The Issue Whether Petitioner has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2009).
Findings Of Fact Respondent was a participant in Petitioner’s retirement benefits fund. The retirement fund qualifies as a public retirement system. Respondent was hired by Petitioner on February 16, 1998, and at the time of his termination from employment he worked as a sewer operations team leader in Petitioner’s wastewater collections department. According to the Notice of Disciplinary Action dated July 8, 2010, Respondent’s employment with the City of Tampa was terminated based on the following: During the course of an investigation by the Tampa Police Department, report #2010-900187, you admitted to the following violations of City of Tampa policy: Using a City issued cellular phone for non- City related phone calls which furthered illegal activity; and using a City issued vehicle to participate in activities not related to your employment; both of which are violations of City of Tampa Personnel Manual, Discipline Administration, B28.2,3(c)(9), Neglect of Duty, Use of City equipment, including vehicles, for any unauthorized purpose. Wearing a City issued uniform while conducting unauthorized and illegal activities, violating City of Tampa Personnel Manual, Discipline Administration, B28.2,3(b)(8), Insubordination, Inappropriate use of City identification, including uniforms. Further, your behaviors as revealed in the investigation by the Tampa Police Department, are incompatible with the moral and ethical standards expected of City of Tampa employees and these behaviors are violations of City of Tampa Personnel Manual, Discipline Administration, B28.2,3(d)(9), Moral Turpitude, Engaging in any employment, activity or enterprise which is illegal, incompatible or in technical conflict with the employee’s duties and responsibilities as a City employee. The instant proceeding, as noted in Petitioner’s PRO, does not focus on whether Respondent’s conduct violated the City of Tampa’s “moral and ethical standards,” but instead focuses on whether Respondent, during the course of an investigation by the Tampa Police Department, admitted to wearing his city-issued uniform, and using his city vehicle and cell phone in furtherance of illegal activity.1/ Background In 2010, Detective Korey Diener of the Pinellas County Sheriff’s Office, was involved in a long-term investigation involving counterfeit checks. As part of the investigation, Detective Diener was monitoring a suspect by the name of Shannon Edwards (Edwards). During a circuit court probation hearing on February 24, 2010, Edwards, who was acquainted with Respondent because they hung out in the same neighborhood, presented a State of Florida, Department of Corrections, Public Service Hours form, which indicated that he (Edwards) had completed his court-ordered community service hours. Another detective, who was also involved with the case, was present in the courtroom and knew that the form was falsified based, in part, on a surveillance conversation he heard between Edwards and his girlfriend, Chelsea Niles (Niles). During the surveilled conversation, Edwards asked Niles to contact Respondent so that he could secure for Edwards a form showing that Edwards had performed the required community service hours, when in actuality he (Edwards) had not. According to Petitioner, Edwards, while using Niles as his agent, reached out to Respondent because Respondent, as a city employee, “knew somebody” who could prepare the needed community service form. Mr. Edwards did not testify during the disputed-fact hearing, and his statement is not being accepted for the truth of the matter stated therein. Ross Fabian (Fabian) was Respondent’s contact person for securing the fraudulent form. Respondent’s undisputed, credible testimony is that he knew Fabian because as a juvenile, Respondent had gotten into trouble and performed his ordered community service hours under Fabian’s supervision. Respondent maintained a relationship with Fabian throughout the years, but there is no evidence that the relationship between the two was in any way connected to Respondent’s employment with the city. Petitioner seeks to infer from Edwards’ statement that Respondent was a “city employee that knows somebody,” the existence of a nexus between Respondent’s employment and the securing of the fraudulent form. The evidence is insufficient to support such an inference. Police Interview The predicate for the instant action lies in that portion of the Notice of Disciplinary Action which provides that during the course of an investigation by the Tampa Police Department, Respondent “admitted” to “[u]sing a City issued phone for non-City related phone calls which furthered illegal activity, using a City issued vehicle to participate in activities not related to your employment, and [w]earing a City issued uniform while conducting unauthorized and illegal activities.” The evidence of record does not establish that Respondent admitted to the conduct as alleged. On June 16, 2010, Respondent was interviewed by Detective Mike Victor of the Tampa Police Department and Detective Korey Diener of the Pasco County Sheriff’s Office. A transcript of the audio recording was admitted into evidence. During the interview, Respondent was asked about the phone that he used when speaking with Edwards about the fraudulent community service hours. In response to the question, Respondent informed the detectives that he used his personal phone when speaking with Edwards. At no point during his interview with law enforcement did Respondent admit to using a city-issued cell phone as part of the transactions related to the fraudulent form. Furthermore, in reviewing the transcript of audio recording, Respondent was never asked if he used his city truck or was wearing his city-issued uniform while interacting with Edwards, Fabian, Niles, or anyone else who may have been involved with the execution of the fraudulent community service form. Succinctly stated, the transcript of Respondent’s recorded interview does not in any way indicate that Respondent admitted to using his city truck, or to wearing his city-issued uniform while completing the transactions related to the execution of the fraudulent community service form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order: Finding that there is no nexus between Respondent’s conduct and his public employment; Finding that forfeiture of Respondent’s benefits under the retirement plan is not authorized pursuant to section 112.3173, Florida Statutes; and Dismissing the petition for forfeiture, with prejudice. DONE AND ENTERED this 8th day of February, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2017.
The Issue Whether Respondents have engaged in the unauthorized practice of insurance in the State of Florida, and if so, the penalties that should be imposed. Respondents raise as an affirmative defense the assertion that the provisions of the Employee Retirement Income Security Act (ERISA) 29 U.S.C. Section 1001, et seq., preempt the regulation of Respondents' activities in the State of Florida by the Florida Insurance Code.
