Findings Of Fact The facts here involved are largely undisputed. Callie Grier was employed by the Polk County Hospital as a nurses aide from 1966 until July of 1972. She did not have 10 years employment for retirement purposes at the time of her death in 1976, hence her retirement had not vested. In 1966, and again in 1969, Callie Grier designated her husband, Timothy Grier, as beneficiary of her retirement benefits. At the beginning of her employment Callie Grier was covered under the City and County employees retirement system. In 1970 retirement provisions were modified to establish a Florida Retirement System to cover all city, county and state employees. Those employees covered under a previous retirement system were given the option of transferring to the new system or staying with their existing retirement system. In 1970 Mrs. Grier elected to transfer to the Florida Retirement System (Exhibit 7). On 18 September 1970 Callie Grier obtained a final judgment of divorce from Timothy Grier, Jr., which judgment provided for the payment of child support. (Exhibit 1) On 23 March 1971 an Order of Contempt was issued adjudging Timothy Grier, Jr. in contempt of court and sentencing him to IS days in jail for failure to pay child support. (Exhibit 2) . On 1 November 1971 Timothy Grier was adjudged to be in contempt of court and sentenced to jail for 90 days for being in arrears on child support payments (Exhibit 3) . Also on 1 November 1971 an order relinquishing jurisdiction over Timothy Grier to the Criminal Court was issued (Exhibit 4). On or about this time Timothy Grier departed Bartow and his present whereabouts is unknown to Petitioner. Callie Grier married Aaron Spencer after her divorce from Grier and was so married at the time of her death. Petitioner has custody of the minor child of Callie Grier and has had custody since the death of Callie Grier. On 10 February 1971 Callie Grier executed a change of beneficiary form for her insurance with The Travelers Insurance Company designating Willie Mae Barnes as beneficiary (Exhibit 6) At this time Callie Grier was suffering from a kidney disorder which later required the use of dialysis. Following a kidney transplant in 1976 Callie Grier died in a Gainesville hospital. In 1970 many of the employees in Polk County were not aware of all of their retirement benefits and little effort was expended by local employers to insure the employees had all information. The State Division of Retirement has held numerous seminars and workshops throughout Florida, including Polk County, for both supervisors and employees from time to time since the Division of Retirement was formed. In addition, at least annually brochures were prepared in sufficient numbers to provide one for each employee and sent to the various employers. These brochures explained the various retirement benefits to which employees are entitled. In these brochures. as well as he seminars and workshops, the requirement of having currently designated beneficiaries was stressed.
Findings Of Fact The parties executed and filed a Prehearing Stipulation in this proceeding stipulating to the facts and agreeing that there were no issues of fact which remain to be litigated. Based upon the stipulation of facts, the facts found relevant to the issues in this rule challenge proceeding are as follows: Petitioner, American Telephone and Telegraph Company, is the parent corporation of the "Bell System," a group of corporations consisting of twenty- three associated operating telephone companies and other related corporations. For the 1972, 1973 and 1974 tax years, petitioner and its qualified subsidiaries filed a consolidated return for federal income tax purposes. Having made a valid election of the 100 percent dividend received deduction under Section 243 of the Internal Revenue Code, the Internal Revenue Service did not tax dividends received by petitioner from its affiliates. Petitioner's federal income tax returns were audited by the Internal Revenue Service and the respective tax liabilities were determined and paid for each of the years in question. For the same 1972, 1973 and 1974 tax years, petitioner filed Florida income tax returns on a separate unconsolidated basis. Petitioner did not elect and was not required to file a Florida consolidated income tax return under Section 220.131, Florida Statutes. Having timely made a valid election of the 100 percent dividend received deduction under Section 243 of the Internal Revenue Code for the 1972, 1973 and 1974 tax years, such dividends were excluded from taxable income on petitioner's Florida income tax returns. For each of the tax years in question, petitioner reported on line 1 -- "federal taxable income (line 30, Form 1120 or corresponding line on related form in 1120 series, 990C or 990T)" -- of its Florida corporation income tax return (Form F-1120) its taxable income for federal income tax purposes computed as if petitioner had filed a separate federal income tax return for each of the years in question and for each preceding taxable year for which it was a member of an affiliated group. Petitioner, on its Florida corporation income tax return for each of the years in question, made the additions and subtractions required by the return in computing "adjusted federal income" and apportioned this amount of the prescribed three-factor formula to obtain "Florida net income." The Department of Revenue adjusted the amount of "federal taxable income" and hence "Florida net income" of petitioner for each of the years in question by adding thereto 15 percent of the dividends received from petitioner's affiliates which were deductible for federal income tax purposes under Section 243(a)(3) of the Internal Revenue Code. The income which the respondent seeks to tax is derived from dividends received by petitioner primarily from earnings generated by the property and employees of petitioner's affiliates which are devoted to furnishing intrastate and inter- state telecommunications services in their operating territories in states other than the State of Florida. These earnings are subject to income taxes in all states in which the petitioner's affiliates provide telecommunications services that impose income taxes on corporations. On April 10, 1978, the Department of Revenue issued a notice of proposed deficiency for petitioner's tax years ended December 31, 1972, December 31, 1973 and December 31, 1974, representing a potential tax liability to the petitioner in the amount of $304,103 for 1972, $387,429 for 1973, and $439,626 for 1974, plus accrued interest on each proposed deficiency. Petitioner timely filed a protest to the proposed deficiencies, an informal conference was held and, on April 16, 1981, the respondent Department of Revenue issued a final notice of proposed deficiency. This document applied the policies which are being challenged in this proceeding so as to add back to petitioner's taxable income an amount equal to 15 percent of the dividends received by petitioner from affiliated corporations which were not incorporated, located or engaged in business in the State of Florida. Stated differently, the respondent's policy is to allow the 100 percent dividend received deduction for those dividends received from subsidiaries or affiliates subject to the Florida tax, but to allow only an 85 percent deduction on those dividends received from subsidiaries which are not subject to the Florida tax. This policy has been applied to other similarly situated taxpayers in Florida and it has not been promulgated as a rule. The Florida corporate income tax forms in use for 1972, 1973 and 1974 did not require taxpayers to add back any amount of dividends received from affiliates. There is no existing statute or rule which specifically imposes such a requirement.
