The Issue The issue in case number 94-6750 is whether Respondent's Class "A" private investigative agency license should be disciplined. The issue in case number 95-1084S is whether Respondent's application for a Class "C" license should be denied.
Findings Of Fact The Parties. Petitioner, the Department of State, Division of Licensing (hereinafter referred to as the "Division"), is responsible for, among other things, the licensing of privateinvestigators and private investigative agencies in the State of Florida. Chapter 493, Florida Statutes. In pertinent part, the Division may issue, pursuant to Section 493.611, Florida Statutes, the following classes of licenses: Class "C": private investigator; Class "CC": private investigator intern; and Class "A": private investigative agency. At all times relevant to this proceeding, Respondent, Keith P. Acuff, was licensed by the Division as a private investigator intern. Mr. Acuff holds a Class "CC" license from the Division. Mr. Acuff is also the owner of a private investigative agency known as Chatoyant Executive Protection and Investigative Services (hereinafter referred to as "Chatoyant"). Mr. Acuff holds a Class "A" license from the Division for Chatoyant. License Requirements. In order to qualify for a Class "C" license, an individual must operate for a minimum of twenty-four months as a private investigator intern. Section 493.6203(4), Florida Statutes. During those twenty-four months, the intern must be sponsored and supervised by an individual holding a Class "C" license. See Sections 493.6101(11) and 493.6116, Florida Statutes. Anyone, regardless of licensure, may hold a Class "A" license. In order for the business to operate as a private investigative agency, however, the agency must be managed by a person holding a Class "C" license. Mr. Acuff's Investigatory Experience. Mr. Acuff first received his Class "CC" license in July of 1990. In October of 1994 Mr. Acuff applied for a Class "C" license. See Petitioner's exhibit 1. The Division denied the application based upon its conclusion that Mr. Acuff had failed to verify that he had accrued twenty-four months of sponsored service as a private investigator intern. Mr. Acuff was first employed by Don Hubbard Investigations. Mr. Acuff had not claimed, nor does the evidence support a finding, that he is entitled to any time toward a Class "C" license for his employment with Don Hubbard Investigations. From the middle of September, 1990, until December, 1991, Mr. Acuff was employed by The Brown Group. Mr. Acuff's sponsor at The Brown Group was Steve Brown. The Division was able to verify from documentation submitted by Mr. Brown that Mr. Acuff was entitled to 12 months of investigatory work while employed at The Brown Group. Mr. Acuff failed to prove that he was entitled to more than 12 months credit for his employment with The Brown Group. Although Mr. Acuff testified that he believes he worked at least 15 months under Mr. Brown's sponsorship, he offered no proof from Mr. Brown to substantiate his testimony. From December 15, 1991, to February 15, 1992, Mr. Acuff was employed by Intercontinental Detective Agency. Mr. Acuff's sponsor at Intercontinental Detective Agency was Sean Mulholland. The Division was able to verify that Mr. Acuff had performed investigatory duties for Mr. Mulholland for 1 month. Mr. Acuff failed to prove that he was entitled to more than 1 month credit for his employment with Intercontinental Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Mulholland's sponsorship but he offered no proof from Mr. Mulholland to substantiate his testimony. Mr. Acuff's testimony that he submitted a Sponsorship Term Addendum completed by Mr. Mulholland to the Division was not credible and, even if it had been credible, was insufficient to constitute substantiation from Mr. Mulholland of Mr. Acuff's work for him. Mr. Acuff's next investigatory work was for MG Detective Agency. Mr. Acuff's sponsor at MG Detective Agency was Michael G. Hatcher. Mr. Hatcher agreed to sponsor Mr. Acuff by executing a Letter of Intent to Sponsor Private Investigator Intern on October 27, 1992. See Respondent's exhibit 2. Cynthia L. Cartwright signed the form agreeing to be an alternative sponsor. Mr. Acuff did not list any time under Mr. Hatcher's sponsorship for credit on his application for Class "C" license. See Petitioner's exhibit 1. The Division was not able to verify that Mr. Acuff had performed any investigatory duties for Mr. Hatcher. Mr. Acuff failed to prove that he was entitled to any credit for his employment with MG Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Hatcher's sponsorship but he offered no proof from Mr. Hatcher to substantiate his testimony. Mr. Acuff claimed on his application for Class "C" license that, upon leaving MG Detective Agency, he worked for Chatoyant from June of 1993 until August 1994. Mr. Acuff claimed that he was sponsored by Ms. Cartwright while employed for Chatoyant. Mr. Acuff also claimed that he performed investigatory work under Ms. Cartwright's sponsorship during the period he worked for Chatoyant for at least 3 and 