Elawyers Elawyers
Ohio| Change
Find Similar Cases by Filters
You can browse Case Laws by Courts, or by your need.
Find 49 similar cases
PAUL V. HUDSON vs. DIVISION OF RETIREMENT, 79-001317 (1979)
Division of Administrative Hearings, Florida Number: 79-001317 Latest Update: Feb. 20, 1980

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

Florida Laws (2) 121.021122.02
# 1
BOARD OF ACCOUNTANCY vs. THOMAS F. LUKEN, 76-002002 (1976)
Division of Administrative Hearings, Florida Number: 76-002002 Latest Update: Jan. 26, 1978

The Issue Whether the certificate of Respondent to practice public accounting in Florida should be revoked, annulled, withdrawn or suspended as indicated in the administrative complaint.

Findings Of Fact The parties stipulated to certain facts, as follow: That the Certificate Holder received an undergraduate degree in accounting from the University of Cincinnati in August of 1968. That the Certificate Holder was employed by major CPA firms from August of 1968 to September of 1970 as an accountant. That the Certificate Holder passed the uniform CPA exam in California in 1969, and was granted a CPA license by California upon completion of the necessary experience requirements in May of 1971. That the Certificate Holder attended law school at the Ohio State University from September 1970 through December 1972. In December 1972 he was awarded a Juris Doctor Degree from that institution. That prior to graduating from law school, the Certificate Holder made application to secure a position in accounting. He secured a position with the certified public accounting firm of Arthur Young and Co. in Cincinnati, Ohio, which position commenced on January 1, 1973. That while employed as a certified public accountant by Arthur Young and Co., the Certificate Holder, in the summer of 1973, was offered a position with a certified public accounting firm in Miami, Florida. That in July 1973 the Certificate Holder accepted that position with McClain and Co., CPA's of Miami, Florida, which position was to begin in August 1973. That during the summer of 1973, the Certificate Holder requested the Florida State Board of Accountancy to forward him an application to apply for a reciprocal CPA certificate and the Board responded that an application would not be sent to anyone who was not a resident of the State of Florida. That during the summer of 1973, the Certificate Holder made an application with the Florida Bar to become a member of the Florida Bar. That the Certificate Holder moved his family from Cincinnati, Ohio, to Fort Lauderdale, Florida, in July 1973 and began working on a full-time basis for the Florida CPA firm of McClain and Co. in August of 1973. At that time he again requested an application for a reciprocal CPA certificate; said application being received by the Certificate Holder in late September of 1973. That the Certificate Holder completed the application for a reciprocal CPA certificate and submitted the same to the Florida State Board of Accountancy in October 1973. That in November 1973 the Certificate Holder took the Florida Bar examination in Tampa, Florida. That the Certificate Holder was admitted to the Florida Bar in December 1973 and was granted a reciprocal CPA certificate by the Florida State Board of Accountancy in January 1974. That the Certificate Holder was discharged by the Florida certified public accounting firm of McClain and Co. in may 1974. That the Certificate Holder taught part-time in the Accounting Department of Florida International University beginning in January 1974 thru 1976. After his discharge from the public accounting firm of McClain and Co., he continued at Florida International University on a substantially full-time basis thru the summer of 1974 and into the fall of 1974. That in August 1974 the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, but this office was staffed only on a part-time basis as the Certificate Holder was devoting the great bulk of his time to his teaching activities at Florida International University in Miami, Florida. That in February, 1975, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, (200 SE 6th Street, Suite 100- B), which office was from that time staffed on a full-time basis by the Certificate Holder. That since February 1975 the Certificate Holder has been actively engaged in the full-time practice of law in the city of Fort Lauderdale, Florida; and That the Certificate Holder has been a resident of and domiciled in the State of Florida from August 1973 thru and including the date of the Stipulation." (Exhibit 1). The parties stipulated at the hearing that the respondent joined the Florida Institute of Certified Practicing Accountants on Jun 17, 1974, as an active member, and changed his status to that of a non-practicing member of the institute on August 22, 1975. Respondent testified at the hearing that his purpose in attending law school in 1970 and eventually obtaining a law degree was predicated upon his desire to advance more rapidly in the tax department of an accounting firm. He had noted that most of the accountants doing tax work in accounting firms generally held law degrees and received higher salaries. Since he was interested in taxation, he did not obtain a master's degree in accounting which involves primarily audit work or preparation of financial statements. Respondent did tax work for an accounting firm in Cincinnati, Ohio, after graduation from law school in 1972 and secured a similar position with an accounting firm in Florida, McClain and Company, in the summer of 1973. He applied for admission to the Florida Bar the same summer because he believed his failure to do so might cause an adverse reaction by prospective employers in the accounting field. Prior to the Florida move, respondent did not seek employment with a law firm because he felt that the opportunities were much better in public accounting and he enjoyed that type of work. After passing the Florida Bar examination in October 1973, respondent did not seek employment in a law firm because he was well satisfied with his accounting position. After he was involuntarily discharged from his job with McClain and Company in May 1974, he sought employment with both accountant firms and law firms in the tax area. Although he began a graduate law program in taxation in January 1974, his purpose was to acquire greater knowledge and ability concerning tax matters for his work in accounting. Respondent testified that at the time he had applied for the Florida reciprocal license as a certified public accountant, he intended to practice public accounting in the State of Florida on a full-time year-round basis. He conceded that he has not been engaged in the full-time practice of accountancy since his termination with the accounting firm in the spring of 1974. (Testimony of Respondent, Exhibits 2, 3). On December 30, 1975, respondent advised the petitioner by means of a "CPA information card" that he was not engaged in the practice of public accounting. By letter of June 21, 1976, petitioner requested respondent to return his certificate along with a stipulation and waiver of hearing. The practice of petitioner in such cases is to request that a registrant waive his right to a hearing on the question of whether or not his certificate should be revoked on the ground that he is not engaged in the full-time year-round practice of public accounting in Florida. In the event the registrant does not agree to waive such a hearing, petitioner normally proceeds to file an administrative complaint seeking revocation of the certificate. (Testimony of Respondent, Composite Exhibit 4).

