The Issue Whether or not existing Rule 21A-20.012 F.A.C. is an invalid exercise of delegated legislative authority. See, Sections 120.52(8) and 120.56 F.S.
Findings Of Fact Petitioner Silvia S. Ibanez is a practicing attorney and a member of the Florida Bar, and holds active Florida CPA License No. 10842, currently in good standing. She is also a Registered Investment Advisor with the Florida Division of Securities and a certified financial planner (CFP). She has been charged with violating Rule 21A-20.012 F.A.C. in DOAH Case No. 91-4100 which is currently pending before the Division of Administrative Hearings. As a licensee with the federal Securities and Exchange Commission, Petitioner is required to, and does, disclose the fact that she is a CPA. Petitioner Ibanez is listed in the yellow pages under the heading "Attorneys" as "Ibanez, Silvia, S., CPA, CFP." On its face, there is nothing false or fraudulent about this listing. As an attorney, Petitioner also places CPA after her name on her business cards and on her letterhead. Respondent contends that because Petitioner "holds out" to the public as a CPA, uses accounting skills, and provides one or more types of management, advisory, or consulting services, she is currently "practicing public accounting." Intervenor James R. Brewster is also a practicing attorney, a Board- certified tax lawyer, and a member of the Florida Bar, and holds an active Florida CPA license. Mr. Brewster has been charged with violating Rule 21A- 20.012 F.A.C. in DOAH Case No. 90-3278 which is currently pending before the Division of Administrative Hearings. The administrative complaint therein charges violations of Rule 21A-20.012 F.A.C. and Sections 473.323(1)(a), (g), and (h) F.S. on the basis that Brewster's law firm letterhead designates him as a "CPA" and the law firm is not licensed by the Board of Accountancy as a public accounting firm. Intervenor American Association of Attorney Public Accountants (AAA- CPA) is a not-for-profit corporation with its principal place of business in Mission Viejo, California. Founded in 1964, the AAA-CPA is an active professional organization of persons dually qualified as both attorneys and CPAs. Its membership is comprised of practitioners in public accounting, law, government, education, and other activities. One of the functions of the AAA- CPA is to engage in the analysis and discussion of ethical and other issues related to practitioners who are dually licensed in the accounting and law professions. This includes monitoring and commenting upon legislation affecting the practice of law and public accountancy and participating in the development of ethical standards of lawyers and CPAs. AAA-CPA's substantial interests are affected by this proceeding in that its members are CPAs who are directly affected by the definition, scope, and regulation of the practice of public accounting by Florida statutes and rules. Respondent Board of Accountancy is an agency of the State of Florida established pursuant to the provisions of Chapter 473 F.S. Pursuant to Section 473.301 F.S., the Board is authorized in the following language to regulate the "practice of public accounting": Purpose.--The Legislature recognizes that there is a public need for independent and objective public accountants and that it is necessary to regulate the practice of public accounting to assure the minimum competence of practitioners and the accuracy of audit statements upon which the public relies and to protect the public from dishonest practitioners and, therefore, deems it necessary in the interest of public welfare to regulate the practice of public accountancy in this state. Respondent Department of Professional Regulation is an umbrella agency for the Board of Accountancy, established under the provisions of Section 20.16 and Chapter 455 F.S. Intervenor Florida Institute of Certified Public Accountants (FICPA) is a Florida not-for-profit corporation with its principal place of business in Tallahassee. Founded in 1905, the FICPA is an active professional organization with approximately 17,800 members. Its membership is comprised of practitioners in public accounting, industry, government, education, law, and other activities. One of the functions of the FICPA is to engage in the analysis and discussion of issues related to the accounting profession. This includes monitoring the scope of services provided by certified public accountants in Florida and throughout the United States, monitoring legislation affecting the practice of public accountancy, and participating in the development of auditing, accounting, and ethical standards of CPAs. Intervenor FICPA's substantial interests are affected by this proceeding in that its members are CPAs who are directly affected by the definition, scope, and regulation of the practice of public accounting by Florida statutes and rules. It is even recognized in the statute. See, Section 473.302 F.S., infra. Challenged existing Rule 21A-20.012 F.A.C., also referred to as the "holding out" rule, provides as follows: 21A-20.012 Holding Out. "Holding himself or itself out" as used in Section 473.302(4), F.S. is defined as publicizing that the licensee is a certified public accountant when providing, or offering to provide services or products to the public, in such a manner that an uninformed person may not be able to differentiate whether or not the licensee may also be in the practice of public accounting. The display of the CPA certificate and license issued by the Department of Professional Regulation shall not constitute holding out under the terms of this rule. All other publication of the fact that a licensee is a CPA constitutes holding oneself out. The specific statutory authorities currently cited by the agency for the rule are Sections 473.302, 473.304 and 473.307 F.S. and the law implemented is cited as Section 473.302 F.S. Section 473.307, dealing with "experience," does not impinge on these proceedings. The remaining authorities provide as follows: Definitions.--As used in this act: "Board" means the Board of Accountancy. "Department" means the Department of Professional Regulation. "Certified public accountant" means a person who holds a license to practice public accounting in this state under the authority of this act. "Practice of," "practicing public accountancy," or "public accounting" means: Offering to perform or performing for the public one or more types of services involving the use of accounting skills or one or more types of management advisory consulting services, by a certified public accountant or firm of certified public accountants, of this state, including the performance of such services in the employ of another person; or Offering to perform or performing for the public one or more types of services involving the use of accounting skills or one or more types of management advisory or consulting services, by any other person holding himself or itself out as a certified public accountant or firm of certified public accountants, including the performance of such services by a certified public accountant in the employ of a person so holding himself or itself out. However, these terms shall not include services provided by the American Institute of Certified Public Accountants, the Florida Institute of Certified Public Accountants, or any full service association of certified public accounting firms whose plans of administration have been approved by the board, to their members or services performed by these entities in reviewing the services provided to the public by members of these entities. [Emphasis supplied] 473.304 Rules of board.--The board shall adopt all rules necessary to administer this act. Every licensee shall be governed and controlled by this act and the rules adopted by the Board. Also relevant to these proceedings is Section 473.322 F.S. which provides as follows: 473.322 Prohibitions; penalties.-- No person shall knowingly: Practice public accounting unless the person is a certified public accountant or a public accountant; Assume or use the titles or designations "certified public accountant" or "public accountant" or the abbreviations "C.P.A." or any other title, designation, words, letters, abbreviations, sign, card, or device tending to indicate that such person holds an active license under this act, unless such person holds an active license under this act; Attest as an expert in accountancy to the reliability or fairness of presentation of financial information or utilize any form of disclaimer of opinion which is intended or conventionally understood to convey an assurance of reliability as to matters not specifically disclaimed unless such person holds an active license under this act. This subsection shall not prevent the performance by persons other than certified public accountants of other services involving the use of accounting skills including the preparation of tax returns and the preparation of financial statements without expression of opinion thereon. Present as his own the license of another; Give false or forged evidence to the board or a member thereof for the purpose of obtaining a license; Use or attempt to use a public accounting license which has been suspended, revoked, or placed on inactive status; Employ unlicensed persons to practice public accounting; or Conceal information relative to violations of this act. Any person who violates any provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [Emphasis supplied] Although it has not been challenged, Rule 21A-21.009 F.A.C., the "other business activity rule," is relevant to these proceedings. That existing rule currently provides as follows: 21A-21.009 Other Business Activities. A licensee engaged in the practice of public accounting may concurrently engage in another business, occupation, or profession if: The licensee does not hold himself out as a certified public accountant in that activity, The activity is conducted