1/2 months. Initially the Division planned to issue Mr. Acuff a Class "C" license. The Division concluded that Mr. Acuff was entitled to at least 11 months of sponsored investigatory work under Ms. Cartwright's sponsorship. Before the Class "C" license was issued to Mr. Acuff, however, the Division concluded that Mr. Acuff was not entitled to any sponsored time under Ms. Cartwright's sponsorship. The evidence, as discussed, infra, proved that Mr. Acuff is not entitled to any credit for work performed under Ms. Cartwright's sponsorship. Based upon the foregoing, Mr. Acuff provided verification that he had 13 months of sponsored investigatory service. Mr. Acuff is, therefore, 11 months shy of the 24-months of experience required for a Class "C" license. Mr. Acuff's Association with Ms. Cartwright. Mr. Acuff met Ms. Cartwright in late 1992 when he was employed briefly at MG Detective Agency. Ms. Cartwright has held a Class "C" license since 1991. Upon Mr. Acuff's termination of employment at MG Detective Agency, Ms. Cartwright was told by Mr. Acuff and a mutual friend, Carolyn Barber, that he only needed 2 or 3 months to complete the 2 years of internship required for a Class "C" license. Ms. Cartwright was asked if she would sponsor Mr. Acuff and act as the manager of Chatoyant for 2 or 3 months. Ms. Cartwright agreed to Mr. Acuff's request. She did so because Ms. Barber had asked her to and she felt sorry for Mr. Acuff because he had been terminated by MG Detective Agency only needing, Ms. Cartwright thought, 2 or 3 more months of sponsorship. Ms. Cartwright signed a Letter of Intent to Sponsor. The form she signed was blank. The Letter of Intent to Sponsor was subsequently completed, dated April 14, 1993 and filed with the Division. Ms. Cartwright admits she signed a blank form even though she understands that it was improper for her to do so. After agreeing to sponsor Mr. Acuff and act as the manager of Chatoyant, Ms. Cartwright changed her mind. She telephoned the Division's offices in Tallahassee in August of 1993 to ask how she could have her name removed as manager of Chatoyant. Ms. Cartwright was informed that her name did not appear as manager of Chatoyant. In the fall of 1993 Mr. Acuff asked Ms. Cartwright to sign a form terminating her position with Chatoyant. Ms. Cartwright told Mr. Acuff she did not see why she needed to sign a form based upon what she had been told during her conversation with the Division. When Mr. Acuff suggested that the Division might have made a mistake, Ms. Cartwright agreed to sign the form. In January or February of 1994 Ms. Cartwright signed a blank copy of a Termination/Completion of Sponsorship for Private Investigator Intern form. She gave the signed form to Ms. Barber. This form was ultimately completed, Ms. Cartwright's signature was notarized by Mr. Acuff's girlfriend, the form was dated August 30, 1994 and was then filed with the Division as part of Mr. Acuff's application for licensure. See Petitioner's exhibit 6. It was represented on Petitioner's exhibit 6 that Ms. Cartwright had sponsored Mr. Acuff from June 3, 1993 to August 26, 1994. An Employee Action Report was also filed with the Division. Petitioner's exhibit 5. The form indicates that Ms. Cartwright had resigned as manager of Chatoyant as of August 30, 1994. Ms. Cartwright did not sign the form. On October 5, 1994, Ms. Cartwright executed a Termination/Completion of Sponsorship for Private Investigator Intern form attesting that "I did not sponsor Patrick Acuff to my knowledge. I was not aware of Intent to Sponsor." Petitioner's exhibit 7. Ms. Cartwright did not sponsor any investigatory work by Mr. Acuff or act as the manager of Chatoyant. The Administrative Complaint. During the summer of 1994, the Division's office in Jacksonville received a letter questioning how Mr. Acuff could be working for Chatoyant without an appropriate license or manager. Ms. Norma Benvenuto, an investigator for the Division, checked the Division's records and determined that there was no sponsor listed for Chatoyant. Ms. Benvenuto spoke with Mr. Acuff and asked that he come to her office. Mr. Acuff complied. Mr. Acuff informed Ms. Benvenuto that Ms. Cartwright was the sponsor of Chatoyant. When asked for documentation, Mr. Acuff was only able to produce a blank form signed by Ms. Cartwright. Ms. Benvenuto asked Mr. Acuff to bring any documentation that would support his assertion that Ms. Cartwright was the manager of Chatoyant and that they had met to discuss his work during her sponsorship of him. Ms. Benvenuto telephoned Mr. Acuff more than once to remind him to bring the documentation. Mr. Acuff failed to provide any such documentation. Ms. Benvenuto contacted Ms. Cartwright in an effort to verify Mr. Acuff's assertions. Ms. Cartwright denied ever sponsoring Mr. Acuff or every actually performing any duties as the manager of Chatoyant. Ms. Cartwright also admitted that she had initially agreed to sponsor Mr. Acuff but had subsequently changed her mind. On October 20, 1995, the Division entered an Administrative Complaint against Mr. Acuff. The Denial of Mr. Acuff's