The Issue The issue in this case is whether Respondent, Department of Business and Professional Regulation, Board of Accountancy (the "Board" or the "Florida Board"), is liable to Petitioner, David C. Hastings, for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of attorney's fees and costs Petitioner should be awarded.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent, the Board of Accountancy, is the state agency charged with the responsibility to regulate the practice of certified public accountants licensed within the state. Chapter 473, Florida Statutes. One of the Board's duties is to certify applicants for licensure to the Department of Business and Professional Regulation. An applicant may seek licensure by passing the Florida examination prescribed by Section 473.306, Florida Statutes, or may seek licensure by endorsement as prescribed by Section 473.308(3), Florida Statutes. Section 473.308(3), Florida Statutes, provides (emphasis added): The board shall certify as qualified for a license by endorsement an applicant who: 1. Is not licensed and has not been licensed in another state or territory and who qualifies to take the examination as set forth in s. 473.306 and has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 473.306; and 2. Has completed such continuing education courses as the board deems appropriate, within the limits for each applicable 2-year period as set forth in s. 473.312, but at least such courses as are equivalent to the continuing education requirements for a licensee in this state during the 2 years immediately preceding her or his application for licensure by endorsement; or 1. a. Holds a valid license to practice public accounting issued by another state or territory of the United States, if the criteria for issuance of such license were substantially equivalent to the licensure criteria which existed in this state at the time the license was issued; or b. Holds a valid license to practice public accounting issued by another state or territory of the United States but the criteria for issuance of such license did not meet the requirements of subparagraph a., who qualifies to take the examination as set forth in s. 473.306 and has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 473.306; and 2. Has completed continuing education courses which are equivalent to the continuing education requirements for a licensee in this state during the 2 years immediately preceding her or his application for licensure by endorsement. The Uniform CPA Examination, prepared by the Board of Examiners of the American Institute of Certified Public Accountants, is administered throughout the United States and constitutes the primary means by which state boards of accountancy determine the competence of CPA candidates. The "substantially equivalent" language of Section 473.308(3)(b)1.a, Florida Statutes, underscored above, has been interpreted since at least 1981 as requiring a candidate for licensure by endorsement to demonstrate that his grade on the Uniform CPA Examination would have been a passing score in Florida at the time he sat for the examination. See Cohen v. State Board of Accountancy, DOAH Case No. 80-2332 (Recommended Order, June 22, 1981). The Uniform CPA Examination consists of four sections. Since at least 1949, Florida has required that a candidate pass each section of the examination with a score of 75 or better. Cohen involved a candidate for licensure by endorsement who was a CPA licensed in the State of Pennsylvania. The evidence established that the Pennsylvania Board of Accountancy had determined to accept Mr. Cohen's score on the Uniform CPA Examination as passing, though he had failed to reach a score of 75 on two of the four sections. The Florida Board of Accountancy preliminarily denied Mr. Cohen's application because the criteria applied by the Pennsylvania board were not "substantially equivalent" to the Florida licensure criteria. The DOAH Hearing Officer recommended that the denial be upheld, and the agency's final order adopted that recommendation. Martha P. Willis, the director of the Division of Certified Public Accountants, testified that the Board had also become aware that the State of Illinois had a practice of averaging the four sections of the examination to arrive at a passing score, rather than requiring a score of 75 or better on each section. Ms. Willis testified that, from at least the early 1980's until 1996, the Board required any candidate for licensure by endorsement to submit his or her actual scores from the Uniform CPA Examination, to provide assurances that the candidate's score would have constituted a passing grade in Florida at the time the exam was administered. Candidates who could not provide evidence of their exam scores would have their applications denied. No evidence was presented to establish that this practice was ever codified by rulemaking. In 1996, the Board decided that outright denial was too onerous an outcome for a candidate who is licensed as a CPA in another state but who is unable to provide evidence of his actual examination scores. Since 1996, the Board has issued a license to such a candidate, but placed the candidate on probation for a period of one year, pending a practice review to ensure that the candidate possesses the technical ability and ethical attributes expected of a Florida CPA. Upon successful completion of the practice review, the probation is lifted and the candidate is fully licensed. The Board has not codified this practice through rulemaking. Mr. Hastings is a Virginia-licensed CPA. At all times relevant to this proceeding, he has owned and operated Hastings & Associates, P.A. in Pinellas County. Aside from a secretary, Mr. Hastings constitutes the entire workforce of Hastings & Associates, which has historically performed uncomplicated bookkeeping for individuals and small businesses. At all times relevant to this proceeding, Mr. Hastings' combined business and personal assets were less than $2 million. Seeking licensure by endorsement, Mr. Hastings wrote a letter dated May 10, 2001, authorizing the State Board of Accountancy of the Commonwealth of Virginia (the "Virginia Board") to release his regulatory records and test scores to the Florida Board. On May 25, 2001, the Virginia Board sent a letter to the Florida Board. The letter verified that Mr. Hastings had passed each section of the Uniform