under a name which the public will not associate with licensee's practice of public accounting, The other business, occupation, or profession is not used to promote the practice of public accounting in any manner prohibited by Chapter 473, F.S., Facilities used by the licensee in his public accounting practice and other activity conform to the requirements of 21A-26.001(3), The entity's dealings with the licensee's public accounting clients shall not violate the provisions of Chapter 473, F.S., and 21A, Florida Administrative Code, relating to integrity and objectivity, The entity does not interpret financial statements, forecasts or projections audited, reviewed, compiled or prepared by others. [Emphasis supplied] Although it has not been challenged, Rule 21A-20.011 F.A.C. is relevant to these proceedings. That existing rule currently provides as follows: 21A-20.011 Practice of, or Practicing Public Accountancy. "Practice of, or practicing public accountancy" as defined by Section 473.302(4), F.S., shall exclude any of the following: Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473, or Activities of licensees who do not hold themselves out as CPAs and who are not associated with financial statements, or Activities of licensees who do not hold themselves out as certified public accountants. [Emphasis supplied] Petitioner's and Intervenor Brewster's CPA certificates (like all Florida CPA certificates) authorize them to display their CPA credentials. The CPA certificate represents that the recipient . . . has passed all examinations and has met all other requirements prescribed by law and by rule of this board for certification as an expert public accountant, and is therefore entitled to append the letters CPA after this registrant's name to evidence registration by this board as a Certified Public Accountant. [Emphasis supplied] The Board's only classifications of CPA licenses/licensees are "active" or "inactive." "Active" and "inactive" refer to the status of the CPA license and do not refer to or imply that the licensee is actively practicing public accounting. One can be an actively licensed CPA and not be practicing public accounting. Attainment of the CPA credential is an accomplishment that is recognized in the business community. The CPA credential of a Florida-licensed CPA connotes high competency and achievement levels in the discipline of accounting. Truthful communication of the CPA credential by actively licensed CPAs for identification purposes constitutes valuable disclosure to the public. The use of the term "CPA" implies a specific competency to the public. The fact that Petitioner Ibanez or Intervenor Brewster is a CPA is valuable to their respective legal clients. CPA status is a valuable property right to each CPA, and the ability of a practicing attorney to publicize the fact that s/he also holds an active CPA license is a valuable asset to that individual. It is conceded by all parties that it is possible to practice law and public accounting in the same business activity. There are firms that simultaneously hold themselves out as law firms and public accounting firms. The activities of other regulated professionals, such as members of the Florida Bar, which overlap those of practicing CPAs are subject to the regulatory standards of their principal regulated professions and applicable judicial and administrative remedies for malpractice and negligence. It is conceded by all parties that many activities conducted by professionals and nonprofessionals, other than by CPAs and other than by attorneys, are identical to activities performed by CPAs engaged in public accounting. For instance, anyone can legally prepare a tax return. Bookkeepers and free-lance tax assistors of all sorts are unregulated in any way. The only activity among public accounting activities that is a unique activity of CPAs is the "attest" function. See, Section 473.322(1)(c) F.S. Truthful use, communication, or disclosure of the CPA credential by an actively licensed CPA does not per se constitute false, misleading, or deceptive advertising. The evidence does not support a finding that withholding truthful disclosure that one has earned the CPA credential benefits the public welfare or effects the purposes of the enabling legislation, or indeed, how such nondisclosure could promote them, particularly since it has been shown that persons of considerably lesser competency and achievement levels in the discipline of accounting may legally offer to the public almost all the services provided by CPAs. Prior to 1984, when the "holding out" rule was adopted, a Florida- licensed CPA who offered one or more types of accounting services to the public or who offered one or more types of management advisory or consulting services to the public was considered to be "practicing public accountancy," whether or not that person appended the initials "CPA" after his or her name. The "holding out" rule became effective on September 17, 1984. Chapter 89-87 Laws of Florida amended Section 473.302(4) F.S. (i.e., the definition of public accountancy) but the amendment did not change the previously existing "holding out" language therein. The "holding out" rule was adopted more than one year before the initiation of this rule challenge. There is no dispute among the parties that the definition within the challenged Rule 21A-20.012 F.A.C. is circular. In attempting to define the term "holding out" so that the use of that term in Section 473.302(4) F.S. may be clarified, the rule incorporates the statutory phrase "practice of public accounting," and the term "practice of public accountancy/accounting" in Section 473.302(4)(b) F.S. incorporates the term "holding out," 1/ as does Rule 21A- F.A.C., 2/ which creates exemptions to the statute. At least one purpose of the second sentence of the existing rule seems to have been to allow all CPAs to display their CPA certificates on their inner office walls without fear of disciplinary action by the Board. The Board's expressed rationale for excluding "display of a CPA certificate" from its "holding out" rule is premised on the fact that during an office visit, a CPA can immediately disabuse any individual of the fact that s/he is practicing public accounting once that individual is inside the CPA's office. However, Petitioner demonstrated, and the Board conceded, that an individual may have the opportunity to disabuse members of the public that s/he is engaged in the activity of the practice of public accounting or that s/he is offering all the services normally associated with a CPA, as opposed to law or some other profession, at least where there is direct contact by letter or telephone. Clearly, there are many ways a nonattesting, actively licensed CPA who is dually licensed can clarify to those seeking his or her services which profession, function, or service s/he is willing to perform for that client. On the other hand, the challenged rule does not deal with all members of the public, or members of the public specifically seeking CPA services, or members of the public seeking some other service. The rule deals with "uninformed persons." As used in the rule, the term "uninformed person" is undefined and has been subject to differing speculative interpretations by the Board and by non-Board witnesses, some of which interpretations address such broad categories as anyone using a telephone book. The Board also suggested that only display of the original CPA certificate on an inside office wall would be exempt from prosecution for publication, but a reasonable person could interpret the rule on its face to permit posting the CPA certificate or an exact facsimile of the certificate on a sign outside an office building or circulating as business cards exact reduced- size copies of the certificate even though these types of "publication" or "display" would not provide the same opportunity as an office visit would provide for the CPA to disclose to individuals the actual services the CPA was offering to perform. Accordingly, there has been no rational basis for the "holding out" rule's distinction between "display" of the licensee's CPA certificate and other forms of truthful, nonmisleading publication of the CPA licensure/status. The agency's expressed rationale behind its adoption of the "holding out" rule was to define the meaning of the statutory term "holding out," as used in Section 473.302(4) F.S., a term which has also been adopted into a number of other rules (see, supra), so as to provide guidance on when a person who has been licensed as a CPA is engaged in the "practice of public accounting." Specifically, the Board maintained that the "holding out rule" and the "other business activity rule" give licensees two options. Under the first option, the "holding out" rule permits licensees to retain their CPA certificates when not in compliance with all of the provisions of Chapter 473 F.S. and the rules promulgated thereunder, as long as they do not publicize themselves as CPAs. Alternatively, the Board perceives that under the second option, if licensees do publicize themselves as CPAs when performing services for the public, licensees become subject to regulation by the Board and are held to the standards of competency and conduct which are applicable to all CPAs who use their accounting skills for the public while trading on the fact of their licensure as a Florida CPA. However, the words "publicizing" and "publication" as used in the "holding out" rule are also undefined. Although Respondents submitted that the "common usage" of these words is sufficient to embrace listings in the yellow pages, it is also quite possible to give these words a far broader reading to encompass the "assumption" and "use" of the designation "CPA" and the "assumption" and "use" of the CPA credential, which "assumption" and "use" are specifically reserved to all actively licensed CPAs and which designation is permitted to be