The Issue The issues are whether Petitioner's employment as a substitute teacher is creditable service under the Florida Retirement System, entitling her to retirement benefits and whether she may purchase retirement credit for out-of-state and federal service prior to vesting.
Findings Of Fact Petitioner, aged 53, applied for retirement benefits from the Florida Retirement System (FRS) on October 20, 2003. Petitioner has 4.53 years of creditable service with the FRS due to her employment as a full-time teacher with the Alachua County School Board (School Board). She worked for the School Board from sometime in the early 1970s through May 1977. In May 1977, Petitioner terminated her employment with the School Board. She then joined the military, serving four years of active duty. After completing her military service in 1981, Petitioner worked out of state as a civil service employee with the Federal government. She also worked for a period of time in the private sector. In the 1990s, Petitioner returned to Alachua County, Florida. She worked as a substitute teacher for the School Board for approximately four years, from November 21, 1999 through February 14, 2002. Before beginning her employment as a substitute teacher/temporary employee in 1999, Petitioner signed a document entitled "Acknowledgement of FRS Status and Alternative Plan." This document clearly advised Petitioner that her employment as a substitute teacher was not covered under FRS. Petitioner was not employed by a participating employer in a regularly established position on July 1, 2001. She needs an additional 1.47 years of credible service in order to vest in FRS with six years of credible service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to FRS benefits. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2004. COPIES FURNISHED: Robert R. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Carolyn Johnson-Rollins Apartment N118 2701 Northwest 23rd Boulevard Gainesville, Florida 32605 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether the Petitioners are entitled to an award of attorneys' fees and costs pursuant to Section 120.595(2), Florida Statutes.
Findings Of Fact The Florida Department of Insurance is responsible for regulation of insurance transactions in the State of Florida. Beginning in January 1997, the Department of Insurance began the process of adopting rules intended to address the "parity" of insurance regulation between insurance agencies affiliated with financial institutions and agencies which are unaffiliated. The Petitioners successfully challenged parts or all of the proposed rules. As set forth in the Final Order entered June 29, 1998, Proposed Rules 4-224.002, 4-224.004, 4-224.007, 4-224.012, 4-224.013 and 4-224.014, Florida Administrative Code, were determined to be invalid exercises of delegated legislative authority. Pursuant to Section 120.595(2), Florida Statutes, the Petitioners are entitled to award of attorneys' fees and costs. The evidence fails to establish that the Department of Insurance was substantially justified in promulgating the proposed rules. The evidence offered during the rule challenge proceeding failed to establish the existence of a reasonable basis in law and fact at the time the proposed rules were drafted and published. There are no special circumstances which make an award of fees and costs unjust. Petitioner Florida Bankers Association identified attorneys' fees totaling $145,683.01, and seeks an award of $15,000, the statutory limit. Petitioner Florida Bankers Association is entitled to an award of attorneys' fees in the amount of $15,000. Petitioner Florida Bankers Association seeks an award of costs of $40,537.53, including $36,590.00 paid to Dr. Michael White, the Petitioner's expert witness during the rule challenge proceeding. The Department asserts that the payment to Dr. White is unreasonable. There is no credible evidence that the costs related to Dr. White's participation in the case are not reasonable. The fact that the Department paid less for its expert than did the Florida Bankers Association does not establish that payments to Dr. White were unreasonable. Petitioner Florida Bankers Association is entitled to an award of costs in the amount of $40,537.53. Petitioner Community Bankers Association identified attorneys' fees totaling $10,290.00, and costs of $806.23. Petitioner Community Bankers Association is entitled to an award of attorneys' fees in the amount of $10,290.00 and costs in the amount of $806.23. Petitioner Specialty Agents, Inc., did not obtain legal counsel for the rule challenge proceeding, and relied on a qualified representative to challenge the proposed rules. The qualified representative calculates that 160.1 hours were expended and suggests a valuation of $100 per hour for his time, for a total of $16,010. Petitioner Specialty Agents, Inc., seeks an award of attorneys' fees in the amount of the $15,000.00 statutory limit. The evidence fails to establish that a Petitioner's non-attorney representative is entitled to an award of attorneys' fees. Petitioner Specialty Agents, Inc., seeks an award of costs in the amount of the $249.07. Section 120.595(2), Florida Statutes, differentiates between "reasonable costs and reasonable attorney's fees", suggesting that a party may be entitled to an award of reasonable costs even if representation is provided by a non-lawyer. Without objection, Petitioner Specialty Agents, Inc., is entitled to an award of costs in the amount of the $249.07. The Department asserts that, due to "untimeliness" of the Petitions for Fees filed in these cases, an award of fees in this case is unjust. There is no issue of timeliness to be addressed in this matter. The Petitions for Fees were filed approximately 60-90 days after the time for appeal of the Final Order in the rule challenge cases had passed. The Final Order entered in the rule challenge proceeding specifically retained jurisdiction for an award of fees. There is no evidence that the Department was adversely affected by any delay in filing the Petitions for Fees.
Findings Of Fact On July 6, 1981, the Applicant submitted to the Department of Banking and Finance (Department) an application pursuant to Section 658.19, Florida Statutes (Supp. 1980), for authority to organize a corporation for the purpose of conducting a general banking business to be located at 1000 Massey Boulevard, unincorporated Palm City, Martin County, Florida. Notice of receipt of the application was published in the Florida Administrative Weekly on December 11, 1981. Protests and requests for hearing were filed by American Bank of Martin County (American), Central Savings and Loan Association (Central), Florida National Bank of Martin County (Florida National), and First National Bank and Trust Company of Stuart (First National) on or before December 30, 1981. On September 27, 1982, Florida National withdrew its protest. Publication of the Notice of Hearing in this cause appeared in The Stuart News on October 1, 1982. A hearing was held in this cause on October 19 through 20, 1982, in Stuart, Martin County, Florida. The pronosed bank will occupy 3,300 square feet of an existing single- story structure located at the west end of the Villa Plaza Shopping Center fronting on Massey Boulevard, also known as Martin Downs Building. The proposed bank will have visibility and access to Massey Boulevard and also to First Street along the rear (south side) of the Villa Plaza Shopping Center, through use of the ingress and egress facilities of the shopping center. (View by Hearing Officer) The site has facilities for three drive-in lanes. The plan of the proposed bank will include a teller line, lobby area, private offices, teller work area, coupon booth area, vault, restrooms and an employee lounge. Adequate parking facilities already exist and there is room for expansion. (T. 48-50; View by Hearing Officer) The facility is adequate to handle the projected business of the bank for a reasonable period of time and is of such a nature to warrant customer confidence in the security, stability and permanence of the bank. The Applicant intends to lease the facilities from R&S Equities, a Florida partnership whose partners are John C. Robinson and Woodrow J. Smoak. The lease terms include a five year term with annual rent of $36,000 payable in monthly installments of $3,000. The lease also provides for renewal options every five years for a maximum of thirty (30) years with specified annual rental payments to be used during each of the five year terms. Applicant anticipates an investment of $174,500 in fixed assets, including $49,500 for leasehold improvements and $125,000 for furniture, fixtures and bank machinery. Temporary quarters for the bank are not anticipated as the existing structure is ready and the planned improvements can be completed quickly. Applicant has no plans to purchase or lease any land, buildings, improvements to be made thereon, or equipment, furniture, or fixtures to be installed therein, from a director, officer or stockholder who owns 5 percent or more of the capital stock of the Applicant or any controlled company of any officer, director or stockholder. The Applicant's primary service area incorporates portions of the City of Stuart, unincorporated Martin County and a portion of unincorporated Martin County known as Palm City. The PSA is a "bedroom community" with shopping, recreational and public school facilities. Included within the PSA are U.S. Census Enumeration Districts 11, 12, 32, 33, 61, 65, 66, 67 and a portion of 10. The PSA's northern, eastern, southern and western boundaries are the St. Lucie County/Martin County Line (along with the St. Lucie River and Frazier Creek), Colorado Avenue (State Road 76), Indian Street, extended to Florida's Turnpike, and Florida's Turnpike respectively, and are located 2.4 road miles, 0.9 miles, 1.8 miles and 2.5 miles respectively from the proposed site. The south fork of the St. Lucie River runs north and south through the eastern protion of the PSA. The Palm City Bridge, a modern fixed span bridge, crosses the river and connects the larger portion of the PSA west of the river with the eastern portion and the City of Stuart. The bridge's western end is approximately 0.2 miles from the Applicant's proposed site. The delineation of the boundaries of the PSA took into consideration the locations of the offices of existing financial institutions, along with the other economic and demographic factors. The ability of PSA residents to reach the proposed site in a convenient and timely manner was likewise a factor considered in delineating the boundaries of the PSA. The northern boundary of the PSA, consisting primarily of the St. Lucie County/Martin County Line, presents a logical and political northern boundary. The eastern boundary, Colorado Avenue, is a major north/south thoroughfare chosen primarily because of its proximity to existing financial institutions. The southern boundary, Indian Street, extended to the Florida Turnpike and the western boundary, the Florida Turnpike, were chosen because they are areas beyond which population concentrations are limited. Also, Florida's Turnpike is a significant man-made barrier. There are no other significant natural or man-made barriers which would restrict the flow of