CPA Examination with a score of 75 or better, but also stated: "due to Virginia file retention schedule no other information available." The letter verified that Mr. Hastings had passed the Ethics Examination with a score of 90 percent or better, and that no record existed that Mr. Hastings had been found guilty of any violation by the Virginia Board. On June 22, 2001, Mr. Hastings submitted to the Florida Board an application for licensure by endorsement. On his application, Mr. Hastings answered affirmatively that he had unlawfully held himself out as a CPA in Florida prior to licensure. The Division of Certified Public Accountants investigated and found instances of Mr. Hastings having been disciplined in 1995 and 1998 for holding himself out as a CPA in Florida. No evidence was presented that Mr. Hastings' prior discipline caused the Board to treat him any differently than it did other candidates unable to verify their exact scores on the Uniform CPA Examination, and therefore no detailed findings are necessary on these incidents, which involved use of a business card stating that Mr. Hastings was a CPA. Some time passed after filing the application, and Mr. Hastings became concerned as to its status. He communicated with Board staff, who told him the delay was due to the fact that his exact examination scores had not been provided by the Virginia Board. At Mr. Hastings’ behest, the Virginia Board sent a second letter to the Florida Board, dated August 15, 2001. This letter restates that Mr. Hastings passed the Virginia Uniform CPA Examination, and adds: A search of the Board's records reveals that Mr. Hastings was selected for renewal in 1984, so he was initially licensed in 1983 or earlier. In order to qualify for licensure in Virginia before 1984, the Board's 1981 regulation 5.01.03.05 states that "a grade of at least seventy-five shall be necessary for passing" the CPA examination. On September 7, 2001, the Board adopted a staff recommendation that Mr. Hastings be granted a Florida CPA license with a one-year probationary period and practice review. Mr. Hastings received no prior notice of the Board's action. By letter dated September 21, 2001, Ms. Willis informed Mr. Hastings of the Board's action. The letter stated, in relevant part: One of the requirements for licensure is providing evidence of successful passage of the AICPA Uniform CPA Exam. According to the Virginia Board of Accountancy, due to the retention schedule, the exact exam dates and scores are not available, only that the applicant passed all four parts of the Uniform CPA exam with a score of 75% or above. The Board, at the September 7, 2001 meeting, reviewed your application for CPA licensure and determined you would be issued a license with stipulations. The Board's stipulations are listed in the Order. Accordingly, the stipulations outlined in the Order must be adhered to. The referenced Final Order, dated September 27, 2001, set forth the following conditions: . . . Respondent must notify the Board when employment in Florida commences, at which time he will be placed on one-year probation. A review must be done prior to the end of the probation period. The review shall include five (5) tax returns, three (3) compilations including any work papers and any audits or reviews if they have been performed. If the review has not been completed and presented to the Board, probation will be extended until the review is presented to the Board, at which time the Board may remove the probation or take such further action, as it deems necessary. This review will be conducted by a CPA/Consultant assigned by the Board and will be at Respondent's expense. Mr. Hastings again contacted the Virginia Board concerning his score, and received a letter dated October 24, 2001, from Nancy Taylor Feldman, the executive director of the Virginia Board. Ms. Feldman's letter stated, in relevant part: I have on several occasions in the past two months provided information to the Florida Board of Accountancy regarding your licensure status and Uniform CPA examination scores in the Commonwealth of Virginia. In my latest effort to explain that the Virginia Board of Accountancy had provided written documentation to the Florida Board of Accountancy that you passed the Uniform CPA examination for Virginia with a grade on each of the four parts of at least 75, I was provided some insight into the action by the Florida Board of Accountancy. A staff member stated that because of the fire in New Jersey Department of Professional Regulation about ten years ago that destroyed all regulant [sic] records, the Florida Board of Accountancy had established a policy that if actual examination grades could not be provided from another state, there would be a probationary period established for those who wanted to be obtain [sic] a CPA license there. I explained that if a candidate could not show proof that they had completed the Uniform CPA examination with a grade of at least 75 that a license could not be issued in Virginia, either. However, I explained that the Virginia Board had provided certification of your licensure status to the Florida Board of Accountancy and that our Board records substantiated that you received a grade of at least 75 on each of the four parts of the examination. As I indicated to you, the Board does not have your examination record card from the mid-1970s when you successfully completed the Uniform CPA examination and became licensed in Virginia. This morning, I personally reviewed the official minutes of the Board of Accountancy that are housed at the Virginia State Library. The minutes of the Board's meeting in April 1974 indicated by name, David C. Hastings, that your license application was approved by the Board, and you were granted Certificate Number 3883. It stated that you were a resident of Richmond, Virginia. Further in support of the statement by the Virginia Board of Accountancy that you passed each of the four parts of the Uniform CPA examination with a grade of at least 75, Board Regulations 54-92-5 effective October 15, 1970, 54-92-5 effective November 15, 1972 and POR 3-28 effective February 15, 1975 require a grade of at least 75 to pass the Uniform CPA examination. The Board did not make adjustments in examination grades as the regulations did not provide any discretion to the Board to raise or lower the grade required to pass the examination . . . . As you are aware, last week, I contacted the American Institute of Certified Public Accountants (AICPA) in an effort to locate your grades. The AICPA owns the Uniform CPA examination and that organization has the grades for all candidates. The AICPA is not permitted to retain the grades with the name and social security number of the examination candidate. A candidate ID number is issued at the time of registration to take the examination. AICPA can locate the grades for you with the ID number. Unfortunately, the Virginia Board does not have your candidate ID number and it is understandable that after nearly thirty years, you do not have that information . . . . (emphasis in original) On October 26, 2001, counsel for Mr. Hastings filed a petition for formal administrative hearing contesting the Board's decision to impose probationary status on Mr. Hastings' license. The petition asserted that the Board's rules made no provision for placing a licensee on probation for the reasons stated in Ms. Willis' letter of September 21, 2001, and that the Board's action was therefore based on an invalid non-rule statement or policy. The petition also claimed entitlement to reasonable costs and attorney’s fees under Section 57.111, Florida Statutes. Upon advice of the Board's counsel, Ms. Willis did not forward the petition to the Division of Administrative Hearings. Rather, she placed it on the agenda for the next regularly scheduled public meeting of the Board on December 17, 2001. Mr. Hastings was notified of this action by letter from Board staff dated November 6, 2001. On or about December 7, 2001, Ms. Willis approved a staff recommendation to the Board that Mr. Hastings' petition be denied and that the Board decline to remove his probationary status. However, at some point prior to the Board meeting, Ms. Willis had a telephone conversation with Ms. Feldman of the Virginia Board. Ms. Feldman conveyed to Ms. Willis essentially the same information contained in her October 24 letter to Mr. Hastings: that she had reviewed the minutes from the Virginia Board meeting at which Mr. Hastings was licensed, and that Mr. Hastings was approved for license pursuant to standards substantially equivalent to the contemporaneous Florida standards, but that she could not locate Mr. Hastings' exact scores on the Uniform CPA Examination. Ms. Willis testified that her conversation with Ms. Feldman served to distinguish this case from the blanket practice of requiring a probationary period for candidates unable to produce exact scores. The distinguishing factor was Ms. Feldman's assurance that Virginia's loss of Mr. Hastings' scores was a unique case, not a statewide problem or practice. At the December 17, 2001, Board meeting, Ms. Willis stated: . . . One thing I would like to clarify that in the correspondence that is in here is some point where I make reference to the Virginia Board of Accountancy-- their problem in this instance is that apparently they just lost that information relating only to Mr. Hastings. As you know we have instances in the past where some states have lost lots of information relating to lots of licensees because of floods and fires and whatever that does not appear to be the problem with Virginia. It doesn't appear that it would affect a lot of other people just in Mr. Hastings [sic] instance they have been unable to find out although they have given us assurances that their requirements are-- you have to have a grade of at least 75 or above in order to be licensed in Virginia. No explanation was offered for the apparent contradiction between this explanation and the Virginia Board’s initial statement that Mr. Hastings’ scores were unavailable “due to Virginia file retention schedule,” which appeared to imply a general practice of discarding old test scores. Moments later, the Board's counsel reiterated the widespread alteration and averaging of scores received from Pennsylvania and Illinois, pointing out that "there was history of not just losing information but also substantive problems." Counsel stated, "To my knowledge there has not been an issue in Virginia. I don't think we've ever seen where Virginia lost the grades in the first place. There has been no history in Virginia that there has been any changing of grades or modification of grades " After this discussion, the Board adopted a motion "to remove the requirement for probation due to the fact that the loss of [Mr. Hastings'] grades by Virginia appears to be an isolated instance." On January 15, 2002, a Board order was entered rescinding the stipulations previously placed on Mr. Hastings' Florida CPA license. The Board is an "agency" as defined in Section 57.111, Florida Statutes; the Board initiated an administrative proceeding against Mr. Hastings in that it was required by law or rule to advise Mr. Hastings of a clear point of entry after it issued his probationary license, a "recognizable event in the investigatory or other free-form proceeding of the agency," as set forth in Section 57.111(3)(b)3, Florida Statutes; and the Board was not a nominal party. On March 14, 2002, Mr. Hastings filed the Petition in the instant case. An Affidavit of Fees and Costs Expended was attached to the Petition in which it is represented that attorney's fees in the amount of $1,459.00 and costs of $270.00 were reasonably incurred in the underlying case between October 18, 2001 and January 28, 2002. Also attached to the Petition was a Supplemental Affidavit of Fees and Costs Expended in which it is represented that attorney's fees in the amount of $462.00 were reasonably incurred between January 29, 2002 and February 28, 2002. On May 8, 2002, Mr. Hastings filed a Second Supplemental Affidavit of Fees and Costs Expended in which it is represented that attorney's fees in the amount of $2,142.00 and costs of $176.00 were reasonably incurred between March 7, 2002 and April 30, 2002. The affidavits and expert testimony offered at the hearing establish that the claimed fees totaling $4,063.00 and costs totaling $908.00 were reasonably incurred.
The Issue The issues in this case are whether Petitioner provided reasonable notice to Respondent of its intent to suspend without pay and terminate Respondent's employment, and whether Respondent could unilaterally resign to retire while the Superintendent's pending recommendation to terminate Respondent was before Petitioner.