inserted after their names on signs, cards, or devices by Section 473.322(1)(b) F.S. [see Finding of Fact No. 11] and by the CPA certificate itself which permits them to "append" CPA after their names [see Finding of Fact No. 14]. The rule has actually subjected CPAs, and specifically has subjected Petitioner and Intervenor Brewster, to DPR disciplinary proceedings independent of any other act or wrongdoing merely for any "publication" of the CPA credential in a form other than display of the original CPA certificate on an inner office wall. The rule may automatically subject attorney-CPA licensees to DPR disciplinary proceedings independent of any other act or wrongdoing merely on the basis of passive, truthful communications which are otherwise in full compliance with the standards of the Florida Supreme Court and Florida Bar. The rule has the potential for being interpreted so as to prohibit CPAs such as Petitioner and Intervenor Brewster from making disclosures of their earned status as CPAs to various regulatory bodies to which they are required by law to disclose that information. See, Findings of Fact 1 and 2, supra. The rule can be invoked to limit their income by chilling their appearances as expert CPA witnesses for a fee even if they never work for an uninformed layman at all. Applicants for certain state employments and candidates for public office may run afoul of the rule due to the disclosure requirements of public office. Even at risk is the CPA called as a factual witness who is then sworn to tell the truth and asked innocuous biographical information. One's desire to attain a CPA credential may be chilled by the hazard of using it. Chapter 473 F.S. contains limitations on competitive negotiation, prohibits accepting contingent fees, prohibits the payment of certain commissions, and establishes other prohibitions to which persons who are deemed to be "practicing public accountancy" must adhere. Some of these prohibitions are contrary to normal, ethical practice of other professions, i.e., acceptance of contingent fees by lawyers. If the rule remains intact, the Board and DPR under Chapters 473 and 455 F.S. have the potential of breaching the confidentiality of CPA-attorneys' legal clients' files. See, Section 473.316(5) and 473.318 F.S. Since attorneys are exclusively overseen by the Florida Supreme Court, the rule potentially violates the doctrine of "separation of powers" among the three branches of state government. Therefore, the definitional rule creates a wedge whereby the Board may insinuate its discipline into other professions and confuses dually licensed CPAs from knowing how they may behave in each profession without running afoul of discipline in the other. In application with other rules, the "holding out" rule sets confusing and varying standards for agency decisions involving attorneys, bankers, CPAs employed by private corporate employers, and CPAs with their own financial consultant firms. The Board of Accountancy has issued a series of letter opinions based on the "holding out rule" or based on that rule read in conjunction with Rule 21A-21.009 F.A.C., the "other business activity rule," which indicate that a Florida CPA who does not "hold out" to the public as a CPA and who is not associated with financial statements is permitted by the Board to engage in other business activities without complying with the provisions of Chapter 473 F.S., that is, not being subject to DPR discipline, because the Board does not view that CPA in those activities as "practicing public accountancy." Also, the Board of Accountancy has issued a series of opinions to the effect that, by virtue of Section 473.302(4) F.S. and the "holding out rule," a CPA who "holds out" (publicizes his or her status as a CPA) is automatically, by definition, "practicing public accounting," regardless of what actual business activity s/he is performing. These opinions also indirectly insinuate the Board of Accountancy into many other professions, including the practice of law, which the Board has no statutory mandate to regulate pursuant to Section 473.301 F.S. The plethora of opinions issued by the Board dramatize the confusion experienced by CPAs who have sought to have the Board interpret the rule in question on a case-by-case basis. Testimony of the Chairman of the Board was offered to establish that absent the challenged rule, the Board cannot reasonably regulate negligence in the profession and that absent the rule, only fraud could be prosecuted by the Board. He testified that, in his opinion, the challenged rule means that a CPA performing tax services for a client is not doing "public accounting" if "CPA" is not appended after the CPA's name in advertising and that that CPA cannot be disciplined by the Board for negligence, any more than he could be disciplined if he were a non-CPA doing tax services. The Chairman further opined that a CPA doing tax services is doing public accounting only if he appends CPA after his name, and in that instance, the Board can and will discipline that CPA for negligence, should he commit any. Further, the Chairman indicated that if Rules 21A-21.009, 21A-20.011, and 21A-20.012 F.A.C. were not simultaneously in place, the actively licensed CPA who places CPA after his name could not be disciplined by the Board for negligence, but only for fraud. Precisely how this would occur was not made clear, but upon the foregoing, together with the Board opinions admitted in evidence, it is concluded that the Board has utilized what purports to be purely a definitional rule to establish disciplinary jurisdiction and that in certain instances the rule puts DPR in the precarious position of only being able to prosecute CPAs with "CPA" appended after their names, but not CPAs who perform the same services and who do not append "CPA" after their names. Such a result is nonsensical. The Board does not seriously suggest that if Rule 21A-20.012 F.A.C. is invalidated, Rule 21A-20.011 would provide a blanket exclusion from all provisions of Chapter 473 F.S. for CPAs "using" or "assuming" or "publicizing" their status. At a minimum, such CPAs would have to maintain their credential as would any other CPA for good character, payment of fees, and recertification for competency based on continuing education. What has actually occurred here is that the Board has consciously utilized Rules 21A-20.011 and 21A-20.012 F.A.C. so as to not enforce Section 473.302(4)(a) as written and so as to selectively enforce only Section 473.302(4)(b) F.S. Then, by its selective enforcement of Rule 21A-20.012, the Board has gone a step further. The Board has "interpreted" Section 473.302(4)(b) to include within Board jurisdiction not those functions, activities, or skills a CPA practices or holds out to the public for a fee as constituting "practicing public accountancy" but has made the definition of "practicing public accountancy" encompass any disclosure of CPA status or skill attainment, regardless of the disclosure's truth and regardless of whether or not the CPA is utilizing any of the functions, activities, or skills of a CPA. By so doing, the Board has exceeded its statutory mandate and legislative purpose as set forth in Section 473.301 F.S. On its face, Rule 21A-20.012 F.A.C. consists of three sentences, which, in relationship to each other, are inconsistent and contradictory. Specifically, sentence ONE seems to be based on the overall representation made by a CPA to "uninformed persons." It simultaneously presumes fraud in the communication of what otherwise would be truthful, passive information. 3/ Sentence THREE subjects the CPA to discipline absent any fraud and totally without consideration to the impression formed by "uninformed persons" from the use of the CPA designation in any manner other than display of the certificate. 4/ Because there are two incompatible definitions in the challenged rule as now drafted, the Board is at liberty to selectively enforce the statute. One CPA could be prosecuted for simple disclosure of credential status or neutral biographical information (Ibanez). Another CPA might be prosecuted only after examination of the totality of his circumstances to determine if the circumstances mislead "uninformed persons" into believing he abides by all the regulations promulgated under Chapter 473 F.S., and still another CPA would never be prosecuted unless he performs the attest function. This is nonsensical and clearly unfair.
Findings Of Fact Petitioner is seeking licensure as a certified public accountant in Florida. Petitioner is licensed as a certified public accountant in the State of Pennsylvania. He is seeking licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking an examination. Petitioner was initially licensed in Pennsylvania in 1961. The Board of Accountancy reviewed Petitioner's application and determined that he met all Florida requirements for education and experience, and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961. In a non-final order, however, the Board determined that Petitioner did not receive grades on the examination administered in Pennsylvania that would have constituted passing grades in Florida, and denied his application. The non-final order is the subject of a formal administrative proceeding before the Division of Administrative Hearings in Case No. 80-2332. The Board's rules require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. Rule 21A-28.05(2), (3), Florida Administrative Code. Rules in effect in 1961 also required that a grade of 75 or above would be required in all four subjects of the examination. Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f).
The Issue Whether petitioner should recover $735 allegedly disbursed by respondent under Contract 3-14.073-051 to one Kenneth L. Jenks?
Findings Of Fact Kenneth L. Jenks of Franklin County was enrolled in a CETA program administered by the Bay County School Board at some point during 1983.