traffic within the PSA. The PSA's major north/south arteries are 18th Avenue, Mapp Road, Palm City Avenue and Colorado Avenue. The PSA's primary east/west arteries are Highway 714, Massey Boulevard, a/k/a Martin Downs Boulevard and Murphy Road. The 1970-1980 population trends for the City of Stuart, Martin County, the State of Florida, and the Applicant's designated PSA were considered. This data was provided by the Applicant and the Department from census data and from data published by the University of Florida's Bureau of Economic and Business Research (BEBR). The PSA population grew from 3,300 in 1970 to 6,350 in 1980 for an average annual increase of 9.2 percent. The City of Stuart grew from 4,820 in 1970 to 9,467 in 1980 for an average annual increase of 9.6 percent. The population of Martin County went from 28,035 in 1970 to 64,014 in 1980 for an average annual increase of 12.8 percent. Over the same ten year period, Florida's population increased an average of 4.4 percent annually from 6,791,418 to 9,746,324. The BEBR projected 1983 Martin County population at 70,600 by its low projection, at 74,600 by its medium projection and at 75,300 by its high projection. For Florida's 1983 population, the BEBR estimated 10,352,200 as its low projection, 10,595,100 as its medium projection and 10,757,200 as its high projection. The average annual 1980-1983 population growth rate projections for Martin County are 3.43 percent, 5.20 percent and 5.88 percent as calculated from the low, medium and high 1983 projections respectively. For Florida, tide average annual 1980-1983 population growth rate projections are 2.07 percent, 2.90 percent and 3.46 percent as calculated for the low, medium and high projections respectively. See "Data Source Packet" of Department's Official File (DSP). One hundred percent of the County's 1970-1980 population growth resulted from immigration, a proportion above the state's 91.97 percent. (DPS) Over the 1970-1979 period, the Martin County population aged somewhat, with the population proportion below age 15 having decreased from 23.8 percent to 18.6 percent; the population proportion within the working age group (15 to 64) increased from 54.9 percent to 56.3 percent; and the population aged 65 years and above increased from 21.3 percent to 25.1 percent. Florida population during the same period decreased from 25.8 percent to 20.4 percent for the group below age 15; increased from 59.6 percent to 61.9 percent in the working age group and increased from 14.6 percent to 17.7 percent for those 65 and over. (DPS) In April, 1980, the Martin County population was older than the Florida population. Martin County's population under age 15 was 16.4 percent; with 59.1 percent in the working age group; and 24.5 percent over age 65. In April, 1980, 19.3 percent of Florida's population was below age 15; 63.4 percent were in the working age group; and 17.3 percent were aged 65 or over. With a higher percentage of people over age 15, there is a relatively higher number of people in Martin County of an age to utilize banking services than exists on the average statewide. The rate of growth in the number of households in Martin County exceeded the rate of growth in the State of Florida during the 1970-1980 period. The BEBR estimated the number of Martin County households in 1980 at 25,863, having reflected at 155.5 percent increase above the 1970 level of 10,122 households. The number of state households increased 63.8 percent during the same period from 2,284,786 to 3,841,356. County and state average household sizes declined 11.8 percent and 12.1 percent, respectively, over the 1970-1980 period with the Martin County average household size having declined from 2.72 to 2.40 persons, and the state average declined from 2.90 to 2.55 persons. Statewide unemployment rates have significantly exceeded those of Martin County for all periods since 1974. During 1975, Florida's 10.7 percent unemployed rate exceeded Martin County's 8.7 percent rate. In 1976, Florida's 9 percent unemployment rate exceeded the 7.7 percent rate in Martin County. Florida's 8.2 percent unemployment rate exceeded the Martin County 6.9 percent rate in 1977. In 1978, Florida's unemployment rate was 6.6 percent which was also well above the 5.5 percent rate in Martin County. In 1979, the margin was even larger with Florida's unemployment rate at 6 percent and Martin County's unemployment rate at 4.8 percent. The margin continued to grow in 1980 with the Florida unemployment rate still at 6 percent but the Martin County unemployment rate having dropped to 4.4 percent. In 1981, Florida and Martin County's unemployment rates were 6.8 percent and 5.6 percent respectively. In 1981, the Florida unemployment rate remained well above the unemployment rate in Martin County. (T. 181) Between 1979 and 1981, average household effective buying income (HEBI) in Martin County grew from $16,339 to $20,119. In 1979, Florida HEBI was $18,613 and in 1981, was $21,301. The increase between 1979 and 1981 was much more significant in Martin County than in the State of Florida overall. HEBI increased 23.1 percent or $3,780 in Martin County while increasing only 14.4 percent or $2,688 in Florida between 1979 and 1981. Net income figures show an even more significant increase in Martin County. Between 1979 and 1981, net income in Martin County increased 73.3 percent from $336,574,000 to $583,448,00. During the same period, net income in Florida increased by only 34.2 percent from $63,889,652,000 to $85,768,756,000. Per capita personal income data (PPI) formulated for the state and county by the United States Department of Commerce, and reprinted by the University of Florida, was in evidence and considered. This data appears in the following table: YEAR 1970 1971 1972 1973 1974 Martin Co. 3861 4258 4773 5246 5363 Florida 3693 4007 4461 4988 5341 YEAR 1975 1976 1977 1978 1979 Martin Co. 5834 6437 7215 8094 9178 Florida 5634 6094 6733 7591 8521 PPI level in Martin County exceeded Florida PPI levels throughout the 1970-1979 period. Between 1975 and 1979, PPI in Martin County increased by $3,344 or 57.3 percent while per capita income in the State of Florida increased by only $2,887 or 51.2 percent. In addition, PPI in Martin County in 1979 exceeded the statewide figure by 7.7 percent. The Applicant submitted data on estimated retail sales in Martin County and Florida for 1975 through 1981. At the time the application was filed, the latest available figures were for 1979. Between 1979 and 1981, estimated retail sales increased 32.3 percent in Martin County while the State of Florida increased by only 28 percent. Five operating commercial bank offices are located in or within one mile of the PSA. Florida National operates a branch office 0.8 miles northeast of the proposed opened 0.2 miles west of the proposed site. The two branches are the only bank offices in the PSA. The following three bank offices are located within one mile of the PSA: Florida National's main office, operating 2.7 miles northeast of the proposed site; First National's main office, operating 2.1 miles northeast of the proposed site; and First National's branch office, operating 1.8 miles northeast of the proposed site. These five bank offices are operated by only two bank institutions, neither of which is a state chartered institution nor has its main office in the PSA. Florida National, the only bank operating in the PSA, withdrew its protest to this application. Seven savings and loan association (association) facilities were cited as operating in or within one mile of the PSA. These seven association facilities include two main offices in operation and five association branch offices. Two offices operate within the PSA: Harbor Federal Savings and Loan Association (formerly First Federal Savings and Loan Association of Ft. Pierce) operates a branch office 0.9 miles northeast of the proposed site. First Federal Savings and Loan Association of Martin County operates a branch office 0.9 miles northeast of the pronosed site.. The following facilities are within one mile of the PSA: Citizens Federal Savings and Loan Association operates a branch office 2.2 miles northeast of the proposed site; Community Federal Savings and Loan Association operates a branch office 2.7 miles northeast of the proposed site; First Federal Savings and Loan Association of Martin County has its home office 2.2 miles northeast of the proposed site; Home Federal Savings and Loan Association has a branch office 2.1 miles northeast of the proposed site; and the recently opened main office of Central Savings and Loan Association is one mile northeast of the proposed site. A period's inflation is most commonly estimated by the period's corresponding change in the consumer price index, which is the only method of record in this proceeding. Each month, changes in the consumer price index from the previous month and for the previous 12 months are published by the United States Department of Labor, Bureau of Labor Statistics. For the year ending September 30, 1981, the rate of inflation was 11.0 percent. For the year ending December 31, 1981, the rate of inflation was 8.9 percent. For the year ending March 31, 1982, the rate of inflation was 6.8 percent. (DSP) Only one bank office (a branch office) was in operation within the PSA in March, 1982. During the year ending March 31, 1982, the Florida National Bank of Martin County branch office within the PSA increased its total deposits from $12,638,000 to $16,307,000 or an increase of 29 percent, a rate more than four times that of the 6.8 percent rate of inflation that existed during the year ending March, 1982. Data is also available for the bank offices operating within one mile of the PSA. The main office of First National increased its total deposits during the period of March, 1981, to March, 1982, from $149,296,000 to $153,845,000 for a yearly increase of 3.0 percent. The branch office of First National close to the PSA increased deposits during the same period from $3,144,000 to $3,587,000 or an increase of 14.1 percent. The Florida National main office had a decrease in deposits from $89,806,000 to $3,587,000 or a loss of 2.0 percent during the year ending March 31, 1982. Total Martin County deposits for the period increased from $402,666,000 to $423,762,000 or a 5.2 percent increase. During the period from March 31, 1981, to March 31, 1982, bank deposits within the State of Florida increased from $41,478,327,000 to $43,933,129,000 or an increase of approximately 5.9 percent. In summation, the rate of growth in deposits within the PSA exceeded the rate of growth in deposits in Martin County and the rate of deposit growth was bore than four times greater than the rate of inflation for the same period. For the period between September 30, 1980, and September 30, 1981, the savings and loan association offices operating in the PSA showed increases in the volume of savings accounts as follows: Harbor Federal increased from $12,287,000 to $14,997,000 or a yearly increase of 22.1 percent; First Federal of Martin County (opened in March, 1980) increased from $2,194,000 to $6,033,000 or a total increase of 175.0 percent in one year. Thus, the increase in the two savings and loan offices in the PSA showed a combined one year gain of $6,549,000 or 45.2 percent. In