Findings Of Fact Petitioner, the Sarasota County School Board, employed Respondent as a teacher and principal of Garden Elementary School in Venice, Florida, for 29 years. Respondent was employed under an annual contract throughout each year of employment, the last of which began July 1, 2002, scheduled to end June 30, 2003. In February 2002, Respondent was arrested and charged with seven counts of Sexual Battery by a Person over Eighteen (18) Years of Age upon a Child Eleven (11) Years or Younger. On March 5, 2002, Respondent was suspended with pay by Petitioner. While suspended with pay, Respondent's annual contract expired on June 30, 2002, and was renewed by Petitioner for the 2002-2003 school year. Respondent remained suspended with pay and did not perform any services for Petitioner during the 2002-2003 school year. On or about April 28, 2003, Respondent completed, but did not file, an application to retire from the Florida State Retirement System and executed a Durable Family Power of Attorney to his wife, Mrs. Cook. The power of attorney empowered Mrs. Cook to make decisions on behalf of Respondent for all personal, legal, and financial matters. On May 2, 2003, Respondent was found guilty of two counts of Sexual Battery by a Person over Eighteen (18) Years of Age upon a Child Eleven (11) Years or Younger by a jury in the Circuit Court for the Twelfth Judicial Circuit, in and for Sarasota County, Florida. Respondent was immediately taken into custody and placed in the Sarasota County Jail. Three days later, on May 5, 2003, notwithstanding Respondent's incarceration in the Sarasota County Jail, Superintendent Hamilton misdirected a certified letter to Respondent's home address, attempting to advise him of her intent to recommend to Petitioner on the following day, May 6, 2003, that Respondent be suspended without pay. Hamilton's letter further sought to notify Respondent that she intended to recommend that he be terminated from his employment at the School Board meeting scheduled for May 20, 2003, due to his recent conviction. pay. On May 6, 2003, Petitioner suspended Respondent without On the following day, May 7, 2003, Mrs. Cook received Superintendent Hamilton's certified letter dated May 5, 2003, but did not open it nor become fully aware of its contents until a later time. Respondent was and remains incarcerated. There is no evidence that he ever received actual notice of the Superintendent's certified letter of May 5, 2003. In addition to the untimely and misdirected notice, the Superintendent's certified letter failed to advise Respondent that he could contest the proposed suspension without pay. Respondent's wife credibly testified that if she had received notice of Petitioner's intent prior to the School Board's meeting of May 6, 2003, she would have attended the meeting and attempted to submit Respondent's resignation. On May 7, 2003, Petitioner mailed a follow-up letter to Respondent's home address, via standard U.S. mail, attempting to notify him that the Board had suspended him without pay. Respondent remained incarcerated and did not receive this letter. It is unknown whether Mrs. Cook ever received the letter or when she became aware of its contents. On May 9, 2003, Mrs. Cook invoked her power of attorney on behalf of Respondent and submitted his resignation from employment to Petitioner, effective immediately, in order to retire. On that day, Mrs. Cook attempted to hand-deliver Respondent's retirement/resignation letter to Petitioner's personnel office, along with Respondent's previously executed retirement papers, however, the personnel office staff refused to accept the paperwork. Instead, Mrs. Cook was immediately directed to speak with Allen Wilson, Executive Director of Human Resources and Labor Relations for Petitioner, but he was unavailable. Later that same day, Mrs. Cook met with Mr. John Zoretich, Petitioner's Director of Instruction/Curriculum. Mr. Zoretich agreed to receive Respondent's letter of resignation/retirement from Mrs. Cook, but instructed her to deliver Respondent's executed retirement papers to the payroll department. Mrs. Cook complied, but again, payroll staff refused to accept the retirement papers and instructed her to contact Mr. Wilson. Mrs. Cook's repeated efforts to communicate with Mr. Wilson were unsuccessful. Petitioner's personnel and payroll departments refused to accept Respondent's executed retirement papers due to Petitioner's pending consideration of Superintendent Hamilton's termination recommendation. The parties agree that the amount of terminal pay at issue, based upon Respondent's effective daily rate of pay, is approximately $60,000.00. On May 12, 2003, Mrs. Cook forwarded Respondent's previously executed retirement application by facsimile and U.S. Mail to the Florida Retirement System. The Florida Retirement System acknowledged its receipt in correspondence dated June 18, 2003, indicating a date of receipt of May 13, 2003, an employment termination date of May 3, 2003, and a retirement date of June 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter an order finding: Respondent has materially violated the terms of his employment contract. Petitioner has just cause to terminate Respondent's employment. Respondent's offer to resign has not been accepted by Petitioner and is ineffective until accepted or denied by Petitioner. Respondent is not entitled to terminal pay. Petitioner failed to provide Respondent with reasonable notice of its intent to consider the Superintendent's suspension recommendation at the public meeting, and Respondent was deprived his substantive right to contest the recommendation and the Board's determination. Respondent is entitled to remain on paid suspension from May 6, 2003, the date of the effective suspension, through May 20, 2003, the date of Petitioner's properly noticed public meeting to terminate him. DONE AND ENTERED this 7th day of January, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 7th day of January, 2004.