The Issue The factual issue in this case is whether Respondent failed to disclose certain information, of which he had knowledge, which would have adversely impacted the consideration by the Board of his financial responsibility. The legal issue raised by the Administrative Complaint is whether the failure to disclose such information constitutes a violation of Section 489.127(1)(d) , and thereby a violation of Section 489.129(1)(j), Florida Statutes (1979). However, neither allegation alleges fraud on an application. The case should be dismissed.
Findings Of Fact On or about March 26, 1980, the Respondent filed for a change of status as a certified general contractor from a company to operating as an individual. On his application, Respondent answered in the negative the following questions: Question 16 (b): Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of a construction operation of any person named in `(i) below' or any organizations in which any such person was a member of the personnel? Question 16(c): "Are there now any liens, suits, or judgments of record or pending as a result of a construction operation of any person named in `(i) below' or any organiation in which any such person was a member of the personnel?' Question 16(d): Are there now any liens of record by the U.S. Internal Revenue Service or the State of Florida Corporate Tax Division against any person named in `(i) below' or any organization in which any person was a member of the personnel? Evidence was received that a number of judgments and liens had been obtained against t Donald B. Richards personally or as a member or qualifier of a registered or certified company, specifically Acme Aluminum Sales and Service. There is no credible or substantial evidence that the judgment of Nu-Vue Industries, Inc. (Petitioner's Exhibit 7), arose from contracting operations in which Respondent was involved. There is no substantial and competent evidence that the notes upon which the judgment of Commercial National Bank (Petitioner's Exhibit 7) was obtained related to contracting operations. (Tr. 17, 19.) Tax liens for nonpayment of unemployment compensation were introduced. These liens were mailed to 2120 West Parker Street, Lakeland, Florida. Question 16(d) on the subject application limits tax liens to those of the U.S. Internal Revenue Service and the Corporate Tax Division of the State of Florida. See Petitioner's Exhibit 9 (Composite).] The custodian of the records for Florida Industries, Inc., could not recall what Respondent purchased from that company or why Respondent purchased it. The records custodian could only say that the items were probably building materials, and could not way whether the company's judgment had been satisfied. (See Deposition of Saul Rachelson; pages 5, 7.) The records of the judgment reflect that it was sent to 446 North Wabash, Lakeland, Florida. (See Petitioner's Exhibit 10.) The records of the Board do not reflect that Respondent ever resided or worked at 446 North Wabash, Lakeland, Florida. Said address is also listed within the judgment as the address of John Stinson, who was Respondent's business partner at the time. There is no substantial evidence that this judgment was related to contracting, that Respondent was aware of this judgment, or that the judgment was outstanding at the time Respondent made his application on March 26, 1980. The judgment obtained by Wells Carmel Aluminum, Inc., on May 4, 1977, was a default judgment. The attorney for Wells Carmel Aluminum did not know whether the items purchased, from which the default judgment arose, were construction materials and did not know why Respondent had purchased them. (Tr. 28.) There is no substantial and competent evidence that these materials were related to contracting. The judgment obtained by State Farm Fire and Casualty Company dated June 4, 1978, was related to Respondent's business. The business of Acme Aluminum Sales and Service was contracting. However, the judgment reflects on its face that it was sent to 2120 West Park Street, Lakeland, Florida 33001, on or about the date that it was entered. By said time, the business was no longer operating at that address, and said property had returned to the possession of the original owner, Arley Propes. The evidence indicates that Respondent had no knowledge of State Farm's judgment. The judgment obtained by the Pope Shopper Shopping News, Inc., on February 7, 1970, was related to Respondent's contracting business. A copy of the judgment was sent to Respondent's home address at 630 Candyce Avenue, Lakeland, Florida 33801. The Respondent had knowledge of this judgment and that it was related to his contracting activities. On November 3, 1977, Richard Allen obtained a judgment against Respondent arising from Respondent's failure to correct certain conditions on a contracting job which he had done for Allen. A copy of this judgment was sent to 2120 West Parker Street, Lakeland, Florida 33801. By that time, Respondent was no longer doing business at that address. The evidence indicates that Respondent had no knowledge of the judgment obtained by Allen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board take no action against Respondent. DONE and RECOMMENDED this 3rd day of August, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of August, 