Martin County as a whole, savings increased from September 30, 1980, to September 30, 1981, from $352,735,000 to $381,625,000 or a yearly increase of 8.2 percent. In the State of Florida as a whole, savings during the same period went from $42,560,303,000 to $45,332,969,000 or a yearly increase of only 6.5 percent. In summary, association deposits at offices in the PSA increased at a rate far in excess of those in Martin County as a whole, and in the State of Florida. In addition, the 45.2 percent increase of association deposits in the PSA during the reporting period was more than four times the 11 percent rate of inflation for the year ending September 30, 1981. The Applicant proposes to offer the full range of banking service offered by full-service commercial banks. No deficiencies in the proposed services were established by any Protestant. However, it should also be noted that there are, at present, only two branches of one multi-bank holding company (Florida National) located within the PSA. No other bank is presently represented in the PSA. No bank is headquartered in the PSA, nor is there a facility of a state chartered bank in the PSA. Also, only Florida National Bank and one other banking organization maintain bank offices in or within one mile of the PSA. Consequently, alternative or competitive choices are limited in the PSA and within one mile of its boundaries at the present time. Applicant projected total deposits of $5,000,000, $9,000,000 and $13,000,000 at the end of the proposed banks' first three years of operation respectively. It also projected a $22,381 net operating loss during the proposed bank's first operating year, and pre-tax net operating income levels of $257,715 and $466,208 during the bank's second and third operating years respectively. These deposit and increase projections were formulated under the assumption that the proposed bank would have: $2,750,000 in total time and savings deposits and $2,250,000 in total demand deposits at the end of the first operating year; $5,400,000 in total time and savings deposits and $3,600,000 in total demand deposits at the end of the second operating year; and $8,450,000 in total time and savings deposits and $4,550,000 in total demand deposits at the end of the third operating year. Applicant's projections are conservative, were unrefuted by the Protestants and are likely achievable. The Applicant's testimony and evidence established that there are nine active residential subdivisions in the PSA totaling 6,576 units of which 416 or 6.3 percent were cited as completed. Home prices range from between $65,500 and $580,000. Five areas are planned for single family units accounting for 95 percent of the total units planned. Prices for the single family units range between $75,000 and $580,000, while prices for condominium units range between $65,500 and $87,900. The single family subdivisions are Canoe Creek, Martin Downs, Mid-Rivers, Pipers Landing and Westgate. Utilities are being installed for 70 new lots in the PSA and there are 15 new rental units recently opened and under construction. Extensive testimony was presented about the Martin Downs project located within the PSA. Martin Downs is a 2,400 acre planned residential development which will contain 5,500 residential units. It will also contain two golf courses, racquet club, resort center, retail shopping center, office park, industrial park, government service center, schools, yacht club, parks and a utility plant. Road improvements have already been made in and around Martin Downs. Further, during 1983, major improvements will be made to Martin Downs Boulevard, the major east/west artery through the PSA. These improvements include widening that portion of Martin Downs Boulevard that runs past the proposed site of the Applicant bank. (T. 23-26) Martin Downs will be built in phases with a final population of 12,000 to 13,000 people. (T. 23) The builders of Martin Downs already have approximately $20 million invested in the project. The Crane Creek area of Martin Downs is one of the most exclusive residential sections in the PSA. (View by Hearing Officer) It consists of 346 lots of which approximately 300 are sold and approximately 150 lots are occupied or have homes under construction. The lots sell for $35,000 to $60,000. Homes sell from around $150,000 to $400,000. Crane Creek also contains a championship golf course, clubhouse and racquet club with thirteen tennis courts. (T. 15) Four condominium projects are presently under construction: Country Meadows, Mapletree Villas, The Crossings, and The Townhomes at Poppleton Creek. Prices range between $49,900 and $87,900. These four projects have 306 total units planned of which 60 were completed in October, 1982, and another 72 under construction. Residents living in all of the single family subdivisions cited and at Mapletree Villas and the Crossings must, as a practical matter, pass the Applicant's proposed site on their way to and from the City of Stuart. In addition to the developments cited, there are a large number of existing residences within the PSA. Many of these are located west of the South Fork of the St. Lucie River and these residents must also pass the Applicant's proposed site when going to and from Stuart. (View by Hearing Officer) Commercial activity in the PSA is primarily centered along Massey Boulevard and Mapo Road in close proximity to the subject site. Downtown Stuart lies approximately 2.5 miles northeast of the proposed site. As of May, 1981, 35 businesses were established within one-half mile of the proposed site. In addition, the Monterey Plaza, a large, modern shopping center within one mile of the proposed site, contained 44 businesses in August, 1981. There are 43 businesses within one-half mile of the site. Manufacturing is limited in Martin County. However, the county's largest manufacturer, Grumman Aerospace Corporation, is located at Witham Field, approximately 2.7 miles east of the proposed site. In addition, there are two areas established for industrial development in the PSA itself. One is a planned industrial park to be located in Martin Downs. The other is a ten acre industrial park known as Heritage Square, located at Palm City School Road and State Road 714, approximately 1.7 miles southwest of the proposed site. There are approximately three acres currently developed in the park which opened in 1978. At the time the application was filed, it had 12 tenants, 11 of which are small manufacturing firms. The proposed bank will be capitalized with a total of $1,500,000. The capital will be divided into common capital of $1,000,000, surplus of $300,000, and undivided profits of $200,000. The bank will issue 100,000 shares of stock, with a par value of $10 and a selling price of $15 plus $.50 per share assessed for the Organizational Expense Fund. All 100,000 shares have been subscribed to. The proposed directors have personally subscribed to 30,000 shares as follows: Herbert-Biggs, 5,000 shares; Stephen Frasier, 5,000 shares; Richard Jemison, 5,000 shares; Charles Pope, 5,000 shares; Donald Ricci, 5,000 shares; and Roy Talmo, 5,000 shares. The proposed Board of Directors is composed of six members with diverse business backgrounds, some of whom have had prior banking experience. Herbert Biggs is an 11 year Florida resident living in Jupiter, Florida. Mr. Biggs has a B.S. degree from Mississippi State University and a J.D. from the University of Mississippi. After a short period as a professional basketball player, Mr. Biggs came to Martin County to practice law. He has since left the practice of law to pursue a career as a general contractor and developer. He is currently the president of Suncastle Homes, Inc., a construction and development corporation. Mr. Biggs holds professional licenses as a realtor, general contractor and attorney. Mr. Biggs is a U.S. citizen. Mr. Biggs has a reputation evidencing honesty and integrity and has an employment and business history demonstrating his responsibility in financial affairs. Stephen Frasier is a 12 year resident of Martin County. He holds a B.S. degree from Florida State University and J.D. from the University of Florida. Mr. Frasier served in the Navy as a Flight Officer and is presently a Lieutenant in the Naval Reserve. He served as the Assistant City and County Attorney in Martin County and is presently engaged in the private practice of law in Martin County as a partner in the firm of Frasier and Bateman, P.A. Mr. Frasier is a member of the Civitan Club, the Masonic Temple, the Elks Club, Martin County Bar Association, on the Board of Directors of the Visiting Nurses Association, Florida Bar, on the Board of Directors for the Paradise Ranch for Boys, and is the Chairman of the Board for the Sailfish District of the Boy Scouts of America. (T. 122) Mr. Frasier is a U.S. citizen. (T. 121) Mr. Frasier has a reputation evidencing honesty demonstrating his responsibility in financial affairs. (T. 80, 113; Exs. 1, 5) Richard Jemison has been a Florida resident since 1939, and presently lives in Stuart, Florida. (T. 102; Ex. 1) He has a B.S. degree in Civil Engineering from the University of Florida. (T. 103) Mr. Jemison was in the printing business in St. Petersburg, Florida, for 13 years and is now the president of Seabridge Associates, Inc. (T. 104) He holds licenses as a real estate broker, mortgage broker, and contractor. (T. 103) Mr. Jemison is a member of the Palm City Chamber of Commerce, Stuart Chamber of Commerce and Kiwanis Club. Mr. Jemison has substantial banking experience in that he served on the Board of Directors of the First State Charter Bank in St. Petersburg from 1968 through 1974. (T. 106; Ex. 1) He is a U.S. Citizen. (T. 102) Mr. Jemison has a reputation evidencing honesty and integrity and has an employment and business history demonstrating his responsibility in financial affairs. (T. 83, 115-116; Exs. 1, 4) Charles Pope has lived in Florida since 1951 and presently lives within the PSA of the proposed bank. He received a B.S. degree from the University of Florida and has completed all of the course work for an M.B.A at the Florida Institute of Technology. Mr. Pope has direct banking experience from his past employment with First National Bank and Trust Company of Stuart, Atlantic Bank Corporation, and First American Bank and Trust Company (formerly First American Bank of Palm Beach) Mr. Pope is the president of Charles Pope & Associates, Inc., an investment banking firm. He holds a mortgage brokers license from the State of Florida, is a Certified Commercial Lender and a Certified Review Appraiser. He is a member of the American Bankers Association, American Institute of Banking and the Chamber of Commerce. Mr. Pope is a citizen of the United States. He has a reputation evidencing honesty and integrity and has an employment and business history demonstrating his responsibility in financial affairs. Donald Ricci has lived in Florida since 1975, and in Martin County for the past five years. After being honorably discharged from the U.S. Air Force, Mr. Ricci was a part owner and general manager of an automobile dealership. Mr. Ricci became interested in the real estate business and worked as the Marketing Director for First Southern Holding Company, the developers of Martin Downs. As Marketing Director, he