Recommendation It is, accordingly RECOMMENDED: That petitioner abandon its efforts to recover from respondent any monies claimed under Contract No. 3-14.073-051. DONE and ENTERED this 7th day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II 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 7th day of June, 1984. COPIES FURNISHED: Lizanne Batey, Chief Bureau of Job Training Department of Labor & Employment Security Division of Labor, Employment & Training Tallahassee, Florida 32301 Hiram J. Spurling, Director Job Training Partnership Act Program Department of Education Division of Vocational Education Knott Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact The parties stipulated to certain facts in Case No. 76-2002 and they are adopted for the purposes of this proceeding, as follow: That the Certificate Holder received an undergraduate degree in accounting from the University of Cincinnati in August of 1968. That the Certificate Holder was employed by major CPA firms from August of 1968 to September of 1970 as an accountant; That the Certificate Holder passed the uniform CPA exam in California in 1969, and was granted CPA license by California upon completion of the necessary experience requirements in May of 1971; That the Certificate Holder attended law school at the Ohio State University from September, 1970 through December 1972. In December, 1972, he was awarded a Juris Doctor Degree from that institution; That prior to graduating from law school, the Certificate Holder made application to secure a position in accounting. He secured a Position with the certified public accounting firm of Arthur Young and Co. in Cincinnati, Ohio, which position commenced on January 1, 1973; That while employed as a certified public accountant by Arthur Young and Co., the Certificate Holder, in the summer of 1973, was offered a position with a certified public accounting firm in Miami, Florida; That in July, 1973, the Certificate Holder accepted that position with McClain and Co., CPA's, of Miami, Florida, which position was to begin in August, 1973; That during the summer of 1973, the Certificate Holder requested the Florida State Board of Accountancy to forward him an application to apply for a reciprocal CPA certificate and the Board responded that an application would not be sent to anyone who was not a resident of the State of Florida; That during the summer of 1973, the Certificate Holder made an application with the Florida Bar to become a member of the Florida Bar; That the Certificate Holder moved his family from Cincinnati, Ohio to Fort Lauderdale, Florida, in July, 1973, and began working on a full-time basis for the Florida CPA firm of McClain and Co. in August of 1973. At that time he again requested an application for a reciprocal CPA certificate; said application being received by the Certificate Holder in late September of 1973; That the Certificate Holder completed the application for a reciprocal CPA certificate and Submitted the same to the Florida State Board of Accountancy in October, 1973; That in November, 1973, the Certificate Holder took the Florida Bar examination in Tampa, Florida; That the Certificate Holder was admitted to the Florida Bar In December, 1973, and was granted a reciprocal CPA certificate by the Florida State Board of Accountancy in January, 1974; That the Certificate Holder was discharged by the Florida certified public accounting firm of McClain and Co. in May, 1974. That the Certificate Holder taught part-time in the Accounting Department of Florida International University beginning in January, 1974 thru 1976. After his discharge from the public accounting firm of McClain and Co., he continued at Florida International University on a substantially full-time basis thru the summer of 1974 and into the fall of 1974; That in August, 1974, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, but this office was staffed only on a part-time basis as the Certificate Holder was devoting the great bulk of his time to his teaching activities at Florida International University in Miami, Florida; That in February, 1975, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, (200 SE 6th Street, Suite 100- B), which office was from that time staffed on a full-time basis by the Certificate Holder; That since February, 1975, the Certificate Holder has been actively engaged in the full-time practice of law in the city of Fort Lauderdale, Florida; and That the Certificate Holder has been a resident of and domiciled in the State of Florida from August, 1973 thru and including the date of this Stipulation.
Findings Of Fact The petitioner, Leo A. Price, was a member of the Florida Retirement System (FRS) at the time of his retirement in June, 1979. He became an FRS member on January 1, 1979, by transferring from the Teachers' Retirement System (TRS). Mr. Price was appointed to a teaching position for the 1950-51 school year on June 8, 1950, by the Board of Public Instruction of Dade County, Florida. He performed some limited duties for the Board of Public Instruction at the beginning of the 1950-51 school year, but his service was cut short as a result of illness. He received no salary payments for this service. Mr. Price recovered from his illness and began teaching in Dade County on January 31, 1951. He enrolled in the Teachers' Retirement System in February, 1951, and represented on his enrollment blank that he began service on January 31, 1951, and that he had not taught in Florida in prior years. Enrollment forms are required prior to membership in TRS. Mr. Price taught continuously from January 31, 1951, through June 30, 1979. On June 20, 1979, the School Board of Dade County retroactively approved a leave of absence for Mr. Price for the period from September, 1950, through January 30, 1951. No leave of absence had been authorized by the School Board prior to this retroactive authorization. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, no member has been allowed a service credit for a leave of absence that was retroactively granted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner, Leo A. Price, seeking a service credit for the period of time from September, 1950, through January, 1951, be denied. It is further RECOMMENDED that the claim of petitioner, Leo A. Price, for interest on all uncashed benefit warrants, be denied. THIS RECOMMENDED ORDER entered this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price 1000 N. E. 96th Street Miami Shores, Florida 33138 Diane R. Keisling, Esquire Suite 207C, Box 81 Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303
The Issue The issue is whether Florida Administrative Code Rules 19B-14.001, 19B- 14.002, and 19B-14.003 (collectively the “Rules”), are each an invalid exercise of delegated legislative authority for the reasons alleged by Petitioner.
Findings Of Fact The Board is the State Agency which administers the Stanley G. Tate Florida Prepaid College Program (Florida Prepaid College Plan) set forth in section 1009.98, Florida Statutes, and the Florida College Savings Program (Florida 529 Plan) set forth in section 1009.981, collectively known as the Plans. Intuition is a Florida corporation authorized to do business in Florida. Intuition provides services to customers nationwide, including college savings and prepaid record keeping administration services. It is the largest third- party contractor in the country providing prepaid record keeping administrative services. The Board and Intuition have entered into a series of contracts over the past 25 years. The parties entered their last contract on July 1, 2019, which called for Intuition to provide customer services and records administration services to the Board. Witnesses for both parties testified about the possibility of an upcoming contract dispute involving $700,000.00. This issue prompted the rule challenge. The dispute resolution paragraph in the July 1, 2019, contract provides the following in pertinent part: 33. INTERPRETATION, VENUE AND DISPUTE RESOLUTION * * * B. The sole and exclusive manner of resolution of all claims, disputes or controversies related to or arising under or from this Contract shall be pursuant to Rules 19B-14.001, 19B-14.002, and 19B-14.003, Florida Administrative Code, as amended from time to time. 5. Rules 19B-14.001, 19B-14.002, and 19B-14.003, were effective as “New” on June 20, 1996. Rule 19B-14.001, the only rule that has been amended since 1996,4 currently provides: 19B-14.001 Scope These rules shall apply to the resolution of all claims, disputes or controversies related to or arising from contracts, including any extensions of contracts, entered by the Florida Prepaid College Board on or after the effective date of these rules. These rules shall constitute the sole procedure for the resolution of all claims under all such contracts. These rules do not apply to advance payment contracts for the prepayment of Registration Fees, Local Fees, the Tuition Differential Fee and dormitory fees. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971[5] FS. History–New 6-20-96, Amended 10-18-10.[6] Rule 19B-14.001 identifies the “Rulemaking Authority” as section 1009.971(1), (4), and (6), and the “Law Implemented” as section 1009.971. 4 The rule was amended in the following ways: the name was changed from Florida Prepaid Postsecondary Education Expenses Board to Florida Prepaid College Board; the word “postsecondary” was deleted before “Registration Fees”; the word “registration” was deleted after the word “dormitory”; “Registration Fees” was capitalized; and the phrase “Local Fees, the Tuition Differential Fee” was added. 5 Although section 1009.971 is cited as the “Law Implemented,” these three statutory subsections: (2) Florida Prepaid College Board; Membership; (3) Florida Prepaid College Board; Elections; Meetings; and (5) Florida Prepaid College Board; Contractual Services, are not applicable to the challenged rules. 