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Donald B. Richards 630 Candyce Avenue Lakeland, Florida 33801 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Petitioner, Florida Welding Services Corp., is a Florida corporation doing business in the State of Florida. The Respondent, Florida Department of Revenue, is the agency charged with enforcing the taxing statutes of this State, including the Florida Income Tax Code, Chapter 220, Florida Statutes. Pursuant to Chapter 220, Florida Statutes, the Petitioner is required to file a Florida Corporate Income Tax Return annually with the Respondent. The Return is due on the first day of the fourth month after the close of the tax year. The Petitioner's tax year for 1977 was April 1, 1976, through March 31, 1977. The Florida Corporation Income Tax Return for the 1977 tax year was due on July 1, 1977, and the Petitioner failed to file its Return by this date. The Petitioner's tax year for 1978 was April 1, 1977, through March 31, 1978. The Florida Corporation Income Tax Return for the 1978 tax year was due on July 1, 1978, and the Petitioner failed to file its Return by this date. In January 1977, all of the Petitioner's corporate records were seized, pursuant to a subpoena issued in the United States Federal District Court in and for the Southern District of Florida. (See Exhibit 1) The Petitioner's records were not returned to it for over a year. On September 15, 1978, the Petitioner filed a Tentative Income Tax Return and Application for Extension of Time to File Income Tax Return, wherein Petitioner requested an extension of time until November 15, 1978, in which to file its Florida income tax return for the 1977 and 1978 tax years. (See Exhibit 2) On October 5, 1978, the Department of Revenue denied the Petitioner's request for an extension of time on grounds that the request had been filed after the respective due dates of July 1, 1977, and July 1, 1978. (See Exhibit 2) On November 16, 1978, the Department of Revenue received Petitioner's Florida Corporation Income Tax Returns for the tax years 1977 and 1978. The Petitioner also remitted the tax it believed owing for each taxable year, $3,734.96 for 1977 and $6,803.56 for 1978. On February 2, 1979, the Department of Revenue, Corporate Income Tax Bureau, issued a Delinquent Notice of Tax Due to the Petitioner. The Notice indicated that the Petitioner had a balance due of $1,547.28 for the tax year ending March 31, 1977, which amount represented $933.74 penalty and $613.54 interest. (See Exhibit 3) On February 5, 1979, the Department of Revenue, Corporate Income Tax Bureau, issued a Delinquent Notice of Tax Due to the Petitioner. The Notice indicated that the Petitioner had a balance due of $1,986.43 for the tax year ending March 31, 1978, which amount represented $1,700.89 penalty and $285.54 interest. (See Exhibit 4) On March 15, 1979, Mr. Karl J. Leib, Jr., contacted the Department of Revenue on behalf of his client, the' Petitioner, requesting the Department to delay in issuing any tax warrants against the Petitioner until Mr. Leib had an opportunity to communicate with someone from the Department. (See Exhibit 5) A follow-up letter was sent by Mr. Leib to the Department on June 8, 1979. (See Exhibit 6) On April, 23, 1980, the Department of Revenue issued to the Petitioner a Final Notice and Demand for payment in the amount of $1,547.28. (See Exhibit 7) Although no Final Notice and Demand for payment in the amount of $1,986.43 was issued by the Department, the amount is still outstanding and the Department maintains that Petitioner owes this sum as well. It is the Petitioner's position that its inability to timely file its Florida Corporate Income Tax Returns was entirely due to factors beyond its control, i.e., the confiscation of its corporate records. The Petitioner maintains that it should not be assessed penalty and interest for late filing, as its failure to timely file was "due to reasonable cause and not willful neglect," as is provided for in Section 214.40(1), Florida Statutes. The Department's position is twofold. First, the Petitioner's failure to make a timely request for extension of time in which to file its return does constitute willful neglect. Second, that while Section 214.40(1), Florida Statutes, may provide the Department with some discretion in assessing penalties, there is no comparable provision for modifying interest payments and such amount is absolutely mandated by the statute for any late filed returns. In addition to the foregoing, along with the attached Exhibits, the undersigned hereby incorporate by reference and jointly offer as evidence those Exhibits attached to Petitioner's Request for Formal Proceedings. WHEREFORE, both parties respectfully request the Hearing Officer to consider the foregoing facts and exhibits, along with a Memoranda of Law to be filed by each party within 10 days of the filing of this Joint Stipulation, and to issue his Recommended Order, without the necessity of holding a formal hearing.
The Issue The issue in this case is whether James B. Anderson, a deceased retiree in the Florida Retirement System Pension Plan, selected Option 1 (maximum retiree’s monthly benefit without any spousal benefit after death of the retiree) or Option 3 (a reduced retiree’s monthly benefit with continued spousal benefit after death of the retiree).