The Issue Whether petitioner should recover $2,335 allegedly disbursed by respondent under Contract No. 3-11-038-005-005 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. 2-11-038-005-005. DONE AND ENTERED this 8th 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 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June 1984. COPIES FURNISHED: Lizanne Batey, Chief Bureau of Job Training Dept. of Labor & Employment Security Division of Labor, Employment & Training Tallahassee, Florida 32301 Charles Pettis, JTPA Coordinator Bay County School Board 3016 Highway 77 Panama City, Florida 32405 =================================================================
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 appropriate documentation shows total family income for a Mr. Taylor of $7,820 or less for the year before he began work with Collier County's CETA Program? At stake is reimbursement for Mr. Taylor's salary ($1,993) and certain fringe benefits ($221). Whether petitioner should reimburse respondent for a CETA worker's salary ($1,166) and fringe benefits ($170) where the worker's annualized income exceeded the limit in effect when he applied, but not when he began employment (because the limit was raised after he applied), even though this fact was never reflected on his application? Whether petitioner should reimburse respondent for salaries ($6,322) and fringe benefits ($589) respondent paid to and for CETA workers who were Cuban or Haitian refugees?
Findings Of Fact No evidence was offered as to Mr. Taylor's income nor as to any documentation respondent may have received with respect to his income at the time he applied for employment with CETA. The parties stipulated that both his salary ($1,993) and his fringe benefits ($221) should be disallowed, in the absence of documentation of his income. THE OTHER U.S. NATIONAL With respect to another CETA worker (participant), the parties stipulated, in haec verba: Respondent received participant's applica- tion on May 6, 1980. On that date, partic- ipant's annualized income exceeded the limit then in effect. Participant was found by Respondent to be ineligible and was not enrolled in the program at that time. Subsequent to May 6, 1980, the qualifying annualized income limit was increased. Re- spondent reviewed participant's application of May 6, 1980 and found that participant was eligible to participate under the in- creased annualized income limit. Respon- dent recalled participant for enrollment in the program. Applicable regulations required Respondent to update participant's May 6, 1980 appli- cation on the date of enrollment to reflect any change in eligibility criteria or any change in participant's circumstances which may have occurred since the date of partic- ipant's May 6, 1980 application. Respondent did not update the May 6, 1980 application of participant upon her enroll- ment. Therefore, the application audited by Petitioner showed on its face that par- ticipant was ineligible to participate in Respondent's program on the date of appli- cation. THE REFUGEES Aridas Vega, a Cuban national, held a "green card," Immigration and Naturalization Form 1-94 (Arrival-Departure Record) dated May 30, 1980, when he began working for respondent's CETA Program on July 8, 1980. He received a salary of $957 and fringe benefits worth $91. Almondo Riol, a Cuban national, held a green card dated July 2, 1980, when he began working for respondent's CETA Program on June 24, 1980. He received a salary of $1,751 and fringe benefits worth $176. Maria Santiesteban, a Cuban national, held a green card dated May 30, 1980, when she began working for respondent's CETA Program on July 3, 1980. She received a salary of $1,558 and fringe benefits worth $142. Juan Crespo, a Cuban national, held a green card dated June 21, 1980, when he began working for respondent's CETA Program on July 17, 1980. He received a salary of $1,034 and fringe benefits worth $94. On August 31, 1980, Silva Condominia and Noel Por, of Cuban or Haitian nationality, began working for respondent's CETA Program. Silva Condominia, who held a green card dated July 2, 1980, received a salary of $97. Noel Por, who held a green card dated July 17, 1980, received a salary of $87. Neither received fringe benefits. Altogether, in the spring and summer of 1980, some 120 to 150 Cuban or Haitian refugees applied for employment in respondent's CETA Program. On receipt of the first of these applications, Jim Meerpohl, the program director, spoke to somebody with the Immigration and Naturalization Service who advised him that a refugee holding a green card could lawfully work for wages in this country. He sought advice from petitioner's Bill Heacock and consulted the Dade County CETA intake coordinator. Mr. Heacock told him to do the best he could, so they applied the CETA regulations, including the provisions that declared recipients of public assistance eligible for CETA employment. Most, if not all, of the refugees named above received public assistance at the time they began working for CETA. In every instance, the applicant met appropriate CETA eligibility guidelines. Respondent's Exhibit No. 1. On June 25, 1980, the Employment and Training Administration of the U.S. Department of Labor telegraphed all regional administrators that Cuban refugees WOULD BE ELIGIBLE FOR CETA SERVICES IF THEY MEET THE RESPECTIVE ELIGIBILITY REQUIREMENTS OF THE TITLE FOR WHICH THEY ARE APPLYING AND PRESENT APPROPRIATE DOCUMENTATION FROM THE IMMIGRATION AND NATURALIZATION SERVICES WHICH INDICATES THAT EMPLOYMENT IS AUTHORIZED. . . DIRECTIVES WITH MORE DETAILED INFORMATION WILL BE ISSUED IN THE NEAR FUTURE. Petitioner's Exhibit No. 2. On September 4, 1980, the