Application for a Class "C" License. By letter dated December 16, 1994, the Division notified Mr. Acuff that his application for a Class "C" license was denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Division sustaining Counts II and III of the Administrative Complaint against Mr. Acuff in case number 94- 6750, requiring that he pay a fine of $1,000.00 and denying the application for a Class "C" license filed by Mr. Acuff or about August 30, 1994 in case number 95-1084S. DONE AND ENTERED this 28th day of April, 1995, in Tallahassee Florida. LARRY J. SARTIN, 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 28th day of April, 1995. APPENDIX The Division has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Acuff did not file a proposed order. The Division's Proposed Findings of Fact 1 Hereby accepted. See 4-5. 2-3 Hereby accepted. Accepted in 22. Accepted in 22, 28 and hereby accepted. Hereby accepted. Accepted in 25 and hereby accepted. Accepted in 22 and hereby accepted. Accepted in 17 and hereby accepted. See 26 and hereby accepted. Hereby accepted. Accepted in 16 and hereby accepted. Accepted in 14. Accepted in 13, COPIES FURNISHED: Michele Guy Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Jeffrey Grainger, Esquire 1722 University Boulevard South Jacksonville, Florida 32216 Honorable Sandra B. Mortham Department of State The Capitol Tallahassee, Florida 32399 Don Bell Department of State The Capitol Tallahassee, Florida 32399
The Issue The issue is whether Petitioner, an elected circuit court judge, is entitled to renewed membership or is otherwise entitled to participate in the Florida Retirement System (FRS).
Findings Of Fact The FRS Plan There are two classes of members in the FRS: all officers or employees, except elected officers; and elected officers, including circuit judges. See §§ 121.051(1)(a) and 121.052, Fla. Stat. (2014). The second class is identified as the Elected Officers' Class (EOC). See § 121.052(1), Fla. Stat. Members of the FRS may elect to participate in either the Defined Benefit Retirement Program (Pension Plan) or the Public Employee Optional Retirement Program (Investment Plan). The Investment Plan has a one-year vesting requirement, thus enabling a vested participant to receive a distribution of his or her account at any time after leaving FRS-covered employment. Upon retirement, a vested Pension Plan member receives a monthly benefit for his or her lifetime whereas a vested Investment Plan member receives a lump-sum distribution of accumulated benefits from his or her account. Under both plans, a member must terminate all FRS-covered employment in order to receive a benefit. "Retiree" is defined at least three times in chapter 121, none the same. See §§ 121.021(60), 121.35(5)(h), and 121.4501(2)(k), Fla. Stat. However, as explained in the Conclusions of Law, all Investment Plan retirees are covered by section 121.4501(2)(k), which defines a "retiree" as "a former member of the investment plan who has terminated employment and taken a distribution of vested employee or employer contributions as provided in s. 121.591." In 2009, the Legislature created section 121.122(2), which provides that a "retiree of a state-administered retirement system who is initially reemployed on or after July 1, 2010, is not eligible for renewed membership." See Ch. 2009-209, § 12, Laws of Fla. By virtue of this amendment, FRS retirees who did not become reemployed with a covered employer by July 1, 2010, were ineligible for renewed membership in the FRS. The same bill amended section 121.053 by adding a new subsection (3)(a), which provided that on or after July 1, 2010, a "retiree of a state-administered retirement system who is elected or appointed for the first time to an elective office in a regularly established position with a covered employer may not reenroll in the Florida Retirement System." Id. at § 5. This amendment makes clear that the prohibition in section 121.122(2) applies equally to elected officials. In 2012, the Legislature amended section 121.122(2) to provide that "[a] retiree of a state-administered retirement system who is initially reemployed in a regularly established position on or after July 1, 2010, may not be enrolled as a renewed member." See Ch. 2012-222, § 7, Laws of Fla. The sole purpose of the amendment was to "make it clear that a retiree of the investment plan . . . who is reemployed on or after July 1, 2010, is prohibited from being reenrolled as a renewed member of a state-administered retirement system." Fla. Govt. Oper. Comm., CS/HB 7079 (2012) Staff Analysis, p. 5 (final May 11, 2012)(available at http//www.myfloridahouse.gov).1 Petitioner's Employment History and Retirement Option Petitioner was a member of the FRS while employed as an Assistant State Attorney from January 2, 2001, through September 30, 2003. When first employed, Petitioner was a member of the Pension Plan. Shortly thereafter, the Legislature created the Investment Plan option, and Petitioner was given a deadline of August 31, 2002, to make an election between the two plans. On August 31, 2002, she switched to