PRELIMINARY STATEMENT

On June 1, 2007, the Florida Elections Commission

(Commission) issued an Order of Probable Cause against Kenneth

S. Lunkins. The Commission charged Mr. Lunkins with one count

of violating Section 106.07(1), Florida Statutes, in the year

2006. Mr. Lunkins failed to request a formal or informal

hearing or elect to resolve the matter by a consent order. As a

result, pursuant to Section 106.25(5), Florida Statutes,

Mr. Lunkins was entitled to an administrative hearing conducted

by an administrative law judge. On June 11, 2008, the

Commission referred this matter to the Division of

Administrative Hearings.

When the instant matter was referred to the Division of

Administrative Hearings, the referral documents reflected a

Coral Springs, Florida address for Mr. Lunkins. Initial

documents sent from the Division of Administrative Hearings to

Mr. Lunkins at the Coral Springs’ address were returned by the

U.S. Postal Service as undeliverable—“return to sender,”

the Commission filed a Motion for Summary Final Order (Motion),

which reflected that Mr. Lunkins was incarcerated in a

correctional facility and that the Motion was served upon him by

U.S. Mail. This Administrative Law Judge wanted to be assured

that Mr. Lunkins had received a copy of the Motion before making

a ruling. As a result, the ruling on the Commission’s Motion

was reserved to provide the Commission with an opportunity to

show that Mr. Lunkins had received the Motion.

Instead of showing that Mr. Lunkins had received the

Motion, the Commission filed an Amended Motion for Summary Final

Order (Amended Motion), reflecting that Mr. Lunkins had been

served with a copy of the Amended Motion by certified mail.

After filing the Amended Motion, the Commission failed to show

that Mr. Lunkins had received the Amended Motion. The ruling on

the Commission’s Amended Motion was reserved to provide the

Commission an opportunity to show that Mr. Lunkins had received

the Amended Motion. Later, the Commission filed a copy of a

return receipt showing that Mr. Lunkins had received the Amended

Motion. A ruling was made denying the Amended Motion.

Later, the Commission filed a Second Motion for Summary

Final Order (Second Motion), which reflected that the Second

Motion was served on Mr. Lunkins by certified mail. A copy of

the return receipt was not filed. Subsequently, the Commission

served Mr. Lunkins with another copy of the Second Motion by

certified mail. The Commission filed a copy of a return receipt

showing that Mr. Lunkins received the second copy of the Second

Motion. By Order issued January 13, 2009, the undersigned ruled

that all matters in the Commission’s First Request for

Admissions, which included documents, were deemed admitted. The

admissions constitute material facts. No genuine issue as to

any material fact exists.

Section 120.57(1), Florida Statutes (2009), provides in

pertinent part:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order. A summary final order shall

consist of findings of fact, if any,

conclusions of law, a disposition or

penalty, if applicable, and any other

information required by law to be contained

in the final order.

Florida Administrative Code Rule 28-106.204 provides in

pertinent part:

(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. 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.

The requirements for a summary final order have been met.

FINDINGS OF FACT 1

1. In the 2006 election, Mr. Lunkins was a candidate for

the Florida Senate, District 32.

2. On or about April 20, 2005, Mr. Lunkins filed a State

of Florida Appointment of Campaign Treasurer and Designation of

Campaign Depository for Candidates form (DS-DE-9), designating

himself as his campaign treasurer.

3. By letter dated April 26, 2005, and sent on the same

date, to Mr. Lunkins from Kristi Reid Bronson, Chief, Bureau of

Election Records, Division of Elections, Ms. Bronson provided

Mr. Lunkins with a user identification number and initial

password, which allowed him to access the Division of Elections’

electronic filing system. The letter from Ms. Bronson was sent

to the address provided to the Division of Elections.