was in charge of sales and marketing for Martin Downs. Mr. Ricci is a 50 percent partner and manager of Seabridge Associates, Inc., a real estate development firm whose offices are located in the PSA and close to the proposed site of the Applicant bank. Mr. Ricci is a licensed real estate broker and a member of the Palm City Chamber of Commerce and the Stuart/Martin County Chamber of Commerce. Mr. Ricci is a U.S. citizen. He has a reputation evidencing honesty and integrity and has an employment and business history demonstrating his responsibility in financial affairs. Roy W. Talmo has lived in Palm Beach County, Florida, since 1964. He received a B.B.A. and M.B.A from the University of Minnesota. Mr. Talmo has extensive direct banking experience, having been employed as a banker since 1959. Mr. Talmo has been employed by the Continental Bank in Chicago and the First National Bank of St. Petersburg, and is the past Chairman of the Board of Miami National Bank. Mr. Talmo is presently Chairman of the Board of First National Bank and Trust Company in Palm Beach, and has directed its growth from an $11 million bank to its present size of just under $500 million. Mr. Talmo also serves as a Director of First American Bank of Broward County, First City Bank of Dade County, and First State Bank of Broward County. He is a member of the Palm Beach Junior College Foundation, the Palm Beach Festival, and the Tourist Development Committee for Palm Beach County. Mr. Talmo is a U.S. citizen. The Applicant adduced evidence which was not refuted, and which established that Mr. Talmo has a reputation evidencing honesty and integrity and an employment and business history demonstrating his responsibility in financial affairs. As of the date of the final hearing, the Applicant had not selected a President or Chief Executive Officer, nor a Cashier or Operations Officer. The Applicant has selected the name First American Bank of Martin County. There are no Florida financial institutions with a name so similar as to cause confusion with the proposed name. Parenthetically, it should be noted that a cogent discussion and resolution of the issue of "name confusion" is extant in First Bank of Hollywood Beach and Office of the Comptroller vs. American Bank of Hollywood, DOAH Case No. 80-1581, opinion filed May 13, 1981. The Applicant has proven that public convenience and advantage will be served by the approval of the application. The Applicant has proven that local conditions indicate a reasonable promise of successful operation for the new bank. DONE and ENTERED this 4th day of April, 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 4th day of March, 1983. COPIES FURNISHED: C. Gary Williams, Esquire Michael J. Glazer, Esquire Post Office Box 391 Tallahassee, Florida 32302 Noel Bobko, Esquire Post Office Drawer 2315 Stuart, Florida 33495 James L. S. Bowdish, Esquire Post Office Drawer 24 Stuart, Florida 33494 Walter W. Wood, Esquire Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DIVISION OF BANKING IN RE: Application of First Administrative Proceeding American Bank of No. 83-5-DOB Martin County DOAH No. 82-034 / FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Pursuant to Notice, an Administrative Hearing was held before P. Michael Ruff, Hearing Officer, with the Division of Administrative Hearings on October 19 and 20, 1982, in Stuart, Martin County, Florida. The purpose of the hearing was to receive evidence concerning the application of First American Bank of Martin County for authority to open a new bank in Stuart, Martin County, Florida. At the hearing, the parties were represented by counsel: For Applicant, C. Gary Williams, Esquire First American Bank Michael J. Glazer, Esquire of Martin County: Post Office Box 391 Tallahassee, Florida 32302 For Protestant, Noel Bobko, Esquire American Bank of Post Office Drawer 2315 Martin County: Stuart, Florida 33495 For Protestant, James L. S. Bowdish, Esquire First National Bank & Post Office Drawer 24 Trust Co. of Stuart: Stuart, Florida 33494 For the Department of Walter W. Wood, Esquire Banking and Finance: Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Having fully considered the facts and information contained in the record relating to the application of First American Bank of Martin County for authority to organize a corporation for the purpose of conducting banking business in Stuart, Florida, the Comptroller of the State of Florida, as Head of the Department of Banking and Finance, hereby renders the following FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER in the above-styled case.
Conclusions The statutory criteria set forth in Chapter 658, Florida Statutes, which were in effect at the time the application was filed, are the standards which govern this application. Chapter 3C-10, Florida Administrative Code, which was in effect at the time the application was filed, contains the rules under which this application was considered. As set forth in Rule 3C-10.051, Florida Administrative Code, when an application for authority to organize and operate a new state bank is filed, it is the applicant's responsibility to prove that the statutory criteria warranting the grant of authority are met. The Department shall conduct an investigation pursuant to Section 658.20, Florida Statutes, which was done in this case, and then approve or deny the application in its discretion. This discretion is neither absolute nor unqualified, but is instead conditioned by a consideration of the criteria listed in Section 658.21, Florida Statutes, wherein it is provided that: The Department shall approve the application if it finds that: Public convenience and advantage will be promoted by the establishment of the proposed state bank or trust company. In determining whether an applicant meets the requirements of this subsection, the department shall consider all materially relevant factors, including: The location and services offered by existing banks, trust companies, trust departments, and trust service offices in the community. The general economic and demographic characteristics of the area. Local conditions indicate reasonable promise of successful operation for the proposed state bank or trust company and those banks, trust companies, trust departments, and trust service offices already established in the primary service area. In determining whether an applicant meets the requirements of this subsection, the department shall consider all materially relevant factors, including: Current economic conditions and the growth potential of the area in which the proposed state bank or trust company intends to locate. The growth rate, size, financial strength, and operating characteristics of banks, trust companies, trust departments, and trust service offices in the service area of the proposed bank. The proposed capital structure is in such amount as the department shall deem adequate, but in no case shall the paid-in capital stock be less than $800,000. In addition to the capital required, every state bank or trust company hereafter organized shall establish: A paid-in surplus equal in amount to not less than 20 percent of its paid-in capital; and A fund to be designated as undivided profits equal in amount to not less than five percent of its paid-in capital. The proposed officers have sufficient banking or trust company experience, ability, and standing, and the proposed directors have sufficient business experience, ability and standing, to indicate reasonable promise of successful operation. The name of the proposed state bank or trust company is not so similar as to cause confusion with the name of an existing financial institution. Provision has been made for suitable quarters at the location in the application. If, in the opinion of the Department, any one of the six foregoing criteria has not been met, and cannot be remedied by the Applicant, it cannot approve the application. An Applicant can, however, take corrective action in most circumstances, to meet the criteria set forth in Sections 658.21(3)(4)(5) or (6), Florida Statutes, if any one of these is found to be lacking. For example, if all other statutory criteria are met, the Applicant may increase capital, or make certain changes in the board of directors, or change the name or alter the provisions for suitable banking house quarters, because these factors are, at least to some degree, within its control. It is the Department's policy to allow applicants to make certain changes to meet these criteria if all other criteria are met; to do otherwise would be to subject applicants to unnecessary red tape. However, it is the Department's position that there is little, if anything, that an applicant can do to alter its ability to meet the criteria set forth in Sections 658.21(1) and (2), Florida Statutes, since the applicants cannot easily change the economic and demographic characteristics of an area. Therefore, if either one or both of these criteria are not met, the Department cannot approve the application. For the purposes of applications for authority to organize and operate a bank, Section 658.12(19), Florida Statutes, defines the primary service area (PSA) as: " . . . the smallest geographical area from which a bank draws, or a proposed bank expects to draw, approximately 75 percent of its deposits; the term also means the smallest geographic area from which a trust company or the trust department of a bank or association draws, or a proposed trust company or a proposed trust department of a bank or association expects to draw, approximately 75 percent of the assets value of its fiduciary accounts." The Applicant's PSA which incorporates portions of the City of Stuart, unincorporated Martin County and a portion of unincorporated Martin County known as Palm City appears to have boundaries delineated around a natural market area. The designated boundaries do not unrealistically exclude competing financial institutions or include areas of concentrated population. The Department concludes that a market exists for the Applicant in the PSA and that the Applicant may reasonably expect approximately 75 percent of its business to arise from the PSA. Consequently, the Department deems that the PSA has been realistically delineated and that the criteria set forth in Section 658.12(19), Florida Statutes, for a realistically delineated PSA has been met. It is the opinion and conclusion of the Department that public convenience and advantage will be promoted by the proposed bank's establishment. Therefore, the criterion in Section 658.21(1), Florida Statutes, is met. As set forth in Rule 3C-10.051(3)(a)(1), Florida Administrative Code, the location and services offered by existing financial institutions in the service area are indicative of the competitive climate of the market. The traffic patterns in the area, as well as the area's general economic and demographic characteristics shall also be considered. Because it is recognized that the establishment of a new bank or trust company anywhere would promote convenience and advantage for at least a few people, substantial convenience and advantage for a significant number of people must be shown; otherwise, a new bank could be justified for every street corner in the state. Clearly such a result was not the legislative intent in regulating entry into