The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to the statutory provisions referenced herein.
Findings Of Fact The Petitioner is a prevailing small business party. In 2009, the Petitioner filed an application with the Respondent to transfer his Class B air conditioning contractor's license from one business entity to another. The application form required disclosure of an applicant's criminal history. The Petitioner responded to the inquiry with a cursory disclosure of prior criminal activity, indicating that he had been involved in such activity in the "late 1970's." As part of the application review process, the Respondent conducted a background investigation that revealed the Petitioner's criminal history had extended well beyond the 1970's. Rather than deny the Petitioner's transfer application, the Respondent issued a Notice that provided, in relevant part, as follows: NOTICE OF INTENT TO APPROVE WITH CONDITIONS You are hereby notified that the Construction Industry Licensing Board (Board) voted to permit, WITH CONDITIONS, your application for change of status from one business entity to another contractor's license. The Board reviewed and considered the application at a duly-noticed public meeting held on September 10, 2009 in Tampa, Florida. The Board determined that the application should be approved with conditions based on the following: The applicant failed to sufficiently demonstrate financial stability and responsibility, pursuant to section 489.115, Florida Statutes, and Rule 61G4-15.005, Florida Administrative Code. The Board had issues with applicant's moral character, pursuant to section 489.111, Florida Statutes. Pursuant to section 455.227(2)(f), Florida Statutes, Applicant shall hereby be placed on PROBATION for 6 years, with 12 satisfactory appearances, according to the following terms: Applicant shall be required to appear before the Probation Committee of the Board at such times as directed by the Board Office, approximately every six (6) months. Respondent's first probationary appearance requires a full day attendance at the Board meeting. In connection with each probation appearance, Applicant shall answer questions under oath. In addition, applicant shall provide such other information or documentation as is requested by the Department, the Board, or the Probation Committee. Applicant shall forward said documentation to the Board at least 30 days in advance of the probation appearance or as otherwise directed. The burden shall be solely upon Applicant to remember the requirement for said appearance and to take necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. Applicant shall not rely on getting notice of said appearance from the Board or the Department. Should Applicant violate any condition of the probation, it shall be considered a violation of Section 489.129(1)(i), Florida Statutes, and shall result in further disciplinary action by the Board. Should Applicant fail to make a satisfactory appearance as determined by the Board, the term of the probationary period shall be automatically extended by six (6) months. If there occurs a second such failure then the term of the probationary period will be extended an additional year. Should the Board determine a third failure of Applicant to make a satisfactory appearance, the stay of suspension of the Applicant's license to practice contracting shall be lifted and the license shall remain in suspended status unless and until a further stay is granted by the Board. Should Applicant's license to practice contracting be suspended or otherwise placed on inactive status, the probation period shall be tolled and shall resume running at the time Applicant reactivates the license, and Applicant shall serve the time remaining in the term of probation. To ensure successful completion of probation, Applicant's license to practice contracting shall be suspended for the period of probation, with the suspension stayed for the period of probation. The time of the suspension and the stay shall run concurrently with the period of probation. If Applicant successfully completes probation, the suspension shall terminate. If Applicant fails to comply with the requirements set forth in the Final Order imposed in this case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the license shall remain in suspended status unless and until a further stay is granted by the Board. The Petitioner challenged the imposition of the conditions in DOAH Case No. 10-9444. The Notice cited section 455.225, Florida Statutes, as providing authority for the imposition of the conditions to the Petitioner's license. The referenced statute identified the procedures through which the Respondent could commence a disciplinary action against a licensee. There was no evidence that the Respondent had commenced or concluded a disciplinary proceeding against the Petitioner prior to the proposed imposition of the license conditions. The Notice identified two reasons for the proposed imposition of license conditions. First, the Notice stated that the Respondent "had issues with the [Petitioner's] moral character." Second, the Notice stated that the Petitioner "failed to sufficiently demonstrate financial stability and responsibility pursuant to section 489.115, Florida Statutes and Rule 61G4-15.006, Florida Administrative Code." At the hearing on May 26, 2011, the Petitioner submitted evidence sufficient to demonstrate compliance with the cited provisions of statute and rule. A Recommended Order was issued on July 1, 2011, recommending that the Petitioner's application be approved. As set forth in the Recommended Order, the Administrative Law Judge had determined that the Respondent lacked authority to impose disciplinary conditions absent commencement of a disciplinary proceeding, and the Petitioner had complied with the requirements related to financial stability and responsibility at the hearing. By Final Order dated September 8, 2011, the Respondent granted the Petitioner's license transfer application. The Final Order adopted the Findings of Fact set forth in the Recommended Order. The Final Order rejected four paragraphs from the Conclusions of Law section of the Recommended Order that addressed the Respondent's authority to impose disciplinary conditions under the circumstances of this case. The remaining Conclusions of Law in the Recommended Order were accepted. The Petitioner is seeking an award of attorney's fees of $41,554.00 and costs of $1,702.96, for a total award of $43,256.96. The evidence fails to establish that the amount of the attorney's fees and costs sought by the Petitioner are reasonable, and there has been no stipulation by the parties thereto.
