The Issue Whether Petitioner was overpaid for the pay period ending July 5, 2001, warrant date July 13, 2001, for 40 hours, equaling $378.74.
Findings Of Fact Petitioner was employed by Respondent, an agency of the State of Florida, as a Senior Juvenile Detention Officer during the pay period of June 22, 2001 through July 5, 2001. Prior to June 22, 2001, Petitioner exhausted her accrued sick leave. During the referenced pay period, Petitioner claimed 40 hours of sick leave relying on leave that a fellow employee, Marc Gulley, attempted to donate to her. On June 24, 2001, Marc Gulley submitted an Interagency Sick Leave Transfer Request to Donate form to Respondent. On June 27, 2001, Petitioner submitted a Sick Leave Transfer Request to Use form to Respondent. Petitioner was paid, by salary warrant on July 13, 2001, for 40 hours of credited sick leave for the pay period of June 22, 2001 through July 5, 2001. On August 13, 2001, Respondent notified Marc Gulley that his request to donate sick leave to Petitioner was denied because he did not possess the requisite amount remaining of sick leave. On August 15, 2001, Respondent notified Petitioner of the salary overpayment of $378.74 and requested repayment. Respondent presented a salary refund calculation showing the amount Petitioner was paid, the amount she should have been paid when the sick leave transfer was denied, and the amount of the refund she owed to Respondent. Petitioner owed Respondent $378.74 as a result of an overpayment which occurred due to the improper crediting of 40 hours of sick leave transferred from another employee, Marc Gulley. Petitioner left the employ of Respondent on August 27, 2001; on August 24, 2001, Respondent appropriately withheld $378.74 from a warrant issued to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby Recommended that the determination of Respondent, Department of Juvenile Justice, that Petitioner, Janet Bing, was overpaid in the amount of $378.74 be upheld, that withholding $378.74 from Petitioner's pay was appropriate, that Petitioner's claim be denied, and the file be closed. DONE AND ENTERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. ___ JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2001. COPIES FURNISHED: Janet Bing 719 Waxwing Court Kissimmee, Florida 34759 Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Thomas B. Webb, Jr. has been employed by the State of Florida, Department of Transportation for twenty-four years and is currently a member of the Florida Retirement System. While a student at the University of Florida, petitioner was employed at the Hume Library from September of 1948 through September of 1950. He worked continuously at the library during this period of time at the rate of approximately 20 to 25 hours per week. His nighttime working hours, from 7:00 p.m. to 10:00 p.m., were regular and his daytime hours varied depending upon his class schedule. Mr. Webb worked when school was not in session due to holidays or breaks between sessions. The Hume Library was open during these periods to provide service to the agricultural experiment stations around the State. He also worked for a few weeks after his graduation from the University of Florida. While working at the Hume Library, petitioner's duties included supervisory responsibilities; manning the circulation desk; checking out, receiving, shelving and indexing books and periodicals; assisting students with bibliographic research; servicing orders from the eight to ten agricultural experiment stations around the State; and closing up the library at night. During the time that he was employed at the library, approximately one-half of the employees were students and the other half were non-students. As of October 22, 1979, the duties which petitioner performed were being performed by both full time regular employees whose job classification title is Clerk III and by student assistants. Petitioner could not recall whether he received annual leave, sick leave, insurance or other employee benefits while working at the Hume Library. He was paid on an hourly basis. He replaced a prior employee when he started to work at the library, and someone replaced him when he left. The quarterly check tapes from the Office of the Comptroller, which the Division of Retirement uses on a daily basis in carrying out its functions, show that petitioner received salary payments for 19 months between the periods of October 1948 through September of 1950. The petitioner was unable to explain why payments for one month in 1948, four months in 1949 and one month in 1950 were not reflected on these documents. He is certain that he worked continuously during these years in order to support his family and that he gas paid for his work. He was not able to produce any documentary evidence to substantiate his employment or salary for these six months. Petitioner is seeking retirement service credit under the Florida Retirement System for his employment at the Hume Library between September of 1948 and September of 1950. Be is willing to make all payments necessary for him to claim This prior service.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: petitioner is entitled to prior service credit for purposes of retirement for his employment at the University of Florida Hume Library during the period of September 1948 through September 1950, inclusive; and the amount of contribution owed by petitioner be calculated by attributing the average amount of his nineteen reported payments to the six unreported payments. Respectfully submitted and entered this 16th day of May, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Radey, Esquire Holland and Knight Post Office Drawer 810 Tallahassee, Florida 32302 Diane K. Keisling, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 McMullian, III State Retirement Director Cedars Executive Center 2639 North Monroe Street Tallahassee Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Respondent contracted to build a gymnasium and a science research center on the campus of Florida Technological University. petitioner was among the people respondent hired to perform this contract, which had project number BR-FTU-172. Petitioner began working for respondent on or about January 12, 1976. At that