6 These history notes are not completely accurate. This rule was amended in 2010 and the citations are accurate for 2010. Florida Administrative Code Rule 1-1.012, Legal Citations and History Notes, provides the specific method to record legal citations and history notes. Section 1009.971(1), (4), and (6) state in pertinent part: FLORIDA PREPAID COLLEGE BOARD; CREATION.—The Florida Prepaid College Board is hereby created as a body corporate with all the powers of a body corporate for the purposes delineated in this section. The board shall administer the prepaid program and the savings program, and shall perform essential governmental functions as provided in ss. 1009.97-1009.988.[7] For the purposes of s. 6, Art. IV of the State Constitution, the board shall be assigned to and administratively housed within the State Board of Administration, but it shall independently exercise the powers and duties specified in ss. 1009.97- 1009.988. * * * (4) FLORIDA PREPAID COLLEGE BOARD; POWERS AND DUTIES.—The board shall have the powers and duties necessary or proper to carry out the provisions of ss. 1009.97-1009.988, including, but not limited to, the power and duty to: Appoint an executive director to serve as the chief administrative and operational officer of the board and to perform other duties assigned to him or her by the board. Adopt an official seal and rules. Sue and be sued. Make and execute contracts and other necessary instruments. Establish agreements or other transactions with federal, state, and local agencies, including state universities and Florida College System institutions. 7 In 1996, the statutes addressing the Plans ended at section 1009.984. Sections 1009.985 through 1009.988 were added in 2015; but those additions do not affect the issue herein. Further reference to these additional sections 1009.985 through 1009.988 will not be noted. Administer the trust fund in a manner that is sufficiently actuarially sound to defray the obligations of the prepaid program and the savings program, considering the separate purposes and objectives of each program. The board shall annually evaluate or cause to be evaluated the actuarial soundness of the prepaid fund. If the board perceives a need for additional assets in order to preserve actuarial soundness of the prepaid program, the board may adjust the terms of subsequent advance payment contracts to ensure such soundness. Invest funds not required for immediate disbursement. Appear in its own behalf before boards, commissions, or other governmental agencies. Hold, buy, and sell any instruments, obligations, securities, and property determined appropriate by the board. Require a reasonable length of state residence for qualified beneficiaries. Segregate contributions and payments to the trust fund into the appropriate fund. Procure and contract for goods and services, employ personnel, and engage the services of private consultants, actuaries, managers, legal counsel, and auditors in a manner determined to be necessary and appropriate by the board. Solicit and accept gifts, grants, loans, and other aids from any source or participate in any other way in any government program to carry out the purposes of ss. 1009.97-1009.988. Require and collect administrative fees and charges in connection with any transaction and impose reasonable penalties, including default, for delinquent payments or for entering into an advance payment contract or a participation agreement on a fraudulent basis. Procure insurance against any loss in connection with the property, assets, and activities of the trust fund or the board. Impose reasonable time limits on use of the benefits provided by the prepaid program or savings program. However, any such limitations shall be specified within the advance payment contract or the participation agreement, respectively. Delineate the terms and conditions under which payments may be withdrawn from the trust fund and impose reasonable fees and charges for such withdrawal. Such terms and conditions shall be specified within the advance payment contract or the participation agreement. Provide for the receipt of contributions in lump sums or installment payments. Require that purchasers of advance payment contracts or benefactors of participation agreements verify, under oath, any requests for contract conversions, substitutions, transfers, cancellations, refund requests, or contract changes of any nature. Verification shall be accomplished as authorized and provided for in s. 92.525(1)(a). Delegate responsibility for administration of one or both of the comprehensive investment plans required in s. 1009.973 to persons the board determines to be qualified. Such persons shall be compensated by the board. Endorse insurance coverage written exclusively for the purpose of protecting advance payment contracts, and participation agreements, and the purchasers, benefactors, and beneficiaries thereof, including group life policies and group disability policies, which are exempt from the provisions of part V of chapter 627. Form strategic alliances with public and private entities to provide benefits to the prepaid program, savings program, and participants of either or both programs. Solicit proposals and contract, pursuant to s. 287.057, for the marketing of the prepaid program or the savings program, or both together. Any materials produced for the purpose of marketing the prepaid program or the savings program shall be submitted to the board for review. No such materials shall be made available to the public before the materials are approved by the board. Any educational institution may distribute marketing materials produced for the prepaid program or the savings program; however, all such materials shall be approved by the board prior to distribution. Neither the state nor the board shall be liable for misrepresentation of the prepaid program or the savings program by a marketing agent. Establish other policies, procedures, and criteria to implement and administer the provisions of ss. 1009.97-1009.988. Adopt procedures to govern contract dispute proceedings between the board and its vendors. Amend board contracts to provide Florida ABLE, Inc., or the Florida ABLE program with contractual services. (aa) Adopt rules relating to the purchase and use of a prepaid college plan authorized under s. 1009.98 or a college savings plan authorized under s. 1009.981 for the Gardiner Scholarship Program pursuant to s. 1002.385, which may include, but need not be limited to: * * * (6) QUALIFIED TUITION PROGRAM STATUS.— Notwithstanding any other provision of ss. 1009.97- 1009.984, the board may adopt rules necessary for the prepaid program and the savings program each to retain its status as a “qualified tuition program” in order to maintain its tax-exempt status or other similar status of the program, purchasers, and qualified beneficiaries under the Internal Revenue Code. The board shall inform participants in the prepaid program and the savings program of changes to the tax or securities status of advance purchase contracts and participation agreements. Rule 19B-14.001 provides, in plain language, “[t]hese rules shall apply to the resolution of all claims, disputes or controversies related to or arising from contracts” and “shall constitute the sole procedure for the resolution of all claims under all such contracts.” The term “shall” is defined as “directives to express what is mandatory.” See Merriam-Webster On-line Dictionary (https://www.merriam-webster.com/dictionary/shall). Rule 19B-14.002 provides the following: 19B-14.002 Initiating Proceedings Related to Contracts with the Board. Any person or firm that has entered into a contract with the Board and has been adversely affected by a decision of the Board or its employees concerning such contract shall file a written petition to contest the decision with the Board within 21 days of the date of the receipt by such person or firm of the decision. The notice of the decision shall be provided in writing to the person or firm by the Executive Director. The date of receipt of the notice shall be either the date on which the notice is received by the person or firm if the notice is sent by registered mail or by other means of delivery which results in a receipt for delivery or the date of the decision plus five days if the notice is sent by regular mail. Any person or firm who receives such written notice of the decision and who fails to request a hearing within twenty-one days, shall have waived his right subsequently to request a hearing on such matters. The petition shall include the following: The name and business address of the person or firm which claims to be adversely affected by a decision of the Board or its employees; A concise statement of the ultimate facts upon which the claim arose; The date and subject of the contract under which the claim arose; A statement of all disputed issues of material fact upon which the claim is based or, if there are none, the petition shall so indicate; A concise statement which explains how the substantial interests of the person or firm are affected by the decision of the Board or the Board’s employees; A concise statement of the provisions of the contract together with any fed., state and local laws, ordinances or code requirements or customary practices and usages in the industry asserted to be applicable to the questions presented by the claim; The demand for relief sought by the claimant; The date of the occurrence of the event or events which gave rise to the claim and the date and manner of the Contractor’s compliance with the contract; and Any other material information the person or firm contends is material to its claim. The written petition shall be printed, typewritten or otherwise duplicated in legible form. The petition shall include copies of all documents which support the claim. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971 FS. History–New 6-20- 96.