Findings Of Fact Prior to February 25, 1986, the Petitioner, Tommie Miller, was employed by the Respondent, the Department of Health and Rehabilitative Services (HRS) at the Brevard Regional Juvenile Detention Center as a detention child care worker I. During the time relevant to this case, June and July, 1987, Ms. Miller's supervisor was Michele McKinley, detention center superintendent. On February 25, 1986, Ms. Miller injured her lower back, injuring two nerves. The injury was job connected, and Ms. Miller was eligible for and received workers compensation benefits. Ms. Miller was receiving workers compensation benefits during the period relevant to this case, July 10 through 27, 1987. With the exception of a brief time during the period of June 22 through 24, 1987, Ms. Miller was absent from work from February 1986 through August 10, 1987, and thereafter, for that matter. On June 24, 1987, she reinjured her back at work. During the months she was out of work, Ms. Miller was treated in various rehabilitation programs. In June and July, 1987, she was receiving treatment from Woods Rehabilitation Services, Inc., and the rehabilitation nurse assigned to her case was Joan Patterson. R. Ex. 5. Ms. Miller lives 25 miles from the detention center, and testified that in June and July of 1987, her back hurt too much to allow her to drive to work at the detention center. Ms. Miller had exhausted her sick leave by July 22, 1987. It is inferred that she was on approved leave without pay by July 22, 1987. This inference is based on the fact that nearly a year and a half had elapsed from the date of the injury, and normal sick, annual, and compensatory leave would have been exhausted. This inference is also based upon the rules concerning the proper way to characterize the absence of an employee due to a job connected disability discussed in the conclusions of law. It is inferred that on July 22, 1987, the period of approved leave without pay was indefinite. This inference is based on the findings of fact which follow and the lack of evidence of a definite period of approved leave without pay. On June 22, 1987, Dr. Stanley Kaplan provided a written statement excusing Ms. Miller from work. On June 29, 1987, Ms. Miller was again seen by Dr. Kaplan for evaluation. Dr. Kaplan performed the normal therapy he was then performing for Ms. Miller, but did not tell her she could return to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on June 29, 1987. On July 17, 1987, Ms. Miller visited Dr. Stanley Kaplan for rehabilitative treatment. Dr. Kaplan did not tell Ms. Miller at that time that she could go back to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on July 17, 1987. On July 22, 1987, Ms. McKinley wrote a certified letter to the Petitioner, Tommie Miller. R. Ex. I. The letter in its entirety stated: I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87. She further reported that you stated you didn't understand that you could return to work. In addition, we have had no further contact from you since 6/24/87. I am now going to have to require you to report back to work on 7/27/87, by 9:00 a.m. If you do not report back to work on this date or provide the appropriate medical documentation as to your absence, we will have to assume that you have abandoned your position with HRS. Thus, the letter of July 22, 1987, explicitly gave Ms. Miller two options: report to work at 9:00 a.m. on July 27, 1987, or "provide the appropriate medical documentation as to your absence." From the contents of the letter, it is concluded that when the letter was written, Ms. McKinley thought that Dr. Kaplan had released Ms. Miller to return to work on July 10, 1987. It is also concluded from the contents of the letter and from R. Ex. 5, which Ms. McKinley testified she had in her possession and was aware of when she wrote the July 22, 1987, letter, that Ms. McKinley was aware on July 22, 1987, that Ms. Patterson had said that Ms. Miller had said that she (Ms. Miller) did not understand that Dr. Kaplan had said she could return to work. On July 22, 1987, Ms. Miller was examined by Richard P. Newman, M.D. On July 24, 1987, Ms. Miller received the letter of July 22, 1987. As soon as she received the letter, Ms. Miller called Ms. McKinley on the telephone. Ms. Miller told Ms. McKinley that her current medical problem was an inability to drive to work, but that she could work if she was able to travel to work. Ms. McKinley told Ms. Miller that she had not received a written report from a physician concerning Ms. Miller's condition since June 24, 1987. Ms. McKinley told Ms. Miller that she (Ms. McKinley) still needed medical documentation, and that she could not authorize leave based on her oral report without medical documentation. Ms. Miller then told Ms. McKinley that Ms. Patterson at the Woods Rehabilitation Services was supposed to send the doctor's report to Ms. McKinley. During the telephone call, Ms. McKinley did not ask her (Ms. Miller) to personally deliver the doctor's report, and did not tell Ms. Miller that reliance upon Ms. Patterson was inappropriate. Moreover, Ms. McKinley did not warn Ms. Miller that if Ms. Patterson fi1ed to deliver the report by July 27, 1987, that Ms. Miller would automatically forfeit her job. At the time of the phone call from Ms. Miller, Ms. McKinley was in possession of R. Ex. 5. The top of page two of that document advised Ms. McKinley that Ms. Miller was scheduled for an evaluation by Dr. Newman on July 22, 1987. In the fourth paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Ms. Miller would attend the appointment with Dr. Newman. In the seventh paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Nurse Patterson felt that Dr. Newman's evaluation was important to an assessment of the current status of Ms. Miller's medical condition. These findings are based upon what is in fact stated in R. Ex. 5 and known to Ms. McKinley as what Ms. Patterson had written. No finding is made as to whether what is stated in R. Ex. 5 is true. It is concluded that during the telephone conversation with Ms. Miller on July 24, 1987, Ms. McKinley knew that Ms. Miller was to have been evaluated by Dr. Newman on July 22, 1987. At the time of the phone call on June 24, 1987, Ms. McKinley did not ask Ms. Miller to tell her what Dr. Newman had determined concerning Ms. Miller's medical condition, and did not ask Ms. Miller about Dr. Newman's evaluation two days earlier. As a result, during the July 24, 1987, telephone conversation, inexplicably neither Ms. McKinley nor Ms. Miller mentioned anything about Dr. Newman's evaluation on July 22, 1987. R. Ex. 2A is the report of Dr. Newman with respect to the visit of July 22, 1987. The report indicates on its face that Woods Rehab Services and Ms. Tommie Miller are listed as recipients of the "cc." The report of Dr. Newman of July 22, 1987, R. Ex. 2A, states in part: At this time, my feeling would be that the drive to and from Titusville is causing her more harm than good. Since she works for the state, it would be in the best interest of all parties concerned to move her to a position in the Rockledge area because she will be able to commute a very short drive and would be quite capable of performing this type of sedentary work. On July 24, 1987, Ms. Miller called Dr. Newman to get another written report, and asked Dr. Newman to send that report to Ms. Patterson at Woods Rehabilitation Center. R. Ex. 2B is that report. The report of July 24, 1987, shows that Woods Rehabilitation Services, Inc., but not Ms. Miller, was the recipient of a "cc." The report of July 24, 1987, R. Ex. 2A states in part: It is not the act of driving itself, but it is the riding in the car that is bothering her back and I do not think that she should be having to travel by car 25 miles in either direction to work when she could be doing a similar job virtually around the corner from her house. It is concluded that the report of Dr. Newman, in written form, supported Ms. Miller's oral statement to Ms. McKinley that she was physically unable to drive to the detention center due to the distance. These findings of fact are based upon what in fact is printed on the face of the reports, and is not a finding that the statements contained in the reports are true. Ms. Patterson told Ms. Miller that she