time, respondent's agent Ward hired petitioner as a carpenter's helper with the understanding that petitioner would be paid at the laborers' rate of five and thirty hundredths dollars ($5.30) per hour. The prevailing wage for carpenters on project number BR-FTU-172 was eight and thirty-five hundredths dollars ($8.35) per hour. As reflected in their respective proposed recommended orders, the parties are in agreement that petitioner worked for respondent doing carpentry from March 31, 1976, until his employment ended, and it is so found as a fact. From March 31, 1976, until petitioner left respondent's employ, petitioner worked as a carpenter for one thousand five hundred eighty-three hours during regular working hours and for ten and a half hours overtime. At the same time that petitioner was hired, one Lester Dove was hired as a carpenter. Petitioner worked with Lester Dove as a carpenter's helper for their first full two weeks on the job, at the end of which Lester Dove was laid off. Petitioner helped Lester Dove erect wooden forms for the pouring of concrete columns. Afterwards, he continued to work at erecting wooden forms for concrete columns. The forms consisted of two plywood halves, approximately sixteen feet long and weighing approximately one hundred pounds each. It took more than one man to stand the forms upright. After the forms were in place, they had to be clamped together Carpenters built the column forms on the job site, but outside the building under construction. Petitioner worked inside, placing the forms in position. Sometimes the forms had to be shortened or otherwise altered "right there on the floor, not back at the saw." Testimony of Carlo Rinaldi. Generally, however, it was a matter of transferring measurements from blue- prints to the floor, nailing a template to the floor, fitting the form halves together around the template, clamping the form together, then checking to make sure the column was plumb and the corners were square. After Lester Dove's departure, petitioner, Ralph Pierson, whom respondent hired as a carpenter, and one Carl, whom respondent hired as a laborer, worked together as a team erecting forms for pouring the concrete columns through March 30, 1977. During this time petitioner worked not as a carpenter, but as a carpenter's helper, paid at the prevailing rate for laborers. For the entire time petitioner worked for respondent, he was paid at the rate for laborers. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976 Paragraph one of respondent's proposed findings of fact has been adopted, in substance, as has been paragraph two of respondent's proposed findings of fact. Petitioner's testimony was that he worked for respondent from mid-January 1976 to mid-January 1977. Petitioner's composite exhibit No. 1 contains xeroxed reproductions of 49 paycheck stubs. Petitioner's affidavit alleges that he worked a total of 2,031 3/4 hours during regular working hours. Respondent, in paragraph five of its proposed findings of fact, concedes that petitioner worked 1,583 1/2 hours during regular working hours from and after March 31, 1976. Between January 12, 1976, and March 30, 1976, inclusive, there were 57 working days, or 456 working hours. Adding 456 to 1,583 1/2 yields 2,039 1/2. Thus the parties are only eight and one quarter hours, or approximately one working days apart and it is respondent who gives petitioner credit for the longer total work time. Petitioner claims more work time before March 31, 1976, than respondent concedes, but respondent's proposed finding of fact as to the starting date is more favorable to petitioner. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance. Paragraph three of petitioner's proposed findings of fact has not been adopted because the testimony as to general carpentry, as opposed to erecting column forms, did not go to "the entire period of employment." Paragraph four of petitioner's proposed fact findings has not been adopted, either as to regular hours or as to overtime hours. Respondent's concession of ten and a half hours overtime has been accepted as true. Paragraph five of petitioner's proposed findings of fact has been adopted, in substance. Paragraph one of respondent's proposed findings of fact has been adopted, in substance. Paragraph three of respondent's proposed findings of fact has been adopted, in substance. Petitioner as much as conceded that he worked as a carpenter's helper or laborer until Dove left. After that, until the end of March, he continued doing essentially the same work. The hearing officer was faced with the question whether the three man team putting up column forms consisted of a carpenter and two helpers or a helper and two carpenters. Petitioner did not meet his burden to show that he was one of two carpenters rather than one of two helpers. Paragraph four of respondent's proposed findings of fact has been adopted, in substance, except that no findings have been made as to the date of petitioner's first written claim to respondent or as to the contents of respondent's bookkeeping records, because no evidence was adduced on these matters. Paragraph five of respondent's proposed findings of fact has been adopted, in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the contracting authority pay petitioner the sum of four thousand eight hundred seventy-seven dollars and seventy-one cents ($4,877.71). That the contracting authority pay respondent the balance of moneys heretofore withheld, pursuant to Section 215.19 ()(b) Florida Statutes (1975), with respect to project number BR-FTU-172. DONE and ENTERED this 28th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. T. M. Woods, Esquire Suite 1465, CNA Tower 255 South Orange Avenue Orlando, Florida 32801 Mr. Bromley Dyson Dyson and Company Post Office Drawer F Pensacola, Florida 32581 Mr. Patrick G. Emmanuel, Esquire Post Office Drawer 1271 Pensacola, Florida 32596 Mr. Jack C. Koons Department of General Services 512 Larson Building Tallahassee, Florida 32304 Mr. Luther Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive - East Tallahassee, Florida 32301
The Issue Whether or not the Department of Banking and Finance is required by law to transmit $2,159.41 to the State of Florida Department of Education or $2500.00 to the Petitioner.