Employment and Training Administration of the U.S. Department of Labor directed Field Memorandum No. 392-80 to all regional administrators. Under the heading "Length of Unemployment," the memorandum stated when determining the eligibility of a Cuban and Haitian Entrant the prime sponsor shall begin computing the length of unemployment on the day the applicant is authorized by INS to accept employment. Joint Exhibit No. 1. On September 29, 1980, petitioner's employee Ernest S. Urassa wrote Mr. Meerpohl "in response to [his] telephone inquiry and . . . [a] letter from . . . [his] staff concerning the CETA eligibility of Cuban and Haitian refugees," Petitioner's Exhibit No. 1, enclosing Field Memorandum No. 392-80. Mr. Urassa's letter was received on October 3, 1980, and on that date each of the refugees named above was terminated from CETA employment, because none of them had held a green card as long as 15 weeks before beginning CETA employment. CETA regulations required applicants to have been unemployed 15 out of the 20 weeks next preceding CETA employment. In a schedule of costs recommended for disallowance, the auditor "recommend[ed] that [respondent] verify regulations on a more timely basis" in order to insure eligibility," Petitioner's Exhibit No. 2, of CETA applicants.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: Petitioner shall reimburse respondent eight thousand two hundred forty- seven dollars ($8,247). DONE AND ENTERED this 23rd day of September, 1982, 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 23rd day of September, 1982. COPIES FURNISHED: Chad J. Motes, Esquire Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Kenneth B. Cuyler, Esquire County Attorney's Office Collier County Courthouse Naples, Florida 33942 Wallace E. Orr, Secretary Department of Labor and Employment Security Suite 206, Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issues to be considered were framed through challenges to the aforementioned rules as alleged invalid exercises of delegated legislative authority, and if held to be invalid that the rules constitute agency statements that violate Section 120.535, Florida Statutes. In particular Petitioner alleges that the rules are invalid exercises of delegated legislative authority for reason that: The Respondent failed to publish notice of its decision to modify the challenged rules after they had been proposed. Rules 25-22.056(1)(a) and (4)(b), Florida Administrative Code, deny parties the opportunity to file exceptions to any order or Hearing Officer's recommended order as allowed by Section 120.57(1)(b)4, Florida Statutes. Rules 22-25.056(1)(a) and (4)(b), Florida Administrative Code, are invalid exercises of delegated legislative authority in that they modify and contravene Sections 120.53(1)(c), 120.57(1)(b)4 and 6 and 120.58(1)(e), Florida Statutes, and are arbitrary and capricious. Concerning Section 120.53(1)(c), Florida Statutes, the challenged rules are alleged to be other than "rules of procedure appropriate for the presentation of argument." It is asserted that the possibility exists that the failure to accept a finding of fact could be considered as a waiver of objection on appeal in the setting where the rules are not procedures appropriate for presentation of argument. Therefore, the rules are alleged to be inappropriate. It is alleged that the rules violate Section 120.57(1)(b)4, Florida Statutes, specifically in that the rules do not allow parties the opportunity to file exceptions in the instance where two or more Public Service Commissioners conduct the formal proceeding, contrary to the referenced statutory provision which does not contain that limitation. Similarly, it is alleged that the rules violate Section 120.57(1)(b)6(e), Florida Statutes, by failing to provide the parties the opportunity to develop a record which includes exceptions, in that no opportunity to file exceptions is provided other than the instances where a hearing officer conducts the formal proceedings. It is alleged that Section 120.58(1)(e), Florida Statutes, is violated in that the challenged rules do not provide the parties the opportunity to file exceptions to the proposed order in those circumstances where a majority of those who are to render the final order have not heard the case or read the record, and where a decision adverse to a non-agency party is to be made, thus contravening the legal requirements set out in that statute. It is alleged that there is no logical rationale for limiting the statutory opportunity to file exceptions according to the number of Public Service Commissioners conducting the formal hearing, when considering the aforementioned statutes. It is alleged that Rule 25-22.056(1)(b), Florida Administrative Code, is vague in that it fails to establish adequate standards for agency decisions by not specifying what is meant by the right to file exceptions to a proposed order "within the time . . . designated by the hearing officer." Moreover, Rule 25-22.056(1)(b), Florida Administrative Code, when contrasted with Rule 25- 22.056(4)(b), Florida Administrative Code, is said to be inconsistent when describing the right to file exceptions to recommended orders. Rule 25-22.058, Florida Administrative Code, is alleged to limit oral argument in formal proceedings to only those instances when the Respondent exercises discretion to grant oral argument in contravention of Section 120.58(1)(e), Florida Statutes, which is alleged to grant a mandatory right of oral argument in instances where a majority of those who are to render the decision have not heard the case or read the record and a decision adverse to a party other than the agency is contemplated by a proposed order.