would send the report to Ms. McKinley. Ms. Patterson told Ms. Miller that she did communicate with HRS. No finding is made as to the truth of Ms. Patterson's statement, but only that Ms. Miller in fact heard Ms. Patterson make this statement to her. Ms. Miller thought Ms. Patterson would and did send the medical report of July 22, 1987, to Ms. McKinley. Ms. Patterson did not send Dr. Newman's medical report to Ms. McKinley. There was a prior pattern of dealing between the parties such that Ms. Patterson, with reasonable frequency, though not routinely, communicated to Ms. McKinley concerning the current medical status of Ms. Miller with respect to her ability to resume her job with HRS. This finding of fact is based upon the testimony of Ms. Miller, who stated that she relied upon Ms. Patterson to keep Ms. McKinley informed, and the testimony of Ms. Miller that on July 24, 1987, she told Ms. McKinley by telephone that Ms. Patterson would send the medical documentation. It is also based upon the testimony of Ms. McKinley, who testified that Ms. Patterson did, from time to time discuss with her Ms. Miller's medical condition and job alternatives. But most important, this finding is based on the letter of July 22, 1987, itself. The first sentence of that letter stated: "I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87." It is noted that R. Ex. 5, which Ms. McKinley testified was the only information she had on July 22, 1987, was an extensive report prepared by Nurse Patterson, and shows Michele McKinley in the "cc" list, from which it is inferred that Ms. Patterson routinely sent these medical evaluations to Ms. McKinley. In the year between August, 1986, and July, 1987, there is no evidence that Ms. Miller had failed to provide HRS with medical documentation concerning her injury as may have been required by HRS, or that HRS had not been satisfied with the reports received from Nurse Patterson and her predecessors. In particular, there is no evidence that during this twelve month period HRS had discussed with Ms. Miller any problem of receipt of medical documentation, or had occasion to warn her that it was her personal responsibility to provide medical documentation, and that her failure to do so would result in loss of her job. Such a warning, it is inferred, would have been appropriate if Nurse Patterson had failed to send medical documentation that had been previously demanded by HRS. In short, during the period from July, 1986, to July, 1987, it must be concluded that whatever system of medical documentation was then required by HRS, if any, was complied with satisfactorily. On July 28, 1986, Ms. Miller was warned by her supervisor that she had a personal responsibility to keep HRS informed concerning her medical condition. The warning on this date was prompted by the fact that HRS was then not receiving medical documentation that it needed. The relevance of this warning with respect to the period of June and July, 1987, is diminished for several reasons. First, this warning occurred a year before, and there is no evidence of any failure in the intervening 12 months by Ms. Miller to satisfy HRS's needs for medical documentation. Further, the July, 1986, incident occurred because Ms. Miller then did not have a rehabilitation nurse assigned to her case, and thus had no medical representative to send medical information to HRS for her. But more important, as discussed in the preceding paragraph, when Nurse Patterson and her predecessors were assigned to Ms. Miller, Ms. Miller relied upon them to send medical information. The system apparently worked, since there is no evidence of a dissatisfaction by HRS with medical documentation after July, 1986, until the letter of July 22, 1987. The medical documentation was still not received by Ms. McKinley on August 10, 1987. Ms. Miller did not report to work in the period from July 22, 1987, to August 10, 1987. On August 10, 1987, HRS by letter notified Ms. Miller that HRS concluded that Ms. Miller had abandoned her position. Ms. Miller did not learn that Ms. McKinley had not received the medical documentation until she received the letter of August 10, 1987. On August 18, 1987, Ms. Miller requested a formal administrative hearing concerning the conclusion that she had abandoned her position.
Recommendation It is therefore recommended that the Department of Administration enter its final order finding that the Petitioner, Tommie Miller, did not abandon her position with the Department of Health and Rehabilitative Services by being absent from her job for three consecutive workdays without authorized leave. DONE and RECOMMENDED this 17th day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988. APPENDIX To Recommended Order in Case No. 87-4136 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used designate the unnumbered paragraphs used by the Petitioner, in sequence. Findings of fact proposed by the Petitioner: Fourth sentence, there is no transcript, and the Hearing Officer's notes do not record the testimony that the medical excuse "indicated that the estimated Date of Return to Duty as unknown." The Hearing Officer has no independent memory of such testimony sufficient to conclude that this proposed finding of fact is true. The same is true with respect to the sentence: "Ms. Miller advised McKinley that she had been to see Dr. Richard P. Newman, M.D. on July 22, 1987." If the record reflected that Ms. Miller so testified, the Hearing Officer would make this finding of fact, since there was no reason to disbelieve Ms. Miller's testimony, and Ms. McKinley testified that she could not remember. Ms. Miller's testimony, as well as Ms. McKinley's testimony, appeared to be honest and straightforward, testifying to the truth both remembered at the time of testifying. The last sentence is not relevant. The first and third sentences are rejected since no one from Woods Rehabilitation Services testified. There is no evidence in the record that Ms. Patterson in writing told Ms. Miller that she advised Ms. McKinley of Ms. Miller's continued disability, and thus that portion of the sixth sentence is rejected. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Linoria Anthony AFSCME Council 79 345 South Magnolia Drive Suite F-21 Tallahassee, Florida 32301 James A. Sawyer, Jr., Esquire District VII Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida 32801 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact Mac's Auto & Tool Supply, Inc. (Mac's Auto) is a business which was started by Mr. Ralph G. McGlauthen in approximately 1962. The business specialized in automobile and truck equipment, supply, tools, and custom made hydraulic hoses for machinery. It had been located on State Road 84 in Fort Lauderdale, Florida just west of State Road 7. Due to the construction of an interchange for Florida's Turnpike, State Road 7, and State Road 84, the property Mac's Auto leased was acquired by the Department of Transportation. The business moved to 4225 S.W. 57th Avenue in Davie, Florida. Negotiations for the acquisition of the land in Ft. Lauderdale were initiated in November of 1983. The original location had included a main building, and behind it a number of trailers used to store merchandise. Wooden 2' X 4' frames to which pegboard had been attached were used to organize the merchandise in the trailers. Other merchandise was kept in several small storage sheds. This method of maintaining merchandise could not be continued when the business was moved to Davie. The fire code there required the merchandise be stored or displayed on steel framing, rather than on pegboard supported by 2' X 4' wooden framing. The highway interchange project was a federally aided highway project. Relocation benefits were available to Mac's Auto as a tenant of the property acquired by the Department under the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended, 42 U.S.C. Section 4601 et seq. (Uniform Act) and the implementing regulations of the United States Department of Transportation published at 49 Code of Federal Regulations, Part The value of any fixtures left at the site would be reimbursable in the eminent domain proceeding, not under the Uniform Act. Mac's Auto was paid certain costs connected with its search for a new business location. The Florida Department of Transportation obtained estimates of the charges for relocating the stock to the new business location from two commercial movers. Mac's Tool was not required to use a commercial mover, and Mr. McGlauthen ultimately elected a self move. The cost which is reimbursable to a displaced business for a self move is the lowest commercial estimate. 