the banking industry, nor is it in the public interest. Based upon the facts in the record, the Department has determined that the establishment of the proposed new bank will substantially increase convenience to a significant number of residents and workers of the PSA. The location of the proposed site at a shopping center 0.2 miles from the only bridge from the eastern end of the PSA to the western end makes it convenient to residents, shoppers and commuters. The Department, therefore, concludes that the criteria of public convenience and advantage is met. It is the opinion and conclusion of the Department that local conditions indicate reasonable promise of successful operation for the proposed bank and those already established in the area. Therefore, the criterion in Section 658.21(2) Florida Statutes, is met. As set forth in Section 658.21(2)(a) and (b) , Florida Statutes, and Rule 3C-10.051(3)(b) , Florida Administrative Code, current economic conditions and, to a lesser extent, the growth potential of the area in which the new bank or trust company proposes to locate are important considerations in determining its probable success. Essential to the concept of banking opportunity is that there does and will exist a significant volume of business for which the bank or trust company can realistically compete. The growth rate, size, financial strength, and operating characteristics of financial institutions in the primary service area are also important indicators of economic conditions and potential business. It is noted that the statutory standard requires that: " . . . local conditions indicate reasonable promise of successful operation for the proposed state bank or trust company and those banks . . . already established in the primary service area . . ." Banking involves a public trust. Unlike private enterprise generally, banks operate on the public's capital and therefore, the Legislature has vested in the Comptroller the responsibility of protecting the public interest. Furthermore, the failure of a bank, as opposed to private enterprise generally, may have an unsettling effect on the overall economic welfare of the community, and that is why the Florida Legislature and the United States Congress have imposed stringent requirements for the industry. This Department is responsible for enforcing this legislative standard. Public interest is best served by having a banking system whereby competition is encouraged, where appropriate, yet at the same time, ensuring that the financial resources of the residents of the community are stable and safe. That was the obvious intent of the Legislature in regulating entry into the banking industry. The facts in the record show a significant and growing number of residential developments that are not centrally served by any main office, commercial bank, and no state-chartered banks at present. Thus, a significant number of PSA businesses and residents, especially on the western side of the PSA from the St. Lucie River, can be expected to patronize the proposed bank, insuring that there is a reasonable promise of successful operation. The facts in the record show that the rate of growth in deposits within the PSA exceeded the rate of growth in deposits in Martin County and the rate of deposit growth was more than four times greater than the rate of inflation for the same period. Based upon the above, the Department concludes that local conditions do indicate a reasonable promise of successful operation for the proposed bank and for those financial institutions already established in the area. It is the opinion and conclusion of the Department that the proposed capital structure of the proposed new bank is adequate. Therefore, the criteria of Section 658.21(3) Florida Statutes, is met. Capital should be adequate to enable the new bank or trust company to provide necessary services . . ., including loans of sufficient size, to meet the needs of prospective customers. Capital should be sufficient to purchase, build, or lease a suitable permanent facility complete with equipment. Generally, the initial capital for a new nonmember bank should not be less than $1.0 million in non-metropolitan areas and $1.5 million in metropolitan areas. The capital referred to in the Findings of Fact shall be allocated among capital stock, paid-in surplus, and undivided profits in the ratios set forth in Subsection (3) of Section 658.21, Florida Statutes. The proposed capital accounts of $1.5 million are allocated according to the statutory ratios. It is the opinion and conclusion of the Department that the criteria of Section 658.21(4), Florida Statutes, are met. As set forth in Rule 3C-10.051(3)(d), Florida Administrative Code, the organizers, proposed directors, and officers shall have reputations evidencing honesty and integrity. They shall have employment and business histories demonstrating their responsibility In financial affairs. At least one member of a proposed board of directors, other than the chief executive officer, shall have direct banking or trust company experience. In addition, the organizers, proposed directors and officers shall meet the requirements of Section 658.33, Florida Statutes. Officers shall have demonstrated abilities and experience commensurate with the position for which proposed. Members of the initial management group, which includes directors and officers shall require prior approval of the department. Changes of directors or chief executive officer during the first year of operation shall also require prior approval of the department. While it is not necessary that the names of the proposed officers be submitted with an application to organize a new state bank, the chief executive officer and operations officer must be named and approved at least sixty (60) days prior to the bank's opening. The Department concludes that the proposed directors have, as a group, good character, sufficient financial standing and business histories demonstrating ability and experience commensurate with the positions for which they are proposed and at least one proposed director (other than the chief executive officer) has direct banking experience. It should be noted that interlocking directorships involving existing financial institutions competitively near the proposed site of a new institution are discouraged. Such interlocking directorships could possibly restrict competition and create fiduciary problems. The Department concludes that there is no interlock problem in this instance. It is the opinion and conclusion of the Department that the name of the proposed new bank, First American Bank of Martin County, would not cause confusion with the name of a Florida financial institution. Therefore, the criterion of Section 658.21(5), Florida Statutes, is met. It is the opinion and conclusion of the Department that provisions has been made for suitable banking house quarters in the application's specified area. Therefore, the criterion of Section 658.21(6), Florida Statutes, is met. As set forth in Rule 3C-10.051(3)(f), Florida Administrative Code, permission to open in temporary quarters may be granted, for good cause shown. Under the rules of the Department, the permanent structure of a new bank should contain a minimum of 2,500 square feet, unless the Applicant satisfactorily shows that smaller quarters are justified due to the performance of certain auxiliary services off-premises. In addition, it shall meet the Federal Bank Protection Act requirements and be of sufficient size to handle the projected business for a reasonable period of time. The banking house . . . facility shall be of a nature to warrant customer confidence in the institution's security, stability and permanence. Other pertinent factors include availability to adequate parking, adequate drive-in facility if such is contemplated, and possibilities for expansion. Temporary quarters are not contemplated and Applicant's permanent quarters meet the above standards. Rule 3C-10.051(5), Florida Administrative Code, relating to insider transactions requires that: Any financial arrangement or transaction involving, directly or indirectly, the organizers, directors, officers and shareholders owning 5 percent or more of the stock, or their relatives, their associates or interests must he fair and reasonable, fully disclosed, and comparable to similar arrangements which could have been made with unrelated parties. Whenever any transaction between the proposed bank or trust company and an insider involves the purchase of real property, appraisals of land and improvement thereon shall be made by an independent qualified appraiser, and be dated no earlier than 6 months from the filing date of the application. The Department has determined that there is no insider transaction involving the leasing of the proposed bank's office space. Therefore, the criterion in Rule 3C-10.051(5) Florida Administrative Code, is met. RULING ON PROTESTANTS' EXCEPTIONS Section 120.57(1)(b)12, Florida Statutes, provides as follows: " . . . The agency shall allow each party at least 10 days in which to submit written exceptions to the report." The Department's procedural Rule 3C-9.11, Florida Administrative Code, Post-Evidentiary Procedures, follows the wording of the statute and provides that "the Department shall allow each party 10 days from the date of the hearing officer's report in which to submit written exceptions thereto pursuant to Section 120.57(1)(h) 12, Florida Statutes." The Department interprets that the word "submit" means that the Department must receive the exceptions by the 10th day in the same manner as when documents are required to be filed by a date certain. See Sonny's Italian Restaurant v. State of Florida, 414 So.2d 1156 at 1157. In Sonny's Italian Restaurant v. State, the Third District Court of Appeal in a per curiam decision affirmed a final agency order upon a holding that: "Any error resulting from the entry of the Final Order on July 2, 1981, prior to receipt of Appellant's exceptions to the recommended order, is not material in light of the fact that the exceptions, dated July 6, 1981, were not filed within the requisite 10-day period of Section 120.57(1)(b)8, Florida Statutes, when measured from either the date the recommended order was entered (June 19), or the date submitted to the agency and parties (June 23)." The wording in Section 120.57(1)(b)8, Florida Statutes, concerning the time for filing of exceptions is identical to that of Section (1)(b)12 concerning the filing of exceptions for applications for a license or merger pursuant to Title XXXVIII. The Report of the Hearing Officer, C. Michael Ruff, in this case was done and entered on April 4, 1983, with a cover letter dated April 5, 1983, and was received by the Department on April 6, 1983. A copy of Protestant American Bank of Martin County's exceptions was received by the Department on April 21, 1983. A copy of Protestant First National Bank and Trust Company of Stuart's exceptions were received by the Department on April 19, 1983. The Department deems that all exceptions were untimely filed since the last day to file exceptions with the Department was April 15, 1983. Nevertheless, it has been determined that the exceptions that were untimely received would not have had any effect on the final outcome of this matter.