Recommendation That petitioner's administrative complaint against respondent Thomas F. Luken be dismissed. DONE AND ENTERED this 16th day of November 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November 1977. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 David Hoines, Esquire First National Bank Building Fort Lauderdale, Florida 33394

Florida Laws (1) 120.56
# 2
BILL A. CORBIN vs. DIVISION OF RETIREMENT, 84-000389 (1984)
Division of Administrative Hearings, Florida Number: 84-000389 Latest Update: Jul. 24, 1984

Findings Of Fact Petitioner, Bill A. Corbin, has been a member of the Florida Bar since October, 1972 and has continually engaged in the private practice of law in Blountstown since that time. His present office is located at 305 Fannin Street, Blountstown, Florida. On January 1, 1973, petitioner was retained by the Calhoun County Board of Commissioners to represent the county in the capacity of county attorney. He remained in that position until March 1, 1983, or a period of ten years. During that period of time he was a member in good standing of the Florida Retirement System (FRS) and made the required contributions into the program. From April 1, 1980 until August 26, 1983, Corbin also served as county attorney for Liberty County. When he left the employ of Calhoun County on March 1, 1983, he reenrolled in the FRS effective the same date using his employment with Liberty County as a basis for the continued enrollment. After conducting an audit of petitioner's employment in early 1983, respondent, Department of Administration, Division of Retirement, advised petitioner by letter dated April 22, 1983 that because he failed to comply with current FRS membership requirements, he was being removed from FRS membership effective July 1, 1979. The effect of this action was to leave Corbin with approximately 6 1/2 years of creditable service with the FRS rather than almost 10 1/2 years. The proposed agency action triggered the instant proceeding. The position of county attorney in Calhoun County was a regularly established position and has been for some 25 years. The same is true for the county attorney slot in Liberty County. In Calhoun County, Corbin was paid on a monthly basis and had the normal deductions made from his salary. He received the same annual percentage increase in salary as did other county employees. He was also covered under the County's errors and omissions policy, and was eligible for workers' compensation coverage. According to a Calhoun County Commissioner, Corbin received annual and sick leave of one day per month while serving as county attorney. However, unlike other county employees, he was not compensated for unused leave when he terminated employment, and did not have to fill out leave slips as do other employees when taking leave. He also was given stationery, use of a reproduction machine, and clerical help from the county clerk's office when necessary. Corbin's initial employment with Calhoun County was based upon an oral agreement between he and the commissioners. This agreement was later reduced to writing in 1979 in order to comply with concerns expressed by the county's outside auditors. The standard employment contract specified a set fee per month for Corbin to attend regular Board meetings, advise them on legal matters concerning County business, and to prepare resolutions, correspondence and ordinances. Additional services concerning litigation were rendered on either a contingent fee basis or an hourly rate basis. These sums were paid from monies set aside each year by the County for legal services not covered by Corbin's monthly salary. No deductions were taken from payments made to Corbin for these additional services. The contract also provided that either party could terminate the same upon giving thirty days' notice. A similar agreement was executed by Corbin for his employment with Liberty County except that the agreement called for compensation at a rate of $40 per hour. Corbin's normal duties generally included attending two regular board meetings each month which lasted from two to twelve hours each, attending special meetings, handling correspondence, keeping minutes of each meeting, and being on call for requests for advice from Board members. In all, petitioner estimated he spent approximately 30 hours per month on Calhoun County business. Although some of the county work was performed in the courthouse where the boards met, most of it was done in Corbin's law office since he was not provided an office by either county. The members of the Board control petitioner's hours by assignment of the work to be done, including requests for advice, research