49 C.F.R. Section 25.303(c). In his letter of September 1, 1989 Mr. McGlauthen sought reimbursement of a $3,200 appraisal fee paid to Richard K. Cohen in October of 1985. Mr. McGlauthen maintains that the money was spent to assess the cost of moving the merchandise of the business. A letter dated February 7, 1986 from Mr. Cohen is the only written work product from Mr. Cohen. That letter is a progress report, which states that Mr. Cohen is preparing the "pricing of all of the fixture and machinery items" and projects a "final sound value" of $140,000 to $150,000. No final report was prepared. On the face of the letter, it appears that Mr. Cohen was not evaluating the cost of a move, but was assessing the actual value of the property itself. Mr. McGlauthen did abandon certain fixtures at the old site, and was paid by the Department for those fixtures. There is insufficient evidence that Mr. Cohen's work was ever completed, or if completed that it related to estimates of the cost of the move. That portion of the claim should be denied. Ultimately, Mac's Auto was paid $45,350 for a self move, based upon the lowest estimate from a commercial mover. Mr. McGlauthen abandoned at the hearing the claim in his letter for $6,000 for storage fees for seven trailers, because that amount had been paid by the Department. Mr. McGlauthen claimed $13,000 as the amount needed to build a mezzanine to hold the merchandise which previously had been stored in four of the trailers parked behind the main building at the old site. There was no documentation or itemization offered at the hearing of the actual expense incurred to build the mezzanine. The proof at hearing was insufficient to establish the amount of the expense. Moreover, the claim is one for improvement to real property, that is, for construction at the new place of business. Costs for improvements to real property are not reimbursable under the Uniform Act. The U.S. Department of Transportation specifically considered and rejected a proposal that physical changes to the replacement site be reimbursed when it adopted the rules implementing the Uniform Act. 50 Fed. Reg. 8955, 8965. (March 5, 1985) (Comments on Section 25.305). All of the expenses which were categorized on Mr. McGlauthen's letter under the heading "Monies Spent On Electric Installation" were paid by the Department, and are no longer an issue. The claims of Mac's Auto for $307.19 for a business license at the new location, $60.00 for a second business license, and $115.00 for an E.P.A. license were not reimbursed, because the Department regarded them as "additional operating expenses . . . incurred because of operating in a new location" which are ineligible expenses under 49 C. F. R. Section 25.305(f). Claims for $500.00 to complete the water hook-up to the water system at the town of Davie and $3,634.98 for a permit to hook-up to the Davie water supply were not reimbursed for the same reason. Since the Department's original denial of these fees, such fees have become payable due to an intervening decision of an intermediate Florida appellate court, Skiff's Workingman's Nursery v. Department of Transportation, 557 So.2d 233 (Fla. 4th DCA 1990), and a consequent change in characterization of those costs as permits "required of a displaced [business] at the replacement location" by the federal agency responsible for overseeing the relocation program established by the Uniform Act. 49 C.F.R. Section 25.303(a)(6). All these items therefore should be reimbursed. The claim for labor costs paid to employees based on time cards, and the claim for reimbursement of 40% of the salary paid to Mr. Isaac Theodore in the amount of $1,072.28 were not adequately explained at the hearing. The explanation of the manner in which the claim for the labor of employees was allocated on the time cards was superficial. There is an insufficient basis in the record to find that the employees were working on the move, rather than on other work, and an insufficient explanation of why this work was not compensated by payment for the self move. No records for Mr. Isaac Theodore could be produced at the hearing. Both of these reimbursement claims should therefore be denied. The claim for $903.46 were materials for air, water, and lines to hook-up to the sewer had no documentary support at the hearing, and consequently there is a failure of proof which requires that this reimbursement claim be denied. A number of other items listed in the claim letter filed by Mr. McGlauthen for Mac's Auto on September 1, 1989 have already been paid by the Department, and therefore need not be reimbursed again. These include $287.60 for installation of the telephone service, $900 for an alarm system, $250 to St. Jean Plumbing, $315 to pay for a carpenter's aid to the plumber and $3.25 in plumbing supplies. Mac's Auto also made several claims for lighting fixtures, including 50 fluorescent fixtures at a total cost of $1,250; four emergency exit lights, at a total cost of $340; and five emergency spotlights at a total cost $450. These claims had been denied by the Department as improvements to real property which were not reimbursable under the Uniform Act. Under regulations of the U.S. Department of Transportation published at 49 C.F.R. Section 25.305(j) a displaced person is not entitled to reimbursement for physical changes to the real property at the replacement location, which would include the cost of the lighting fixtures. This claim should be denied.
Recommendation It is RECOMMENDED that the Department of Transportation reimburse Mac's Auto & Tool Supply, Inc. for all items listed in Finding 8, but that all other claims be denied. DONE and ENTERED this 25th day of June, 1991, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1991. APPENDIX TO RECOMMENDED ORDER All findings proposed by the Department have been adopted, except findings 26 and 27. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Ralph McGlauthern Mac's Auto and Tool Supply 4225 S.W. 57th Avenue Davie, FL 33314 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue in this case is whether, pursuant to section 112.3172, Florida Statutes, the pension rights and privileges of Petitioner, Joseph Anthony Fuller, in the City of Jacksonville Retirement System should be forfeited.
Findings Of Fact Petitioner, Joseph Anthony Fuller, was employed by the JEA as a Senior Vehicle Coordinator in the Fleet Services Department. Mr. Fuller worked for the JEA for approximately 20 years. In 2013, the JEA received reports from fellow employees that Mr. Fuller was stealing gasoline from JEA fleet pumps. Mark Beebe was a JSO detective assigned as full-time liaison to the JEA. Pursuant to a contract between JSO and the JEA, Det. Beebe investigated all criminal allegations related to the JEA. Most of his investigations involved customer theft of electricity, but he also investigated allegations of theft by JEA employees. Det. Beebe investigated the allegations against Mr. Fuller. During his investigation, Det. Beebe found evidence that Mr. Fuller had stolen from the JEA spools of copper wire and other items that he then sold to metal recyclers. These thefts began in 2012 and carried on until late 2013. After he was satisfied that he had proof sufficient to establish Mr. Fuller’s guilt, Det. Beebe interviewed Mr. Fuller on January 21, 2014. Det. Beebe gave Mr. Fuller his Miranda warnings. Mr. Fuller signed a waiver and voluntarily submitted to the interview. During the interview, Mr. Fuller denied stealing gas but admitted to taking and reselling the recyclable items. Mr. Fuller denied taking the recyclable items from anywhere other than the “trash pile,” “the big dumpsters,” and the recycling bins. Det. Beebe was understandably skeptical that such a large quantity of unused copper wire and electrical items could have been retrieved from the trash and the recycling bins at JEA. After the interview, Det. Beebe placed Mr. Fuller under arrest and charged him with