11-000239 Florida Elections Commission vs. Robert James Horan Status: Closed DOAH Final Order on Thursday, March 24, 2011.

Summary: Candidate/treasurer failed to file required campaign treasurer's report, in violation of section 106.07(1). Administrative fine of $1,000.00 imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 11 - 0239

)

ROBERT JAMES HORAN, )

)

Respondent. )

_________________________________)

SUMMARY FINAL ORDER

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

Florida S tatutes (2009). 1

APPEARANCES

For Petitioner: Joshua B. Moye, Esquire

Florida Elections Commission

Collins Building, Suite 224

107 East Gaines Street, Suite 224

T allahassee, Florida 32399

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in

the Order of Probable Cause entered November 18, 2010, and, if

so, the penalty that should be imposed.

PRELI MINARY STATEMENT

In an Order of Probable Cause entered November 18, 2010,

the Florida Elections Commission ("Commission") charged Robert

James Horan with one violation of s ection 106.07(1 ) , Florida

Statutes. Specifically, the Commission charged Mr. Horan with

failing "to file timely with the filing officer his 2010 Q1

report listing all contributions received and all expenditures

made, by or on behalf of his campaign." Mr. Horan did not

request a hearing, nor did he 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 s ection 106.25(5) , which provides in pertinent part:

Unless a person alleged by the E lections

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 ord er

subject to appeal as provided in s. 120.68.

On January 14, 2011, the Commission served on Mr. Horan its

First Request for Admissions. On February 21, 2011, the

Commission filed Petitioner's Motion for Summary Final Order.

In the motion, the Commissio n stated that Mr. Horan 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 s ummary final order

pursuant to s ection 120.5 7(1)(h), Florida Statutes .

Mr. Horan did not respond to the Petitioner's Motion fo r

Summary Final Order within the time specified in Florida

Administrative Code Rule 28 - 106.204(1)(responses to motions

shall be filed within seven days of date of service of motion on

non - moving party, with five days added if motion served by

mail). On Ma rch 9, 20 11 , an Order to Show Ca use was entered, in

which Mr. Horan was advised of the consequences of his failure

to respond to the Commission's request s for admission .

Mr. Horan was ordered to serve on the Commission responses to

the Petitioner's First Request for Admissions on or before

March 18, 20 11 , and to file a response to the Order to Show

Cause, together with a statement verifying that he had served

responses to the Petitioner's First Request for Admissions .

Mr. Horan was also advised that, if h e failed to respond to the

Order to Show Cause, a final order would be entered in the case

without further notice or an opportunity for a hearing.

Mr. Horan has failed, as of this date, to respond to the Order

to Show Cause as directed.

FINDINGS OF FACT

Because Mr. Horan 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 Petiti oner'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 subjec t matter of this proceeding and of

t he parties thereto pursuant to s ections 120.569 , 1 20.57(1), and

106.25(5), Florida Statutes (2010 ).

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

pertinent part:

Each campaign treasurer designated by a

candidate o r 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

ca lendar 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

Saturd ay, 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.

3 . Section 106.265 (1) provides that a penalty in an amount

not to exceed $1,000.00 per count may be imposed against a

person found to have violated a provision of chapter 106 and

that the determination of the amount of the penalty shall be

based upon consideration of the following aggravating and

mitiga t ing factors :

(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.

4. Because the penalty for a viol ation of chapter 106

includes imposition of an administrative fine, the Commission

has the burden of proving by clear and convincing evidence that

Mr. Horan committed the violation alleged in the Order of

Probable Cause. Dep' t of Banking & Fin., Div. of S ec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

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

has proven by clear and convincing evidence that Mr. Horan

failed to file hi s 2010 Q1 Campaign Treasurer's Report in

violation of s ection 106.07( 1 ). Because Mr. Horan's failure to

file his 2010 Q1 Campaign Treasurer's Report was willful and

because he presented no evidence regarding his financial

resources , an administrative fine of $1,000.00 is appropriate.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Robert James Horan shall pay an

administrative fine in the amount of $1,000.00 for one violation

of S ection 106.07( 1) , Florida Stat utes . This fine shall be paid

to the Florida Elections Commission pursuant to the provisions

of section 106.265.

DONE AND ORDERED this 24 th day of March, 2011 , in

Tallahassee, Leon County, Florida.

S

__ _________________________________

PATRICIA M. HART

Administrative La w Judge

Division of Administrative Hearings

The DeSo to Building

1230 Apal achee Parkway

Tallahassee, Flor ida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 92 1 - 6847

www.doah.state.fl.us

File d with the Clerk of the

Division o f Administrative Hearings

this 24th day of March, 2011 .

ENDNOTE

1 / All references herein to the Florida Statutes are to the 20 09

edition unless otherwise indicated.

COPIES FURNISHED:

Joshua B. Moye , Esquire

Florida Elections Commissi on

The Collins Building, Suite 224

Tallahassee, Florida 32399

Robert James Horan

6099 Overseas Highway, Lot No. 59E

Marathon, Florida 33050

Rosanna Catalano, Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaine s Street

Tallahassee, Florida 32399 - 1050

Patricia 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. T he notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.