Findings Of Fact Petitioner, the Florida Department of Insurance, is charged with the duty of enforcing the Florida Insurance Code. These duties include the regulation of entities engaged in the business of insurance within the State of Florida.1 Respondent Consolidated Local Union 867 (Local 867) is an unincorporated "labor organization" under the Labor Management Relations Ac-t, also known as the Taft-Hartley Act, 29 U.S.C. Section 152(4) and (5) and is an "employee organization" as defined by Section 1002(4) of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. Sections 1001, et seq. The principal office of Local 867 is at 333 North Broadway, Jericho, New York. Respondent Consolidate Welfare Fund (CWF) was established effective October 1, 1988, by a Trust Agreement entered into by persons purporting to be trustees of Local 867 and by persons purporting to be trustees of employers.2 The stated purpose of CWF was to provide medical, surgical, and hospital care benefits to its participants in the event of sickness, accident, disability, or death. During the years 1989 through 1991, Local 867 and CWF contracted to provide participating Florida residents specified health and hospitalization benefits so that those participants would be indemnified against the enumerated health care costs necessitated by injury or illness. In exchange, Respondents received the payment from those participants of an established fee or premium. CWF was initially fully insured by Empire Blue Cross & Blue Shield (Empire), an insurance company based in the State of New York. Since July 1, 1990, CWF has been fully self- insured. CWF is operating at a substantial deficit ($4,196,480 at the time of the formal hearing), and substantial claims from Florida consumers remain unpaid. The loss ratio at which CWF operated was, at the time of the formal hearing, approximately 122% with health claims exceeding premiums received. Neither Local 867 or CWF ever held a Certificate of Authority to engage in any aspect of the insurance business as required by Section 624.401, Florida Statutes. At no time pertinent to these proceedings was Empire the holder of a certificate of authority to transact business in the State of Florida. Local 867 is governed by a constitution which has been filed with the Secretary of the United States Department of Labor (Secretary of Labor). Its constitution creates Consolidated Local Union 867 and provides, in pertinent part, as follows: ARTICLE III JURISDICTION This organization has jurisdiction to organize, admit to membership and represent all workers, including without limitation, automobile sales, service and maintenance employees, delivery and oil truck drivers, and miscellaneous employees and all such other persons as may from time to time be determined by the Executive Board. ARTICLE IV OBJECT AND PURPOSE To unite in one organization, regardless of religion, race, color, and sex, nationality or national origin, workers eligible to become, members, To organize unorganized workers and improve their working conditions. To advance, maintain, and protect, at all times, the welfare and interest of the members of this Union. ARTICLE V MEMBERSHIP A. Any person who is employed in a capacity which makes him eligible for Union membership and who is not a member of an organization whose philosophy runs counter to democratic American principles may apply for membership in this Union. The CWF Trust Agreement provides, in pertinent part, as follows: The sole purpose of the Fund is to provide welfare benefits permitted by law to employees and their beneficiaries to the extent that the Trustees determine feasible and to defray the expenses of doing the same. It is intended that the Fund promulgated hereto shall be a "multi- employer plan" . . . within the meaning of ERISA. There were at one time between 1989 and the date of the formal hearing approximately 98 employer groups in Florida affiliated with Local 867 or CWF with approximately 1,000 covered employees. Local 867 is a party to collective bargaining agreements with various employers in different states. There was evidence that Local 867 has relations with employee groups in approximately 15 states, including Florida. These collective bargaining agreements typically pertained to wages, hours of employment, seniority, holidays, vacations, adjustment of disputes, contributions to the CWF for plan benefits, and contributions to the Consolidated Welfare Fund Security Division for pension coverage. By the agreement executed by Local 867 and these various employer groups, more than one employer was required to make contributions to the CWF for plan benefits. Respondents introduced as their Exhibit 3 an agreement dated July l, 1989, between Consolidated Local Union 867, ". . . acting on behalf of itself and the employees covered by this Agreement, now employed or hereafter employed by the Employer and HIG Assoc. Inc. . . ." of Plainview, N.Y. (HIG was referred to in the agreement as the "Employer")." HIG recognized Local 867 as its "duly authorized representative and exclusive bargaining agent" for all full-time employees. Respondents introduced as their Exhibit 19 an agreement dated February 1, 1991, between Consolidated Local Union 867, "acting on behalf of itself and the employees covered by this Agreement, now employed or hereafter employed by Employer and Business Marketing Consultants, 333 N. Broadway, Suite 2000A, Jericho, NY 11753 (hereinafter called the "Employer"). Business Marketing Consultants (BMC) recognized Local 867 as its "duly authorized representative and exclusive bargaining agent" for full time employees. The relationship between Respondents and Florida residents was typically initiated by a Florida employer seeking to obtain group insurance benefits for its employees. CWF provides life, health, accident, and death benefit insurance coverage to Florida employees similar to that offered by traditional insurance companies, frequently at costs lower than those insurance companies for equivalent coverage. The actual solicitation and marketing of the insurance benefits offered by CWF was carried out by licensed insurance sales persons and insurance brokers. For the transactions testified to at hearing, the purpose of the contact between the employer and the insurance agent was to discuss insurance, not the unionization of the employer's employees. In each instance about which there was testimony, the agent would describe the plan offered by Respondents, which offered rates below those quoted by other programs. The employers secured the benefits by applying for membership in an association such as HIG or BMC whereby the employer group became members of the association for the purpose of "all labor relation matters" as they affected "all full time employees" and agreed to the "terms and conditions" of an agreement between the association and Local 867. For the employer groups in Florida, forms styled "Application for Membership and Ratification" were submitted pertaining to Mishkin, Horowitz and Boas, P.A., Gross and Telisman, P.A., and Key Colony Homeowners Association, Inc. A separate "Application for Membership and