the Investment Plan. On or about September 30, 2003, Petitioner left the Office of State Attorney for private law practice. In January 2006, she took a complete distribution from her FRS Investment Plan in the amount of $8,154.52. By taking a lump- sum distribution, she became a "retiree." See § 121.4501(2)(k), Fla. Stat. ("Retiree" means a former member of the investment plan who has terminated employment and taken a distribution of vested employee . . . contributions."). She was not employed in an FRS-eligible position between September 30, 2003, and January 8, 2013. On August 14, 2012, Petitioner was elected to the position of Circuit Judge in the Sixth Judicial Circuit of Florida. On January 8, 2013, Petitioner was commissioned as a Circuit Judge for the Sixth Judicial Circuit of Florida. The Proposed Agency Action In response to her request to enroll in the FRS, by letter dated November 14, 2013, Daniel Beard, who is Director of Policy, Risk Management, and Compliance for the State Board of Administration, advised Petitioner in pertinent part as follows: You retired from the FRS on January 23, 2006 when you requested a distribution of your FRS Investment Plan account. Section 121.4501(2)(k), Florida Statutes, defines a "retiree" as a member of the FRS Investment Plan who has terminated employment and has taken a distribution as provided in Section 121.591. There are no statutory provisions that would allow you to cancel or void your retirement, and there are no statutory provisions that would allow you to repay the distribution in order to be "unretired." Section 121.122, Florida Statutes, states that a retiree of a state-administered retirement system who is initially reemployed in a regularly established position on or after July 1, 2010 is not eligible to enroll in renewed membership and receive additional retirement benefits. This change in law pertained to any retiree of a state-administered retirement system who had not returned to FRS employment prior to July 1, 2010. You were hired by the Office of State Courts on January 8, 2013. Petitioner timely challenged the proposed agency action asserting that she is entitled to participate in the FRS as a compulsory member of the EOC pursuant to part I, chapter 121.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order denying Petitioner's request to reenroll in the FRS. DONE AND ENTERED this 18th day of September, 2014, in Tallahassee, Leon County, Florida. S R. ALEXANDER 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 18th day of September, 2014.
The Issue Should Petitioner's Application for Consumer's Certificate Of Exemption be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is an organization incorporated under the laws of the State of Florida. Petitioner applied for a Consumer's Certificate of Exemption with the Department of Revenue pursuant to Section 212.08(7), Florida statutes. The Department of Revenue is the agency charged with the responsibility of granting or denying a Consumer's Certificate of Exemption pursuant to Chapter 212.08(7), Florida Statutes. Petitioner has not been qualified as non-profit pursuant to Section 501(c)(3), Internal Revenue Code of 1986, as amended. Petitioner failed to establish facts to show that it is a "religious institution" as that term is defined in Section 212.08(7)(o)2.a., Florida Statutes. Petitioner failed to establish facts to show that it is a "charitable institution" as that term is defined in Section 212.08(7)(o)2.b., Florida Statutes. Petitioner failed to establish facts to show that it is a "educational institution" as that term is defined in Section 212.08(7)(o)2.d., Florida Statutes. All of the exhibits and testimony presented by Petitioner relate to JBS Incorporated, "Jackson Merit National and International Scholarship Fund Corporation, et. al. (A private Foundation and Corporation)," Elijah Jackson individually, or one of the other referenced entities none of which is the applicant or the Petitioner in this case. To the extent that the exhibits relate to Petitioner they indicate that Petitioner is "a/k/a Educational Festival of Polk County."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order denying Petitioner's application for a Consumer's Certificate of Exemption. DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999. COPIES FURNISHED: Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Elijah Jackson, Jr. Qualified Representative Educational Incentive Program, Incorporated Post Office Box 29895 Lakeland, Florida 33804-2895 William B. Nickell, Esquire. Department of Revenue 501 South Calhoun Street, Suite 204 Tallahassee, Florida 32301
Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),1/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Petitioners are persons subject to chapter 394, part V, and are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook and internal memorandum are unpromulgated rules which are imposed on FCCC residents, and that the same are an improper exercise of delegated legislative authority as de facto agency rules that have not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes.