Findings Of Fact Rules Adoption On October 18, 1992, Respondent published notice of intent to adopt Rule 25-22.021, Florida Administrative Code, entitled Agenda Conference Participation. The publication was made in the Florida Administrative Weekly. On that same date, in the Florida Administrative Weekly, Respondent published notice of its intent to amend Rule 25-22.056, Florida Administrative Code, entitled Post Hearing Filings; to repeal Rule 25-22.057, Florida Administrative Code, entitled Recommended Order, Exceptions, Replies, Staff Recommendations; and to amend Rule 25-22.058, Florida Administrative Code, entitled Oral Argument. On November 12, 1992, Petitioner submitted timely written comments to the Respondent regarding the rule proposals. In these comments Petitioner expressed an interest in the right to file exceptions to opposing parties' proposed findings of fact and to file exceptions to Respondent's staff advisory memoranda provided to Commissioners. On February 16, 1993, Respondent considered the published rules and public comments and voted to adopt the rules with changes. On March 3, 1993, Respondent filed with the Secretary of State a certification of the adopted rule, rule amendments and rule repeal previously described. On March 4, 1993, Respondent issued an order memorializing the adoption process. That order was No. PSC-93-0337-FOF-OT, Notice of Adoption of Rule. This document set forth that the Respondent had adopted Rules 25-22.021 and 25- 22.056, Florida Administrative Code, with changes; that Rule 25-22.058, Florida Administrative Code, was adopted without change and that Rule 25-22.057, Florida Administrative Code, was repealed. Respondent did not publish additional notice in the Florida Administrative Weekly of the decision to change Rule 25-22.056, Florida Administrative Code. The Parties Petitioner is a public interest environmental law firm with an office in Tallahassee, Florida. It is a corporation authorized to do business in the state of Florida. Petitioner has been a party to Respondent's formal administrative proceedings and is presently a party to such proceedings. In the past, Petitioner has filed post-hearing pleadings following formal administrative proceedings conducted by Respondent. Respondent holds hearings pursuant to Section 120.57, Florida Statutes, and prepares orders in accordance with that provision. The Florida Public Service Commission has five members. The Chairman of the Florida Public Service Commission has the responsibility to assign cases for hearing. See Sections 350.01 and 350.125, Florida Statutes. The assignment of formal proceedings is to an individual Public Service Commissione; a hearing officer with the Division of Administrative Hearings upon referral to the Division of Administrative Hearings; and panels constituted of two or more Commissioners. See also Rule 25-22.0355, Florida Administrative Code. Upon Petition in accordance with Section 350.01(6), Florida Statutes, and by decision made by a majority of the commissioners some proceedings may be assigned to the full Florida Public Service Commission for consideration. Commissioners who have been assigned to a proceeding act in a quasi- judicial capacity and are called upon to find facts as well as determine applicable law and are charged with making the ultimate decision in that proceeding. Commissioners vote on the issues considered in the cases presented. The voting occurs at a public agenda conference. A vote sheet is maintained. Legal staff assist the Commission in preparing the final order than memorializes that vote. There are no preliminary drafts or recommended orders (proposed orders) circulated to the parties unless the hearing was conducted by a single Commissioner serving as a hearing officer. Dissents from the majority vote in proceedings conducted by panels of Commissioners may or may not be reflected through a written dissenting opinion shown at the end of the final order. The final order discusses issues, makes fact finding and draws legal conclusions, and also makes ruling on proposed findings of fact submitted by the parties. There is no requirement for review or signature on the final order by persons assigned to the proceedings. The final order is issued by the Director of the Division of Records and Reporting or a person supervised by that individual. Opportunity is not presented to file exceptions to the staff advisory recommendations or to final orders of the Commission. Exceptions may be filed to proposed or recommended orders drawn by a single Commissioner sitting as a hearing officer or directed to recommended orders issued by a hearing officer from the Division of Administrative Hearings. Commissioners assigned to a proceeding receive copies of post-hearing submissions. In cases which are heard by two or more Commissioners, a recommended order (proposed order) is not prepared. Instead, in each case the Commissioners have available a staff memorandum concerning the issues in the proceeding for use at the agenda conference where a decision is reached in the case. That decision is rendered as a written final order. Advisory memoranda presented to assigned Commissioners in the various proceedings include discussions of issues found in prehearing orders, statements by each party concerning their position on those issues, staff recommendations as to resolution of issues, and an analysis of evidence and argument presented in the hearings and in the post-hearing filings, with citations to hearing testimony and reference to hearing exhibits. At times the advisory memoranda may include more than one recommended disposition on issues if the staff members do not concur as to the appropriate recommendation. Staff members may not prepare an advisory memorandum if they have testified in the proceeding. The advisory staff memoranda are not controlling when the assigned Commissioners deliberate cases. Commissioners who have been assigned to a case have heard the testimony and had the opportunity to review prefiled testimony, the hearing transcripts, transcripts of any argument that was permitted, the briefs of the parties and any proposed findings of fact and conclusions of law, as well as any statement of position of the parties and the staff advisory memorandum before deciding a case. The format for final orders is described in Rule 25-22.059, Florida Administrative Code. After a final order has been entered an adversely affected party may request reconsideration of the final order or take appeal to the appropriate court. See Rule 25-22.060, Florida Administrative Code. A motion for reconsideration addresses the substance in the final order, whereas, corrections which deal with scrivener's errors are made by informal contact through correspondence directed to the Florida Public Service Commission. A motion for reconsideration need not be correctly styled to be considered. Motions