[8] Rule 19B-14.002(1) clearly states that any person or firm (vendor) “shall file a written petition to contest the decision with the Board within 21 days of the date of the receipt by such person or firm of the decision.” The next sentence provides the method by which the specific date of receipt of the notice is determined, and when the clock starts ticking for the affected vendor to file a written petition. However, the rule fails to establish a time frame in which Respondent must issue the notice once the adverse decision is made. Further, there are no specific requirements for the content of the written notice, such as explaining the basis for the adverse decision. Although Mr. Thompson asserted that any affected vendor could file a written petition to contest any adverse decision by the Board or a Board employee, there is no such language in the rule, the “sole procedure” for a vendor to do so. Rule 19B-14.002(2) provides specific requirements for the written petition. Although a vendor may be able to include some of the required information for the written petition, the requirement that the vendor “shall” provide a “concise statement of the ultimate facts upon which the claim arose”; a “statement of all disputed issues of material fact upon which the claim is based ...”; and a “concise statement which explains how the substantial interest of the person or firm are affected by the decision of the Board or the Board’s employees” is impossible without specific information from Respondent as to the circumstances giving rise to the adverse decision. Mr. Thompson testified there was nothing to preclude an affected vendor from filing a public records request seeking the information desired. 8 These citations are not accurate. In 1996, Respondent listed sections 120.53(1) and 240.551(5), Florida. Statutes (1995), as the “Specific Authority” and section 240.551 as the “Law Implemented.” Rule 1-1.012, Legal Citations and History Notes, provides the specific method to record legal citations and history notes. However, this is contrary to the specific language of the rule, which neither requires the Board to explain the basis for their adverse decision nor provides any procedure for an adversely affected vendor to obtain the information necessary to file a written petition. There is no such language in the rule, the “sole procedure” for a vendor to do so. Rule 19B-14.003 provides the following: 19B-14.003 Resolution of Claims. Upon receipt of a formal written petition, the Executive Director shall attempt to resolve the matters that are the subject of the petition by mutual agreement within fifteen (15) days, excluding Saturdays, Sundays, and legal holidays. If the petition is not resolved by mutual agreement within fifteen (15) days, excluding Saturdays, Sundays and legal holidays, the Executive Director shall deliver, within forty-five (45) days from the date such petition was filed, to the person or firm that filed the petition a determination that indicates the Board’s written response to the claims or such person or firm. Unless the person or firm who filed the petition agrees to the determination of the Board and a consent order adopting the determination is entered within thirty (30) days from the receipt by the person or firm of the Board’s determination, the Executive Director, if no disputed issues of material fact are involved, shall designate a hearing officer who shall conduct an informal proceeding pursuant to Section 120.57(2), F.S., and applicable Board rules. The hearing officer designated by the Executive Director shall be either a person who is a member in good standing of the Florida Bar or a person knowledgeable by virtue of education or practical experience with the subject matter of similar contracts involving state agencies. If there is a disputed issue of material fact, the Executive Director shall refer the petition to the Division of Administrative Hearings of the Department of Management Services for proceedings under Section 120.57(1), F.S. Once the Executive Director has referred the dispute to a hearing officer pursuant to subsection (3) or (4), no further information or amendment of the claims shall be permitted. The statements, facts, documents and materials contained in the petition filed pursuant to Rule 19B-14.002, F.A.C., or which are submitted to and received by the Executive Director prior to the determination made pursuant to subsection 19B- 14.003(2), F.A.C., shall constitute the entire factual record submitted by a person or firm on which a claim against the Board may be sustained in any hearing under this rule. A person or firm making a claim against the Board shall not be allowed to submit to a hearing officer any statements, facts, documents or materials to support any claim against the Board which were not submitted to the Executive Director by the person or firm making the claim prior to the Executive Director’s determination pursuant to subsection 19B- 14.003(2), F.A.C. The Board may submit statements, facts, documents or materials in response to the factual record submitted by a person or firm making a claim against the Board or to sustain the decision of the Executive Director which was made pursuant to subsection 19B- 14.003(2), F.A.C. The filing of a petition by a person or firm pursuant to the provisions of this rule shall not affect the duty or obligation of the person or firm pursuant to the contract under which the claim or dispute arose. Any person or firm which files a petition pursuant to the provisions of this rule expressly agrees that it shall continue to proceed with all scheduled work as determined under any prior existing schedule pursuant to such contract unless otherwise agreed in writing between the person or firm and the Board. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971 FS. History–New 6-20- 96.[9] Rule 19B-14.003(1) adds the word “formal” before “written petition” in the first sentence. The addition of this one word, without any definition and without any previous mention in rule 19B-14.001 (the “sole procedure”), imposes another requirement on vendors. Yet, there is no direction provided as to what that “formal written petition” includes. Respondent aptly states in its PFO: “A rule may be vague if it does not define important terms or standards.” Such is the case when a word is inserted and not defined. The remainder of rule 19B-14.003(1) places a duty on the Board’s Executive Director to attempt a resolution of the “formal written petition” within 15 business days of its receipt. Rule 19B-14.003(3) establishes that if no resolution is reached, the matter is referred to a hearing officer designated by the Board’s Executive Director for a hearing not involving disputed issues of fact (formerly and commonly referred to as an “informal hearing”). This informal hearing is to be conducted pursuant to section 120.57(2), Florida Statutes. Rule 19B-14.003(4) establishes that if no resolution is reached, the matter is referred to DOAH for a hearing involving disputed issues of fact (formerly and commonly referred to as a “formal hearing”), “for proceedings under section 120.57(1),F.S.” However, rule 19B-14.003(5) provides that regardless of which referral is made (either rule 19B-14.003(3) or (4)), “no further information or amendment of the claims shall be permitted.” This, in effect, precludes the discovery process at DOAH, and purports to cut off the authority of the presiding administrative law judge to grant leave to amend the petition. 9 See Footnote 8 above. Rule 19B-14.003(6) then proceeds to place further restrictions on how either hearing (informal or formal) must proceed. Subsection (6) restricts what “shall constitute the entire factual record” to the “statements, facts, documents and materials contained in the petition,” and that which is “submitted to and received by the Executive Director prior to the determination made pursuant to subsection Rule 19B-14.003(2), F.A.C.” This phrase is emphasized again with the following statement: “[A] person or firm making a claim against the Board shall not be allowed to submit to a hearing officer any statements, facts, documents or materials to support any claim against the Board which were not submitted ... prior to the Executive Director’s determination.” (Emphasis added). However, the Board, itself, “may submit statements, facts, documents or materials in response to the factual record submitted by person or firm making a claim against the Board, or to sustain the decision of the Executive Director which was made pursuant to subsection 19B-14.003(2), F.A.C.” Overall, these three rules set forth the procedures, in either informal or formal proceedings, to adjudicate contractual disputes. To prohibit the adversely affected party from fully prosecuting their claim, while allowing the Board to submit additional material to the trier of fact is not fair, and is contrary to the procedures in place at DOAH, contrary to several statutory provisions found in sections 120.569 and 120.57(1), and the discovery permitted at DOAH under the Florida Rules. of Civil. Procedures. The phrase “judge, jury, and executioner” may not be an incorrect analogy. Each rule cites as its “Rulemaking Authority” section 1009.97(1), (4), and (6). The Board is a creature of the Florida Statutes, created by section 1009.971(1), “with all the powers of a body corporate,” yet subsection (1) does not provide any rulemaking authority. Further, nowhere does this section grant the Board the ability to adopt rules to bind another state agency, that is governed by different statutes and rules. Section 1009.971(6) allows the Board to “adopt rules necessary for the prepaid program and the savings program... to maintain its tax-exempt status or other similar status of the program,” but does not specifically provide that the Board may impose its rules on another state agency. Section 1009.971(4)(b) grants the Board the “power and duty to… (a)dopt an official seal and