The Issue The issues are as follows: (a) whether Respondent took "agency action" when it certified the Okaloosa-Walton College Foundation, Inc. as its direct support organization and endorsed the Foundation's decision to sell the Mattie Kelly property; and whether Petitioners have standing to request an administrative hearing on those issues.
Findings Of Fact The Foundation was incorporated and first certified as a direct support organization in 1988. The Mattie Kelly property is approximately 13 acres of waterfront property on Choctawhatchee Bay in Destin, Okaloosa County, Florida. It includes the former residence of Mattie Kelly and the real property surrounding the residence. Destin, Okaloosa County, Florida, is a municipality, bounded on the north and west by Choctawhatchee Bay, on the south by the Gulf of Mexico, and on the east by Walton County, Florida. On August 17, 1992, Mattie Kelly executed her Last Will and Testament (will). Article VIII of the will states as follows: I give, devise and bequeath my personal residence located a 1200 Indian Trail Road, Destin, Florida 32541, including all real property surrounding the residence and the sum of Five Hundred Thousand Dollars ($500,000,000) to Okaloosa-Walton Community College for the establishment of the "Mattie Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College." The purpose of the "Mattie M. Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College" shall be: To provide a meeting place for literary societies, fine arts groups, and small performing groups. To provide a location for conferences and seminars offered through Okaloosa-Walton Community College. To provide a location for biology studies and marine science studies associated with Choctawhatchee Bay and the Gulf of Mexico. To provide a location for displaying the coastal heritage of Northwest Florida. The Five Hundred Thousand Dollars ($500,000,000) endowment which forms part of this gift shall be used only for maintenance and operating costs in furtherance of the above purposes, including the perpetual care, maintenance and upkeep of my mausoleum. A Personal Representative's Warranty Deed dated March 6, 1997, conveyed the property to the Foundation. At some point in time, the Foundation decided to sell the property to a real estate developer and entered into a contract to do so. On March 15, 2004, Petitioner Hammet filed a Petition for Administrative Hearing with the Board. The petition questioned whether the Board should support, endorse, and/or not oppose the sale of the property for private real estate development purposes, accept the college president's recommendation about the sale, and certify the Foundation to be operating in the best interest of the state. The Board's March 16, 2004, minutes state as follows in relevant part: ACTION AGENDA DSO Certification/IRS 990 The District Board of Trustees certified that requirements of Direct Support Organization under FS 1004.70 have been met and that the OWCC Foundation is in compliance with the procedures as herein described and accepts Form IRS 990 as submitted. Further, the District Board of Trustees supports and endorses the Foundation Board of Directors in its endeavor to sell the Mattie Kelly Property (Motion: Henderson; Second Rainer. Vote: 6 yes; 2 no (Smith, Wells). Motion carried. On April 22, 2004, the Board referred Petitioner Hammet's petition to DOAH, together with the Board's Motion to Dismiss. DOAH assigned this case DOAH Case No. 04-2049. On June 15, 2004, the Board referred the following to DOAH: (a) Petitioner Coastkeepers' Petition for Administrative Hearing; (b) Petitioner's Motion and Suggestion for Disqualification of Joseph Henderson and James R. Richburg; and the Board's Motion to Dismiss Petition for Administrative Hearing. DOAH assigned the case DOAH Case No. 04-2141. On July 8, 2004, some of Ms. Kelly's relatives filed a suit against the Foundation in Circuit Court. In Count I of the complaint, the relatives sought a declaratory judgment that the Foundation's proposed sale violates Ms. Kelly's will and that the relatives had reversionary rights to the property. In Count II of the complaint, the relatives sought injunctive relief to restrain the Foundation from selling the property to a third party in accordance with a written contract of sale. On April 20, 2005, the Florida Attorney General issued an Advisory Legal Opinion, stating that the Foundation is subject to Florida's Sunshine Law. On May 5, 2005, the Foundation voted to ratify the contract to sell the property and to confirm the prior decision to sell the property. On June 3, 2005, the First Circuit Court entered a "Final Judgment for Defendant" in L. Bernarr Kelly, Carol Kelly and Lowell B. Kelly v. The Okaloosa-Walton Community College Foundation, Inc., No. 2004-CA-405 (Fla. 1st Cir. Ct. June 3, 2005), which states as follows in pertinent part: . . . The Court is convinced by the nature of the Will, and the testimony and evidence that Mattie Kelly had legal advice in her estate planning, that if Mattie Kelly intended for the subject property to be placed in a trust, and if she desired to put restrictions on the subject property to prevent Defendant Foundation from selling it, that she knew how to accomplish this, and that she chose not to do so. The Court finds . . . that Mattie Kelly did not intend to limit or restrict the sale of the subject property in the future to fulfill her desires for the creation of a cultural and environmental