4. Further, Ms. Bronson’s letter contained information

about filing campaign treasurer reports. She advised

Mr. Lunkins that all candidates filing their campaign

treasurer’s reports with the Division of Elections were required

to file the reports using the electronic filing system. Also,

she advised him that Chapter 106, Florida Statutes, the 2005

Calendar of Reporting Dates, and the 2004 Candidate and Campaign

Treasurer Handbook were available for printing on the Division

of Elections' website.

5. By letter dated July 12, 2006, and sent on the same

date, from Ms. Bronson to Mr. Lunkins, she notified him, among

other things, that he had failed to file his 2006 Q2 Campaign

Treasurer’s Report, which was due on July 10, 2006.

6. By a second letter dated August 30, 2006, and sent the

same date by certified mail, from Ms. Bronson to Mr. Lunkins,

she notified him, among other things, that he had failed to file

his 2006 Q2 Campaign Treasurer’s Report, which was due on

July 10, 2006.

7. On September 1, 2006, Mr. Lunkins claimed and received

Ms. Bronson’s certified letter dated August 30, 2006.

8. Mr. Lunkins failed to file his 2006 Q2 Campaign

Treasurer’s Report, which was due on July 10, 2006.

9. Mr. Lunkins’ failure to file his 2006 Q2 Campaign

Treasurer’s Report was willful.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Section 120.569, Florida Statutes

(2009), and Subsection 120.57(1), Florida Statutes (2009).

11. Section 106.25, Florida Statutes (2009), provides in

pertinent part:

(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.

12. The ultimate burden of proof is on the Commission to

establish by clear and convincing evidence that Mr. Lunkins

violated Section 106.07(1), Florida Statutes (2006), as alleged

in the Order of Probable Cause. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996);

§ 120.57(1)(j), Fla. Stat. (2009).

13. These proceedings are de novo . § 120.57(1)(k), Fla.

Stat. (2009).

14. Section 106.07, Florida Statutes (2006), provides in

pertinent part:

(1) Each campaign treasurer designated by a

candidate or political committee pursuant to

s. 106.021 shall file regular reports of all

contributions received, and all expenditures

made, by or on behalf of such candidate or

political committee. . . .

* * *

(2)(a) All reports required of a candidate

by this section shall be filed with the

officer before whom the candidate is

required by law to qualify. All candidates

who file with the Department of State shall

file their reports pursuant to s. 106.0705.

. . .

* * *

(7) Notwithstanding any other provisions of

this chapter, in any reporting period during

which a candidate . . . has not received

funds, made any contributions, or expended

any reportable funds, the filing of the

required report for that period is waived.

However, the next report filed must specify

that the report covers the entire period

between the last submitted report and the

report being filed, and any candidate . . .

not reporting by virtue of this subsection

on dates prescribed elsewhere in this

chapter shall notify the filing officer in

writing on the prescribed reporting date

that no report is being filed on that date.

(8) . . . .

* * *

(c) Any candidate or chair of a political

committee may appeal or dispute the fine,

based upon, but not limited to, unusual

circumstances surrounding the failure to

file on the designated due date, and may

request and shall be entitled to a hearing

before the Florida Elections Commission,

which shall have the authority to waive the

fine in whole or in part. The Florida

Elections Commission must consider the

mitigating and aggravating circumstances

contained in s. 106.265(1) when determining

the amount of a fine, if any, to be

waived. . . .

* * *

(9) The Department of State may prescribe

by rule the requirements for filing campaign

treasurers' reports as set forth in this

chapter.

15. Section 106.265, Florida Statutes (2006), provides in

pertinent part:

(1) The commission is authorized upon the

finding of a violation of this chapter or

chapter 104 to impose civil penalties in the

form of fines not to exceed $ 1,000 per

count. In determining the amount of such

civil penalties, the commission shall

consider, among other mitigating and

aggravating circumstances:

(a) The gravity of the act or omission;

(b) Any previous history of similar acts or

omissions;

(c) The appropriateness of such penalty to

the financial resources of the person . . .;

and

(d) Whether the person . . . has shown good

faith in attempting to comply with the

provisions of this chapter or chapter 104.

(2) If any person . . . fails or refuses to

pay to the commission any civil penalties

assessed pursuant to the provisions of this

section, the commission shall be responsible

for collecting the civil penalties resulting

from such action.

(3) Any civil penalty collected pursuant to

the provisions of this section shall be

deposited into the Election Campaign

Financing Trust Fund.

(4) Notwithstanding any other provisions of

this chapter, any fine assessed pursuant to

the provisions of this chapter, which fine

is designated to be deposited or which would

otherwise be deposited into the General

Revenue Fund of the state, shall be

deposited into the Election Campaign

Financing Trust Fund.

16. Florida Administrative Code Rule 2B-1.002 provides in

pertinent part:

For purposes of imposing a civil penalty for

violating Chapter 104 or 106, F.S, the

following definitions shall apply:

(1) A person acts "willful" or "willfully"

when he or she knew that, or showed reckless

disregard for whether his or her conduct was

prohibited or required by Chapter 104 or

106, F.S.

(2) "Knew" means that the person was aware

of a provision of Chapter 104 or 106, F.S.,

understood the meaning of the provision, and

then performed an act prohibited by the

provision or failed to perform an act

required by the provision.

(3) "Reckless disregard" means that the

person disregarded the requirements of

Chapter 104 or 106, F.S., or was plainly

indifferent to its requirements, by failing

to make any reasonable effort to determine

whether his or her acts were prohibited by

Chapter 104 or 106, F.S., or whether he or

she failed to perform an act required by

Chapter 104 or 106, F.S.

17. The Commission demonstrated by clear and convincing

evidence that Mr. Lunkins knew that he was required to file his

Campaign Treasurer’s Report for the 2006 campaign year.

18. The Commission demonstrated by clear and convincing

evidence that Mr. Lunkins failed to file his 2006 Q2 Campaign

Treasurer’s Report, which was due on July 10, 2006.

19. Hence, the Commission demonstrated by clear and

convincing evidence that Mr. Lunkins violated Section 106.07(1),

Florida Statutes (2006), by his failure to file his 2006 Q2

Campaign Treasurer’s Report, which was due on July 10, 2006.

20. The civil penalty authorized to be imposed upon

Mr. Lunkins is $1,000.00 per violation. § 106.265(1), Fla.

Stat. (2006). The Commission demonstrated by clear and

convincing evidence that Mr. Lunkins committed one violation of

Section 106.07(1), Florida Statutes (2006).

21. Several mitigating and aggravating circumstances shall

be considered in the imposition of the civil penalty.

§ 106.265(1), Fla. Stat. (2006). No mitigating or aggravating

circumstances were raised or presented by the parties and the

evidence fails to demonstrate any such circumstances. Hence,

the civil penalty of $1,000.00 is reasonable and appropriate.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

1. Kenneth S. Lunkins committed one count of violating

Section 106.07(1), Florida Statutes (2006), by failing to file

his 2006 Q2 Campaign Treasurer’s Report, which was due on

July 10, 2006.

2. A civil penalty of $1,000.00 is imposed. The civil

penalty shall be paid to the Florida Elections Commission within

30 days of the date of this Summary Final Order.

DONE AND ORDERED this 14th day of January, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January, 2010.

ENDNOTE

1/ The Findings of Facts are based upon the admissions deemed

admitted.

COPIES FURNISHED :

Eric M. Lipman, Esquire

Florida Elections Commission

107 West Gaines Street, Suite 224

Tallahassee, Florida 32399-1050

Kenneth S. Lunkins

No. 530800339

Joseph V. Conte Facility

1351 Northwest 27th Avenue

Pompano Beach, Florida 33069

Barbara M. Linthicum, Executive Director

Florida Elections Commission

The Collins Building. Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Pasty Rushing, Clerk

Florida Elections 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.