and opinions, and litigation. The Board determines which cases will be settled, defended or appealed. Corbin is required to accept any case or matter assigned, and does not reject assignments. However, the Boards do not control the day to day methods by which petitioner litigates cases and performs legal judgments. Petitioner does not supervise any employees employed by the County nor does he supervise or direct the activities of any full time or part time assistant county attorneys or legal secretaries. The rule which makes petitioner ineligible for membership in the FRS is Rule 22B-1.04, Florida Administrative Code, which became effective on July 1, 1979. After the rule was adopted, respondent sent a memorandum to all local agencies, including Calhoun and Liberty Counties, requesting that they review those employees that might fall within the "professional" status in order to determine their eligibility under the newly adopted rule. A copy of the rule was also sent to each local agency. The agencies were then required to transmit information on each such employee to the respondent. Thereafter, it began the lengthy process of auditing all reporting units, including the two counties in question. Because respondent is now reviewing over 700 reporting units, the audit process is time-consuming, and has resulted in lengthy delays in removing ineligible employees from FRS.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Bill A. Corbin to remain in the Florida Retirement System from July 1, 1979 through August 26, 1983 be DENIED. DONE and ENTERED this 18th day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1984.

Florida Laws (4) 1.04120.57121.021121.051
# 3
GENERAL DEVELOPMENT CORPORATION vs. DEPARTMENT OF REVENUE, 75-001353 (1975)
Division of Administrative Hearings, Florida Number: 75-001353 Latest Update: Oct. 28, 1976

Findings Of Fact Having heard oral argument on the issues and considered the record transmitted to the respondent by the BTA, it is found as follows: Petitioner is the owner of all of Port St. Lucie section 46 as shown in Plat Book 16, page 30 of the Public Records of St. Lucie County, Florida. For the 1973 tax year, petitioner timely filed its return to the St. Lucie County Tax Assessor for agricultural classification of its land. On November 6, 1973, the tax assessor, James W. Bass, notified petitioner that its lands were not entitled to be classified as agricultural for the reason that said land was subdivided subsequent to the enactment of F.S. 193.461 and hence the land was reclassified as nonagricultural, and was assessed at $358,400.00. Thereafter, petitioner filed its petition with the BTA to contest the assessor's disapproval of its application for agricultural classification. A transcript of the proceedings before the BTA apparently does not exist. However, the minutes of the meeting reveals that the lessee of the subject property testified that he then had 300 head of cattle on the property, was planning to buy 500 more head when the price went down and that, if his lease were renewed for another five years, he planned to improve the tract and run 1500 head of cattle on the property. The BTA was further informed by the tax assessor that an agricultural classification was denied because part of the tract had a plat filed on it. By an unanimous vote, the BTA granted the subject property an agricultural classification and reduced the assessment. Such action was based on the grounds that the property had been continuously used as agricultural property, that the lease was renegotiated, that the property was contingent with other property leased by the lessee had approximately 300 head of cattle on the property. The Chairman of the BTA thereafter notified petitioner that it had granted the relief applied for and had directed the assessor to: assess the lands as agricultural zoned land; and adjust the assessed value of the property "to $43,010, which value represents a fair equalized assessment of the said property for the year 1973." The BTA thereafter notified the respondent's Executive Director of the change and, by staff recommendation upon reconsideration, it was concluded that the evidence presented to the BTA was not sufficient to overcome the assessor's presumption of correctness. This conclusion was based upon the language of F.S. 193.461(4)(a)(4), and it was recommended that the action of the BTA be invalidated. By joint stipulation following certain legal proceedings involving the procedures for review, the parties stipulated that this cause would be heard before the Division of Administrative Hearings, and the undersigned hearing officer was assigned to conduct the hearing.

Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the St. Lucie County Board of Tax Adjustment in granting an agricultural classification and in reducing the assessment of petitioner's property for the tax year 1973 be invalidated. Respectfully submitted and entered this 19th day of February, 1976, in Tallahasse, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Ed Straughn Executive Director Department of Revenue The Capital Tallahassee, Florida 32304 Susan Diner, Esquire Paul & Thomson 1300 Southeast First National Bank Building Miami, Florida Stephen E. Mitchell, Esquire Assistant Attorney General Office of Legal Affairs The Capitol Tallahassee, Florida 32304

Florida Laws (3) 193.011193.122193.461
# 4
APPLIED DEVICES CORPORATION vs. OFFICE OF THE COMPTROLLER, 80-000017 (1980)
Division of Administrative Hearings, Florida Number: 80-000017 Latest Update: Jul. 03, 1980

Findings Of Fact The CORPORATION is a private electronics research, development, and production firm invited by the Osceola County Industrial Development Authority (hereinafter "AUTHORITY") to locate an expanded industrial facility (hereinafter "Project") in Osceola County (Petitioner's Exhibit No. 3). On February 10, 1978, the AUTHORITY, pursuant to official resolution, issued to the CORPORATION an inducement letter which was accepted by the CORPORATION. The letter contained, inter alia, the following proposal by the AUTHORITY: The AUTHORITY would issue industrial revenue bonds in an amount not to exceed $3,300,000.00 to pay the costs of acquisition and construction of the Project; The AUTHORITY would acquire fee simple title to the Project site; Prior to delivery of the bonds, the AUTHORITY and the CORPORATION would enter into an Agreement of Sale under the terms of which the Project would be sold by the AUTHORITY to the CORPORATION "on a basis which . . . [would] provide for the payment in full of the bonds and interest thereon" and would reim- burse the AUTHORITY for all expenditures by it in connection with the acquisition and construction of the Project: The AUTHORITY would enter into a Mortgage and Indenture of Trust which would pledge the Agreement of Sale and the amounts due there- under to the trustee for the benefit of the bond holders (Petitioner's Exhibit No. 3). Pursuant to the provisions of the inducement letter, the AUTHORITY entered into an Agreement for Sale with the CORPORATION on January 1, 1979. The Agreement for Sale (the tax of which is at issue here) imposed, inter alia, the following obligations upon the parties: The AUTHORITY would deliver the deed to the Project site into escrow, for ultimate delivery to the CORPORATION; In payment of the purchase price of the Project, the CORPORATION would execute and deliver a Promissory Note, in the amount and form specified, to the trustee as the assignee of the AUTHORITY under the Mortgage and Indenture of Trust. The CORPORATION agreed to unconditionally "make prompt payment of all amounts payable on the note when due" (Page iv-2, Petitioner's Exhibit No. 3). The Promissory Note, as prescribed in detail by the Agreement of Sale, was to be issued "in evidence of the company's payment obligation contained in Section 4.2 of the Agreement of Sale . . . ." (Page A-5, Petitioner's Exhibit No. 3) The AUTHORITY would issue $3,000,000.00, in aggregate principal amount, of industrial development revenue bonds to finance the cost of acquiring and constructing the Project. (Petitioner's Exhibit No. 3) The Agreement of Sale further provided, in pertinent part, as follows: "[That] the Bonds are to be issued under and secured by the Indenture pursuant to which the AUTHORITY'S interest in this Agree- ment and the Note will be assigned to the Trustee and all revenues received by the AUTHORITY in connection with the ownership and sale of the Project will be assigned to the Trustee and the Project will be mortgaged to the Trustee all as security for the pay- ment of the principal of and interest on the Bonds." (Emphasis supplied) (Page II-2, Petitioner's Exhibit No. 3) The AUTHORITY repeatedly disclaimed any assumption by it of a general obligation to pay in connection with the execution of the Sales Agreement and issuance of the bonds; "Notwithstanding anything herein contained to the contrary, any obligation the AUTHORITY may hereby incur for the payment of money shall not be a general debt on its part but shall be payable solely from proceeds derived from this Agreement and the Note, the sale of the Bonds, the condemnation awards as herein described and any other revenues derived from its ownership of the Project and Other Improvements." Id. (Emphasis supplied) Contemporaneously with, and pursuant to the execution of the Agreement of Sale, the CORPORATION executed a Promissory Note, dated January 1, 1979, in the principal amount of $3,000,000.00, together with interest, payable to the order of the AUTHORITY. The Note indicated payment of principal and interest had been irrevocably assigned by the AUTHORITY to the Trustee pursuant to a Mortgage and Indenture of Trust, dated January 1, 1979, which was also executed in connection with the issuance of the Bonds. (Petitioner's Exhibit No. 3) Pursuant to the inducement letter and the Agreement of Sale, the AUTHORITY acquired the Project site property on January 31, 1979. (Petitioner's Exhibit No. 2) On February 1, 1979, the various instruments involved with the issuance of the Bonds were recorded with the Clerk of the Circuit Court, Osceola County, Florida. The CORPORATION paid, under protest, documentary stamp tax in the amount of $4,500.00 and intangible personal property tax in the amount of $6,000.00 on the Agreement of Sale. No state tax was imposed upon or paid on the Promissory Note executed by the CORPORATION to the AUTHORITY. (Petitioner's Exhibit No. 3, Stipulation of Counsel)