Findings Of Fact DOE, through its Office of Student Financial Assistance, functions as a guarantee agency for purposes of the guaranteed student loan programs. In this capacity, DOE issues a loan guarantee to a participating lender, such as a bank, when the lender has applied for the guarantee in connection with making a student loan to a student borrower. If the student borrower defaults on repaying the loan to the lender, the lender submits to DOE a claim for DOE to repay the loan to the lender. When DOE repays the loan to the lender, the promissory note evidencing the debt is assigned to DOE which then pursues collection of the loan against the defaulting student borrower. On or about November 18, 1988, Petitioner Leonard K. Williams applied for a guaranteed student loan to be made by the Florida National Bank. On or about December 11, 1988, DOE issued its guarantee and the loan was made by the bank to Petitioner. Petitioner's first payment to repay the loan was due on February 1, 1990. He made no payments then or thereafter. On July 1, 1990 he was in default. DOE, as the guarantee agency, paid the bank's claim on December 27, 1990 and the bank assigned the promissory note evidencing Petitioner's indebtedness to DOE. Petitioner purchased a winning Florida Lottery ticket for the Play 4 drawing of November 19, 1991. On November 26, 1991, Petitioner submitted his claim to DOL to claim the prize of $2,500.00. On November 26, 1991, DOE certified to DOL that Petitioner had an outstanding defaulted student loan and requested that the lottery prize money won by Petitioner be transmitted to the Comptroller to be credited toward the Petitioner's student loan debt. The total principal and interest accrued on that debt as of December 11, 1991 was $2,159.41. On December 4, 1991, Petitioner requested from DOE a form captioned, "Physician's Certification of Borrower's Total and Permanent Disability." On January 3, 1992, DOE received the completed form signed by Petitioner's physician, Anne L. Rottman, M.D. Dr. Rottman treated Petitioner from August 18, 1986 through July 19, 1990, treating him for chronic cervical and lumbar spinal pain. She was unable to state when Petitioner's condition began or when he became unable to work, as the condition and disability commenced prior to the date she first saw him on August 18, 1986. Petitioner's condition was static during the time she treated him. Petitioner was unable to work during the time she treated him.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order which withholds $2,159.41 from Petitioner's lottery winnings and transmits that sum to the Department of Education and which also transmits the balance of $340.59 to Petitioner. Since the money has already been effectively transmitted as recommended, the Final Order could simply ratify those prior transmittals. DONE and RECOMMENDED this 17th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Scott C. Wright ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17 day of September, 1992. Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Leonard K. Williams 1425 NE 13th Street Gainesville, Florida 32601 Leonard K. Williams Post Office Box 490955 College Park, Georgia 30349 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Charles S. Ruberg Assistant General Counsel State Board of Education The Capitol, Suite PL-08 Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact Petitioner, Julia B. Fiorentino, is presently employed by the Duval County School Board (Board) as Assistant Principal for Curriculum at Fort Caroline Junior High School in Jacksonville, Florida. From 1949 until 1959, petitioner was a teacher in the North Carolina public school system. In August, 1960, she began employment with what is now the Duval County School Board and established membership on that date in the Teacher's Retirement System (TRS). She worked continuously for the Board until June, 1964 and made all required contributions into the TRS during that period of time. On June 4, 1964, while employed as a teacher at Terry Parker High School, petitioner was granted maternity leave by the Board for the period of July 1, 1964 through July 1, 1965 in order to adopt a child. On July 16, 1964, she made application for refund of all contributions previously paid into the TRS through June 30, 1964. This amount totaled $1,264.92. A warrant was subsequently issued by the State on August 25, 1964 and Fiorentino cashed the warrant at a later time. When the application for refund was submitted to the State, the Board certified that Fiorentino had terminated employment with the Board as of June 30, 1964. When petitioner made application for maternity leave and withdrawal of her contributions, she did not inquire nor was she told by any Board employee of the consequences of withdrawing the contributions and terminating membership in the TRS for purchasing out-of-state service on her date of retirement. Instead, she was under the impression that she could repay the contributions, plus interest, before retirement and reestablished her prior membership date as of August, 1960. Fiorentino later decided that she did not wish to take maternity leave and was rehired by the Board as a full-time employee effective September, 1964. She was re-enrolled in the TRS and has made the required contributions to the plan since that date. At the same time she left her teaching position in June, 1964, Fiorentino was employed as a part-time instructor at Florida Junior College in Jacksonville. This employment continued at least until she again became a full- time employee with the Board in September, 1964. It is disputed as to whether Fiorentino made contributions to the TRS while employed on a part-time basis. However, this is immaterial to the resolution of the issue herein. At some point in early 1983, Fiorentino made inquiry with respondent, Department of Administration, Division of Retirement, to determine her retirement benefits. She also repaid the $1,264.92 with interest previously withdrawn in 1964 which by then amounted to $3,147.05. When she sought to claim the ten years out-of-state service in computing her benefits, she was advised that in order to receive credit for that time, she must pay the "total cost" of her salary during those years, or approximately $79,000. This was because her TRS membership date was September 1, 1964, and any membership date after October 1, 1963 caused the claimant to be subject to the total cost method. Had her membership