Findings Of Fact On June 30, 2007, the named Petitioner, James B. Anderson, terminated his employment with the University of South Florida (USF) at the age of 69 years and 9 months. At the time, his tenure at USF spanned 27 years and entitled him to receive pension benefits under the Florida State Retirement System Pension Plan. Also on June 30, 2007, Mr. Anderson completed an application for retirement. By applying Mr. Anderson, who was USF’s Director of Insurance and Risk Management, acknowledged that he would not be able to add service, change options, change his type of retirement (regular, disability, and early) or elect the Investment Plan once his retirement became final, which would be when he cashed or deposited any benefit payment. Also on July 2, 2007, Mr. Anderson and his wife, Mitzi Anderson, executed a Statutory Official Form FRS 110 before a notary public. By doing so, they selected Option 1, which provides the maximum pension benefits to Mr. Anderson until his death and no pension benefits to his wife after his death. The form stated clearly, in bold print, that Option 1 did not provide a continuing benefit after Mr. Anderson’s death and that the selection of Option 1 would be final when Mr. Anderson cashed or deposited any benefit payment. The next day, Mr. Anderson faxed the executed form to the Division of Retirement, which mailed Mr. Anderson an acknowledgement of receipt of the executed form. The acknowledgement included a clear statement, in bold print, that Mr. Anderson would not be able to change his benefit option selection after retirement and that his retirement would become final when he cashed or deposited any benefit payment. Mr. Anderson had second thoughts about his benefit option selection and contacted Donna Pepper, a retirement specialist employed by USF, to discuss changing to Option 3, which would give him a reduced pension benefit that would continue and be paid to his wife after his death. On July 6, 2007, Ms. Pepper sent an email to Mr. Anderson stating: “Here is another option selection form so that you can change your option.” The email attached a blank Statutory Official Form FRS 110. Ms. Pepper’s email also stated: “As we discussed, you may want to indicate that this form should supersede the previously submitted form.” It also advised the Petitioner to keep a copy for his records and send the original to the Division of Retirement as soon as possible. On July 20, 2007, at 12:53 p.m., a comment was entered on the Integrated Retirement Information System (IRIS) telephone log, documenting that Mr. Anderson was considering changing his benefit option selection and would “either FAX a form with a change of option on it or call to let them know he would not make the change.” The comment also documented that Jan Steller in retirement payroll was asked to hold Mr. Anderson’s first check until “this is resolved.” Later the same day, at 2:30 p.m., another comment was added to document that Mr. Anderson had called back to say he had decided to stay with Option 1 and that Jan Steller had been called back and asked “to release his check.” On July 31, 2007, an initial pension check was sent to Mr. Anderson in the amount of $4,188.45, in accordance with his selection of benefit Option 1, which was about $1,200 more than it would be under Option 3. This check was not immediately cashed. On August 31, 2007, a second Option 1 pension check in the same amount was sent to Mr. Anderson. On September 4, 2007, Mr. Anderson deposited the first two benefit checks into his Bank of America account. He continued to receive and cash or deposit monthly Option 1 benefit checks through January 2015. Mr. Anderson died on February 14, 2015. His wife notified the Division of Retirement, which stopped benefit payments in accordance with Mr. Anderson’s Option 1 selection. In March 2015, Mrs. Anderson found among her husband’s papers a copy of an executed Form FRS 110 that selected Option 3. Notwithstanding the telephonic communications with the Division of Retirement on July 20, 2007, the executed form indicates that it was notarized on July 23, 2007. Included in handwriting at the bottom of the executed form was the language, as suggested by Ms. Pepper: “This option supersedes option dated 7-02-07.” Mrs. Anderson also found a copy of Donna Pepper’s e-mail dated July 6, 2007, with instructions on how to change the selection of pension payments. Mrs. Anderson sent copies to the Division of Retirement and requested Option 3 spousal benefit payments. The Division of Retirement denied Mrs. Anderson’s request because it did not receive an Option 3 benefit selection before the copy Mrs. Anderson sent in March 2015. There was no evidence that the form was sent to the Division of Retirement before then. This, together with the fact that Mr. Anderson received and cashed or deposited seven and a half years’ worth of monthly Option 1 benefit checks, which were each over $1,200 more than the Option 3 benefit would have been, support a finding that Mr. Anderson actually selected Option 1 and never switched to Option 3. It is not clear from the evidence why Mr. Anderson kept a copy of an executed change from Option 1 to Option 3 after deciding not to send it to the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that Mr. Anderson selected benefit Option 1, finally and irrevocably and that Mrs. Anderson is not entitled to Option 3 spousal benefits. DONE AND ENTERED this 22nd day of January, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 22nd day of January, 2016. COPIES FURNISHED: Nicholas E. Karatinos, Esquire Law Office of Karatinos Suite 101 18920 North Dale Mabry Highway Lutz, Florida 33540 (eServed) Joe Thompson, Esquire Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 (eServed) Dan Drake, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Ste. 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS), pursuant to sections 112.3173 and 121.091(5)(f), Florida Statutes, because of his conviction for official misconduct, a third degree felony under section 838.022(1), Florida Statutes.