Recommendation Conclusion: The Agreement of Sale evidences a private entity's obligation to repay borrowed money and secures repayment of such money solely from the sale and construction of the proposed industrial project, and is exempt, by virtue of Section 159.31, supra, from state docu- mentary and intangible personal property taxes. Recommendation: That the Petitioner's application for refund be APPROVED.

Florida Laws (8) 120.57159.26159.27159.31159.32159.33159.43201.08
# 5
ANA CAOS vs BOARD OF MEDICINE, 93-000538RU (1993)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Feb. 02, 1993 Number: 93-000538RU Latest Update: Jun. 10, 1993

Findings Of Fact The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. In an effort to meet that prerequisite, the Petitioner has already taken the Florida Board Examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's licensure application. The order reads as follows, in pertinent part: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examination be denied, stating as grounds therefore: That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure. The Board of Medicine has never adopted a rule to the effect that Section 458.311(2), Florida Statutes, applies to applicants for a restricted license under Section 458.311(8), Florida Statutes. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1)(a)-(c), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M- 22.020(1), Florida Administrative Code, by adding to it a new subsection (d) reading as follows: (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendment quoted above. For reasons unknown to the Board's Executive Director, the Board's legal counsel had not yet filed the proposed rule amendment for adoption as of the date of the formal hearing in this case. On March 12, 1993, eleven days after the formal hearing in this case, notice of proposed rulemaking was published in the Florida Administrative Weekly. The proposed rulemaking noticed on March 12, 1993, is the same as, or substantially the same as, the proposed language described in Paragraph 5, above. The proposed rulemaking noticed on March 12, 1993, is presently the subject of a rule challenge petition filed by the Petitioner in this case. See Case No. 93-2166RP. The Petitioner in this case is also the Petitioner in Case No. 93-1801, which involves a petition filed pursuant to section 120.57(1), Florida Statutes, to challenge the proposed denial of the Petitioner's application for a license.