Ratification" was executed by HIG and by Key Colony Homeowners Association, Inc. (on November 17, 1989), Gross and Telisman, P.A. (on November 28, 1989), and by Mishkin, Horowitz and Boas, P.A. (on December 7, 1989). These agreements were identical with the exception of the dates and the parties. By each application, the employer group applied for membership in HIG, appointed HIG as its exclusive bargaining agent for all labor relation matters as they affect all full-time employees, and agreed "to the terms and conditions of a certain Collective Bargaining Agreement by and between HIG and Consolidated Local Union 867 . . . dated March 1, 1989, covering all full-time employees." No agreement between Consolidated Local Union 867 and HIG Associates dated March 1, 1989, was introduced as an exhibit in this proceeding. Consequently, while it may be reasonably inferred that the agreement dated March 1, 1989, was similar to Respondents' Exhibit 3 dated July 1, 1989, Respondents failed to establish the terms and conditions to which these employer groups agreed. A separate "Application for Membership and Ratification" was executed by BMC and by Key Colony Homeowners Association, Inc., on October 1, 1990, and by Mishkin, Horowitz and Boas, P.A. on September 27, 1990, and on April 21, 1991. These agreements were entered after the entry of the immediate final order on September 10, 1990, and were identical with the exception of the dates and the parties. By each application, the employer group applied for membership in BMC, appointed BMC as its exclusive bargaining agent for all labor relation matters as they affect all full-time employees, and agreed "to the terms and conditions of a certain Collective Bargaining Agreement by and between BMC and Consolidated Local Union 867 . . . dated September 1990, covering all full-time employees." Although it appears from the evidence presented that a similar form was submitted on behalf of Wickstorm Publishers, that form was not introduced into evidence. The employees who wished to be covered by the Respondents' plan were required to become a member of Local 867. A portion of the monthly payments paid by these employees for this coverage was for union dues. Irving W. Mishkin of Mishkin, Horowitz & Boas, P.A. signed a card applying for membership in Local 867 in order to qualify for the plan benefits. Mr. Mishkin never requested a copy of Local 867's constitution, never asked how he could exercise his right to vote for union officers, never requested Local 867 to name a shop steward, and never asked for a copy of the agreement between Local 867 and BMC. Mr. Mishkin was aware that the invoice he received each month included an amount for union dues. Donald Haug, the general manager of Key Club Number Two, a constituent of Key Colony Homeowners Association, was aware that all covered employees would have to become members of Local 867 to qualify for the health plan benefits and that invoices covering contributions for health coverage also included an amount for union dues. There was no commonality of interest among the Florida participants in the CWF plan. Respondents were unable to establish that the relationship between the consumers in Florida and Respondents was anything other than the relationship between an insurer and an insured. The relationship between Florida consumers and Respondents consisted only of the payment of premiums and the filing of claims. There was no evidence that either Respondent engaged in any traditional union activity on behalf of any member in the State of Florida. During the course of the investigation into Respondents' activities, Petitioner received no complaint that there was not a shop steward at the pertinent places of business or that there were no union elections. There was no evidence that any Florida employee requested and was refused a copy of any collective bargaining agreement or a copy of Local 867's constitution. All complaints from Florida employers or employees pertained to unpaid claims. On or about September 10, 1990, the Petitioner filed the Notice and Order to Show Cause against the Respondents which triggered this administrative proceeding and which included an immediate final order for the Respondents to cease and desist subscribing new health plan participants in Florida pending the resolution of this administrative proceeding. On October 22, 1990, Respondents filed an action in the United District Court, Northern District of Florida, Tallahassee Division (CIV. No. 90-40228-WS) seeking an order which declares that certain portions of the Florida Insurance Code have been preempted by ERISA and which enjoins Petitioner from proceeding against the Respondents in this administrative proceeding. That action was pending as of the date of the formal hearing. In a proceeding brought in the United States District Court of the Southern District of New York by the Secretary of Labor against Consolidated Welfare Fund and others, a consent order was entered June 13, 1991, which imposed a moratorium on the payment of claims by CWF. Because of that moratorium, the CWF claims are not being processed or paid. Even without this moratorium, the evidence establishes that CWF is not financially capable of satisfying its claimants and its viability is questionable. There was no evidence that any advisory opinion has been issued by the United States Department of Labor or that any order has been entered by a court of competent jurisdiction which determines that Petitioner is precluded from regulating the activities of Respondents in the State of Florida because the provisions of ERISA preempt the Florida Insurance Code. The Secretary of Labor has not found any of the agreements pertinent to this proceeding to be collective bargaining agreements. There was no evidence that the Secretary of Labor has promulgated any other requirements relating to the definition of the term "multiemployer plan" under ERISA, 29 U.S.C. Section 1002(37)(A). Those responsible for the maintenance and operation of the benefit plan offered by Respondents had substantial experience within the insurance industry. Entities with substantial experience in the business of insurance aided in the marketing and operation of CWF. Those responsible for the maintenance, operation, administration, and marketing of the benefit plan offered by Respondents were compensated in the form of commissions or administrative fees and salaries that were paid from membership dues, pension contributions, and welfare fund contributions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondents engaged in the unlawful transaction of the business of insurance in the State of Florida without the requisite certificate of authority, which orders Respondents to cease and desist from the unauthorized transaction of insurance in the State of Florida, and which imposes an administrative fine against said Respondents in the total amount of $10,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1992. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992.
The Issue The issue is whether Petitioner and her family are entitled to services on account of her developmental disability.