date been August, 1960, when she was first employed by the Board, the required payment would have been reduced to approximately $6,000, which represented the salary earned multiplied by 8 percent plus interest. A Department bureau chief explained that under long-existing Department policy, as authorized by Subsection 238.05(4) Florida Statutes, only full-time employees are permitted to be members of the TRS. Therefore, her employment with a junior college did not qualify Fiorentino for membership in the TRS. Further, in order to receive a refund from the TRS, a teacher must terminate his or her employment. If reemployed again, the membership date becomes effective on the date of employment, and cannot be made retroactive even if the contributions are repaid. A member is not dropped from membership in the TRS by going on a leave of absence, as Fiorentino did, but if the contributions are withdrawn, membership is automatically terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request of Julia B. Fiorentino to have her membership date in the Florida Retirement System established as of August, 1960 be DENIED. DONE and ENTERED this 12th day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1984. COPIES FURNISHED: J. Clark Hamilton, Jr., Esquire 801 Blackstone Building 233 East Bay Street Jacksonville, Florida 32302 Augustus D. Aikens, Jr., Esquire 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 Nevin G. Smith Secretary Department of Administration Room 435, Carlton Building Tallahassee, Florida 32301
The Issue The issue is whether petitioner's average final compensation and retirement service credit were properly calculated.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Dr. Michael Kasha, is a former professor in the School of Arts and Sciences at Florida State University. His most recent stint of employment occurred during school year 1995-96 when he was employed in the Institute of Molecular Biophysics. He retired at the end of December 1995, and counting several years of out-of-state service, he had a total of 50.58 years of creditable service. In November 1995, petitioner contacted respondent, Division of Retirement (DOR), for the purpose of determining his Average Final Compensation (AFC) for retirement purposes. That agency has the statutory responsibility of performing all retirement related calculations. In making its calculations, DOR determined petitioner's service credit for his last fiscal year of service (1995-96) by using a nine-month work year divided by six months of actual service (July-December 1995), or a .67 service credit. When this factor was applied to his compensation received for the six months of service, it produced a much lower annualized salary for ranking purposes than petitioner expected. Contending that a twelve-month work year should have been used, rather than the nine months used by DOR, petitioner filed a request for a hearing to contest DOR's action. During petitioner's last fiscal year of service, he was contracted to work from July 1 to July 28, 1995, by a Summer Supplemental Employment Contract. In addition, he was employed under a Nine Month Employment Contract from August 8, 1995, to May 6, 1996. On January 23, 1996, however, this contract was mutually revised by the parties to provide that petitioner's employment would terminate on December 29, 1995. Between July 1, 1995, and December 29, 1995, the parties agree that petitioner received $67,290.22 in total compensation from the university. To determine a member's appropriate service credit, DOR rule 60S- 2.002(4)(a) provides that if a member earns service credit for fewer months than comprise his work year, he shall receive a fraction of a year of service credit, such fraction to be determined by dividing the number of months and fractions thereof of service earned by the number of months in the approved work year. Since petitioner worked only six months during his last work year, the rule requires that this period of time be divided by "the number of months in the approved work year" to calculate his appropriate service credit. Members of the retirement system are employed for either nine, ten or twelve months each fiscal year, depending on the nature of their jobs. As to university instructional/academic members, such as petitioner, DOR rule 60S- 2.002(4)(b) defines the work year to be the number of months in the full contract year or nine months, whichever is greater, as specified by the contract between the employee and the school system. Because university faculty members normally work under a nine-month contract, DOR used that time period to establish petitioner's work year. In doing so, DOR excluded petitioner's Supplemental Summer School Contract on the theory it was "supplemental to (his) regular 9 month contract." That is to say, petitioner earned a maximum full year of creditable service during the nine months, and the three months in the supplemental contract would not add any additional creditable service. This determination is in conformity with the rule. Since petitioner's actual service credit for fiscal year 1995-96 was six months, that is, he worked full-time from July 1 through December 29, 1995, the computation under rule 60S-2.002(4)(a) produced a service credit of .67. Petitioner's compensation of $67,290.22 was then divided by the .67 factor and resulted in an annualized salary for ranking purposes of $100,433.16. Since the salary was not one of petitioner's highest fiscal years of salary, it was excluded from his AFC. Petitioner contends, however, that his work year is actually twelve months, rather than nine, if his Supplemental Summer School Contract is included. He points out that the university has always required that he and other science professors be on campus twelve months a year, unlike most other faculty members. Despite this requirement, the university has never used a twelve-month contract for this group of professors. Instead, it has relied on a combination of regular and supplemental contracts. If a twelve month work year had been used for petitioner's last fiscal year, this would have produced a service credit of .50, which if applied to his compensation, would have produced an annualized salary for ranking purposes of $134,580.44. This in turn would increase petitioner's retirement benefits by more than $1,200 per year. There is no provision in the DOR's rules which permits the use of a twelve-month work year in calculating the service credit for any person who is employed under a nine-month contract. While this may be unfair to members who find themselves in petitioner's circumstances, until the rule is changed, it must be uniformly applied. Therefore, the request should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying petitioner's request to have his retirement benefit calculated using a twelve- month work year for his last fiscal year of employment. DONE AND ENTERED this 22nd day of January, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1997. COPIES FURNISHED: Dr. Michael Kasha 3260 Longleaf Road Tallahassee, Florida 32310 Stanley M. Danek, Esquire Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue for consideration in this hearing is whether the Department's Emergency Cease and Desist Order relating to Respondent's activities in Florida should be made permanent and whether an administrative fine should be imposed against the Respondents.