institute. . . . The Court finds that the deed dated March 6, 1997, . . . does not contain a reverter clause or language creating any right of reversion. . . . The Court finds that the deed conveyed a fee simple title to the OWCC Foundation with no right of reversion. The Court further finds that this deed was in accordance with the intent of Mattie Kelly at the time she executed her will. The Court finds that Article VIII of the Will which devised the subject property contains no language of trust and no language of reverter, and did not create a charitable trust . . . . The Court further finds that Defendant's proposed sale of the subject property does not include the "mausoleum property." . . . Since the mausoleum property is not being conveyed, the Court finds that the Plaintiffs no longer have standing as to the remaining property, and would deny Plaintiffs relief on this basis, in addition to the foregoing reasons. Therefore, the Court finds for the Defendant, The Okaloosa-Walton Community College Foundation, Inc. and against the Plaintiffs, and ORDERS and ADJUDGES as follows: Defendant Foundation's proposed sale of the subject property is not in derogation of Article VIII of the Last Will and Testament of Mattie Kelly, or the deed which conveyed the subject property to Defendant Foundation. Therefore, Defendant Foundation is not prohibited from selling the subject property, excluding the mausoleum property as described in Addendum #4 to the Contract for Sale and Purchase, in order to fulfill the intent of Mattie Kelly in creating the "Mattie M. Kelly Cultural and Environmental Institute;" however, all monies received from the sale of the subject property, including any matching funds, are to be used in the establishment and operation of the Mattie M. Kelly Cultural and Environmental Institute. [Emphasis added.] On June 8, 2005, Petitioners filed a Joint First Amended Petition for Administrative Hearing, stating as follows regarding standing: Petitioner Hammet's substantial interests will be affected by Respondent's determination because she and her family live within close proximity to the Mattie Kelly property and have often used and enjoyed the property for viewing the coastal heritage of Northwest Florida, and she wishes to continue to use and enjoy the property in the future. The Mattie Kelly property is a special place for Hammet and her family, where they have many pleasant memories and regularly have benefited from this public property being in their neighborhood. Hammet and her family will no longer be able to use and enjoy this accessible public resource if it is sold for private development. Petitioner Coastkeepers' substantial interest will be affected by Respondent's determination because it is a Florida non-profit corporation dedicated to protection of the environment in an area of the Gulf of Mexico Coast that includes Okaloosa and Walton Counties and Choctawhatchee Bay. Preservation of environmentally sensitive lands such as the Mattie Kelly property, and having the Mattie Kelly property as a location for biological studies, marine science studies, and studies of the coastal heritage of Northwest Florida, are vitally important to protecting Choctawhatchee Bay and the interest of Petitioner and its members, who include a substantial number of members who reside in Okaloosa and Walton Counties and have the present intention to use, visit, enjoy, and study biological, marine science and cultural heritage issues associated with Choctawhatchee Bay, the Gulf of Mexico, and the Mattie Kelly property at the Mattie Kelly property. The Mattie Kelly property is ideally suited to provide waterfront environmental education in an otherwise highly urbanized environment, including education of local residents, which is vital to controlling urban runoff, and for highlighting, encouraging, and educating the public of the need to protect Choctawhatchee Bay and the Gulf of Mexico. The Mattie Kelly property would no longer be available for such intended pursuits were the proposed sale of the Mattie Kelly property to private development interest go forward. Moreover, the proposed development of the very property set aside by Mattie Kelly would itself directly contribute to the urban runoff known to be causing problems in Choctawhatchee Bay. Choctawhatchee Bay has many examples of waterfront subdivision development and very little opportunity for environmental protection education in a local setting near where waterfront residential owners already live. These purposes will not be as well-served by educational efforts at OWC's main campus in Niceville, which is not waterfront and miles away from Choctawhatchee Bay. If properly managed, the Mattie Kelly property should be the field trip every school-age child in Okaloosa and Walton County takes, which would be a lasting legacy to Mattie Kelly that would truly be consistent with her express purposes. This opportunity will be forever destroyed if the property is developed as proposed. On June 24, 2005, Respondent filed a Motion to Dismiss Joint First Amended Petition for Administrative Hearing. On July 5, 2005, Petitioners filed a Response to Respondent's Motion to Dismiss Joint First Amended Petition for Administrative Hearing. Neither of the Petitioners holds any title interest in the property.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board enter a final order dismissing the Petitions for Administrative Hearing. DONE AND ENTERED this 22nd day of August, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2005. COPIES FURNISHED: James R. Richburg, President Okaloosa-Walton Community College 100 College Boulevard Niceville, Florida 32578-1295 Joseph D. Lorenz, Esquire 1270 North Elgin Parkway, Suite C-12 Shalimar, Florida 32579 Steven A. Medina, Esquire Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A. 316 South Baylen Street Post Office Box 12308 Pensacola, Florida 32581