Findings Of Fact Petitioner was born on September 8, 1981. Seven years ago, she suffered a severe brain injury as a result of five hours of diabetes-induced seizures resulting from low blood sugar. The incident left Petitioner in an entirely dependent state. Presently, at 20 years old, Petitioner has the intellectual development of a two-year-old and requires constant care, seven days a week, 24 hours a day. Petitioner's present condition actually represents a marked improvement from her condition immediately after the seizures and brain injury. Declining to institutionalize Petitioner, her parents have provided the care that Petitioner has needed to regain her abilities to walk and talk (with considerable difficulty) and to use her arms and hands. Despite these dramatic developments, Petitioner still requires as much care as she required immediately after the injury; she cannot, for example, feed herself or maintain continence. Behaviorally, Petitioner presents a considerable challenge due to her nonexistent impulse control and tendency toward explosive outbursts. At 5 feet, seven inches tall and 200 pounds, Petitioner is strong, and she is capable of attacking with unmediated force. Petitioner's father, who is 48 years old, is six feet, one inch tall and weighs 350 pounds. Her mother, who is 42 years old, is at least the size of Petitioner. When infuriated, Petitioner can physically overpower her parents, as well as her 18-year-old and 22-year- old siblings--all of whom have suffered injuries from Petitioner's attacks. Petitioner's father has suffered cellulitis at the site of an injury that he sustained from one of his daughter's attacks. Petitioner has a very limited attention span and frustrates easily. She does not like being closed in, and, when upset, she strikes out. In addition to attacking her caregivers, Petitioner has damaged property in her outbursts. Her father estimates that Petitioner has broken seven motor vehicle windshields--sometimes while the vehicle was in operation. Several times a day Petitioner becomes agitated and engages in physical outbursts. Managing Petitioner's unpredictable and dangerous behavior has placed considerable demands on her parents. Petitioner's father is the senior pastor of North Palm Baptist Church in Miami. Petitioner's mother is an administrative assistant to the Director of Missions of the Miami Baptist Association. Each weekday during the school year, Petitioner leaves home at 6:00 a.m. to ride a bus to her special school, and she returns by bus at 3:30 p.m. Her father must cut short his workday to meet the school bus each afternoon. For respite care, Petitioner's parents seek the assistance of a person capable medically of supervising Petitioner's severe diabetes, such as administering her injections, and capable physically of handling Petitioner's disruptive behavior. Petitioner's father normally sleeps near Petitioner, who wakes up every time her covers come off, which may happen 75 times a night. The intensive, unending care that Petitioner's parents have had to provide their daughter has caused them great stress. For speech therapy, Petitioner's parents seek assistance to remediate Petitioner's extensive verbal deficits. For two years after the incident, Petitioner was nonverbal. Her ability to articulate has slowly improved, but she remains nonverbal at school. For personal services, Petitioner's parents seek the assistance of a person to meet Petitioner when she gets off the bus from school, give her a snack, bathe her, and attend her until her parents come home from work. This person must have the physical capability of ensuring that Petitioner does not injure herself or others during one of her frequent and unpredictable outbursts. Petitioner and her parents moved to Florida from South Carolina in July 2000. Within a month, Petitioner had applied for developmental disability services. However, Petitioner has not been able to obtain general revenue-funded services or Home and Community-Based Waiver services funded by Medicaid. In rejecting Petitioner's request for services, Respondent has relied on two documents: "Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions" (Spending Plan) and "Developmental Disabilities Program Crisis Identification Tool-- revised 9/2001" (Crisis Identification Tool). Respondent also relies on testimony that Petitioner lacks the funds to provide developmental disability services to all applicants. Although Respondent does not dispute that Petitioner otherwise qualifies for the developmental disability services that she seeks--from both programs--Respondent contends that she does not qualify under the Spending Plan and related documents, which Respondent contends it must apply due to the lack of funds. The Spending Plan states in part: By June 30, 2001, [Respondent] expects to serve 25,002 persons through the Developmental Disabilities Home and Community Based Services Waiver (Waiver). . . . In order to be able to serve the greatest number of persons possible within the legislative appropriation for Waiver services, [Respondent] will implement a number of strategies to ensure that appropriate Waiver services are provided in the most cost-effective manner. . . . * * * Spending Plan priority for FY 01-02: Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001. Cramer v. Bush class members--estimated 20 persons who will be served upon request, throughout the fiscal year. Persons who are determined to be [in] crisis who were not on the original waiting list--estimated at 10 persons per month and to be served throughout the fiscal year. Persons discharged from the Mentally Retarded Defendant Program. Persons who have become clients since July 1, 1999, in date order (new waiting list)--projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding. The list of such individuals will be developed at the central office; persons will be served in date order, based on the date the individual became a client. In order to serve the estimated 6,774 individuals who are projected to want and need Waiver serves during FY 01-02, enrollment on the Waiver will be phased in as described above. Compliance with the Spending Plan Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. The Central Office will monitor all enrollment activity and notify districts when an individual has been enrolled on the Waiver, and to proceed with the provision of services. The Central Office of the Developmental Disabilities Program will review and process District requests for assignment of a Waiver slot, based on the District's "crisis" determination. Upon completion of the Central Office review, where the Central Office has confirmed a determination of "crisis", the District will be notified when the individual is enrolled on the Waiver, and to proceed with the provision of services. The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Personal Care Assistance Services As required by Medicaid regulations, [Respondent] must require the use of regular Medicaid State Plan services when the individual is eligible to receive the services through the Medicaid State Plan. Provision of Waiver services must also comply with federally approved service definitions. Developmental Disabilities currently provides personal care assistance services to 1,232 children. Some of these children may be eligible under regular Medicaid EPSDT (Early, Periodic Screening, Diagnosis & Treatment) coverage. Medicaid state plan covers Personal Care Assistance for children who are eligible to receive nursing services. Children eligible for personal care assistance under Medicaid state plan must receive the service through this funding. [The ensuing five paragraphs continue to discuss children, the Medicaid state plan, and the Waiver.] New requests for personal care assistance will be assessed first to determine whether Medicaid state plan is appropriate. If this is not appropriate, the need for coverage under the Waiver will be made according to the federally approved service description. * * * Require Use of Waiver Funding, where available Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, Individual and Family Supports (IFS) funding is no longer available for persons who are eligible to receive Waiver- funded services, but who have refused services funded through the Waiver. Some people who are eligible have rejected services funded through the Waiver. [Respondent] will offer Waiver services to those individuals. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. Maximize Federal Funding Similarly, effective immediately, all covered Waiver services must be provided through Waiver funding. The purchase of Waiver billable services through the IFS budget category is no longer allowable, unless the Central Office has approved an exception. * * * The legislative proviso language supplied after the hearing by Respondent consists of selections of "Conference Report on SB 2000: General Appropriations for 2001-02--May 1, 2001." The relevant portion states: Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community-Based Services Waiver Services in accordance with a spending plan developed by [Respondent] and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with [Respondent's] policy for serving persons on the waiting list. Two other, related documents are relevant. The Crisis Identification Tool identifies several categories of crisis. The first category is a criminal court order. The second category is a danger to self or others, which requires a current exhibition of "behaviors that": result in harm to the person or others that, in turn, creates a life-threatening situation for the person or others or will result in bodily harm to the person or others that will require emergency medical care from a physician if services are not provided immediately. The other categories are "confirmed abuse/neglect," "homeless[ness]," "caregiver unable to give care," and "health issues." Under the unable-caregiver category, the Crisis Identification Tool adds: The individual's current caregiver is expressing extreme duress, is no longer safely able to provide care for the individual due to advanced age, illness or injury and the individual is in immediate need of services in order to remain living with the caregiver or to locate an alternative living arrangement. . . . The remainder of the Crisis Identification Tool warns applicants that there is a waiting list for services in the Waiver program, even for those applicants classified as in crisis. Developmental Disabilities Program Policy Directive PD#01-07, issued September 25, 2001 (Policy Directive), confirms this warning when it warns: With 2001-02 appropriations and the Spending Plan, "[Respondent] will have funding to enroll up to a total of ten persons per month statewide on the Waiver, who are in crisis." Noting that the Crisis Identification Tool will remain in effect until June 30, 2002, the Policy Directive emphasizes that "[t]his policy will clarify the procedures used in determining the ten crisis cases per month statewide in accordance with the 2001-2002 Spending Plan." The Policy Directive describes the procedures for completing and examining a Crisis Identification Tool. The Policy Directive notes that, for applicants posing a danger to self or others, the District's behavioral analyst, local review committee chair, or other appropriate behavior analysis professional must review the Crisis Identification Tool and make a recommendation. After completing its tasks, the District committee sends the Crisis Identification Tool to the Developmental Disabilities central office in Tallahassee. The central office meets one week monthly, through June 2002, to "determine individuals in most critical need." The Policy Directive adds that the "[i]ndividuals who were not selected . . . will be carried forward and reconsidered each month until they are determined to be one of the ten crisis cases for a month or they are served in accordance with the spending plan." In the alternative, the central office may also find that the individual is "not . . . in need of immediate waiver services" and inform the individual of its finding. As noted in the Preliminary Statement, Petitioner seeks developmental disability services in DOAH Case No. 02-1238 and in DOAH Case No. 02-1241. The Developmental Disabilities Hearing Request described in the Preliminary Statement distinguishes between two programs based on funding sources: Medicaid waiver and general revenue. DOAH Case No. 02-1241 requests services under the Home and Community-Based Services Waiver program, in which the federal government has provided Florida with funds, under a waiver of institutionalization requirements, for certain developmental disability services to eligible persons. DOAH Case No. 02-1238 requests services under a state program in which Respondent uses largely, if not exclusively, general revenue funds to purchase certain developmental disability services for eligible persons. The focus of both these cases has not been on Petitioner's general eligibility, but on Respondent's limited funds and Petitioner's eligibility based on spending-prioritization policies that Respondent has adopted and the Legislature has approved. The Spending Plan, Crisis Identification Tool and legislative proviso language approving the Spending Plan all expressly pertain to the Waiver program. The Spending Plan addresses the relationship between the Waiver program with the general revenue-funded program, which is identified at least partly as Individual and Family Supports funding, by warning that persons who have refused Medicaid Waiver-funded services or who are even "awaiting enrollment" in the Waiver program may no longer obtain general revenue-funded services. Under the Spending Plan, Crisis Identification Tool and legislative proviso language, Petitioner is properly denied developmental disability services under the Medicaid Waiver-funded program. In addition to confirming the insufficiency of funds in the Waiver program, these documents demonstrate that Petitioner fails to satisfy a prioritization criterion that could gain her earlier funding. Arguably, Petitioner was entitled to classification as an individual in crisis, either due to her posing a danger to her self or others or due to the "extreme duress" suffered by her parents as caregivers. However, the record permits no basis to overturn the decision of Respondent's central office that, for each month, other crisis applications posed greater urgency. Although the central office should have maintained Petitioner's Crisis Identification Tool for reconsideration each month, the record permits no basis to revisit any of the central office's decisions during the ensuing months, and the term of the procedures governing the use of the Crisis Identification Tool expired at the end of last month. However, the Spending Plan, Crisis Identification Tool, and legislative proviso language do not address the general revenue-funded program. Petitioner is eligible for developmental disability services covered by this program. Respondent's proof of lack of funds in this program is itself insufficient, unsupported by the documentation that accompanies Respondent's same claim as to Medicaid Waiver-funded services.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for covered developmental disability services in DOAH Case No. 02-1238 and denying Petitioner's application for developmental disability services in DOAH Case No. 02-1241. DONE AND ENTERED this 10th day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 July, 2002. COPIES FURNISHED: Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Reverend Ronald Satterwhite Qualified Representative 8260 Northwest 172nd Street Hialeah, Florida 33015 Hilda Fluriach District 11 Legal Counsel Department of Children and Family Services 401 Northwest Second Avenue Suite N-1020 Miami, Florida 33128