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Department of Banking and Finance, was the state agency responsible for and with the authority for regulation of the banking industry in Florida. The Respondents, US Savings Trust Management, Inc., and US Savings Trust Development, Inc., were Florida corporations engaged in activities in Florida which fall within the jurisdiction of the Department. Respondent, Vincent A. Radcliffe, III, was the principal for the Florida operations of both corporations and managed and controlled both corporations. None of the Respondents was licensed in Florida as Florida or federal financial institutions as described in Section 655.0051(1)(g),(h), or (p), Florida Statutes. As best as can be determined, both US Trust Management, Inc. and U.S. Trust Development, Inc. were operated by Respondent Radcliffe as a single business. Both corporate Respondents operated a program marketed as the Savings Plan. Participants for this plan were solicited by the corporate Respondents through Respondent, Radcliffe, and by employees or agents of the corporations to participate in what was described as a savings program which would allow participants to deposit after-tax income, deducted from their pay, for both the short and long term. Radcliffe and the other corporate solicitors told prospective participants they could deposit money with US Trust Management, Inc. through payroll deductions; their deposits would be allocated into both short term and long term savings accounts; their short terms savings were fully liquid and could be withdrawn at any time; their long term savings were also liquid but a substantial penalty was incurred for early withdrawal; their funds on deposit would earn above-market rates of interest due to USSTM's ability to pool funds to earn higher rates; and their savings plans were insured by FDIC for up to one hundred thousand dollars. In fact, these representations were made for the purpose of inducing individuals to deposit money with Respondent and, for the most part, were false or misleading. As of March, 1992, Respondents had enrolled at least three hundred (300) participants from approximately fifty (50) different businesses in the Plan. Participants received quarterly statements reflecting account activity, liquid balances and total amount on deposit as well as notifying them they were earning between 5.25 and 9 percent interest on their deposits. If a participant wanted to withdraw any of his or her money, a request to USSTM was all that was required. USSTM accepted funds from participants in the plan during the period January, 1989 through December, 1992. Participants were led to believe their money was placed in separate short or long term accounts within the saving plan. This was not true. Instead, the funds received from all participants were commingled and deposited in accounts in the name of USSTM at several different financial institutions. For the two years from January, 1991 through December, 1992, the funds were on deposit in a non-interest bearing account at the C&S Bank of Pinellas County. None of the financial institutions into which the participants' money was placed was advised of the origin of the funds. In fact, the only evidence that participants had placed money with Respondents were the Respondents' records. These records, as of March 31, 1992, revealed Short Term Savings Plan placements with USSTM by participants of $110,554.00. At the same time, USSTM deposits at C&S Bank totalled $28,509.00, leaving the sum of more than $82,000.00 not accounted for. USSTM records showed long term retirement plan placements by participants of $72,406.00 on the same date. Though most participants in the long term retirement plan were unaware of the fact, their placements with this plan were used to purchase an insurance product in their names. In many cases the participants were not furnished with a policy, or their policy was allowed to lapse for failure by Respondents to pay the related premiums thereon, notwithstanding the participants continued to make the monthly placements. Notwithstanding Respondents were served with an Emergency Cease and Desist Order by the Department on November 30, 1992, they received and cashed checks from participants to the Savings Plan subsequent to that date and up to and including December 10, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Emergency Cease and Desist Order entered by the Department on November 20, 1992 against the Respondents be made permanent, and that an administrative fine of $500,000.00 be assessed against the Respondents, Vincent A. Radcliffe, III; U.S. Savings Trust Management, Inc.; and U.S. Savings Trust Development, Inc., jointly and severally. RECOMMENDED this 7th day of January, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1994. COPIES FURNISHED: Susan E. Steinberg, Esquire Department of Banking and Finance 1313 Tampa Street, Suite 615 Tampa, Florida 33602-3394 Vincent A. Radcliffe, III 1900 Seton Drive Clearwater, Florida 34623 Dane E. DiSano, Esquire 4020 Park Street North Suite 301-B St. Petersburg, Florida 33709 David R. Schachter, Esquire Rubin Icot Center 13770 58th Street North, Suite 308 Clearwater, Florida 34620 Hon. Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Office of the Comptroller Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue The issue for consideration herein is whether Respondents should be disciplined as proposed in the Cease and Desist Order And Complaint filed herein because of the alleged misconduct outlined therein.