rules.” This subsection does not expound on what the rules may impart, and thus does not grant the specific authority to do more. Section 1009.971(4)(y) grants the Board the “power and duty to… “(a)dopt procedures to govern contract dispute proceedings between the board and its vendors.” Although the Board has the ability to adopt rules, that authority does not grant the Board the ability to impose its “procedures” on another state agency that is governed by different statutes and rules. The term “procedures” is not defined in the statute. The common definition of procedures is “a particular way of accomplishing something.” See Merriam-Webster On-line Dictionary (https://www.merriam- webster.com/dictionary/procedure). In the legal arena, the term “procedure” is defined as “[T]hat which regulates the formal steps in an action or other judicial proceeding; a form, manner, and order of conducting suits or prosecutions.” Black’s Law Dictionary 1368 (4th ed. 1968). Another characterization of the term “procedure” is the structure for carrying on a lawsuit, including the pleadings, discovery process, evidence, and practice. The Division10 provides independent administrative law judges to conduct hearings pursuant to sections 120.569 and 120.57(1), and other laws. Section 120.569 sets forth the type of proceedings to be conducted: “Decisions which affect substantial interests.” The petition for a hearing is 10 The Division operates two distinct programs: the adjudication of administrative cases by administrative law judges (ALJs); and the adjudication of workers’ compensation claims by the judges of compensation claims. In this instance, the Division employs ALJs to conduct hearings in which the substantial interests of a person or entity are determined by an agency and involve a disputed issue of material fact. filed with the affected agency, which in turn has 15 days to notify DOAH, although the parties may attempt to resolve the dispute and a delay in sending the case to DOAH occurs. Once the case is at DOAH, an ALJ is assigned and the affected agency is mandated to “take no further action with respect to the proceeding ... except as a party litigant, as long as the division has jurisdiction over the proceeding under s. 120.57(1).” The “presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to effect discovery on the written request of any party by any means available to the courts ” See § 120.569(2)(f), Fla. Stat. Further, the presiding officer shall exclude irrelevant, immaterial, or unduly repetitious evidence, while allowing “all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs ” See § 120.569(2)(g), Fla. Stat. The Florida Administration Commission, composed of the Governor and Cabinet, adopted the hearing procedures that DOAH utilizes, commonly referred to as the Uniform Rules. See §§ 14.202 and 120.54(5), Fla. Stat. Chapter 28-106, Part I, sets forth the general provisions that apply to “all proceedings in which the substantial interest of a party are determined by the agency and shall be construed to secure the just, speedy, and inexpensive determination of every proceeding.” Part II sets forth those processes for hearings involving disputed issues of material fact, which are at specific odds with rule 19B-14.003.11 Section 120.54(5)(a)2. provides that an “agency may seek exceptions to the uniform rules of procedure by filing a petition with the Administration Commission.” The Board provided no evidence that it has sought and received an exception that would authorize the challenged rules. 11 Chapter 28-106, Part III, provides the uniform procedures for proceedings and hearings not involving disputed issues of material fact; Part IV provides the uniform procedures for mediations; Part V provides the process for emergency actions; and Part VI provides conflict direction. It is true that the Board can adopt procedures to govern contract dispute proceedings. However, the challenged rules, read separately and as a whole, are an invalid exercise of delegated legislative authority.
The Issue The central issues in this case are (1) whether Petitioner is eligible for membership in and retirement benefits from the Teachers' Retirement System; and (2) whether Petitioner is entitled to receive as a refund contributions paid by his employing agency and, if so, how much and at what interest rate.
Findings Of Fact Petitioner, currently sixty-six years old, was employed as a professor of economics and finance at the University of South Florida (USF), Tampa, Florida, from September 1965 through August 31, 1981, when he terminated employment. As a member of the teaching faculty, Petitioner automatically became a compulsory member of the Teachers' Retirement System (TRS) and remained a member throughout his tenure at USE. When Petitioner originally enrolled in the TRS in September 1965, he signed an enrollment form entitled "Teachers' Retirement System of Florida, Enrollment Blank New Teachers." The form provided general information concerning the TRS, and included information about contributions, service credit, and service retirement benefits under the TRS. The enrollment form provided in part the following: I understand that the full amount of deductions from my compensation for annuity purposes with compound interest will be returned to me if I leave the service without a retirement benefit or will be paid to my beneficiary if I die in active service. At all times relevant hereto, the TRS required that members make contributions of six-quarter percent of their total salaries to their retirement accounts. Of this amount, six percent went into the TRS member's retirement account and the quarter percent was allocated to the Survivors' Benefits Fund. In addition to the contributions made by TRS members, employers were required to contribute matching funds to the TRS Retirement Fund. While employed at USF, the prescribed six quarter percent of Petitioner's salary was deducted, with six percent appropriately posted to his TRS retirement account. During the time Petitioner was employed at USF, the employer contribution paid by USF to match Petitioner's contribution was $23,846.06. Had Petitioner remained a member of TRS, he would have been eligible to begin receiving benefits in February 1993. While employed at USF, Petitioner was given the option to transfer from the TRS to the newly created Florida Retirement System on five different occasions: December 1970; June 1971; July 1972; January 1975; and January 1979. Through information disseminated by Respondent, TRS members were notified that by transferring to the "new" Florida Retirement System, they would become mandatory members of the federal Social Security System. Petitioner chose to remain in TRS rather than transfer to the Florida Retirement System, thereby foregoing membership in the federal Social Security System. In August 1981, prior to his normal age of retirement, Petitioner terminated his employment with USF and requested that Respondent refund Petitioner's retirement contributions. In making the request, Petitioner completed and signed a form entitled, "Request for Refund," FRS M81. Completion of this form is a requisite for receiving retirement refunds and applies to members of any of the Florida retirement systems. The Request for Refund states: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. On the reverse side of the Request for Refund card, is the following: Under the provision of the Florida Statutes, a member MUST terminate employment before he can obtain a refund. * * * The refund process may be started upon receipt of this application. It may be necessary to issue a second refund after all payrolls on which a member's name appears are received and audited by the Retirement System Office. A member who has ten or more years of creditable service has a vested interest in retirement and may leave his contributions on deposit indefinitely and qualify for deferred retirement. Pursuant to Petitioner's request, the Division refunded $22,153.10 to Petitioner in October 1981. The refund, which was provided in three warrants, included all employee contributions and earned interest posted to Petitioner's retirement account as of the date of the refund. Petitioner's refund was provided in three separate warrants because the system in place, in 1981, was incapable of generating a single check for an amount in excess of $9,999.99. In late 1995 or early 1996, Petitioner called the Division of Retirement to inquire about his benefits under the TRS. Petitioner made after this call after he reviewed his Social Security wage earning history and learned that no contributions had been posted to his Social Security account during the sixteen years he had been employed at USF. Upon reviewing the Petitioner's request, Respondent discovered that $1,692.96 remained in Petitioner's TRS account. Of the amount remaining in Petitioner's account, $292.63 represented Petitioner's employee contributions, and $1,400.33 was earned interest. Respondent's failure to refund Petitioner's $292.63 and the interest earned thereon as soon as these moneys were posted to Petitioner's account was the result of an unintentional accounting error. Under the procedures used by the Division at that time, Petitioner's most recent employee contributions were not posted to his account until November or December 1981. The interest earned on Petitioner's employee contributions were not posted to Petitioner's account until the end of the 1981/1982 fiscal year. This matter is addressed in the Request for Refund which notified members that "it may be necessary to issue a second refund" after all payrolls on which the member's name appears have been posted. After discovering this inadvertent accounting error, Respondent initially agreed to refund Petitioner the outstanding $1,692.96. Subsequently, the Division of Retirement agreed to pay Petitioner $1,692.96 plus six a-half percent interest from October 1981, for a