Findings Of Fact The FRS is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. In January 1987, Petitioner began employment with the Florida Department of Transportation ("DOT"), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and DOT made contributions to the FRS on his behalf. In March 2001 and March 2005, Petitioner was elected to separate four-year terms as a Commissioner on the City Commission of the City of Deerfield Beach, Florida ("City"), an FRS-participating employer. By reason of his public office as a City Commissioner, Petitioner was enrolled in the FRS, and the City made contributions to the FRS on his behalf. Before entering upon the duties of his public office, pursuant to Florida law and the City Charter, Petitioner was required to take and subscribe substantially to the following oath: I do solemnly swear or affirm that I am a citizen of the State of Florida and of the United States of America and a registered voter and resident of the City of Deerfield Beach, as shown by the public records of Broward County, Florida. I am being employed as a Commissioner of the City of Deerfield Beach and will be a recipient of public funds. As such Commissioner I further swear or affirm that I will support the Charter of the City of Deerfield Beach, the Constitution of the State of Florida, and the Constitution of the United States, and that I will well and faithfully perform the duties of my office upon which I am about to enter. All elected officials of the City were subject to the standards of ethical conduct for public officers set by Florida law and the City Charter. Effective December 11, 2008, Petitioner resigned his position as City Commissioner. On or about December 29, 2008, Petitioner was charged, by information, with one count of grand theft, a third degree felony, in violation of sections 812.014(1)(a) and (b) and (2)(c)2., Florida Statutes; one count of official misconduct, a third degree felony, in violation of section 838.022(1), Florida Statutes; and one count of falsifying records, a first degree misdemeanor, in violation of section 839.13, Florida Statutes. The crimes with which Petitioner was charged were alleged to have occurred between October 6, 2007 and January 10, 2008. The basis for the official misconduct charge was that Petitioner falsified a campaign treasurer's report as part of his campaign for mayor of the City. The campaign treasurer's report is an official record or document belonging to the office of the City Clerk and/or the Florida Department of State, Division of Elections. Petitioner is no longer employed by DOT or the City. Petitioner is not retired from the FRS, and he has not received FRS retirement benefits. On or about May 7, 2010, Petitioner filed with the Division a completed FRS Pension Plan Application for Service Retirement (Form FR-11). By letter dated May 11, 2010, the Division advised Petitioner in relevant part as follows: This letter is to advise you of the status of your application for Florida Retirement System benefits. Our Legal office is reviewing your current legal situation for a determination of whether a forfeiture of benefits has occurred. If the determination is that forfeiture occurred, you will be notified and given information if you wish to appeal that determination. Your retirement application is pending until this review is complete. On May 10, 2011, a jury rendered a verdict which found Petitioner guilty as charged in the information. On July 29, 2011, the court adjudicated Petitioner guilty of the crimes. On or about August 3, 2011, Petitioner filed a notice of appeal in Florida's Fourth District Court of Appeal. On May 1, 2013, the Fourth District Court of Appeal affirmed Petitioner's convictions for grand theft, official misconduct, and falsifying records, and authored an opinion which addressed Petitioner's contention that he was entitled to a judgment of acquittal on the count of official misconduct. The Court wrote in relevant part: Section 838.022(1)(a), Florida Statutes (2007), makes it "unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to ... [f]alsify, or cause another person to falsify, any official record or official document." In this case, the basis for the official misconduct charge was that appellant falsified a campaign report as part of his campaign for mayor of Deerfield Beach. On appeal, appellant focuses on section 838.022(2)(a), which defines "public servant" as not "includ[ing] a candidate who does not otherwise qualify as a public servant," for the argument that "he was not a public servant at the time of the alleged offense" but was "merely a candidate for public office." However, as the State argues, at the time appellant was a candidate for mayor, he "otherwise qualif[ied] as a public servant" by virtue of his status as a city commissioner. Chapter 838 defines "public servant" as including "[a]ny officer or employee of a state, county, municipal, or special district agency or entity." § 838.014 (6)(a), Fla. Stat. (2007). The statute distinguishes a mere candidate from a public job or office holder in order to reach the evil of public servants misusing their office. Here, appellant was not just a candidate at the time of the offense; it was his dual status as a candidate and an incumbent commissioner that brought him within the ambit of the statute. ... Gonot v. State, 112 So. 3d 679, 680 (Fla. 4th DCA 2013)(emphasis in original). ULTIMATE FACTUAL FINDINGS Petitioner forfeited his rights and benefits under the FRS pursuant to sections 112.3173 and 121.091(5)(f), Florida Statutes, because he was convicted of official misconduct, a third degree felony, in violation of section 838.022(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that the Petitioner was convicted of a felony under section 838.022(1), Florida Statutes, and directing the forfeiture of his FRS retirement rights and benefits. DONE AND ENTERED this 13th day of December, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 13th day of December, 2013.
Findings Of Fact The Petitioner, Greyhound Lines, Inc., operated as a motor carrier throughout the State of Florida prior to June 30, 1980. Greyhound provided regular route passenger service, sightseeing services, charter operations, tours and express package service. Prior to June 30, 1980, Greyhound, regulated by the Florida Public Service Commission, held Certificate of Public Convenience and Necessity #26. On or before June 30, 1980, the Florida Public Service Commission adopted various rules and regulations regulating motor carriage, including Rule 25-5.14, Florida Administrative Code, related to and pursuant to Chapter 323.22, requiring payment of cab card fees and road taxes by regulated motor carriers including Greyhound. Chapter 323 became invalid by operation of law on July 1, 1980, the subject rule was declared invalid by an Order of the Division of Administrative Hearings in Aero Mayflower Transit Company, Inc., et al., vs. State of Florida Public Service Commission and The Comptroller of the State of Florida, DOAH Case Number 82-131R. Under the Commission's procedures pursuant to Chapter 323, Florida Statutes, and Chapter 25-5, Florida Administrative Code, Greyhound was sent instructions each year (Exhibit 1) together with an application form (Exhibit 2) from the Transportation Section of the Public Service Commission. These instructions and applications were used to file for new cab card identifying devices for vehicles and for payment of road taxes each year. Such was the procedure for the tax year beginning February 1, 1980, and ending January 31, 1981. Pursuant to the Commission's rules and Chapter 323, Greyhound was required