Findings Of Fact At all times pertinent to the allegations contained in the Cease and Desist Order and Administrative Complaint, the Petitioner was the state agency responsible for the administration and enforcement of the Florida Consumer Finance Act, Chapter 516, Florida Statutes. Respondents Norman were licensed real estate professionals who also established and operated Bankers Acceptance of America, a credit "repair" agency. Sometime in February, 1989, Steven Fischer who, with his wife was, at the time, substantially in debt, contacted Respondent, Bankers Acceptance of America, (Bankers), because of its advertisement which he had seen in the Bradenton Herald. This ad offered assistance with "credit repair", and, by implication, with securing Visa and Master Card, auto loans and home loans. When he first called the number listed in the ad, Mr. Fischer spoke with Respondent, Dan Norman, and made an appointment to meet with him at Fischer's home, where they discussed his credit situation and how Respondents could help him. As a result of the representations made by Mr. Norman, Mr. Fischer signed a two page contract for Respondents' service. This contract, which bears the signature of Dan Norman for Bankers and that of Mr. and Mrs. Fischer as well, is entitled a "Service Contract Agreement", wherein Bankers is identified as the consultant and the Fischers as the clients. Review of the contract document indicates that it relates solely to the client's credit situation and makes no reference to the credit "repair" service being conditioned upon or related to the purchase or sale of real estate through Respondents, in any fashion whatever. Though the contract is silent on the issue of real estate, Mr. Fischer recalls that at the time of their interview, there was some mention of real estate, but at the time of hearing, he could not recall what it was. He does not recall Mr. Norman telling him that he or Bankers were real estate brokers or that they would be interested in working on credit only with those who would consider buying or selling real estate through them. He does recall, however, that his prime concern at the time was the repair of his credit and he had no interest in either purchasing or selling real estate. Neither the ad in the paper, the contract he signed, nor the "Client Questionnaire" filled out by Mr. Norman regarding him made any reference to real estate except as an asset of the client. Neither did they refer to Respondents as real estate brokers. On his initial visit to the Fischer home, Mr. Norman remained for several hours, talking about the Fischers' credit situation. Ultimately Mr. Fischer paid Mr. Norman $100.00 as a deposit and agreed to pay an additional $300.00 at $100.00 per month for three months, for a total credit repair fee of $400.00. Thereafter, Respondent Juanita Norman was the Fischers' primary contact with their creditors, with Mr. Norman coming in only when creditors had some objection to efforts to arrange some compromise or payment schedule. Whenever such a situation arose, either the Fischers would call her or she would call them. Several of the Fischers' creditors, notably American Express, refused to accept Respondents as a credit repair service. Mr. Fischer did not request a refund because of Respondents' inability to completely accomplish that which was to be done. He admits that he did not always follow Respondent's instructions. He did not file a complaint with the Petitioner herein, but after a complaint was filed by someone unknown, was contacted by Mr. Norman who offered a partial refund of fees paid. None was forthcoming, however. In his testimony at the hearing, Dan Norman claimed that notwithstanding the advertisement in the newspaper, and the terms of the service contract agreement involved herein, neither he, his wife, nor Bankers, agreed to "repair" credit for the Fischers but merely to assist them in their fixing their own credit by helping them to establish new credit over time. He admits his contract provides that with the Fischer's cooperation, he could help them set up a repayment schedule, could work with their creditors, and could set up a budget for them so that they could repair their own credit. He claims this was done. The success of Respondents in repairing the Fischer's credit is not, however, the issue involved in this case. Mr. Norman admits that the Fischers paid him $400.00, and further acknowledges that he signed similar contracts with between 60 and 70 other clients who paid a similar fee or less. Neither the $400.00 received from the Fischers, however, nor the fees paid by the other clients was placed in a trust account maintained by Norman or Bankers for the credit repair service. Mr. Norman claims that he is a real estate broker and that he and his wife operated a real estate brokerage agency under the name, Bankers Acceptance Real Estate Group, under which Bankers Acceptance of America, the credit repair firm, was operated as a part of the real estate operation. Mrs. Norman admits that it was their intention to use the credit repair service as a means to feed customers to the real estate business. Norman had a trust account in the name of the real estate business, but none of the fees received from the credit repair clients were placed into that trust account because they were not deposits placed in a real estate transaction. By the same token, since he did not consider himself to be operating a "credit repair" service, other than incident to his real estate business, he felt he did not need to obtain a surety bond and did not do so. After a complaint was filed with the Department of Banking and Finance by someone not further identified, Lynn D. Chang, a financial administrator with the Comptroller's office, issued a subpoena to Respondents on June 16, 1989, calling for them to provide information regarding the surety bonding company, the location and a copy of their surety bond, the location and account number of this escrow account, proof of said account, and a copy of the information statement and consumer contract. None of the requested information was provided by the Respondents. Instead, by letter to Ms. Chang dated July 7, 1989, Both Dan and Juanita Norman advised her that based on their prior telephone conversation, their evaluation of the law regarding credit repair, and a telephone discussion with Mr. Underwood, a representative of the Comptroller's office, they concluded that their operation fell within the exemption from bonding and escrow requirements afforded real estate brokers, and that no additional information would be provided. Respondents claim that their credit repair operation was incident to their operation of a real estate brokerage firm. It is their contention that by helping to repair their clients' credit, Respondents were getting those clients ready to buy houses and Respondents claim that as of the time the complaint herein was filed, 20 of their 60 to 70 clients were ready to purchase real estate and had qualified for financing. No evidence in support of this claim was presented, however. After the complaint was filed, and an article concerning them was published in the local newspaper, in effect, their business was wiped out and only one of their 20 qualified buyers actually went through with their deal. Mr. Norman claims that a client was never taken on in the credit repair business unless that client indicated that he or she was interested in buying real estate when their credit had been repaired. The Respondent indicates, however, that while in business as a credit repair agency, "incident" to the real estate operation for two years, Respondent's generated $16,000.00 in credit repair income, and only $5,000.00 in real estate commissions as the result of the one previously mentioned sale. Considering the evidence in its totality, it is clear that the Normans, through Bankers Acceptance of America, were operating a classical credit service organization. It may have been in conjunction with a real estate business, but the service was not rendered incident to that business. They failed to obtain the required surety bond; to establish a trust account for the repair service operation; and to submit the required disclosure forms as is called for in the Florida Statutes, and at no time during the operation of the repair service, were those requirements met. However, the Respondents' credit service organization operation was not large scale, and there is substantial evidence that since the complaint was filed in this case and the preliminary Cease and Desist Order entered, the Respondents' business has dried up and no further income has been earned as a result of it. The Normans claim, and there is no evidence to contradict it, that that operation has ceased.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that a Final Cease and Desist Order be issued against each of the Respondents, Dan Norman, Juanita Norman, and Bankers Acceptance of America, a Florida General Partnership, as to each of the allegations of misconduct outlined in the initial Cease and Desist Order and Complaint filed herein. RECOMMENDED this 20th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1990. COPIES FURNISHED: Robert K. Good, Esquire Office of the Comptroller 400 West Robinson Street, Suite 501 Orlando, Florida 32801 Dan Norman Juanita Norman Bankers Acceptance of America 3505 34th Avenue Drive West Bradenton, Florida 34205 Hon. Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol Plaza Level, Rm. 1302 Tallahassee, Florida 32399-0350
The Issue Whether Petitioner may purchase retirement credit for the period of time from his suspension date to his reinstatement date as creditable service in the Florida Retirement Service.
Findings Of Fact Petitioner, Philip J. Cobb, was employed by the Pinellas County Board of County Commissioners (County) in May 1985, as a property manager. As a permanent employee of the County, Petitioner was enrolled as a member of the regular class of the Florida Retirement System (FRS). In order to vest and be eligible to receive retirement benefits under state law, Petitioner needed to complete ten years of creditable service. Petitioner continued to work for the County until he was terminated on August 1, 1992. The reason Respondent terminated Petitioner was because he allegedly failed to support his supervisor and was insubordinate. At the time Petitioner's employment with the County was terminated, he had earned approximately seven years and two months of creditable service and was thirty-four months short of vesting in the FRS. Petitioner challenged his termination by instituting legal proceedings against the County, alleging that his termination was illegally motivated by age discrimination. The lawsuit, Case No. 94-1054-CIV-T-21C, was filed in June 1994, in the U. S. District Court for the Middle District of Florida, Tampa Division, and sought Petitioner's reinstatement to his former position. At the time of his termination, Petitioner was sixty-seven years old, and at the time of this proceeding he was one day shy of being seventy-three years old. After discovery had been undertaken and prior to the case being set for trial, the Court ordered the parties into mediation. During settlement negotiations, the parties specifically discussed the importance of Petitioner purchasing credit in the FRS as necessary for vesting. In light of this consideration, before of the Agreement was finalized, counsel for Petitioner contacted Respondent regarding the cost of Petitioner's purchasing the service credit required to vest in the FRS. In a letter dated November 30, 1995, from Maurice Helms, Chief, Bureau of Retirement Calculations, to counsel for Petitioner, Mr. Helms noted that Petitioner had only 7.25 years of creditable service in the FRS, not the ten years required to vest. Nevertheless, the letter stated, "If [Petitioner] were eligible to purchase the service credit required to vest and then retire, we estimate the cost would be $30,273.69". This projected amount was considered in negotiations and was represented in the settlement amount. In January 1996, as a result of the mediation, Petitioner and the County entered into a Settlement Agreement, Release and Disclaimer (Agreement), in exchange for Petitioner's dismissing his lawsuit. Paragraph Two of the Agreement provides that the County would make a lump sum payment distribution of $64,000.00 to Petitioner. Of the total amount, $34,000.00 was designated as back pay and liquidated damages. The remaining $30,00.00 was for "fees and other costs associated with the above-captioned case." Further, the County agreed to rescind Petitioner's termination, convert the termination to a suspension without pay, and reinstate Petitioner to his former position. Finally, the Agreement included a provision that Petitioner would resign from that position on the date he was reinstated. Paragraph Three of the Agreement provides that the $64,000.00 is not a "mere recital, but is the cash consideration for this Agreement and the full and final release affected thereby." Notwithstanding the provision in the Agreement that the $34,000.00 is for back pay and liquidated damages, Paragraph Three of the Agreement expressly states that the settlement amount paid by the County and accepted by Petitioner was not to compensate Petitioner for back wages, benefits, or other forms of compensation. Rather, the settlement amount was part of the compromise to settle and compromise the matter. In this regard, Paragraph Three of the Agreement provides in pertinent part the following: ...The parties hereto recognize that substantial questions of law and of fact exist as to any possible claim or claims by Cobb for any compensation, back pay, forms of compensation, benefits or damages, liquidated/compensatory or otherwise, interest and any other claim for relief; therefore, [this settlement is being made purely on a compromise basis in order to avoid further trouble, litigation and expense, and the settlement amount is considered to be a part of the compromise, paid by Defendant and accepted by Cobb not to compensate Cobb for back wages, benefits or other forms of compensation, but to settle and compromise the matter relative to the trouble, interference, damage, and expense which would have been and would otherwise continue to be claimed and/or associated therewith]. [Emphasis supplied.] Paragraph Eleven of the Agreement addresses changes in Petitioner's employment status and delineates the method by which the County would accomplish these changes. That paragraph provides the following: The parties hereto further agree that, without any waiver of the sufficiency of the grounds and cause for Cobb's termination, and [in settlement of all claims of Cobb as set forth hereinabove, a personnel action form will be prepared changing Cobb's termination action on July 31, 1992, to a suspension without pay through the date this Agreement is signed. Additionally, a personnel action will be issued reinstating Cobb to paid status effective the date this Agreement is signed.] Cobb agrees to sign and submit the attached letter of resignation, effective the date he signs this Agreement, and further agrees to waive any pay and/or benefits to which he may be entitled from Defendant since July 31, 1992. [Emphasis supplied.] After the Agreement was executed and pursuant to the terms thereof, the