The Issue The issue is whether Petitioner properly issued a Stop-Work Order and Second Amended Penalty Assessment against Respondent for failing to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact The Division is a component of the Department of Financial Services. It is responsible for enforcing the workers' compensation coverage requirements pursuant to section 440.107, Florida Statutes. Children's Academy is a corporation operating child care centers in Miami, Florida. Children's Academy was incorporated in 1994 and has been operating with an active status since its inception. Patrick Adeleke ("Adeleke") is the sole shareholder and president of Children's Academy. Children's Academy has seven locations. Each of the seven day care centers has its own state license and occupational license. On October 5, 2011, Petitioner's investigator, Cheryl Powell ("Powell"), visited the Children's Academy location at 151 Northwest 162 Street, Miami, Florida. At the business site, Petitioner's investigator spoke to Laquisha Lewis ("Lewis") regarding the business. Lewis provided Powell a business card during the meeting that contained the seven day care centers under Children's Academy. Subsequently, Powell visited the headquarters. Adeleke was not at the business site when Powell visited the Children's Academy headquarters. The headquarters had a marquee that indicated it was Children's Academy Preschool, Incorporated. It had children, playground equipment, and was the same colors: red, yellow, and blue as the original business site Powell had visited earlier. Powell returned to the original business site and input information about Children's Academy into the Department of Financial Services' Coverage and Compliance Automated System (CCAS). She found that Respondent lacked insurance for the payment of workers' compensation coverage. Powell discovered Children's Academy's last known coverage was canceled May 19, 2003. Additionally, Petitioner's investigator verified through the CCAS that no exemptions from workers' compensation had been issued in connection with Children's Academy. Eventually, Powell spoke to Adeleke by telephone. Adeleke informed Powell that he had 27 employees working for Children's Academy and that there was no workers' compensation insurance in place. Each of the 27 employees are employed by Children's Academy under one tax ID number. Two of the seven day care center locations (Children's Academy #1 and #3) have four or more employees and the other five day care center locations (Children's Academy #2, #4, #5, #6, and #7) have three or fewer employees. Upon confirmation that Respondent lacked workers' compensation coverage and that no exemptions were in effect, the Department issued Children's Academy a Stop-Work Order ("SWO") and served a Request of Business Records for Penalty Assessment Calculation to Children's Academy ("Request"). On October 7, 2011, Respondent obtained a certificate of insurance for workers' compensation coverage. Respondent also responded to the Request and provided the Department with some of the requested records. These business records included corporate tax returns, quarterly federal tax returns, quarterly state employer's tax returns and payroll journals. The records were forwarded to Anita Proana, Penalty Auditor for the Division for review. The records listed one employer, Children's Academy, for all the business records supplied for each of the seven day care centers. All 27 employees were being paid under one corporation, with one federal employer ID number for Children's Academy. Additionally, the amounts on the payroll journals for the 27 employees matched the amount claimed as wages on the federal tax returns for Children's Academy. After Proano reviewed the records provided, she properly calculated the worker's compensation amount Children's Academy owed in workers compensation insurance for the period of October 6, 2008, through October 5, 2011, and concluded that Respondent failed to pay workers' compensation premium of $22,111.20. After the premium was multiplied by the statutory factor of 1.5, it resulted in a penalty assessment in the amount of $33,167.75. The new calculation superseded the Amended Order and a Second Amended Order of Penalty Assessment was issued on or about July 27, 2012, reducing Respondent's penalty to $33,167.75. During the hearing, Respondent admitted not having workers' compensation coverage for his employees but contested Children's Academy being a single employer. Instead, Respondent contested that the five preschools that had three or fewer employees owed any premium because each preschool was exempt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, issue a final order affirming the Stop-Work Order and Second Amended Order of Penalty Assessment in the amount of $33,167.75 minus the payments made to date. DONE AND ENTERED this 25th day of September, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 25th day of September, 2012. COPIES FURNISHED: Alexander Brick, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 alexander.brick@myfloridacfo.com Layne Verebay, Esquire Law Office of Layne Verebay, P.A. Building B, Suite 104 7800 West Oakland Park Boulevard Sunrise, Florida 33351 lverebay@aol.com Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue The issue in the case is whether, under the provisions of Section 409.25656, Florida Statutes, the Department of Revenue may apply bank account funds identified as belonging to Kim Sheldon towards an unpaid child support obligation.
Findings Of Fact By Final Judgment of Dissolution of Marriage dated August 9, 1995 (Case No. 95-742-CA-01, Fifth Judicial Circuit, Hernando County, Florida), Kim C. Meccariello was divorced from Dale W. Meccariello. Kim C. Meccariello subsequently remarried and is known as Kim C. Sheldon. As part of the settlement agreement in the 1995 divorce, Kim C. Sheldon (Petitioner) became obligated to pay monthly child support in the amount of $472.82. On November 1, 1999, the Department of Revenue (Department) became involved in this matter when the Petitioner's former husband apparently filed a "Request for Participation in Central Depository Program Pursuant to Florida Statute 61.13" seeking to have the Department collect unpaid child support on his behalf. By form letter dated December 1, 1999, the Department notified the supervisor of the Support Division, Hernando County that payments in the case should be redirected to the Department. The Petitioner asserts that she did not get a copy of this notice. The certificate of service indicates a copy was mailed to her. The Petitioner asserts that because she did not get the notice, the child support debt accounting fails to include payments made directly to her former husband, but has no documentation of the form or amount of such payments. There is no documentation that any direct payments were made. The evidence fails to establish that such direct payments occurred. Although the exact amount of unpaid child support owed by the Petitioner is disputed, the evidence clearly establishes that her unpaid child support debt clearly exceeds the amount of funds at issue in this proceeding. By Notice of Freeze dated July 7, 2000, the Department directed the MacDill Federal Credit Union to freeze the Petitioner's funds in the institution based on an unpaid child support obligation in the amount of $6,619.48. The Department subsequently received a letter on MacDill Federal Credit Union letterhead, dated July 11, 2000, and indicating that the Petitioner had two accounts at the institution: a savings account (#126552-01) containing $495.65; and a checking account (#126552-15) containing $1,123.42. By Notice of Intent to Levy dated July 14, 2000, the Department notified the Petitioner that the funds had been frozen and advised her of her right to challenge the action. The Petitioner requested a formal hearing. A letter from Strategic Outsourcing, Inc., dated July 18, 2000, states that the Petitioner's husband is an employee of Nicon, Inc., and that his wages are direct deposited into MacDill Federal Credit Union account #126522 on a weekly basis. Strategic Outsourcing, Inc., apparently handles payroll processing for