to pay $8 per bus for each bus used in intrastate carriage in the State of Florida. In return for that $8.00, Greyhound received a "cab card" to be retained aboard the bus as an identifying device for Public Service Commission enforcement purposes. See Exhibit 5. Road taxes were required to be paid for each Greyhound bus in operation in intrastate carriage which had a capacity of over 21 passengers. The road tax for each bus was in the amount of $100. A road tax identification stamp or device was provided for each bus upon payment of this tax, which evidenced payment of the tax for purposes of law enforcement personnel viewing buses in the field. In the late fall of 1979, Greyhound received the subject Public Service Commission application and instruction forms and accordingly purchased cab cards for its buses and paid road taxes for those buses for the ensuing tax year at various times beginning October, 1979 through January, 1980. The buses which were licensed in Florida for the 1980 tax year (and its other buses) also operated in Greyhound pools of buses throughout the United States, therefore Greyhound, by necessity, had to purchase cab cards and pay road taxes in advance of the February 1, 1980, deadline to allow sufficient time to locate each bus and thus legally qualify it for operation in Florida prior to its operating in Florida on or after February 1, 1980. Pursuant to the Commission's rules, Greyhound was required to assign each cab card and road tax identification decal to a specific bus, retain these on that bus and provide information of this to the Commission on a particular form for its records. On or before February 1, 1980, the beginning of the subject tax year, Greyhound paid the following amounts on the following dates: DATE AMOUNT October 5, 1979 $ 12,636.00 [For 1980 road tax decals on 117 buses.] November 7, 1979 134,244.00 [For registration of 1,243 buses for the 1980 tax year.] December 4, 1979 7,020.00 [For 1980 registration of 65 buses.] January 10, 1980 2,376.00 [For registration of 22 buses for tax year 1980.] Thus, the total amount paid by Greyhound for the tax year 1980 amounted to $156,276.00. Of this total amount, there was the sum of $11,576.00 paid for cab card fees at $8.00 per vehicle. Greyhound also paid for the tax year 1980 the amount of $144,700.00 which represented the road tax fees at $100 per bus. Greyhound was required to have road tax decals and cab cards aboard the buses after February 1, 1980, evidencing payment of the fees and taxes involved. If it did not do so the Commission, through its duly authorized investigators, would issue citations to Greyhound for failure to pay tax or to properly identify vehicles and could initiate penalty proceedings. The Respondent, through use of Exhibit A, established that an Auto Transportation Road Tax Clearing Fund was used by the Public Service Commission to account for the collection of road taxes assessed motor carriers, pursuant to Section 323.15, Florida Statutes, for the use of the public highways. Road tax moneys were transmitted to the State Treasury for the credit of the State's General Revenue Fund as required by Sections 215.20 and 215.22(24), Florida Statutes. Other portions of those receipts were transferred to the Public Service Commission's Regulatory Trust Fund and the Revenue Sharing Trust Funds for municipalities and counties as provided by Section 232.16, Florida Statutes. These distributions were made by the State Comptroller based on information provided by the Commission during the 1979-1980 fiscal year. The fourth-quarter receipts for that fiscal year, however, were not distributed because of the repeal of Chapter 323, Florida Statutes, by Chapter 76-168, Section 3(2)(h), Laws of Florida, 1976, as amended by Chapter 77-457, Section 1(3)(h), Laws of Florida (1977). Distribution of those fourth-quarter receipts is pending a legal determination regarding all motor carrier requests for refunds of fees and taxes for the calendar year 1980. Payments for cab cards and payments of road tax were deposited by the Public Service Commission into the Regulatory Trust Fund, general revenue, or revenue sharing trust funds pursuant to Chapter 323, Florida Statutes (1979). Upon receipt of the payments, with the proper application, the Public Service Commission issued and sent the number of cab cards paid for to the Petitioner. Each cab card specified an expiration date of February 1, 1981. The payment of road taxes was evidenced by the sending of road tax decals by the Public Service Commission to the Petitioner for each vehicle for which such road tax was paid. These decals also specified an expiration date of February 1, 1981. A motor carrier regulatory program of Public Service Commission was administered by the Transportation Section. The operation of this section was paid for out of the regulatory trust fund established under Section 350.78, Florida Statutes (1979). The major functions of this section involved enforcement efforts in the field to ensure that only certificated motor carriers were providing intrastate carriage and that those motor carriers operated in the territory, on the routes, and hauled the commodities or types of passengers which they were authorized to transport. Regulatory functions and enforcement functions also included field inspections of motor vehicles for safety purposes; field analysis of the adequacy of motor carrier service to shippers; verifying registration of ICC certificated carriers and verifying and updating records relative to evidence of insurance by motor carriers, including the Petitioner. Finally, investigations were routinely conducted attendant to new requests for operating authority and certificates of public convenience and necessity by new motor carriers or those seeking to extend their area of operations. The moneys paid into the Regulatory Trust Fund were commingled and were lawfully expended without specific identification of the source of the funds. The road taxes collected pursuant to Section 323.15, Florida Statutes (1979), were deposited pursuant to Section 323.16, Florida Statutes (1979), in the State Treasury credited in the amount of 35 percent deposited in the Regulatory Trust Fund for use by the Commission in the administration of its statutory responsibilities; 2 percent credited to the Revenue Sharing Trust Fund for municipalities; and the remainder of the funds placed in the State Treasury to the credit of the Revenue Sharing Trust Fund for counties. All moneys for cab card fees were deposited in the Florida Public Service Commission Regulatory Trust Fund pursuant to Section 323.011(11), Florida Statutes (1979). The Petitioner timely applied for a refund of the payments made to the Public Service Commission pursuant to Chapter 323, Florida Statutes (1979), for the 1980 cycle or "tax year," as follows: seven-twelfths of amounts paid for cab cards and seven-twelfths of amounts paid for road taxes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered which refunds the Petitioner, on a pro rata basis, seven-twelfths of 35 percent of the road taxes paid by the Petitioner for the year February 1, 1980, through January 31, 1981; and refunds all recurring, second time or renewal fees paid for those identifying devices known as cab cards and identification stamps related to the year February 1, 1980, through January 31, 1981; and refunds all charges related to cab cards or road tax decals issued subsequent to June 30, 1980, or issued prior to July 1, 1980, to be used July 1, 1980, or on a later date. DONE and ENTERED this 1st day February, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of February, 1983.