grand theft in violation of section 812.014(2)(c)2., Florida Statutes, a third-degree felony; giving false verification of ownership of pawned items in violation of section 539.001(8)(b)8.a., Florida Statutes, a third-degree felony; and dealing in stolen property in violation of section 812.019(1), Florida Statutes, a second-degree felony. Det. Beebe’s arrest report noted that Mr. Fuller received $3,097.10 for all of his illegal transactions, but that the replacement cost of the lost items to JEA was $6,082.21. The replacement cost was Det. Beebe’s estimate, based on information provided by JEA. Thomas Wigand is a Labor Relations Specialist with the JEA. Mr. Wigand is responsible for JEA’s relations with unionized employees, including civil service and disciplinary matters. Mr. Wigand is the JEA’s primary contact with the International Brotherhood of Electrical Workers (“IBEW”), Local 2358, of which Mr. Fuller was a member during his employment with the JEA. IBEW Local 2358 and JEA have entered into a collective bargaining agreement (the “Agreement”).1/ Under the Agreement, Mr. Fuller had collective bargaining rights and was subject to the Agreement’s rules on discipline, which provided that union member employees could be disciplined only for “just cause.” As an employee of the JEA, Mr. Fuller was governed by the City of Jacksonville’s Civil Service System, including the City of Jacksonville’s Civil Service and Personnel Rules and Regulations (“Civil Service Rules”). Chapter Nine of the Civil Service Rules covers disciplinary actions, grievances, and appeals. Rule 9.05 provides that an employee with permanent status in the Civil Service may only be dismissed “for cause.” “Cause” includes, among other things, “willful violation of the provisions of law or department rules,” “conduct unbecoming a public employee which would affect the employee’s ability to perform the duties and responsibilities of the employee’s job,” and “willful falsification of records.” An employee facing disciplinary action is entitled to a hearing before the Civil Service Board. Petitioner was also subject to the JEA’s company-wide guidelines for disciplinary action, which generally prescribed progressive discipline. However, the guidelines also provided that theft is a ground for immediate termination. After Det. Beebe submitted his investigative report to the JEA, Mr. Wigand convened a fact-finding meeting on January 29, 2014. Mr. Wigand testified that such a meeting was standard procedure under the JEA’s disciplinary process and was designed to allow Mr. Fuller an opportunity to dispute the report or explain his actions. Mr. Wigand explained that, given the “compelling nature” of Det. Beebe’s report, it seemed likely that the JEA would be seeking immediate termination of Mr. Fuller’s employment after the fact-finding meeting, unless Mr. Fuller came forward with “exonerating evidence.” Prior to the fact-finding meeting, Mr. Wigand prepared a “notice of dismissal and immediate suspension” and a “letter of intent to discipline” Mr. Fuller. The letter of intent to discipline Mr. Fuller did not specify the nature of the discipline being sought by the JEA. Mr. Wigand presented this letter to Mr. Fuller for his signature at the outset of the fact-finding meeting, in compliance with the Agreement. The notice of dismissal and immediate suspension was more forthright, commencing with the statement “Your conduct as an employee of JEA has been unacceptable and requires terminal disciplinary action” before reciting the specific factual allegations and rule violations forming the basis of the termination. There was no evidence indicating that Mr. Fuller was shown this notice at the meeting. The fact-finding meeting was attended by Mr. Wigand, Mr. Fuller, two IBEW union representatives, and JEA audit manager Linda Schlager, who kept detailed notes of the meeting. During the fact-finding portion of the meeting, Mr. Fuller initially denied remembering much about his interview with Det. Beebe. When he was specifically asked about the copper and other materials allegedly sold to the scrap recycler, Mr. Fuller continued to insist that he took the metal from a JEA dumpster. He denied taking it from either the JEA’s recycling areas or from JEA trucks. He conceded only that he engaged in “dumpster diving” while on the clock for JEA. At this point, Mr. Wigand began showing Mr. Fuller photos of specific items sold to the recycler.2/ Mr. Wigand also stated that it is not JEA’s practice to throw new spools of copper wire into the dumpster. After viewing some of these photos, Mr. Fuller requested a private conference with his union representatives. Mr. Wigand and Ms. Schlager stepped out of the conference room. After approximately 15 minutes, one of the union representatives emerged from the conference room and made a proposition to Mr. Wigand to resolve the matter. Mr. Fuller would be willing to resign and use his accumulated annual leave to pay restitution to the JEA, in return for JEA’s agreement not to prosecute. After some internal caucusing, the JEA agreed to allow Mr. Fuller to resign, contingent on his making full restitution to the JEA and providing an accurate account of how he stole JEA property. If Mr. Fuller complied with these conditions, the JEA would inform the state attorney that it had been made whole by Mr. Fuller and did not wish to prosecute. Mr. Wigand made it clear to Mr. Fuller that the JEA could not control whether the state attorney decided to go forward with the case. One of the union representatives asked about the post- resignation status of Mr. Fuller’s pension. Mr. Wigand stated that the JEA does not control the pension or make pension decisions. Mr. Fuller agreed to the conditions and then admitted the thefts. He detailed where and how he stole the materials, and satisfied the JEA that he acted alone. He admitted to stealing gas on several occasions. At the JEA representatives’ request, Mr. Fuller even offered advice on how the JEA could improve controls in order to prevent such thefts in the future. At the conclusion of Mr. Fuller’s statement, the union representatives, Mr. Fuller, and Mr. Wigand agreed that the effective date and time of Mr. Fuller’s resignation was the current date, January 29, 2014, at 1:00 p.m. An irrevocable letter of resignation was submitted by Mr. Fuller on the following day. The letter stated the date and time of his resignation and his agreement to reimburse the JEA in the amount of $6,248.00. The letter also stated that the JEA “has agreed to accept this resignation in lieu of proceeding with disciplinary action.” On a date unspecified in the record, the state attorney declined to prosecute that case against Mr. Fuller, in part due to the JEA’s notice that it had received restitution and did not wish for the matter to proceed. On January 24, 2014, Mr. Fuller had submitted a “Retirement Information Request” to the City of Jacksonville Retirement System, asking for a computation of the benefits he would receive if he retired on that date. Counsel for Mr. Fuller argues that this document establishes that Mr. Fuller resigned on January 24, five days prior to the fact-finding meeting. The document is not a resignation letter under any common understanding of that term. As titled, the document is an information request. The Board argues, for reasons explained in the following Conclusions of Law, that Mr. Fuller’s resignation was in fact a constructive discharge. The Board contends that the JEA would have proceeded to terminate Mr. Fuller’s employment if the allegations against him were proven, and therefore that his resignation under pressure was the functional equivalent of termination. Central to the Board’s argument is the assertion that Mr. Fuller “voluntarily admitted” to Det. Beebe that he had stolen materials from the JEA, and that an evidentiary finding of theft was thus a foregone conclusion. The evidence of this “admission” is ambiguous at best. The interview with Det. Beebe consisted mostly of long monologues by the detective followed by monosyllabic responses by Mr. Fuller. In his own words, Mr. Fuller admitted only to taking materials from the “trash pile,” “the bin,” and the “big dumpsters.” He described his takings as “stuff they throw away over there.” Mr. Fuller’s counsel pointed