Nicon, Inc. By Notice of Special Account release dated July 26, 2000, the Department notified the MacDill Federal Credit Union that all but $550.00 in the checking account (#126552-15) was released. The $495.65 in the savings account remained frozen. The total amount of currently frozen funds is $1,045.65. By Notice of Extension of Freeze dated July 27, 2000, the Department notified the MacDill Federal Credit Union that the Petitioner was challenging the Department's freeze and that the funds should remain frozen until the matter is resolved. The Petitioner and her current spouse are joint holders of the accounts at the MacDill Federal Credit Union. Because her husband did not have time to open the accounts, the Petitioner opened the accounts by herself, and her husband was added about a week later. The Department's decision to release the checking account funds (except for $550.00) was apparently based on conversations with the couple and upon receipt of the letter from Strategic Outsourcing, Inc. The funds were released based on the Department's determination that, other than $550.00, the checking account funds were directly attributable to the Petitioner's husband's income. The Department asserts that the currently frozen funds should be used to satisfy, in part, the Petitioner's unpaid child support obligation. The Petitioner asserts that since February 2000, she has been unemployed, that none of the funds in the accounts are attributable to her earnings, and that the funds should not be used to satisfy her unpaid child support obligation. According to the bank statement for the period March 1, 2000, to March 31, 2000, the balance in the checking account on March 1, 2000, was $862.10. There is no evidence that the March 1 balance did not include funds earned by and attributable to the Petitioner. According to account statements, a total of $2,170.97 in unidentified deposits were made to the account between March 1, 2000, and July 15, 2000, including a $958.97 cash deposit on April 24, 2000, a $162.00 cash deposit on May 8, 2000, a $500.00 check deposit on June 8, 2000, and a $550 deposit of unidentified type on July 3, 2000. At the hearing, the Petitioner and her husband testified that deposits into the checking account not directly attributable to his income were made by grown children residing at home and contributing towards household expenses which were allegedly paid from the husband's income. Other deposits were claimed to be small loans or gifts from family members. There was no documentation offered at the hearing to support the testimony. None of the children or relatives testified at the hearing. The evidence fails to establish that the deposits in the joint account came from adult children or other relatives. According to the bank statement for the period April 1, 2000, to April 30, 2000, a deposit on April 21, 2000, of $627.00 described as "US TREASURY 220" was a tax refund. The Petitioner's husband asserted that based on income, the refund was "90 percent" attributable to him. There was no documentation offered at the hearing to support the testimony. The evidence fails to establish that the tax refund deposited into the joint account is not attributable to the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue issue a FINAL ORDER directing that $1,045.65 currently held at the MacDill Federal Credit Union be applied towards meeting the Petitioner's unpaid child support obligation. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of April, 2001. COPIES FURNISHED: Manuel V. Fajardo, Esquire 610 West Azeele Street Tampa, Florida 33606 Albert Thorburn, Esquire Florida Department of Revenue Post Office Box 8030 4070 Esplanade Way Tallahassee, Florida 32314-8030 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue for determination is whether Petitioner's rights and benefits under the Florida Retirement System should be terminated, per Respondent's Notice of Termination dated November 19, 2004.
Findings Of Fact No dispute exists that Ms. Page was employed with DLES. Furthermore, no dispute exists that, because of her employment with DLES, Ms. Page is a member of FRS. No evidence was presented as to Ms. Page's duties at DLES. In September 1999, Ms. Page was charged by an information in the Eleventh Judicial Circuit, In and For Dade County, in The State of Florida v. Ismael Page aka May Washington aka Ismay Washington, Case No. 99-27532, with one count of filing a false and fraudulent insurance claim in violation of Section 817.234(1), Florida Statutes, a third degree felony; and one count of grand theft in violation of Section 812.014(2)(c)1, Florida Statutes, a the third degree felony. Additionally, in September 1999, Ms. Page was charged by an information in the Eleventh Judicial Circuit, In and For Dade County, in The State of Florida v. Ismael Page aka May Washington aka Ismay Washington, Case No. 99-27533, with one count of filing a false and fraudulent insurance claim in violation of Section 817.234(1), Florida Statutes, a third degree felony; one count of uttering a forged instrument in violation of Section 831.02, Florida Statutes, a third degree felony; and one count of grand theft in violation of Section 812.014(2)(c)1, Florida Statutes, a the third degree felony. The count of uttering a forged instrument involved a forged letter by Ms. Page from a person, who was employed at DLES and who was alleged in the letter to be her supervisor at DLES, showing that Ms. Page had incurred lost wages as the result of an injury in an accident. The forged letter was submitted by Ms. Page to an insurance company in support of her claim for disability benefits. The person who was alleged to have written the letter and to be Ms. Page's supervisor at DLES did not write the letter. Ms. Page received disability payments from the insurance company. On or about September 13, 1999, Ms. Page pled guilty to and was adjudicated guilty of the one count of filing a false and fraudulent insurance claim and the one count of grand theft in Case No. 99-27532. On or about September 13, 1999, Ms. Page pled guilty to and was adjudicated guilty of the one count of filing a false and fraudulent insurance claim, the one count of uttering a forged instrument, and the one count of grand theft in Case No. 99-27533. By Notice of Termination of All Rights and Benefits Under the Florida Retirement System (Notice), dated November 19, 2004, Retirement notified Ms. Page that all of her rights and benefits under FRS were terminated. Retirement claimed in the Notice that Ms. Page, while employed at DLES, had pled guilty to one count of fraudulent insurance claims in violation of Section 817.234(1), Florida Statutes; one count of uttering a forged instrument in violation of Section 831.02, Florida Statutes; and one count of grand theft in the third degree in violation of Section 812.014(2)(c), Florida Statutes. Further, Retirement asserted in the Notice that, based on the criminal violations and pursuant to Article II, Section 8(d) of the Florida Constitution, Section 121.091(5)(f), Florida Statutes (2000), and Section 112.3173, Florida Statutes, she had no further rights under FRS, that she would not be permitted to repurchase, as prior service, the years of creditable service she earned prior to the convictions, and that her accumulated contributions on deposit in the FRS Trust Fund, if any, would not be affected. Ms. Page challenged Retirement's action and requested a hearing. In her challenge to Retirement's action, Ms. Page made an allegation of dismissal of charges and of being presently disabled. Ms. Page failed to appear at the hearing. Because of her failure to appear, her allegation remains nothing more than an allegation without support for which no finding of fact can be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order reinstating the rights and benefits of Ismael Page under the Florida Retirement System. DONE AND ENTERED this 2nd day of September 2005, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 2nd day of September, 2005.