The Issue Whether Petitioner is entitled to a refund of retirement contributions for the period from February 1, 1960, through January 1975.
Findings Of Fact Until January 1975, the Florida Retirement System and its predecessor, the State and County Officers and Employees Retirement System (SCOERS), were contributory retirement plans, in which state employees contributed a portion of their wages toward their retirement benefits. In January 1975, FRS became a non-contributory retirement plan, in which the employer paid all contributions to the plan. On February 1, 1960, Petitioner, who was then known as Rebecca Jamis or James Lee, began her state employment at Florida State Hospital (FSH), located in Chattahoochee, Florida. During her employment, Petitioner was enrolled in the state’s retirement plan and contributed $2,188.01 to that plan. In 1980, Petitioner was convicted of a felony offense and was sentenced to prison. She began serving her sentence in state prison in June 1980. Due to her imprisonment, Petitioner’s employment at FSH terminated on July 29, 1980. At some unknown date, Respondent received form FRS-M81 requesting a refund of Petitioner's contributions to the state’s retirement plan. Pursuant to the state's document retention policy, the original form was destroyed many years ago with a microfilmed copy of the front of the form retained by DMS. The microfilmed copy of this form does not reflect the date the form was signed. Additionally, except for the agency number and various signatures, information contained in the refund request form was typed in. The date of termination of Petitioner’s employment was also typed on the form, indicating the form was completed after Petitioner was imprisoned. More importantly, the form was purportedly signed by Petitioner with the name she used at the time. However, the address on the request was not Petitioner’s residence but was the 1980 address of Florida State Hospital Credit Union. At the time, Petitioner had a loan at the credit union, although she denies having an account there. Petitioner also did not hear any more from the Credit Union about her loan and does not know what happened to it. The regularly kept records of the Division indicate that on November 4, 1980, pursuant to this request for refund, Respondent issued Warrant No. 264829 in the amount due Petitioner for a refund of her retirement contributions. The warrant was issued to Petitioner and mailed as instructed to the address of the credit union. Again due to the passage of time, a copy of this warrant is no longer available. Moreover, the credit union records are not available. However, Charlene Fansler performed a search of un- cashed state warrants for Warrant No. 264829. The warrant was not on the list of warrants that remained outstanding. Further, the warrant had not escheated to the State as abandoned property. As such, the evidence demonstrated that the warrant was paid by the State. In 1990, at the age of 60 and several years after her release from prison, Petitioner requested a refund of her retirement contributions. On May 24, 1990, Respondent denied Petitioner’s request based on the 1980 refund of those contributions. At the time, Respondent did not advise Petitioner of her chapter 120 hearing rights; and therefore, did not provide Petitioner with a clear point of entry for an administrative hearing. However, Petitioner was clearly aware that DMS claimed that she had been issued a refund of her contributions and was, therefore, not entitled to a further refund. Petitioner took no action in 1990 even though she did not personally receive the 1980 refund because and claimed to not have signed the refund request form. In 2012, 32 years after the 1980 warrant was issued and 22 years after the 1990 denial of her request for refund, Petitioner, at the age of 82, again requested a refund of her retirement contributions based on her claim that she did not sign the 1980 refund request form and the fact that she did not personally receive the refund warrant. Respondent submitted the microfilmed copy of the signed refund request form and known handwriting exemplars of Petitioner's signature to the Florida Department of Law Enforcement (FDLE) laboratory for analysis. Kesha White, a handwriting analyst with FDLE, analyzed the documents and concluded that they were more likely than not signed by the same person. Her finding was not conclusive due to the limits of analyzing signed documents preserved on microfilm. Indeed, the signatures on the refund form and the known handwriting samples of Petitioner's signature are very similar and appear to be by the same person. In this case, the better evidence demonstrates that Petitioner signed the 1980 refund request form and, due to the passage of time, has simply forgotten that she did so. By signing that form, Petitioner instructed Respondent to issue and mail the warrant to the address for the credit union listed on the form. Respondent complied with that request. Given these facts, Petitioner is not entitled to another refund of her retirement contributions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a Final Order finding that Petitioner was issued a refund of retirement contributions for the period from February 1960, through January 1975, and dismissing Petitioner's request for hearing. DONE AND ENTERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 21st day of May, 2013. COPIES FURNISHED: Rebecca Thomas 1929 Hamilton Street Quincy, Florida 32351 Thomas E. Wright, Esquire Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 Dan Drake, Director Division of Retirement Department of Management Services Division of Retirement Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
Findings Of Fact A few years after entering the automobile business, but prior to 1950, petitioner Paul V. Hudson, was engaged by the Lake County Tax Collector to serve as the registration and license tag agent in Eustis, Florida. Petitioner served as a tag agent until August 20, 1975. On January 1, 1960, petitioner sold his automobile agency, but continued as a tag agent while preparing to open an insurance agency which he did in 1960 or 1961. As a tag agent, petitioner sold license tags, transferred titles and certificates of registration, collected sales taxes, and performed other clerical and administrative tasks. His duties were the same as those of tag agents physically located in the Lake County Tax Collector's office. Petitioner was authorized to collect Florida sales and wholesale taxes. Petitioner made reports to the tax collector enumerating the number of tags sold, titles transferred and the amount of sales tax collected. When reports were made, petitioner deposited monies he had collected for the tax collector in the tax