The Issue Whether Petitioner, One Watergate Association, Inc. ("One Watergate"), as a prevailing small business party in an adjudicatory proceeding, initiated by a state agency, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Subsection 57.111(4)(a), Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Commission is the state agency charged with investigating complaints of discriminatory housing practices and enforcing the Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2002). The Commission is charged with investigating fair housing complaints filed with the Commission and with the federal Department of Housing and Urban Development under the Federal Fair Housing Act, 42 U.S.C. Section 3601, et. seq. One Watergate is the duly-incorporated owners' association for the One Watergate condominium building in Sarasota. The Board is the governing body of One Watergate and is responsible for the approval or denial of potential residents and purchasers of units in the One Watergate building. One Watergate is a "prevailing small business party," as that term is employed in Section 57.111, Florida Statutes (2002). Prior to May 2002, prospective buyers or residents at One Watergate were required to complete an application that asked for character references, but did not require the applicant to provide bank references or other financial information. In early 2001, the Board commenced a search process to find a third-party investigative firm to conduct more detailed screenings of potential residents and purchasers at One Watergate. In April 2002, the Board reviewed detailed information regarding one such firm, Renters Reference of Florida, Inc. ("Renters Reference"), an investigative consumer reporting agency operating under the Federal Fair Credit Reporting Act. On April 16, 2002, the Board met in a duly-noticed, regularly scheduled meeting and voted to pursue a contract with Renters Reference to conduct applicant screenings. The minutes of the April 16, 2002, Board meeting also indicated that the Board approved an amendment to the Renters Reference motion to the effect that no new applicants would be rejected until the Board voted on the repeal of the "buy back" provision of the One Watergate by-laws. The "buy back" provision stated that if the Board rejected a bona fide purchaser, the owner of the unit in question could demand that One Watergate itself purchase the unit. On May 2, 2002, One Watergate and Renters Reference entered into an "Agreement for Service" for the conduct of confidential background checks, credit checks, and other screenings of potential One Watergate residents. In cooperation with the Board, Renters Reference established form applications to be completed by potential residents and by potential unit purchasers. The forms required applicants to sign an authorization to release their banking, credit, residence, employment, and police record information to Renters Reference. The forms also required applicants to disclose their Social Security numbers to Renters Reference, which would allow Renters Reference to obtain credit reports directly from the three national credit reporting agencies, TransUnion, Experian, and Equifax. The purchase application form also contained a provision that required the applicant to agree to "hold harmless" Renters Reference and the Board from any claim in connection with the use of information obtained through the Renters Reference investigation. The forms advised applicants that a failure to complete any portion would result in the application being "returned, not processed and not approved." Renters Reference advised One Watergate to strictly enforce the requirement that applicants complete all portions of the forms on the ground that a waiver of application requirements for any one applicant would necessitate such a waiver for any subsequent applicant or else invite a discrimination claim by the subsequent applicant. After completing the investigation, Renters Reference would send a report to One Watergate with its findings. Renters Reference was not authorized to approve or deny the application, and it made no recommendations as to approval of the application. The Board established a screening committee to act upon the applications. The two-person screening committee consisted of Janis Farr, One Watergate's resident manager, along with the sitting Board president. The screening committee's decision to approve or disapprove the application was later subject to a ratification vote by the full Board. On May 16, 2002, potential unit purchaser Marcia Lang submitted a completed form Application for Occupancy/Approval and a completed form Application for Purchase. The application was forwarded to Renters Reference, which performed a background screening that included obtaining a TransUnion credit report dated May 24, 2002. Renters Reference completed its investigation on May 29, 2002, and made its report to One Watergate. The screening committee approved the application and issued an undated Certificate of Approval. Ms. Lang closed on her unit in One Watergate in August 2002. Because the Board does not meet during the months of May through August, the Board did not ratify the screening committee's approval until its October 15, 2002, meeting. On May 29, 2002, Derrick Bhayat, a Sarasota realtor, entered into a contract with Janey and Paul Hess to purchase their One Watergate unit for $315,000. Mr. Bhayat was originally from Capetown, South Africa, where he was considered "colored." His ancestry is Malaysian, Zulu, and French. No party to the underlying proceeding disputed that Mr. Bhayat was a person of color. On May 30, 2002, Mr. Bhayat telephoned Ms. Farr and requested that he not be required to complete the application forms. Mr. Bhayat explained that he had always been cautious about providing personal information, such as his Social Security number to businesses. This general cautiousness became alarm in 2001 when his wife, Nancy Bhayat, was the victim of an identity theft. The thief used Mrs. Bhayat's Social Security number to obtain a Visa card and make $12,000 worth of purchases. Ms. Farr responded that the application would not be accepted unless all the requested information was provided. Nevertheless, on May 31, 2002, Mr. Bhayat submitted to the One Watergate office an application to occupy a unit and an application to purchase a unit. On these applications, Mr. Bhayat did not provide his or his wife's Social Security number. He did not sign the authorization to release his banking, credit, residence, employment, and police record information to Renters Reference, and he struck through the hold harmless provision. Mr. Bhayat's application to purchase was not accepted because One Watergate deemed it incomplete. This event triggered a series of negotiations between One Watergate's attorneys and the lawyer for Mr. Bhayat, the details of which are recited in the Recommended Order in Case No. 04-0816. The parties finally agreed that One Watergate would accept an application from Mr. Bhayat that reinstated the hold harmless provision, include his driver's license number in lieu of his Social Security number for conduct of the Renters Reference background check, and also include a credit report provided by Mr. Bhayat. Pursuant to this agreement, Mr. Bhayat re-submitted his application on or about June 12, 2002. On June 14, 2002, One Watergate's lawyer wrote a letter to Mr. Bhayat's lawyer that stated, in relevant part: It has come to my attention that the credit report submitted by Mr. and Mrs. Bhayat is not a credit report from a national credit reporting bureau but, in fact, is a consumer report which apparently is used quite often by mortgage brokers and realtors to compile only the positive aspects of an individual's credit reports. As a result of Mr. and Mrs. Bhayat's misrepresentation and attempt to deceive the Association, at this point only a complete and accurate application will be accepted by One Watergate Association. A complete and accurate application shall include both applicant's [sic] date of birth and social security numbers, as well as all other information requested on the application. . . . Mr. Bhayat made no further attempts to submit applications to One Watergate. Neither the screening committee, nor the full Board, ever took official action because the application was never deemed complete. Mr. Bhayat's purchase of the unit fell through. On July 19, 2002, Mr. Bhayat filed the Complaint with the Commission, alleging that One Watergate discriminated against him on the basis of national origin and color. The Commission assigned an investigator to the case. In support of his Complaint, Mr. Bhayat submitted a copy of his One Watergate application, including a 13-page credit report generated by MSC Mortgage, a joint venture of Wells Fargo Bank and Mr. Bhayat's employer, Michael Sanders and Company. The credit report was a "tri-merge" report, meaning that it combined information from all three major reporting services into a single report. In response to the investigator's request, One Watergate submitted a position statement on August 22, 2002. One Watergate generally denied Mr. Bhayat's allegations of discrimination and set forth a statement of facts in support of its position. One Watergate explained that Mr. Bhayat's final application was not considered complete because the credit report came from MSC Mortgage, rather than a credit reporting agency, which rendered it unacceptable. In response to Mr. Bhayat's allegation that he was required to provide information not asked of other applicants, One Watergate pointed out that Marcia Lang had applied and been accepted as a unit purchaser, using the Renters Reference application, two weeks before Mr. Bhayat submitted his first application. The Commission's investigator interviewed Jan Gillett, a former resident and Board member of One Watergate. Ms. Gillett told the investigator that the Renters Reference form applications had not been approved at the time Mr. Bhayat applied because the Board had yet to resolve the "buy back" controversy. Ms. Gillett also mentioned that a former Board member, now deceased, believed that Arab terrorists were planning to come into high rise condominiums, such as One Watergate, and blow them up. Ms. Gillett asserted that this former Board member had also stated that Mr. Bhayat's reluctance to disclose his Social Security number indicated that he had something to hide. The Commission's investigator interviewed Ms. Hess, co-owner of the unit Mr. Bhayat attempted to purchase. Ms. Hess told the investigator that Larry Farr, the husband of Janis Farr and "a member of management," had made remarks to her about Mr. Bhayat that could only be interpreted as referring to his skin color. According to Ms. Hess, Mr. Farr stated, "I knew the minute I saw that guy he was going to be trouble." Given that Mr. Bhayat did not have an intimidating physical presence, Ms. Hess assumed that Mr. Farr was referencing Mr. Bhayat's skin color or national origin. The Commission's investigator requested One Watergate to produce copies of all applications submitted by prospective residents during the period May 2002 through December 2002. When One Watergate declined to provide the applications, the Commission issued a subpoena seeking their production. One Watergate again declined on the ground that its residents' privacy interests precluded production of these applications absent a court order setting forth the type and dates of documents to be produced and the information that could be redacted from the documents prior to their production. One Watergate ultimately produced the redacted applications pursuant to an Order of the Circuit Court of the Twelfth Judicial Circuit entered on July 18, 2003. On September 22, 2003, the Commission's investigator produced a Final Investigative Report listing all the witnesses interviewed and documents reviewed during the investigation. The report lists Mr. Bhayat, Ms. Hess, and Ms. Gillett as the only substantive interviewees. On the same date, the investigator also produced a document entitled, "Determination" that set forth his findings and his recommendation that there was cause to believe that a discriminatory housing practice had occurred. On November 14, 2003, the Commission issued a document entitled, "Legal Concurrence: Cause." As the title suggests, this document represented the concurrence of the Commission's legal counsel with the investigator's conclusion that there was reasonable