Findings Of Fact Petitioner was employed by Palm Beach County from 1954 to 1968 as Assistant County Engineer and County Engineer. During this period he was a member of SCOERS, had deductions taken from his salary for retirement, and became eligible for full retirement based on years of service when he reached the age of 60 in April, 1983. From 1954 to 1956 six percent (6 percent) [5 percent prior to July 1, 1955] was deducted from Petitioner's salary as his retirement contributions pursuant to the retirement plan in effect for state and county officers and employees. In 1957 the Legislature amended Chapter 122, Florida Statutes, by providing social security coverage for state and county employees electing to be so covered. All groups of employees, including SCOERS employees, were divided into Division A and Division B. Those in Division B were those who made an election in writing to have their retirement deductions changed from six percent (6 percent) to four percent (4 percent) to have FICA deductions withheld from their salaries, and to be covered by the Social Security System. Those not so electing remained in Division A, their employment was not covered by social security, and their retirement deduction was six percent (6 percent). As a county employee any election Petitioner made to convert from Division A to Division B would have been made to Palm Beach County, who provided the names of those so electing to the Comptroller's Office, who in 1958 handled the retirement files for the state. No list of names submitted by the counties has been retained by the state. Palm Beach County does not maintain active personnel files for retired people and had no personnel records for Petitioner in the dead files. Accordingly, at the time of the hearing Palm Beach County had no written election from Petitioner to change from Division A to Division B. When the employees in these SCOERs system elected to change to social security coverage in 1957 or 1958, part of the sum they had contributed to their state retirement was transferred to the Social Security Administration to make their entry into social security retroactive to January 1, 1956. The maximum that was transferred to the Social Security Administration for any one member of SCOERS so electing was $178.50. This amount was transferred from Petitioner's retirement account to the Social Security Administration in 1958. Effective January 1, 1956, Petitioner's contribution to SCOERS was calculated at four percent (4 percent) of his salary and this amount was deducted monthly until his employment with Palm Beach County ended in 1968. During the period Petitioner was employed by Palm Beach County he contributed to this retirement fund at the rate of six percent (6 percent) for 1.17 years and at the rate of four percent (4 percent) for12.91 years. From 1958 through 1962 annual statements were submitted to SCOERS members showing the contributions to and the status of their retirement accounts. In 1963 such a statement was provided on July 1, 1963. Thereafter, the statements were submitted on a fiscal year basis. At no time did Petitioner protest the FICA deductions from his salary or question the percentage deducted from his pay for the retirement fund. Petitioner now contends that he did not pay any attention to the deductions from his salary to the retirement fund and was unaware that social security deductions were being taken. This contention is not consistent with Petitioner's testimony that he is a fiscal conservative nor with his background as an engineer. In addition to the referendum made available to employees under the SCOERS in 1957 to elect to be covered by social security the Legislature subsequently established other referendums in 1959 and again in the 1960s providing members of SCOERS other opportunities to elect social security coverage. On December 1, 1970, the Florida Retirement System was started and membership in the old Florida retirement systems, including SCOERS, was closed. All members of the Florida Retirement System are covered by social security. Of the approximately ten thousand employees not in the Florida Retirement System, i.e., still in SCOERS, teachers and law enforcement retirement systems, less than one hundred remain in Division A and are not covered by social security. A special Statute of Limitations bars actions to modify contributions to the Social Security System three years three months and fifteen days after the contributions are made. Accordingly, Petitioner's coverage under social security from 1956 to 1968 is irrevocable.
The Issue Whether Petitioner was properly denied home energy assistance as requested.
Findings Of Fact Petitioner is an 84-year-old unemployed homemaker whose entire and total income is a monthly Social Security payment of $300.04 and, periodically, when certain real property she owns is rented, a monthly rental check of $87.50. On December 23, 1982, because the property had not been rented for several months, Petitioner filled out and submitted a "Household Application for Home Energy Assistance" form at the Ocala, Florida, office of the Department of Health and Rehabilitative Services (HRS). On this form, she listed, inter alia, her household makeup (she, alone), her Social Security number, and the amount of income she had each month, including the usual rent which she was not getting at the time. On January 13, 1983, HRS sent Mrs. Roberson a form letter requesting further information. This information requested was the award letter from Social Security, telling the amount she was getting each month, and something telling the rent she received, signed by the tenant. She was to provide this information before January 27, 1983. Apparently, Petitioner did not understand the request, and no one from HRS contacted her other than by this form letter. Sometime thereafter, Petitioner went into the HRS office and filled out another application form thinking that was the information requested. No action was taken on the second application. In any event, the requested information was not submitted and, as a result, the application was denied. Petitioner's family size and income would qualify her for assistance had her response to the request for additional information been timely. All during the time the Low Income Energy Assistance Program was in operation in Ocala, HRS had at least 6 or 7 staff members in the office to help individuals fill out their application forms and to answer questions posed by applicants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department of Health and Rehabilitative Services deny Petitioner's application for low income energy assistance benefits. RECOMMENDED this 2nd day of June, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 2nd day of June, 1983. COPIES FURNISHED: Emily Roberson 2277 N. W. 12th Street Ocala, Florida 32675 James Sawyer, Esquire District Counsel Department of Health and Rehabilitative Services 2002 N.W. 13th Street Gainesville, Florida 32601 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Appeal For This Case Unless expressly ¥ waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. Certificate of Clerk: | | Filed in the office of the Clerk of the the Departmen of Management Services on this _.Qp/& day of Detober , 2009. Agency Clerk TOTAL P.@2