out that there was no evidence establishing that materials contained in the recycling bins or trash dumpsters of the JEA remained the property of the JEA or retained any value for the JEA. Even assuming that the JEA could have established the value of the items and that Mr. Fuller could not have obtained them from the trash, there was no guarantee that a hearing before the Civil Service Board would have inevitably led to Mr. Fuller’s termination. Mr. Wigand conceded under cross-examination that the outcome might have been some lesser form of discipline such as suspension. It is clear that as of January 29, 2014, the JEA entertained doubts about its chances of success in a termination hearing, else it would not have allowed Mr. Fuller to resign. The only full and unambiguous admission of guilt made by Mr. Fuller was pursuant to the resignation deal brokered by his union representatives on January 29, 2014. Mr. Fuller did not resign his position as the result of an admitted commission of a specified felony; rather, he admitted the thefts only after the JEA agreed to allow him to resign. The resignation letter itself, which the January 29 meeting notes indicate was at least partially drafted by the JEA, states that the JEA “has agreed to accept this resignation in lieu of proceeding with disciplinary action.” Even accepting that Mr. Fuller’s statements to Det. Beebe were not credible and that the JEA would likely have prevailed at an evidentiary hearing before the Civil Service Board to terminate Mr. Fuller’s employment on the ground of theft, there remains the problem of the quid pro quo that was part of the resignation agreement. By accepting Mr. Fuller’s resignation, the JEA was spared the time and expense of litigating his termination and was afforded the certainty of Mr. Fuller’s immediate and permanent removal from the workplace. Mr. Fuller was not the only party to benefit from the agreement that the Board now seeks to nullify. It appears to the undersigned that if the Board were to be allowed to effectively rescind Mr. Fuller’s letter of resignation and treat him as a terminated employee, then Mr. Fuller should be entitled to go back to square one and invoke his right to challenge that termination before the Civil Service Board. It is doubtful that anyone involved in these events would desire such an outcome. The Board’s position that Mr. Fuller’s resignation from the JEA was tantamount to termination is implausible on its face and lacks record support. The JEA was under no pressure to settle the case with Mr. Fuller. It presumably made the deal with its eyes open and aware of all the possible ramifications. The JEA allowed Mr. Fuller to retain his accumulated annual leave despite the fact that section 11.6 of the Agreement calls for forfeiture of unused annual leave by employees “who are discharged for stealing.” The JEA plainly did not consider Mr. Fuller to have been “discharged” or “terminated.” Though Mr. Wigand told the union representative that the JEA does not make pension decisions, the JEA in fact made such a decision when it allowed Mr. Fuller to resign. The JEA benefitted from making a deal with Mr. Fuller. The Board should not be permitted to step in and rewrite the deal after Mr. Fuller has given up his hearing rights and fully performed his end of the bargain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the City of Jacksonville Retirement System enter a final order withdrawing the Notice of Proposed Final Agency Action. DONE AND ENTERED this 19th day of November, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of November, 2014.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, D & S Motors and David R. Blevins, Owner, engaged in the business of operating a recovery agency without appropriate licensure and whether the Respondent employed a person engaged in the repossession business without that employed person being appropriately licensed, pursuant to the pertinent provisions of Chapter 493, Florida Statutes.
Findings Of Fact The subject matter of the dispute at issue arose when Daniel F. Lee, Jr. and the Respondent, David R. Blevins, the owner of D & S Motors, entered into an arrangement whereby Mr. Lee worked for Mr. Blevins in his used car sales business; obtaining cars for sale to customers, repairing and otherwise preparing such cars for sale, and selling cars for the Respondent's dealership. Apparently Mr. Lee believed, at least initially, that he had entered into a partnership arrangement with the Respondent to operate D & S Motors. Mr. Lee, however, was paid like an employee during the course of their business relationship and considered himself to be working for Mr. Blevins. Their arrangement was an employer/employee relationship based upon the preponderance of the evidence. Mr. Lee's duties included buying and selling cars, preparing them for sale, and driving the company tow truck. He also engaged in attendance at auctions at which cars were sold or others were purchased for resale. Mr. Lee also performed physical repossessions of automobiles between April and December of 1991. D & S Motors did five or six repossessions for Commercial Credit of Pensacola and would normally charge $125.00 per automobile repossession. Mr. Blevins was aware that Mr. Lee was repossessing automobiles with his company's tow truck because he would give Mr. Lee telephone messages from Commercial Credit of Pensacola when a repossession needed to be done, dispatching Mr. Lee to perform that task. After being paid by Commercial Credit with checks made payable to D & S Motors, Mr. Lee would normally give custody of such checks to Mr. Blevins, who would then split the funds they represented three ways. One third of the funds went to Mr. Blevins' company, one third was paid to Mr. Lee, and one third was applied toward maintenance of the tow truck. On three or four occasions, Mr. Blevins actually rode with Mr. Lee in the tow truck performing repossession attempts. On these occasions, they made only one successful recovery of a vehicle, however. The repossessed vehicles were normally kept at the D & S Motors' dealership lot, and Mr. Blevins sometimes would help perform the inventory of the personal property in the vehicles. On July 31, 1991, Commercial Credit of Pensacola issued a check for $275.00 payable to D & S Motors for the repossession of three vehicles. On August 30, 1991, Commercial Credit of Pensacola issued a check for $100.00 made payable to D & S Motors for one repossession. On December 10, 1991, Commercial Credit of Pensacola issued a check for $125.00 made payable to Danny Lee for one repossession. Keith Prine, the Branch Manager for Commercial Credit of Pensacola, was given a D & S Motors' invoice or receipt signed by Mr. Lee. In January of 1992, Mr. Blevins wrote Commercial Credit of Pensacola concerning a wrecked 1986 Saab automobile, which was then being stored at the D & S Motors' dealership lot. That automobile had been repossessed by Mr. Lee, and Mr. Blevins was aware that Mr. Lee had repossessed that vehicle, at least upon the occasion of its being deposited on the D & S Motors' dealership lot. During the times in question, between April and December of 1991, neither Mr. Blevins nor Mr. Lee held a Class "E" recovery agent license, nor a Class "EE" recovery agent intern license, nor a Class "R" recovery agency license, pursuant to Chapter 493, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered finding the Respondent in violation of the statutory and rule provisions cited above and that an administrative fine in the amount of $500.00 be imposed in accordance with Rule 1C-3.113(1)(a)2, Florida Administrative Code, and, as to Count II of the Administrative Complaint, that the Respondent be assessed an administrative fine in the amount of $250.00, in accordance with Rule 1C-3.113(1)(a)9, Florida Administrative Code. DONE AND ENTERED this 18th day of December, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 18th day of December, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 92-3555 Petitioner's Proposed Findings of Fact 1-10. Accepted. COPIES FURNISHED: The Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, Esq. General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Mr. David R. Blevins D & S Motors 6559 N. Old Palafox Pensacola, FL 32514