cause to believe that a discriminatory housing practice had occurred. The legal analysis, prepared by the Commission's attorney Vicki Johnson, stated as follows, in relevant part: The Complainant has satisfied all the requirements of a prima facie case. The Complainant has a dark complexion and is from South Africa, therefore he is protected on the basis of color and national origin; he submitted an application to purchase the condominium and had obtained mortgage approval. Once his application was rejected, the condominium remained available for sale. Respondent articulated a non-discriminatory reason for denying the Complainant's application; however, this reason is determined to be pretext. To show pretext, the Complainant need only show that his color and national origin were in some part, the basis for the denial of the sale. . . A landlord has the right to request information about the financial status of prospective tenants; an inadequate or incomplete application form may act as a defense to a discrimination charge by providing a legitimate basis for the action taken. . . However, a violation of the Fair Housing Act can be found even where formal requisites of a contract/application are not satisfied, if the motivation behind rejection of the contract was discriminatory. . . . Respondent states that the Complainant did not submit a complete application because he failed to provide his and his wife's social security number[s]. The Complainant explained that he did not provide the social security numbers because his wife had recently had her identity stolen and was afraid to disclose her social security number. The application which the Complainant was asked to complete was not to take effect until July 1, 2002, when Respondent entered into a contract with Renter's [sic] Reference, who was to provide a credit report for applicants applying to purchase a condominium. The Renter's Reference application form is more detailed than the previous application. While it is true that the Complainant did not disclose his social security number, which would permit Renter's Reference to obtain his credit report, the Complainant did provide a copy of a credit report that was obtained by his mortgage company. This credit report included both positive and negative credit issues and provided similar information as that which would have been generated by Renter's Reference. Moreover, the minutes of the April 2002 meeting of the One Watergate Board of Directors indicates [sic] that the board approved a motion that "no new applicants be turned down until the revision of documents with reference to the obligation of the Association to purchase the unit where an applicant has been rejected." The Complainant's application was submitted after this decision by the board, but was turned down. In addition, Mrs. Hess stated that when she inquired about the Complainant's application, Mr. Farr (the building manager) told her that "I knew from the minute I saw that guy that he was going to be trouble . . . when you see him, you'll know what I mean." This statement is clearly referencing the Complainant's physical appearance. Mr. Farr was acting as an agent for the Respondent, therefore, the Respondent is vicariously liable for his actions and statements. [Citations omitted.] Also, on November 14, 2003, the Commission's executive director issued a Notice of Determination and Administrative Charge finding that there was reasonable cause to believe that a discriminatory housing practice had occurred. Prior to filing the Petition for Relief that initiated the underlying proceeding, the Commission afforded One Watergate an opportunity to submit additional information in its defense. On February 23, 2004, counsel for One Watergate submitted several documents to the Commission. The first was a signed statement by Mr. Farr denying that he made the remarks alleged by Ms. Hess. The second document was the contract between Renters Reference and One Watergate, indicating an effective date of May 6, 2002, not July 1, 2002, as alleged by the Commission. Counsel for One Watergate also included Ms. Farr's version of the sequence of events concerning Mr. Bhayat's application and the minutes of a June 25, 2002, Board meeting at which the Board voted to return the application to Mr. Bhayat for completion, thus indicating that the Board did not "disapprove" that application. Finally, One Watergate included a letter from Warren Plant, the president of Renters Reference, explaining why he considered the credit report submitted by Mr. Bhayat to be unacceptable: At this time in 2002, we could not pull a credit report without an individual's Social Security Number. We obtain our credit reports directly from the national credit bureaus and provide our customer with an exact copy of this credit report. We do not obtain our credit reports from third-party consumer reporting agencies. The credit report submitted by Mr. Bhayat was a concoction put together by a third-party consumer reporting agency, not an exact copy of a credit report from a national credit bureau. A consumer reporting agency takes information from different sources and they make up their own credit report, including or excluding whatever information they want. On March 10, 2004, the Commission filed the Petition for Relief that initiated Case No. 04-0816. At the hearing in that case, it was established that Mr. Farr had nothing to do with management of One Watergate; rather, he was the building's maintenance man. The undersigned credited his denial of the statements attributed to him by Ms. Hess, but also found that even if Mr. Farr made those statements, they could not be attributed to One Watergate because Mr. Farr played no role in the application process and had not discussed Mr. Bhayat with any Board member or with his wife. At the hearing, it was also established that Renters Reference never received the full credit report prepared by MSC Mortgage and submitted by Mr. Bhayat with his last application. Mr. Bhayat produced a 13-page report at the hearing, but witnesses for One Watergate and Renters Reference credibly testified that they received only the first two pages, which summarized the information in the full report. The undersigned credited Mr. Plant's testimony that even the full report did not meet Renters Reference's criteria for a credit report, and thus, the result would have been the same even if Mr. Bhayat had submitted the full credit report. The undersigned also credited Mr. Plant's testimony that his company does not "mess around" with the Fair Housing Act and that he would have immediately canceled the contract with One Watergate if he had had the least suspicion that the Board was basing its actions on Mr. Bhayat's race, color, or national origin. The Recommended Order in Case No. 04-0816 did not directly address the issue of the minutes of the April 16, 2002, Board meeting because the evidence produced by One Watergate at the hearing rendered that issue irrelevant. The undersigned credited the testimonial and documentary evidence produced by One Watergate to show that the referenced minutes were not accurate. No motion was made or adopted regarding the effect of the "buy back" provision on the new applicant screening process. The issue was discussed at the meeting, but no action was taken by the Board. The undersigned found no evidence that any member of the Board or the screening committee discriminated against Mr. Bhayat due to his race, national origin, or for any other reason. Most of them never met Mr. Bhayat and were unaware of his race or national origin during the period in dispute. Mr. Bhayat simply declined to submit a complete application to One Watergate, which, in turn, declined to consider his incomplete application. Prior to filing its Petition for Relief, the Commission did not interview either of the Farrs or any Board member aside from Ms. Gillett. Such interviews might have caused the Commission to question the credibility and/or accuracy of the information provided by Mr. Bhayat, Ms. Gillett, and Ms. Hess. However, nothing that the Farrs or the Board members stated would necessarily have led the Commission to conclude that it lacked cause to proceed. The Commission would have had to make a judgment as to the credibility of the witnesses, as did the undersigned at the final hearing. A more detailed investigation might have revealed that there was a dispute as to whether Mr. Bhayat submitted the full credit report or merely the first two pages. However, at the time the Commission found cause, neither the Commission nor One Watergate apparently realized there was an issue regarding the report. The Commission assumed that One Watergate received the full 13-page report and had no reason to believe otherwise. One Watergate assumed that the two pages it received constituted the full report until Mr. Bhayat produced the full report at the hearing. The matter was resolved at the hearing, essentially as a matter of witness credibility. Mr. Bhayat was adamant that he submitted the full report, but Ms. Farr and Mr. Plant convincingly testified that they received only the first two pages. It is not clear how extensive the Commission's investigation would have to have been in order to learn that the published minutes of the Board's April 16, 2002, meeting were not accurate. According to the published minutes, no applicant would be rejected until the Board voted on the repeal of the "buy back" provision of the One Watergate by-laws, yet Mr. Bhayat was rejected (or more precisely, his application was not considered) prior to any such vote being taken. Thus, the published minutes were a very significant factor in the Commission's judgment that One Watergate was treating Mr. Bhayat differently than other applicants, and the Commission continued to rely on the minutes throughout the underlying proceeding. The Commission argued, strenuously and not unreasonably, that the undersigned should not credit One Watergate's self-serving testimony and documentary evidence indicating that the minutes were inaccurate. An interview with Mr. Farr would have revealed that he disputed Ms. Hess' account of their conversation, but this again would have been a matter of witness credibility and the weighing of corroborating evidence to determine the facts. The Commission had Mr. Farr's written statement of denial in its possession at the time the Petition for Relief was filed indicating that the Commission did not find Mr. Farr persuasive. The mere fact that Mr. Farr denied the allegation would not render the Commission's reliance on Ms. Hess' testimony unreasonable per se. From the outset of the underlying proceeding, the Commission made it clear that it did not intend to rely solely on the alleged statement of Mr. Farr, or the hearsay statements of Ms. Gillett, to establish that One Watergate had discriminated against Mr. Bhayat. Counsel for the Commission acknowledged in her opening statement that this would be a case based on circumstantial evidence of discriminatory motive on the part of One Watergate. The Commission's theory of the case, in a nutshell, was that Renters Reference's "bread and butter" lay in assisting organizations such as One Watergate to keep out "undesirables," and that Renters Reference was always going to find some reason not to accept Mr. Bhayat's application because One Watergate had labeled him an "undesirable." Because Mr. Bhayat was a successful realtor, was financially able to purchase the condominium in question, and lacked a criminal record or other disqualifying attribute, the Commission concluded that the reason for not accepting his application must have been his color or national origin, which was the only obvious distinction between Mr. Bhayat and those applicants whose applications were accepted and approved by Renters Reference and One Watergate. Based on the information before it at the time it found reasonable cause to believe that an act of discrimination occurred, the Commission had a reasonable basis in law and fact to proceed with the case. The Commission's investigation was not perfect, but the overriding factor in the underlying case was witness credibility. The Commission was substantially justified in finding the statements and testimony of Mr. Bhayat, Ms. Hess, and Ms. Gillett credible during its investigation, despite the fact that the undersigned ultimately chose to credit the testimony of One Watergate's witnesses, in light of all the evidence produced at the hearing.
Recommendation In light of the foregoing, it is hereby RECOMMENDED that the Department issue a final order dismissing Petitioner’s amended petition on the grounds that Petitioner lacks standing to administratively challenge the Department’s decision not to disapprove Hensler’s proposed appointment to Sunniland’s board of directors and that the Department, having failed to act within the time frame prescribed by Rule 3C-100.0385, Florida Administrative Code, does not have the authority to reconsider its decision and issue a letter of disapproval, as requested by Petitioner.16 DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April 1997
The Issue The issue in this proceeding is whether Petitioner is entitled to retirement service credit for the time period in which he was not employed with the State of Florida.
Findings Of Fact The Department of Management Services (DMS) is responsible for the administration of the Florida Retirement System (FRS) under Chapter 121, Florida Statutes. The Department of Transportation (DOT) is an agency of the State of Florida whose employees qualify for membership in FRS. Petitioner Richard L. Duley is an honorably discharged veteran. He began employment with DOT in 1991. At the same time, he became a member of FRS. Prior to 2001, then-Governor Jeb Bush directed state agencies to reduce their workforce by 25 percent over a five- year period beginning in 2001. The directive was known as the "Service First Initiative." In response to the Governor’s directive, DOT developed an Agency Organizational Efficiency Plan. On January 18, 2005, Petitioner was notified that his position was designated to be deleted under the Agency’s Organizational Efficiency Plan; his position was abolished on June 30, 2005. As a result, Petitioner was dismissed from state employment and was no longer receiving retirement service credit for FRS. However, Petitioner did not receive a clear point of entry to challenge either his termination or whether he was entitled to a veteran's preference by DOT. After his dismissal, Petitioner was hired by a private firm who had contracted with the State to perform the functions that Mr. Duley had previously provided as an employee of the state. The contract terminated in June or July of 2007, and was not renewed. As such, Mr. Duley became unemployed. On July 30, 2007, Petitioner filed a complaint with the Department of Veterans’ Affairs (DVA) alleging that DOT had denied him veteran’s preference in retention during the 2005 layoff. The DVA found that Petitioner's complaint had merit. On November 19, 2007, Petitioner filed a complaint with the Public Employees Relations Commission (PERC), which held an evidentiary hearing on the complaint. PERC is the administrative body that has jurisdiction to determine issues and remedies under the veteran's preference statute. In its Final Order issued April 8, 2007, PERC found that Petitioner was an honorably discharged veteran and was entitled to preferential treatment in employment. PERC also found that DOT violated the veteran’s preference law by not affording Petitioner special consideration in finding alternative employment after the layoff. As a remedy for its violation of the veteran's preference law, PERC ordered DOT to make Petitioner an offer of employment to an existing position comparable to that which he held prior to his layoff. PERC also awarded Petitioner attorneys’ fees and costs. However, and most importantly, PERC did not reinstate Petitioner to his former position because it had been abolished. Similarly, PERC did not rescind Petitioner's termination. Finally, PERC did not award back pay or benefits to Petitioner. As a consequence of the Final Order, neither Petitioner nor DOT paid contributions towards the Retirement Systems Trust Fund for the period that Petitioner was not employed with the State. Additionally, Petitioner was offered and hired into a new position by DOT and again began to accrue retirement service credit in FRS when he was hired by DOT in May of 2008. The PERC Final Order was not appealed and became res judicata on the issues litigated therein. Therefore, since Petitioner's termination was not rescinded and Petitioner was not reinstated by PERC and did not pay contributions into FRS, he is not entitled to receive credit for the time he was not employed by the State and this action should be dismissed.
Recommendation Based upon the foregoing, Finding of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a Final Order dismissing this action. DONE AND ENTERED this 23rd day of December, 2010, 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 23rd day of December, 2010. COPIES FURNISHED: Richard L. Duley 5432 Pinderton Way Tallahassee, Florida 32317 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Kristin M. Klein, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner enrolled in "Plan A" of the Teachers Retirement System on August 13, 1954 as a teacher in the Orange County Florida school System. Petitioner transferred to Jacksonville, Florida and began teaching in Duval County on August 18, 1959 and continued hem membership in the Teachers' Retirement System "Plan A". Petitioner requested a change from the Teachers' Retirement System "Plan A" to Teachers' Retirement System "Plan E" by letter dated April 5, 1965. Petitioner was approved on March 26, 1966 for Teachers' Retirement System benefits and received disability retirement benefits for a period of time until she re-entered the teaching profession on November 27, 1970 in Duval County, Florida. She subsequently repaid an overpayment of these disability benefits which been paid for a period of time when she had returned to work in Duval County without notice to the Division of Retirement. Petitioner transferred from the Teachers Retirement System to the Florida Retirement System on October 15, 1970 when she signed a ballot entitled "Social Security Referendum and Application for Florida Retirement System Membership". Petitioner complains that she did not know when she signed the ballot that she was in fact changing her retirement from the Teachers' Retirement System to the Florida Retirement System contending that the statements of the person conducting the meeting at which the ballots were distributed informed the group the ballots were for an election for social security coverage. The ballot, however, clearly reflects that if social security benefits are desired, a change in the retirement system is necessary. Petitioner applied for Florida Retirement System disability benefits on October 20, 1971 and was approved. This benefit is $26.07 per month greater than the benefits she would have received had she remained in the Teachers' Retirement System. On October 3, 1975, Petitioner was supplied with the various documents concerning her actions in regard to her retirement benefits and was informed that her election to transfer into the Florida Retirement System was irrevocable and there was no method by which she could be transferred back into the Teachers' Retirement System. She requested a hearing on the transfer.
Recommendation Dismiss the Petition of Petitioner Martha A. Crosson. DONE and ORDERED this 15th day of November, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Martha A. Crosson 801 West Myrtle Independence, Kansas 67301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT MARTHA A. CARSON, Petitioner, vs. CASE NO. 76-1456 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
Findings Of Fact Based upon the parties' factual stipulations, the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On August 28, 1992, Petitioner submitted to the Department its application for licensure as a mortgage lender. 1/ On October 28, 1992, the Department sent Petitioner a letter announcing its intent to deny Petitioner's application for licensure as a mortgage lender. The text of the letter read as follows: This is to inform you that your Application for Licensure as a Mortgage Lender for Citifirst Mortgage Corp. is hereby denied. The denial is based on Section 494.0072(2)(k), Florida Statutes. Section 494.0072(2), Florida Statutes, "Each of the following acts constitutes a ground for which the disciplinary actions specified in subsection may be taken: . . . (k) Acting as a mortgage lender or correspondent mortgage lender without a current active license issued under ss. 494.006-494.0077." The Department's investigation revealed Citifirst Mortgage Corp. has acted as a mortgage lender without a current, active license. Please be advised that you may request a hearing concerning this denial to be conducted in accordance with the provisions of Section 120.57, Florida Statutes. Requests for such a hearing must comply with the provisions of Rule 3-7.002, Florida Administrative Code (attached hereto) and must be filed in duplicate with: Clerk Division of Finance Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 (904) 487-2583 within twenty-one (21) days after receipt of this notice. Failure to respond within twenty-one days of receipt of this notice shall be deemed to be a waiver of all rights to a hearing. Should you request such a hearing, you are further advised that at such a hearing, you will have the right to be represented by counsel or other qualified representative; to offer testimony, either oral or written; to call and cross examine witnesses; and to have subpoenas and subpoenas duces tecum issued on your behalf. Petitioner timely requested a formal hearing on the proposed denial of its application. The matter was referred to the Division of Administrative Hearings, where it is still pending.
The Issue Whether Petitioner is eligible to receive retirement credit for the period of his employment with the Florida Bar from July 1, 1977 through June 4, 1981.
Findings Of Fact Petitioner was employed by the Florida Bar from July 1, 1977 to June 4, 1981. The record is unclear as to the nature of his employment at the Florida Bar. He is presently employed as a professor at Florida State University and has approximately 24 years' credit in the Florida Retirement System (FRS). Employees of the Florida Bar are paid as part of an overall budgetary process generated primarily from members' dues. Their salaries are not established by or funded by legislative appropriation. The Florida Bar has its own pension system that is a defined contribution plan funded entirely by the Florida Bar. The Bar employees contribute nothing to their pension system. This system has been in place since approximately 1970. Salaries of state officers and employees are reported from the State Comptroller to the Division of State Retirement. No salaries of the Florida Bar were paid or reported to the Division for the period of time Petitioner was employed at the Florida Bar. In the 1970's the FRS went from an employee/employer funded system to a strictly employer funded system which became known as a non-contributory system. The Florida Bar does not participate as a paying agency of the FRS and employees of The Florida Bar do not participate in any state employee benefit system. Beginning in 1955, until the establishment of the FRS, the Florida Board of Bar Examiners participated in the former public retirement system. When the FRS was created, participants, such as the Florida Board of Bar Examiners, began reporting into the new system and were allowed to participate in the new system. Mr. Ragsdale, administrator of the enrollment section of the Division, established that the employees of the Board of Bar Examiners participated by contributing into the former retirement system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for retirement service credit for the period of his employment with the Florida Bar. DONE AND ENTERED this 14th day of September, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2001.