for reconsideration are voted upon by the Commissioners assigned to the proceeding. Separate written advisory memoranda are prepared directed to the disposition of motions for reconsideration. The motion is voted upon by the Commissioners assigned to the proceeding. The order directed to the motion for reconsideration is drafted by the legal staff for the Commission. The vote by the individual Commissioners assigned to the proceeding in deciding whether to reconsider is memorialized in a manner similar to the vote on the final order decision previously reached. The Subject Rules Rule 25-22.056(1)(a), Florida Administrative Code, describes the post- hearing opportunities for parties to a proceeding where two or more Commissioners or the full Commission conducts a hearing pursuant to Section 120.57, Florida Statutes. By contrast Rule 25-22.056(1)(b), Florida Administrative Code, describes the opportunities for post hearing submissions following a hearing conducted pursuant to Section 120.57, Florida Statutes, in which a single Commissioner sits as a hearing officer. Rule 25-22.056(4)(b), Florida Administrative Code, describes the opportunity for excepting to the proposed order of a single Commissioner sitting as a hearing officer or the recommended order in cases heard before a Hearing Officer employed by and assigned by the Division of Administrative Hearings. Rule 25-22.058, Florida Administrative Code, describes opportunities for oral argument before the Florida Public Service Commission associated with Section 120.57, Florida Statutes, formal hearings.
The Issue Whether petitioner should recover $735 allegedly disbursed by respondent under Contract 3-14.073-051 to one Kenneth L. Jenks?
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 Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner qualifies, pursuant to Section 212.08(7)(o)2.d., Florida Statutes, for a consumer's Certificate of Exemption as a state, district, or other governing or administrative office, the function of which is to assist or regulate the customary activities of educational organizations or members.
Findings Of Fact The Petitioner is a "not for profit" corporation that, for all relevant periods of time, has held an exemption from federal income tax as an educational institution pursuant to Section 501(c)(3) of the federal Internal Revenue Code. The purpose of the Society, the Petitioner, is to further the practice of the teaching of photography and to insure high standards in photographic education in the educational institutions in this country and in Florida, particularly post- secondary educational institutions. The Society has been provided facilities at the Daytona Beach Community College, including office space, telephones and facsimile lines. The community college provides publication and marketing services to the Society. There is no formal affiliation between the Society and any higher educational institutions. The community college provides these services to the Society in return for the prestige associated with its being home to the Society. The Society is not accredited as an educational institution in its own right. It is an educational organization consisting primarily of university, college and secondary school educators as members. Its purpose is to advance the field of photographic education and to assist its members in their collective interests and concerns as educators. The Society also assists colleges, universities, and other organizations in achieving their educational mission in terms of education in the field of photography. It therefore functions as an administrative office, " . . the function of which is to assist or regulate the customary activities of educational organizations and members." The Society's national office assists the customary activities of the regional organizations under its umbrella through management of their data bases in support of their regional publications and conferences. The dominant function of those conferences is to promote educational standards in photography and related fields. They are typically attended by graduate students and educators in the field of photographic education. Moreover, the Society's national office examines and approves regional budget funding proposals and disburses funds to regional organizations that are in accord with its national by-laws and policies, so as to provide appropriate control and regulation with regard to its educational mission. The treasurer of the Society for photographic education requires uniform accounting procedures for each of the regional treasury accounts. The Society is thus an umbrella organization for eight regional societies located throughout the country. The Society provides money to these regional organizations and the regions are required to prepare and submit financial statements to the Society. These regional societies operate pursuant to the national by-laws and their officers serve at the pleasure of the national organization. Annual national conferences are held as are regional conferences by the regional societies. Participants at these conferences are offered seminar level courses and workshops in different areas of photography, such as digital imaging. There is also typically a trade show at these conferences where corporations demonstrate new products in the field of photography. Most of the persons attending these conferences are either graduate students or faculty members of various educational institutions. While the Society does not provide educational credit to attend these, the programs at these conferences are educational in nature, designed to further the education of the attendees in the aspects of the field of photographic education. The Society does not regularly provide educational curricula to other organizations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Department of Revenue enter a Final Order granting the consumer Certificate of Exemption applied for by the Petitioner. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Kevin O'Donnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 James J. Murphy, Executive Director Society for Photographic Education Post Office Box 2811 Daytona Beach, Florida 32120-2811 Linda Lettera, Esquire Department of Revenue 204 Carson Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay $790 in questioned costs under Contract No. 79MP-3C-02-33-08 and $891 in questioned costs under Contract No. 79MP-1F-02- 033-08. All other costs still in issue should be allowed. DONE and ENTERED this 6th day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1982. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Brenda Arnold Post Office Box 555 Port St. Joe, Florida 32456 Honorable Wallace E. Orr Secretary, Department of Labor and Employment Security Suite 206, Berkeley Building Koger Center 2590 Executive Center Circle, East Tallahassee, Florida 32301