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact The parties have stipulated that the Petitioner is a "small business party" as the term is defined at section 57.111(3)(d). On June 21, 2010, the Petitioner applied to acquire an existing alcoholic beverage "quota" license from another licensee. The Petitioner had to pay a fee to transfer the license pursuant to section 561.32(3)(a), Florida Statutes (2010), which provides as follows: Before the issuance of any transfer of license herein provided, the transferee shall pay a transfer fee of 10 percent of the annual license tax to the division, except for those licenses issued pursuant to s. 565.02(1) and subject to the limitation imposed in s. 561.20(1), for which the transfer fee shall be assessed on the average annual value of gross sales of alcoholic beverages for the 3 years immediately preceding transfer and levied at the rate of 4 mills, except that such transfer fee shall not exceed $5,000; in lieu of the 4-mill assessment, the transferor may elect to pay $5,000. Further, the maximum fee shall be applied with respect to any such license which has been inactive for the 3-year period. Records establishing the value of such gross sales shall accompany the application for transfer of the license, and falsification of such records shall be punishable as provided in s. 562.45. All transfer fees collected by the division on the transfer of licenses issued pursuant to s. 565.02(1) and subject to the limitation imposed in s. 561.20(1) shall be returned by the division to the municipality in which such transferred license is operated or, if operated in the unincorporated area of the county, to the county in which such transferred license is operated. (emphasis added). License transfer applicants are required to provide gross sales records pursuant to Florida Administrative Code Rule 61A-5.010(2)(b), which provides as follows: An applicant for a transfer of a quota liquor license shall provide records of gross sales for the past 3 years or for the period of time current licensee has held license in order that the division may compute the transfer fee. An applicant may, in lieu of providing these records, elect to pay the applicable transfer fee as provided by general law. The gross sales records provided to the Respondent by the Petitioner were for the five-month period between January 21 and June 21, 2010, and totaled $573,948.94 for the period. To compute the transfer fee, the Respondent divided the reported gross sales ($573,948.94) by five to estimate an average monthly gross sales figure of $114,789.79.2/ The Respondent multiplied the estimated average monthly gross sales by 12, to estimate annual gross sales of $1,377,477.48. The Respondent then applied the 4-mill rate to the estimated annual gross sales and determined the transfer fee to be $5,509.91. The Respondent also calculated the transfer fee through a formula set forth on a form that had been challenged as an unadopted rule by an applicant in a 2008 proceeding. While the 2008 rule challenge was pending, the Respondent commenced to adopt the form as a rule, but the dispute was ultimately resolved without a hearing, after which the Respondent discontinued the process to adopt the rule. According to the formula on the form, the transfer fee was $5,599.50. Because both of the Respondent's calculations resulted in transfer fees in excess of $5,000, the Respondent required the Petitioner to pay the statutory maximum of $5,000. The Petitioner paid the $5,000 transfer fee under protest. The Petitioner asserted that the appropriate transfer fee should have been $765.27. The Petitioner's calculation used the reported five months of gross sales ($573,948.94) as the total annual gross sales for the licensee. The Petitioner divided the $573,948.94 by three to determine a three-year average of $191,316.31 and then applied the 4-mill rate to the three-year average to compute a transfer fee of $765.27. On March 17, 2011, the Petitioner filed an Application for Refund of $4,234.73, the difference between the $5,000 paid and the $765.27 that the Petitioner calculated as the appropriate fee. The Application for Refund was filed pursuant to section 215.26, Florida Statutes, which governs requests for repayment of funds paid through error into the State Treasury, including overpayment of license fees. Section 215.26(2) requires that in denying an application for a tax refund, an agency's notice of denial must state the reasons for the denial. As authorized by section 72.11(2)(b)3, Florida Statutes, the Respondent has adopted rules that govern the process used to notify an applicant that a request for refund has been denied. Florida Administrative Code Rule 61-16.002(3) states as follows: Any tax refund denial issued by the Department of Business and Professional Regulation becomes final for purposes of Section 72.011, Florida Statutes, when final agency action is taken by the Department concerning the refund request and taxpayer is notified of this decision and advised of alternatives available to the taxpayer for contesting the action taken by the agency. By letter dated May 9, 2011, the Respondent notified the Petitioner that the request for refund had been denied and stated only that "[w]e reviewed the documentation presented and determined that a refund is not due." The Respondent's notice did not advise that the Petitioner could contest the decision. On May 16, 2011, the Petitioner submitted a Request for Hearing to the Respondent, asserting that the Respondent improperly calculated the transfer fee by projecting sales figures for months when there were no reported sales. On August 4, 2011, the Respondent issued a letter identified as an "Amended Notice of Denial" again advising that the Petitioner's refund request had been denied. The letter also stated as follows: The Division cannot process your refund application due to the fact that the transferee has not provided the Division records which show the average annual value of gross sales of alcoholic beverages for the three years immediately preceding the transfer. On September 14, 2011, the Respondent forwarded the Petitioner's Request for Hearing to the Division of Administrative Hearings (DOAH Case No. 11-4637). By letter dated October 10, 2011, the Respondent issued a "Second Amended Notice of Denial" which stated as follows: We regret to inform you that pursuant to Section 561.23(3)(a), Florida Statutes, your request for refund . . . in the amount of $4,234.73 is denied. However, the Division has computed the transfer fee and based upon the records submitted by you pursuant to Rule 61A-5.010(2)(b), F.A.C., the Division will issue the Applicant a refund in the amount of $2,704.20. The records referenced in the letter were submitted with the original application for transfer that was filed by the Petitioner on March 17, 2011. The Respondent's recalculated transfer fee was the result of applying the 4-mill levy directly to the reported five months of gross sales reported in the transfer application, resulting in a revised transfer fee of $2,295.80 and a refund of $2,704.20. On October 11, 2011, the Respondent filed a Motion for Leave to Amend the Amended Notice of Denial, which was granted, over the Petitioner's opposition, on October 21, 2011. DOAH Case No. 11-4637 was resolved by execution of a Consent Order wherein the parties agreed to the refund of $2,704.20 "solely to preclude additional legal fees and costs," but the Consent Order also stated that the "Petitioner expressly does not waive any claim for attorneys' fees in this matter pursuant to F.S. 57.111." The Petitioner is seeking an award of attorney's fees of $8,278.75 and costs of $75, for a total award of $8,353.75. The parties have stipulated that the amount of the attorney's fees and costs sought by the Petitioner are reasonable. The Respondent failed to establish that the original calculation of the applicable transfer fee was substantially justified. The evidence fails to establish that there are special circumstances that would make an award unjust.
The Issue Whether Petitioner, Kevin Mullally, PhD, is entitled to a direct entry into the State University System Optional Retirement Program (SUSORP) as of August 8, 2019, the day he began teaching at the University of Central Florida (UCF).