collector's account. These monies were never commingled with petitioner's personal or business accounts. Petitioner maintained a separate office within his insurance agency office for tag agent business. At first, the same girl who helped with his insurance business also handled the tag agent duties, but later the volume of business required a separate girl to handle these duties. At various times during the course of petitioner's association with the tax collector, petitioner's wife, children and son-in-law performed the tag agent duties in Eustis. The tax collector had control over petitioner in the performance of his duties as a tag agent, but the tax collector had no control over petitioner's office hours or his help. Petitioner conversed with the tax collector regularly by telephone. The tax collector supervised petitioner's work and gave petitioner orders pertaining to the job of tag agent. The tax collector kicked back errors if one of the girls working for petitioner made a mistake. The tax collector terminated petitioner's tag agency in August, 1975, and set up a branch office in Eustis to carry out the same duties petitioner had performed. Until July of 1961, petitioner's compensation consisted of fees charged citizens for the convenience of paying taxes in Eustis. When petitioner forwarded monies to the tax collector, he retained these fees. The tax collector made no report or contributions for retirement benefits prior to 1961. In July of 1961, the tax collector began paying petitioner a fixed monthly salary, without regard to sales volume. Beginning the following month, employee retirement contributions were deducted from petitioner's compensation and forwarded to the State and County Retirement System, pursuant to Chapter 122, Florida Statutes. This arrangement obtained until January of 1962, when the tax collector stopped paying petitioner a fixed monthly salary and began compensating him on a piecework basis: 32.5 cents for each tag sold to replace an old tag and 65 cents for each out-of-state title transfer and tag sale. These sales were tabulated monthly and the tax collector drew a check for the appropriate amount against his salary account in petitioner's favor. With the change to a piecework basis, the tax collector stopped deducting employee retirement contributions, on the advice of the State Comptroller's office that petitioner was ineligible for coverage under the retirement system. Petitioner did not himself request that the contribution payments be stopped. For reasons that were not fully developed at the hearing, the tax collector made retirement system contributions on petitioner's behalf from December of 1970, until January of 1974. After petitioner made application for membership in the Florida Retirement System, contributions on account with the State and County Retirement System were transferred to the Florida Retirement System, on May 17, 1972, and credited to petitioner's account. Petitioner was covered under the employees' blanket bond purchased by the tax collector's office to ensure favorable performance of its employees. From 1962 to 1975, the tax collector deducted federal withholding and social security taxes from monthly payments made to petitioner, and reported the payments on Internal Revenue Service form W-2. When petitioner inquired whether he could tender payments for the period from February of 1962, through November of 1970, and obtain retirement benefit credit, respondent advised petitioner that he was ineligible for membership in the Florida Retirement System and refunded to petitioner all contributions that had been made while he was working for the Lake County Tax Collector as a tag agent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent declare petitioner ineligible to participate in the Florida Retirement System. DONE and ENTERED this 18th day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Brian S. Duffey, Esquire Post Office Box 1170 Tallahassee, Florida 32302 Stephen S. Mathues, Esquire 2639 North Monroe Street Suite 207-C Tallahassee, Florida 32303
The Issue The issue addressed in this proceeding is whether Petitioner is entitled to retain retirement benefits received by him during the time periods May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985 through June 30, 1985.
Findings Of Fact On June 26 and 27, 1990, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix to the Recommended Order the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's proposed Findings of Fact Nos. 1, 2, and 3 are hereby accepted and adopted in that they are supported by competent, substantial evidence. The Petitioner's proposed Finding of Fact No. 4 is hereby rejected as an ultimate finding of fact in that it a recitation of isolated bits and pieces of testimony of witnesses, and it is not proper as an ultimate finding of fact. The Petitioner's proposed Finding of Fact No. 5 is hereby rejected upon the authority of Cantor v. Cochran, 184 So.2d 173 (Fla.), in that it is based upon statements of the parties as to the working relationship, which under the Cantor case is not competent evidence. The Petitioner's proposed Finding of Fact No. 6 is hereby rejected upon the grounds and for the reason stated in Paragraph No. 3. The Petitioner's proposed Finding of Fact No. 7 is accepted to the extent that on November 1, 1984, the Petitioner was an employee of the Union County School Board, and continued as such through June 30, 1987, but the remainder of that proposed Finding of Fact No. 7 is hereby rejected in that it is based on the statements and arrangements of the parties, which, based upon the Cantor case do not constitute competent evidence. The Petitioner's proposed Findings of Fact Nos. 8, 9, and 11, are hereby rejected in that each of them is ambiguous, irrelevant, not based upon any competent substantial evidence in the record, and do not serve to either prove or disapprove any of the issues in this cause. The Petitioner's proposed Finding of Fact No. 10, is hereby rejected in that is erroneous as to the dates in question and as to the number of hours in the School Board workweek. The dates in 1983, 1984, and 1985, during which the Petitioner's retirement benefits had been suspended because of exceeding the 780-hour work limitation were as follows: May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985, through June 30, 1985. The Respondent's proposed Finding of Fact Nos. 1 through 8 are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner was overpaid retirement benefits for the time periods of May 25, 1985 through June 30, 1985, in the amount of $3024.66. DONE and ORDERED this 31st day of August, 1990, in Tallahassee, Florida. DIANE CLEAVINGER 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 31st day of August, 1990.