Findings Of Fact Petitioner is an attorney licensed to practice in the State of Florida since 1962. Since Petitioner's admission to the Bar, he has continuously practiced law in Live Oak, Florida. Petitioner is a senior partner in the law firm of Airth, Sellers, Lewis, and Decker, practicing at 105 North Ohio Avenue, Live Oak, Florida. Since September 1, 1975, Petitioner has served as the City Attorney for the City. The position of City Attorney is established by charter and the duties of City Attorney are provided in the charter. Like other appointed (Non- elective) City Officers, the Petitioner has a definite term of office and can be removed only for cause. Petitioner's compensation is fixed by City ordinance and currently is $600.00 per month which is a budgeted position and paid from City's regular salaries and wage account. Petitioner also receives additional sums for special services (litigation) he handles for the City. Retirement contributions are made by City based on the $600.00 per month compensation. Petitioner has not claimed any retirement credit for the special services he performs for the City. Deductions are made for federal income taxes and social security from Petitioner's regular compensation but not from compensation paid for special services. Petitioner's "regular legal work" for which he receives a regular monthly compensation consists of: Attendance at City Council (Council) meetings; advice on matters that arise at those meetings; legal opinions on questions presented by the Council or Mayor; independent investigation of, and advice to Council on, situations that may have legal implications for the City; and all other legal work which the Council might request him to do, other than litigation. Petitioner's second type of legal representation is litigation. Petitioner's litigation assignments are given to him by the Mayor or the Council. Petitioner handles all litigation assignments, unless on Petitioner's advice, the Council determines it is appropriate that they obtain different counsel or co-counsel, either with more expertise in a particular area of law, or with offices closest to where the litigation, or part of it, is taking place. Petitioner does not accrue sick or annual leave, but is paid his regular compensation when ill or on vacation because his responsibilities continue. When Petitioner is unable to attend council meetings the Council is not represented at that meeting by another member of the firm, it being the sole responsibility of Petitioner to represent the Council at Council meetings. The Council does not control the day to day methods in which Petitioner considers cases and performs legal judgments, nor does the Council prescribe the manner in which work should be executed in those cases. Other than scheduled Council meetings, Petitioner is not required to maintain regular office hours established by the Council. Petitioner has no budgeted office at the City's offices. The City's staff and typewriters are available to Petitioner for typing and other needs, but he has no authority over any City staff. Petitioner generally uses his private law office staff and word processor for City work. Petitioner's law office is not a budgeted City office. Petitioner uses an office at the City's offices that is also used by Council members and receives some of his mail at the City's offices. As for fringe benefits, Petitioner receives life and health insurance benefits received by other City employees. In addition, Petitioner has complied with the City's request that he participate in several associations and conventions dealing with problems faced by the City. The Council reimburses his travel expenses and pays the membership dues for him. While these arrangements could perhaps be viewed as fringe benefits, Petitioner's participation seems to be a condition of continued employment. Notices of tort claims against the City may be given to Petitioner. Until repealed by law in 1978, Petitioner's duties included the collection of delinquent taxes due the City as a Deputy Tax Collector. Petitioner, upon request of the Bureau of Fire Prevention, shall assist the inspectors in the investigation of any fire which, in the opinion of the fire inspectors, is of suspicious origin. All officers (and employees) of the City are compulsorily required to be enrolled in FRS. However, consultants and professional persons on contract as independent contractors are ineligible for membership in FRS. Since October 1, 1971, the City has participated in FRS. The position of Sanitary Inspector has been abolished within the City. Although the position of City Attorney is vested with corporate authority of the City along with other officers pursuant to Section 1, Chapter 57-1538, Laws of Florida, the record does not reflect that Petitioner exercises any powers of the sovereignty of the City. The Council and Mayor constitute the governing body of the City. Petitioner's initial enrollment in FRS on September 1, 1975 was accomplished by Petitioner's completion and filing of Respondent's