Florida Laws (7) 120.52120.54120.56120.57120.60120.68458.311
# 6
METRO-DADE DEPARTMENT OF JUSTICE ASSISTANCE vs DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, 90-002334BID (1990)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Apr. 17, 1990 Number: 90-002334BID Latest Update: Jun. 20, 1990

The Issue The issues in this case are twofold: (1) Did the Respondent properly adopt its bid methodology for processing VOCA grants and, if not, (2) did the Respondent demonstrate a suitable factual base for its non-rule policy.

Findings Of Fact The Federal Victim of Crimes Act ("VOCA"), 42 U.S.C., Sections 10601- 10605, authorizes the granting of federal funds to the individual states for the purpose of awarding grants to eligible subgrantees who provide direct assistance to victims of crime. The U.S. Department of Justice, Office of Victims of Crime, has published guidelines for the implementation of the program. Listed among the factors that a state should take into account when distributing VOCA awards are (1) the range of victim services needed throughout the state, (2) the track record of continuation programs, and (3) the extent to which other sources of funding are available for proposed programs. See, 54 Fed. Reg. 21499, 21503 (May 18, 1989)(Respondent's Exhibit The federal guidelines provide, inter alia, that the states which receive these monies have sole discretion as to which programs within the state shall be awarded subgrants, as long as the subgrantees meet the eligibility criteria of VOCA and the guidelines. The Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Crimes Compensation and Victim Witness Services (the "Bureau") is the agency of the State of Florida responsible for administering the VOCA subgrant program. The Petitioner, Metro-Dade Department of Justice Assistance ("MDJA"), is a nonprofit organization based in Dade County, Florida, which is devoted to providing specialized psychological counseling and related services to victims of child sexual abuse and domestic violence in previously underserved populations; both priority areas under VOCA. Petitioner has been a VOCA grant recipient for the last four years. Petitioner's subject VOCA grant application for FY 1990-91 is the fifth consecutive year in which it has sought VOCA funds through Respondent. Petitioner is currently the only program in Dade County providing free specialized counseling to victims of child sexual abuse and domestic violence. The VOCA award Petitioner is seeking for FY 1990-91 would fund specialized counseling, outreach programs, intervention services, and other related services for between 450-550 victims of child sexual abuse and domestic violence in Dade County. Since the inception of the VOCA program, the Bureau has solicited applications from the State's victim services organizations by means of a request for bid process. The Bureau annually prepares and distributes a VOCA grant manual and application and awards subgrants on the basis of a scoring system set forth in the VOCA grant manual. On March 6, 1990, Respondent sent all prospective applicants, who had indicated by telephone or letter of intent to apply for FY 1990-1991 VOCA funding, a grant manual and application packet, including necessary forms, instructions and filing deadlines, with which to apply for FY 1990-1991 VOCA continuation funding and new and expanded funding. Included with these materials was a grant application timetable notifying respective applicants of deadlines for filing both a Notice of Intent to submit an application and the grant application itself. In addition, this timetable advised prospective applicants that an applicants' conference would be held in Tallahassee, Florida, on March 22, 1990, at 1:00 p.m., "to provide all applicants the opportunity to ask specific questions about the manual or the application process." Although MDJA did not attend the applicants' conference, at the applicants' conference, no one commented or questioned the requirement for filing a Notice of Intent or objected to the deadline for filing the same. The applicants' conference provided a question and answer session through which the Bureau was able to clarify most of the questions posed by the 50 or so potential applicants who attended the conference. No substantive changes to the VOCA grant manual or forms were recommended by the attendees and the Bureau did not make any substantive revisions to the VOCA grant application requirements; specifically, no comment or revisions were made on the Notice of Intent provisions. The manual required for the first time a Notice of Intent. The provisions relating to the Notice of Intent are found in three (3) separate parts of the VOCA grant manual and the application: Page 1 of the VOCA Grant Manual reads: Deadlines for the submission of Notices Intent to Submit a Proposal and Grant Application deadlines must be followed. Any Notices of Intent to Submit a Proposal and Grant Application deadlines must be followed. Any Notices of Intent to Submit a Proposal and Applications received after the deadline