County prepared and processed the required paperwork which effectively rescinded Petitioner's termination, changed the termination to a suspension without pay, and reinstated Petitioner to paid status. Petitioner did not return to work with the County, but resigned on the day he was reinstated. Petitioner's resignation was consistent not only with the terms of the Agreement, but with Petitioner's intentions at the time he was being considered for employment by the County. At or near the time Petitioner was initially employed by the County, he indicated to County officials that he was committed to remaining with the County for ten years so that he could vest in the FRS. Based on his understanding of the Agreement, Petitioner did not intend to return to work with the County after the Agreement was executed. Petitioner believed that the County's action of rescinding his termination, changing his status to suspension without pay, and reinstating him provided him with more than the thirty-four months he needed to vest in the FRS. Had Petitioner not been terminated by the County, he would have vested in the FRS in May 1995, and would have thereupon retired. Although the Agreement provided that Petitioner would resign, there is no indication that the County was opposed to Petitioner's returning to work. In fact, one of the negotiators for the County, testified that "I am not sure that Pinellas County didn't want Mr. Cobb to return to employment. We wanted to settle the lawsuit that was pending. " After the Agreement was finalized, in a letter dated February 12, 1996, Petitioner provided Respondent with a copy of the executed Agreement and "copies of personnel actions completed in accordance therewith." The letter requested that Respondent do the following: (1) reinstate Petitioner in FRS in accordance with Section 121.011(3), Florida Statutes, and Rule 60S-2.016, Florida Administrative Code; and (2) provide Petitioner "with the amount of his required contributions for retirement credit for his period of suspension up to and including the date of his vesting." Petitioner was prepared to pay into the State Retirement Fund the contribution required to receive retirement credit. On March 5, 1996, Respondent issued a letter to Petitioner denying him the right to make contributions for retirement for the period of suspension without pay, July 31, 1992, through the date of his reinstatement, January 22, 1996. The denial letter stated that the purported "reinstatement" did not occur. As rationale for its position, Respondent found that: (1) after being "reinstated", Petitioner never performed work in a regularly established position and, therefore, was not compensated for services or work performed; (2) the County never intended to reinstate Petitioner "to employment with pay, nor was there an expectation of Petitioner to be "made whole" by the County; and (3) Petitioner and the County never intended to "enter into an employer and employee relationship retroactively for the period in question." Respondent stated that the purported reinstatement of Petitioner "was more in the nature of a ruse or sham to achieve a goal other than gainful employment." Moreover, Respondent believed that "neither the member nor the employer intended to enter into a regular employer and employee relationship." Respondent thus concluded that the reinstatement was not "bona fide" and was solely for the purpose of allowing Petitioner to vest in FRS and obtain retirement benefits. Respondent also objected to the form of Petitioner's reinstatement of employment with the County, declaring that it was not a "bona fide" as signified by his failure to receive back pay for the period of suspension and his failure to enter into an employer-employee relationship with the County for the equivalent of one calendar month. Respondent acknowledged that once Petitioner's termination was changed to a suspension without pay Rule 60S-2.016, Florida Administrative Code, applies to the case. This rule is interpreted by Respondent to require that for reinstatement to occur, an individual must work in a regularly established position for at least one calendar month following the suspension. Respondent admits that the "one calendar month" requirement is not contained in either Section 121.011(3)(e), Florida Statutes (1991), or in Rule 60S-2.016, Florida Administrative Code, both of which govern retirement credit for periods of suspension without pay. Nevertheless, Respondent's interpretation of Rule 60S-2.016, Florida Administrative Code, is that a person must work thirty days after a suspension without pay to be deemed "reinstated". Respondent derives this interpretation by applying language from the rule that governs granting credit for leaves of absence. Respondent's interpretation of "reinstatement," as it relates to members who have been suspended without pay, is not evident from the language of the applicable statute or rule and may be ascertained only upon reviewing individual member files. The Florida Retirement System currently has 600,000 active members and 140,000 retirees, for a total of 740,000 files.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order that awards Petitioner retirement credit for the period of time from his date of suspension to his date of reinstatement subject to his purchasing retirement credit for that period of time. DONE and ENTERED this 30th day of October, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1996. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675-0638 Stanley M. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 Paul A. Rowell General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