total amount of $4,088.31. The six and a- half percent interest rate is the current rate established by Respondent. Pursuant to Petitioner's request, Respondent has not yet refunded Petitioner's outstanding employee contributions and interest, pending the culmination of this proceeding. At the time Petitioner completed and signed the Request for Refund, it was his intention to obtain all of his contributions and interest. It was not until Petitioner's inquiry in 1995 or 1996 that he became aware that a small amount of his employee contributions and interest thereon had not been refunded. Petitioner believes that because Respondent did not refund all moneys due him, some $1,692.96, he retained membership in the TRS and is now able to retire from that system with a partial benefit. Alternatively, Petitioner asserts that he is entitled to receive as a refund, all contributions paid into his retirement fund, including the contributions paid by USF. According to Petitioner, his understanding and belief in this regard is based on an explanation provided to him by Dr. John Milliken, the Dean of the College of Business at USF. Petitioner's understanding in this regard was not correct. At some point prior to Petitioner's terminating his employment at USF, he reviewed a Summary Plan Description (SPD) which was issued by the Division of Retirement in 1980. One section of the SPD, Refund of Contributions, provides in relevant part: If a member terminates employment he may elect to receive a refund of all the contributions he has made to the retirement system, except those made to the Survivors' Benefit Trust Fund. Furthermore, the first paragraph of the Summary Plan Description states: This brochure contains basic information on the Teachers' Retirement System, established by Ch. 238, Florida Statutes. It is not intended to be a comprehensive review of the Teachers' Retirement System and should not be used in place of the law on questions of interpretation and appli-cation. Any question which are not answered by this brochure may be addressed to the Div. of Retirement, . . . . Based on Petitioner's reading of the provision of the SPD quoted in paragraph 20 above, it was his "judgment" and "impression" that any refund prior to retirement, would include both employee and employer contributions and the interest on these contributions. At no time did Petitioner verify his interpretation with the Division of Retirement or the USE Personnel Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order finding that Petitioner, John C. Deiter, is (1) ineligible for retirement benefits under the Teachers' Retirement System and (2) is not entitled to receive employer contributions and interest thereon. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELDK 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 3rd day of September, 1997. COPIES FURNISHED: Murray B. Silverstein, Esquire POWELL, CARNEY, HAYES and SILVERSTEIN, P.A. Barnett Tower One Progress Plaza, Suite 1210 St. Petersburg, Florida 33701 Stanley M. Danek, Senior Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399
The Issue The issue in this case is whether or not the position Petitioner held with Brevard County, Florida, from December 5, 2005, to October 31, 2006, entitled him to service credit in the Florida Retirement System (FRS).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a member of the FRS. He first worked for the Florida Department of Transportation in October 1976 and remained with the Department of Transportation until January 1980, when he began working for Osceola County, Florida. He worked for Osceola County until May 1990, when he began working for Brevard County, Florida. He worked for Brevard County until 2004. At the time he was laid off by Brevard County, Petitioner had 25.5 years of credible service in the FRS. Petitioner's expressed desire was to complete 30 years of credible service in the FRS. To that end, he met with Brevard County officials seeking re-employment in a position that would qualify him for additional credible service. In October 2005, Petitioner met with several Brevard County employees, including the county manager and Human Resource director, seeking a job that would enable him to get 4.5 more years of credible FRS service. As a result of his meetings and efforts, on October 28, 2005, Petitioner was offered a part-time position as a park ranger with duties that included "monitoring any scheduled activities at Rodes [sic] Park on Friday and Saturday evenings from approximately 9:00 p.m. to 1:00 a.m., to ensure orderly behavior of park patrons." Accepting the offered position, Petitioner was employed as a Park Ranger I, with the stated job description. The following information appears on a Brevard County document titled "Authorization to Place Special Services Employee on Payroll" which memorialized his employment: Working Title: Park Ranger I, Part Time (less than 40 hrs per week); Hire Date: 12/03/05; and How many pay periods do you anticipate this job will last? 19 (PP) 38wks. Also noted on this document, "Enroll in FRS 95HA." An inter-office memorandum dated November 17, 2005, from Jeff Whitehead, south area parks operations manager to Peggy Busacca, county manager, regarding Petitioner's hiring, states in part: "This position will require an individual that has an extremely flexible schedule and that can be asked, at times, to report with very little notice. Furthermore, the majority of shifts will be on Friday and Saturday evenings, generally from 8:00 p.m. to 1:00 a.m. . . In addition, providing Mr. Bright with this opportunity will render him eligible to collect his retirement benefits." Frank Abbate, Brevard County Human Resource director, emailed Petitioner on December 19, 2005, stating, in part: "I'm glad to see that . . . you were able to get a position with Parks and Recreation that meets both[,] one of their Department's needs[,] as well as your interest in continuing to earn FRS service credits. I wish you the best and look forward to your achieving your goal of thirty years service under FRS!" Brevard County knew that Petitioner's employment was conditioned on his inclusion as a participant in the FRS, and, in fact, enrolled him in the FRS by making appropriate contributions on his behalf to FRS. At no time did Brevard County advise Petitioner that he was not participating in the FRS. Petitioner relied on Brevard County's assertion that he was an enrolled member of the FRS. Petitioner was hired with the mutual expectation that he would be available to work at Rhodes Park on any Friday and Saturday nights from 8:00 p.m. to 1:00 a.m. and that the employment would continue for 4.5 years so Petitioner would be able to obtain 30 years of credible FRS service. There was nothing "temporary" in the expectation of Petitioner and his employer regarding the duration of employment. During the period in question, December 2005 through October 2006, Petitioner worked at least one day per month. Petitioner's employment was continuing, not temporary, on-call, in that he was scheduled to be available to work at his assigned responsibility every Friday and Saturday. While Petitioner did not work every Friday and Saturday night, Petitioner did, in fact, work every Friday and Saturday night during the period in question, as requested by his employer, Brevard County. That is, he never failed to perform his assigned duties when requested. Petitioner was finally notified on November 7, 2007, that he was ineligible for participation in FRS. During this nearly two-year period of employment, Petitioner satisfactorily performed his employment responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Thomas L. Bright, is eligible for participation in the Florida Retirement System, while employed by Brevard County from December 3, 2005, through October 31, 2006. DONE AND ENTERED this 10th day of October, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Brian D. Solomon, Esquire Brian D. Solomon, P.L. 101 East 13th Street St. Cloud, Florida 34769 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 The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. In an effort to meet that prerequisite, the Petitioner has already taken the Florida Board Examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's licensure application. The order reads as follows, in pertinent part: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examination be denied, stating as grounds therefore: That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure. The Board of Medicine has never adopted a rule to the effect that Section 458.311(2), Florida Statutes, applies to applicants for a restricted license under Section 458.311(8), Florida Statutes. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1)(a)-(c), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M- 22.020(1), Florida Administrative Code, by adding to it a new subsection (d) reading as follows: (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendment quoted above. For reasons unknown to the Board's Executive Director, the Board's legal counsel had not yet filed the proposed rule amendment for adoption as of the date of the formal hearing in this case. On March 12, 1993, eleven days after the formal hearing in this case, notice of proposed rulemaking was published in the Florida Administrative Weekly. The proposed rulemaking noticed on March 12, 1993, is the same as, or substantially the same as, the proposed language described in Paragraph 5, above. The proposed rulemaking noticed on March 12, 1993, is presently the subject of a rule challenge petition filed by the Petitioner in this case. See Case No. 93-2166RP. The Petitioner in this case is also the Petitioner in Case No. 93-1801, which involves a petition filed pursuant to section 120.57(1), Florida Statutes, to challenge the proposed denial of the Petitioner's application for a license.
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