will not be considered for funding and will be returned to the applicant. Section II.A.2. of the VOCA Grant Manual provides: 2. Notice of Intent to Submit a Proposal. A Notice of Intent to Submit a Proposal must be submitted by all programs intending to file a proposal or they will not be permitted to submit an application. Applicants must complete the entire form provided in the, Application. The purpose of the Notice of Intent is to estimate the number of proposals and the total amount of money being requested. A Notice of Intent to Submit a Proposal does not constitute an application for VOCA funds. The Notice of Intent to: Submit a Proposal must be signed by the appropriate agency representative designated to sign on behalf of the agency. The original Notice and one copy must be submitted for it to be accepted by the department. The deadline for accepting a Notice of Intent to Submit a Proposal is March 29, 1990, at 2:00 p.m. Eastern Standard Time. Notices arriving after this time will not be considered for funding and will be returned. (FAXED COPIES ARE NOT ORIGINALS AND THEREFORE WILL NOT BE ACCEPTED.) Notice of Intent to Submit a Proposal for the 1990- 91 Victims of Crime Act Funding ("VOCA"), also provides: Notices are due no later than March 29, `1990 at 2:00 p.m. Eastern Standard Time. Any Notices received after this time and date will be returned to the applicant and will not be considered for funding. In late February or early March of 1991 Respondent received a telephone call from an employee of Petitioner notifying the Respondent that MDJA would be filing a grant application for FY 1990-91 VOCA funds and specifically requesting Respondent to send to MDJA a VOCA grant manual and related application forms. It is uncontroverted that MDJA, made this telephone call, that it was received by Respondent, and that pursuant thereto, Respondent sent the aforementioned VOCA packet and related forms to MDJA. The Executive Director of MDJA completed and signed the Notice of Intent form provided by Respondent on Friday, March 23, 1990. This form was sent certified mail to Respondent on Monday morning, March 26, 1990, via courier. Although dispatched from MDJA's office on March 26, 1990, for some inexplicable reason, the Notice of Intent was not postmarked and dispatched from the mail room until Wednesday afternoon, March 28, 1990, and was not received by the office of Respondent until 10:05 a.m. on Friday, March 30, 1990, approximately four business hours after the March 29, 1990, 2:00 p.m. deadline. It was postmarked March 28, 1990. On March 30, 1990, fearing that MDJA's Notice of Intent may have been delayed in the mail, the Bureau telephoned MDJA at approximately 9:00 a.m. to inquire if it had mailed the Notice of Intent form. MDJA then informed Respondent that its Notice of Intent had been sent on Monday, March 26 1990, and that such Notice should have been received by the Thursday deadline. Shortly thereafter, at 10:05 a.m., on March 30, 1990, MDJA's Notice of Intent did arrive at Respondent's office, via certified mail. MDJA filed its actual application for VOCA funding for FY 1990-91 prior to the April 12, 1990 for applications. It is not disputed that Respondent received oral notification from MDJA, prior to March 29, 1990, that MDJA would be filing an application for VOCA funding far FY 1990-91. It is not disputed that MDJA was a four-year continuation program. All of the information sought in the Notice of Intent form, including MDJA's name, contact person, address, telephone number, whether the applicant was a continuation program, and the 1990-91 amount sought (which is limited by what the MDJA received the previous year, plus 5%), was already in Respondent's possession prior to the March 29, 1990 filing deadline. It is uncontroverted that MDJA's Notice of Intent being received approximately four business hours after the deadline in no way inconvenienced Respondent or in any way impaired their ability to carry out their duties aid responsibilities. The Respondent, by letter dated April 3, 1990, advised MDJA that it was ineligible for funds in the 1990-91 grant year due to its failure to comply with the March 29, 1990 deadline. Notices of Intent to Submit a Proposal were submitted by 91 applicants. Two (2) of those Notices were received after the deadline (including MDJA's), and the Bureau advised both of them that they were ineligible for funding. One such ineligible applicant, I-Care, also filed a protest. A hearing was held on March 1, 1990, before a Hearing Officer of the Division of Administrative Hearings. Said Hearing Officer issued a Recommended Order on May 11, 1990 recommending that the Department enter a Final Order denying I-Care's petition.

Florida Laws (7) 120.50120.52120.53120.54120.56120.57287.057
# 7
CARE-A-LOT, INC. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 00-000778 (2000)
Division of Administrative Hearings, Florida Filed:Jacksonville, Florida Feb. 18, 2000 Number: 00-000778 Latest Update: Dec. 25, 2024
# 10

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer