09-005612 Florida Elections Commission vs. Ethel Fresen, Treasurer For Erik Fresen's Campaign Status: Closed DOAH Final Order on Tuesday, January 12, 2010.

Summary: The failure of Respondent to respond to the request for admissions and order to show cause resulted in matters being deemed admitted, which were sufficient for Petitioner to prove 3 violations of Section 106.07, Florida Statutes. A $3,000 fine is imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 09-5612

)

ETHEL FRESEN, TREASURER FOR )

ERIK FRESEN'S CAMPAIGN, )

)

Respondent. )

_________________________________)

SUMMARY FINAL ORDER

This order is entered pursuant to Section 120.57(1)(h),

Florida Statutes (2009).

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

Tallahassee, Florida 32399

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Order of Probable Cause entered August 26, 2009, and, if so,

the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Order of Probable Cause entered August 26, 2009, the

Florida Elections Commission ("Commission") charged Ethel

Fresen, Treasurer for Erik Fresen's Campaign, with three

violations of Section 106.07(2)(b).1, Florida Statutes (2007 and

2008). 1 Specifically, Ms. Fresen was charged with failing "to

file with the candidate's filing officer an addendum to the

candidate's incomplete campaign report due on" October 10, 2007,

January 10, 2008, and April 10, 2008. Ms. Fresen did not

request a hearing, nor did she choose to resolve this matter

through a consent order. Accordingly, the Commission

transmitted the matter to the Division of Administrative

Hearings for assignment of an administrative law judge, pursuant

to Section 106.25(5), Florida Statutes, which provides in

pertinent part:

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.

On October 15, 2009, the Commission served on Ms. Fresen

its First Request for Admissions. On November 20, 2009, the

Commission filed Petitioner's Motion for Summary Final Order.

In the motion, the Commission stated that Ms. Fresen had failed

to respond timely to the request for admissions. It further

argued that, because the matters in the request for admissions

were deemed admitted by operation of Florida Rule of Civil

Procedure 1.370(a) and (b), there were no disputed issues of

material fact to be resolved in an evidentiary hearing and that

it was, therefore, entitled to entry of a summary final order

pursuant to Section 120.57(1)(h), Florida Statutes (2009).

Ms. Fresen did not respond to the Petitioner's Motion for

Summary Final Order. On December 9, 2009, an order was entered

cancelling the final hearing scheduled for December 11, 2009,

and an Order to Show Cause was entered on the same date. In the

Order to Show Cause, Ms. Fresen was advised of the consequences

of her failure to respond to the Commission's request for

admission, and she was ordered to file a response to the Order

to Show Cause and serve on the Commission responses to the

Petitioner's First Request for Admissions on or before

December 18, 2009. Ms. Fresen was also advised that, if she

failed to respond to the Order to Show Cause and/or to serve

responses to the request for admissions, a final order would be

entered in the case without further notice or an opportunity for

a hearing. On January 11, 2010, the Commission filed a Notice

of Failure to Respond to Petitioner's Request for Admissions, in

which it stated that Ms. Fresen had failed to respond to its

request for admissions, as directed in the Order to Show Cause.

FINDINGS OF FACT

Because Ms. Fresen failed to respond to the Petitioner's

First Request for Admissions, the matters of which admissions

were requested are deemed conclusively established for purposes

of this administrative proceeding. See Fla. R. Civ. P. 1.370.

The Petitioner's First Request for Admissions is attached to

this Final Order, and the matters of which admissions were

requested are adopted herein as findings of fact.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

2. In its Order of Probable Cause, the Commission seeks to

impose penalties against Ms. Fresen in the form of an

administrative fine. Therefore, it has the burden of proving by

clear and convincing evidence that Ms. Fresen committed the

violations alleged in the Administrative Complaint. Department

of Banking & Finance, Division of Securities & Investor

Protection v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

3. Section 106.07(1), Florida Statutes, provides in

pertinent part:

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. Reports shall be filed

on the 10th day following the end of each

calendar quarter from the time the campaign

treasurer is appointed, except that, if the

10th day following the end of a calendar

quarter occurs on a Saturday, Sunday, or

legal holiday, the report shall be filed on

the next following day which is not a

Saturday, Sunday, or legal holiday.

Quarterly reports shall include all

contributions received and expenditures made

during the calendar quarter which have not

otherwise been reported pursuant to this

section.

4. Section 106.07(2)(b)1., Florida Statutes, provides as

follows:

b)1. Any report which is deemed to be

incomplete by the officer with whom the

candidate qualifies shall be accepted on a

conditional basis, and the campaign

treasurer shall be notified by registered

mail as to why the report is incomplete and

be given 3 days from receipt of such notice

to file an addendum to the report providing

all information necessary to complete the

report in compliance with this section.

Failure to file a complete report after such

notice constitutes a violation of this

chapter.

5. Section 106.265, Florida Statutes, provides:

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,

political committee, committee of continuous

existence, or political party; and

(d) Whether the person, political

committee, committee of continuous

existence, or political party has shown good

faith in attempting to comply with the

provisions of this chapter or chapter 104.

6. Based on the findings of fact herein, the Commission

has proven by clear and convincing evidence that Ms. Fresen

committed three violations of Section 106.07(2)(b)1., Florida

Statutes. In accordance with the penalty provision in

Section 106.265(1), Florida Statutes, and in light of the lack

of good faith shown by Ms. Fresen in complying with the

statutory requirement for the filing of campaign finance

reports, a penalty in the amount of $3,000.00 appears to be

justified.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Ethel Fresen shall pay an administrative

fine in the amount of $1,000.00 for each of the three violations

of Section 106.07(2)(b)1., Florida Statutes, proven by the

Florida Elections Commission, for a total administrative fine of

$3,000.00.

DONE AND ORDERED this 12th day of January, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

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 12th day of January, 2010.

ENDNOTE

1 / All references herein to the Florida Statutes are to the 2007

and 2008 editions unless otherwise indicated. These two

statutory sections are identical to one another in all respects

pertinent to this matter.

COPIES FURNISHED:

Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

Tallahassee, Florida 32399

Ethel Fresen

1500 Southwest 45 Avenue

Miami, Florida 33134-3712

Barbara M. Linthicum, Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Patsy 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.