STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER

This matter comes before the undersigned on a Second Amended Motion for Summary Final Order filed by Petitioner, the Florida Elections Commission (Commission). Respondent Kenneth

E. Lamb (Mr. Lamb), did not respond to the Motion.

STATEMENT OF THE ISSUE

The issue is whether Mr. Lamb, violated Subsection 106.07(1), Florida Statutes (2008), on two occasions.

PRELIMINARY STATEMENT

On March 18, 2009, the Commission found probable cause to believe that Mr. Lamb violated Subsection 106.07(1), Florida Statutes, on two occasions.

Specifically the Commission charged Mr. Lamb with the following violations:

Count 1:

Respondent violated Section 106.07(1), Florida Statutes, when Respondent failed to file with the political committee's filing officer the Florida Homestead Fair Tax.com PAC of Florida's 2007 Q4 campaign treasurer's report due on January 10, 2008, listing all contributions received and all expenditures made, by or on behalf of the political committee.

Count 2:

Respondent violated Section 106.07(1), Florida Statutes, when Respondent failed to file with the political committee's filing officer the Florida Homestead Fair Tax.com PAC of Florida's 2008 Q1 campaign treasurer's report due on April 10, 2008, listing all contributions received and all expenditures made, by or on behalf of the political committee.

On or about March 23, 2009, Mr. Lamb was personally served with the Order of Probable Cause by a process server. More than

30 days passed after the time of service, and Mr. Lamb did not elect to have a formal or informal hearing conducted before the Commission, as was his right, or elect to resolve the complaint by consent order. Therefore, he was entitled to a formal administrative hearing conducted by an administrative law judge of the Division of Administrative Hearings.

Mr. Lamb's failure to act resulted in the Commission forwarding the matter to the Division of Administrative Hearings, pursuant to Subsection 106.25(5), Florida Statutes (2008). A hearing date was set for July 1, 2009.

FINDINGS OF FACT

1. The Commission is the state agency responsible for enforcing the campaign laws of the state.

2. Mr. Lamb was served requests for admissions pursuant to Rule 1.370 of the Florida Rules of Civil Procedure. He did not timely respond to the Commission's requests for admissions. In fact, at the time the Second Amended Motion for Summary Final Order was filed, Mr. Lamb still had not responded. It is found that Mr. Lamb is not going to respond. The effect of this failure is to cause the matter elucidated in the following paragraphs to become the facts of this case.

3. On or about August 23, 2007, Florida Homestead Fair Tax.com PAC of Florida Committee (Committee) filed its Statement of Organization of Political Committee.

4. On August 23, 2007, the Committee filed its Florida Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations with the Division of Elections designating Kenneth E. Lamb as its chairman and treasurer.

5. On August 23, 2007, the Committee filed its Registered Agent Statement of Appointment with the Division of Elections designating Kenneth E. Lamb as its registered agent.

6. Mr. Lamb received a letter dated August 28, 2007, from Kristi Reid Bronson acknowledging receipt of the statement of

   Organization and Appointment of Campaign Treasurer for Florida Homestead Fair Tax.com PAC of Florida.

7. Mr. Lamb received a letter dated January 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008.

8. Mr. Lamb received a letter dated January 18, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008.

9. Mr. Lamb received a letter dated July 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008.

10. Mr. Lamb received a letter dated April 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008.

11. Mr. Lamb received a letter dated April 25, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008.

12. Mr. Lamb received a letter dated July 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008.

13. Mr. Lamb's failure to file the Committee's 2007 Q4 Campaign Treasurer's Reports was willful.

14. Mr. Lamb's failure to file the Committee's 2008 Q1 Campaign Treasurer's Reports was willful.

15. As of May 18, 2009, Mr. Lamb has not filed the Committee's 2007 Q4 Report.

16. As of May 18, 2009, Mr. Lamb has not filed the Committee's 2008 Q1 Report.

17. Mr. Lamb's willful failure to file the Committee's 2007 Q4 Campaign Treasurer's Report is a violation of Subsection 106.07(1), Florida Statutes.

18. Mr. Lamb's willful failure to file the Committee's 2008 Q1 Campaign Treasurer's Report is a violation of Subsection 106.07(1), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 106.25(5), Fla. Stat. (2008).

20. Section 106.265, Florida Statutes, provides that

    
    

    Mr. Lamb can be fined up to $1,000 for each violation committed. The section also lists several factors to be considered when setting the amount of a fine. Respondent bears the burden of raising and presenting evidence of mitigating circumstances.

    See Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d 913, 925 (Fla. 3d DCA 2003). Mr. Lamb has not requested that his financial position be taken into account as a matter in mitigation.

    
    

    that:

21. Florida Administrative Code Rule 28-106.204(4) states

    
    

    In cases in which the Division of Administrative Hearing 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.

    
    

22. Mr. Lamb has failed to identify any facts that are in

    
    

    dispute or allege any facts that, in Mr. Lamb's opinion, warrant a formal administrative proceeding in this case. Subsection 120.569(2)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.201(2) provide that the burden is on the person petitioning for an administrative hearing to state the ultimate facts, to identify the facts that are in dispute, and to allege the facts that warrant, in the petitioner's opinion, reversal of the agency's intended action.

23. Mr. Lamb has not identified disputed facts, alleged ultimate facts, or participated in this case at all. Accordingly, the Commission has proven conclusively that

Mr. Lamb committed the violations with which he is charged.

ORDER

Based upon the finding that Kenneth E. Lamb committed two violations of Subsection 106.07(1), Florida Statutes, it is

ORDERED that Kenneth E. Lamb pay a fine of $2,000 within 30 days of the date of this Final Order.

DONE AND ORDERED this 7th day of July, 2009, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 7th day of July, 2009.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-1050

Kenneth E. Lamb

945-4C West Michigan Avenue Pensacola, Florida 32505-2505

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.

Docket for Case No: 09-002715

Orders for Case No: 09-002715