Findings Of Fact Based upon the oral and documentary evidence presented at hearing, the following facts are found: Parties Dr. Mullally is currently an Assistant Professor of Finance at UCF, having started in that position on August 8, 2019. Respondent is the state agency with the responsibility to administer the FRS PP and the SUSORP. See §§ 121.125 and 121.035 Fla. Stat. DOR authorizes provider companies to assist SUSORP members with investments. See § 121.035 Fla. Stat. Background Dr. Mullally graduated from UCF in December 2005. He accepted an Orange County Public Schools teaching position in January 2006. 2 Respondent’s Exhibits 8 through 10 are contained on a single compact disk (CD) containing audio files of telephone conversations between Dr. Mullally and DOR employees, other State employees, or agents. Dr. Mullally taught at Timber Creek High School in Orlando, Florida, from January 2006 to late July 2006. At some point in 2006, Dr. Mullally chose to enroll in the FRS IP.3 The Orange County Public Schools system contributed a sum equal to 3.3 percent of Dr. Mullally’s earnings to his FRS IP. Dr. Mullally testified that, at that time, he was “21, young and dumb” and did not contribute any of his own earnings to his FRS IP. Dr. Mullally left his Timber Creek High School teaching position in late July 2006. Dr. Mullally lived in Atlanta for seven years, went to graduate school, and graduated with his doctorate degree in finance. On or about February 2, 2011, FRS IP sent a letter to Dr. Mullally that provided his FRS IP benefits “may be forfeited in the near future.” The letter also provided in part: Because you were not fully vested in this portion of your account balance when you terminated FRS- covered employment, and did NOT take a distribution from your FRS Investment Plan account, the unvested portion was moved to a suspense account. According to our records, as of the date of this letter you have not returned to FRS-covered employment. If you return to work within five years from the date of termination noted above [July 27, 2006], the unvested portion of the account will be reinstated to your FRS Investment Plan account plus earnings. If you do not return to work in an FRS-covered position within five years from the date of termination noted above the unvested portion of your benefit will be forfeited. Dr. Mullally worked less than the required six years to vest in the state retirement system. In July 2011, Dr. Mullally forfeited both the seven months of FRS eligible employment service and those Orange County Public Schools contributions held in a suspense account. 3 The State Board of Administration (SBA) administers the FRS IP. Dr. Mullally worked for three years at the University of Alabama as a Finance Professor just before returning to Florida, where he began his employment at UCF in 2019. UCF Employment On August 8, 2019, Dr. Mullally started his employment with UCF as a tenure track Assistant Professor of Finance. On August 9, 2019, Dr. Mullally received TIAA confirmation that he had successfully enrolled in a retirement plan of UCF. TIAA is an approved SUSORP provider. On August 20, 2019, Dr. Mullally executed a SUSORP Retirement Plan Enrollment form (the Form). In the Form’s section III, Dr. Mullally indicated he wanted to be a SUSORP member by checking the statement: “I am a new member and wish to enroll in the SUSORP.” Dr. Mullally also provided that he had elected to use “TIAA-CREF ORP” as the provider company for his financial investments. Dr. Mullally’s employer, UCF, provided that Dr. Mullally was eligible for enrollment in SUSORP as of August 8, 2019, the day he began his employment. Dr. Mullally did not exercise the Form’s option found in section II pertaining to FRS membership when he became employed by UCF. At hearing, Dr. Mullally provided copies of his first three payroll statements dated August 16, August 30, and September 13, 2019. Each statement provided a before–tax deduction to the Optional Retirement Program (ORP), which represented the SUSORP contribution. On September 18, 2019, Respondent, not the SBA, sent a letter to UCF (with a copy to Dr. Mullally) ordering UCF to redirect Dr. Mullally’s retirement withholdings from SUSORP to the FRS IP. DOR’s letter provided the following: You reported the above member under an incorrect retirement plan on the August 2019 retirement report. Incorrect Plan: OP Correct Plan: PA This member [Dr. Mullally] is a participant in the Florida Retirement System (FRS) Investment Plan based on his previous employment with the Orange County School Board and should not be reported under the default State University System Optional Retirement Plan (SUSORP) by the University of Central Florida. There are no statutory provisions that allow a direct transfer from the Investment Plan to the SUSORP. If the member prefers to participate in the SUSORP instead of the Investment Plan, he must use his second election to return to the FRS Pension Plan and then elect to participate in the SUSORP. To initiate this process, the member must complete the 2nd Election Retirement Plan Enrollment Form (ELE-2) to return to the Pension Plan and mail the form to the FRS Plan Choice Administrator at the address listed on page 3 of the form. Once the form is approved, the Division of Retirement will determine the cost to buy back into the Pension Plan. For information on the calculation of the cost, he may want to call the division toll-free at (844)377-1888 or locally at (850) 907-6500. The member should refer to the enclosed Transfer Information Sheet for additional information on the process. The member has 90 days from his date of SUSORP eligibility to initiate the process of transferring from the Investment Plan to the Pension Plan. Future payrolls should reflect the plan correction to PA. If you have any questions, please contact the Contributions Section. Dr. Mullally completed and submitted the ELE-2 form that DOR stated “must” be completed. After waiting approximately 45 days, DOR, not SBA, advised Dr. Mullally that the cost for him to buy into the FRS PP was $19,408.00. Further, Dr. Mullally understood that once he bought into the FRS PP, all his money would not transfer to his SUSORP election. Dr. Mullally did not submit the “buy-in” amount, but instead, began additional inquiries that led to this hearing. On September 27, 2019, Dr. Mullally received his fourth payroll statement which showed the before–tax deduction for contributions to the “Florida Retirement System” in the same amount previously provided as contributions to the ORP. Additionally, the statement provided a “YTD” (year-to-date) deduction for contributions to the ORP (the SUSORP). At the hearing, a brochure titled, “WELCOME to the FLORIDA RETIREMENT SYYSTEM For State University System SUSORP-Eligible Employees” (brochure) was offered by DOR and accepted in evidence. This brochure provides information on the three retirement plans available to eligible State University System employees: SUSORP; FRS IP; and FRS PP. At hearing, DOR advanced the principle that footnote 4, found on page 5 of the brochure (below), provided the mechanism by which Dr. Mullally could move to SUSORP. 4. If you are enrolled in the Investment Plan and move to a SUSORP-eligible position, you must use your 2nd Election (if available) to buy back into the Pension Plan in order to enroll in the SUSORP. You are not permitted to make a direct transfer from the Investment Plan to the SUSORP (unless in a mandatory SUSORP position). However, the footnote does not provide any statutory authority for the second election to “buy back” into the FRS PP to then transfer to SUSORP. At the hearing, Dr. Morgan was unable to identify any statutory authority for the second election to “buy back” into the FRS PP to then transfer to SUSORP. Further, DOR concedes in its PRO: “It does not appear that any statute or rule contains this requirement, only this publication by the SBA.”4 (Resp. PRO at ¶7)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED6 that the Department of Management Services, Division of Retirement, enter a final order allowing Dr. Mullally’s enrollment in SUSORP as of August 8, 2019. DONE AND ENTERED this 3rd day of August, 2020, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 3rd day of August, 2020. 6 The undersigned is without the statutory authority to require the Department of Management, Division of Retirement to reimburse Petitioner “for the cost of the transcripts purchased in this matter”. COPIES FURNISHED: Gayla Grant, Esquire Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) Kevin Andrew Mullally 1821 Carollee Lane Winter Park, Florida 32789 (eServed) Thomas E. Wright, Esquire Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed)