FRS form with City. The City in turn forwarded the form to Respondent and began reporting Petitioner on its payrolls. There is no evidence that the initial FRS entry form, filed with Respondent, described Petitioner's work duties or the nature of his employment with the City. Both the City and Respondent enrolled Petitioner in the FRS, believing that Petitioner was eligible for membership. The Respondent did not question or investigate the nature of Petitioner's employment relationship with the City until 1983. As part of Respondent's review process (which was designed to review the actual employment of professional persons), it learned some of the details of Petitioner's engagement with the City on November 30, 1983, when Petitioner (in a response to Respondent's questionnaire by the City) was identified as a professional person under contract. Following a more detailed description of Petitioner's position from the City and Petitioner, the Respondent notified Petitioner on November 1, 1984, that he was ineligible for participation in the FRS. Subsequent to the decision in Potter v. State Department of Administration, 459 So. 2d 1170 (Fla. 2d DCA 1984), the Respondent has informed Petitioner that the effective date of his removal from FRS will be December 1, 1984. Although Respondent stipulated that because of Potter it would not terminate Petitioner until December 1, 1984, there was no stipulation that Petitioner was eligible during any period of time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order declaring Petitioner, Ernest A. Sellers ineligible for membership in the Florida Retirement System effective December 1, 1984. Respectfully submitted and entered this 22nd day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 22nd day of August, 1985.
Findings Of Fact Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
The Issue The issue to be determined is whether Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from a prior consolidated action before ALJ F. Scott Boyd, DOAH Case Nos. 16-3298 and 16-3302, pursuant to section 185.05, Florida Statutes. Before the final hearing, the parties stipulated to an amount of reasonable prevailing party attorney’s fees and costs if the undersigned determines that Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from that prior action before ALJ Boyd.
Findings Of Fact The City of Coral Springs is a municipality in Broward County, Florida. It exercises broad power pursuant to article VIII, section 2 of the Florida Constitution, and the Municipal Home Rule Powers Act, chapter 166, Florida Statutes. The City Commission of the City of Coral Springs (“Commission”) may create other offices, boards, or commissions to administer the affairs of the city and may grant them powers and duties. The Commission has adopted the Coral Springs Police Officers’ Pension Plan (“the Plan”), which is amended from time to time by ordinance and is set forth in sections 13-5 through 13-17 of the Code of Ordinances of the City of Coral Springs. The Plan is administered by the City of Coral Springs Police Officers’ Pension Fund Board of Trustees (“Board”), the powers of which are set forth in sections 13-13 through 13-15 of the Code of Ordinances of the City of Coral Springs. The Plan is a local-law defined pension plan created pursuant to chapter 185. In February 2016, the Board adopted a policy to allow for the suspension of pension benefits of members who were charged with crimes specified at section 112.3173, Florida Statutes, and whose benefit payments had equaled or exceeded their contributions to the Plan. The Williamses are retired police officers whose pension benefits had fully vested at the time of the enactment of the aforementioned suspension policy. In February 2016, the Board sought to suspend Petitioners’ benefits under the newly-adopted policy because Petitioners had been charged with crimes specified in section 112.3173 and the benefit payments made to them had exceeded their contributions to the plan. Petitioners requested a formal hearing to challenge the authority of the Board to adopt the suspension policy. Petitioners’ benefits were never suspended at any time during the pendency of this suspension matter. The Board contracted with DOAH to conduct the formal hearing under the authority of section 120.65(6), Florida Statutes. DOAH assigned ALJ Boyd to the prior consolidated action, who issued pre-hearing instructions requiring a statement of all issues. The issue of attorney’s fees was not included by the parties. ALJ Boyd conducted the formal hearing on September 30, 2016, and October 10, 2016. On November 18, 2016, ALJ Boyd issued a Recommended Order finding that the Board did not have the authority to adopt the policy nor apply it to Petitioners. The Recommended Order made no mention of awarding attorney’s fees or costs. Nether Petitioners nor the Board filed exceptions to the Recommended Order. Petitioners raised the issue of fees in a letter to the Board dated December 2, 2016. Counsel for Petitioners appeared at a hearing held before the Board in December 2016 and sought fees as set forth in the December 2, 2016, letter. The Board adopted ALJ Boyd’s Recommended Order in toto on January 3, 2017. The Board also denied Petitioners’ request for a hearing regarding an award of attorney’s fees. On January 13, 2017, Petitioners sought an award of attorney’s fees by filing with DOAH a Verified Motion for Prevailing Party Attorney’s Fees and Costs. On March 1, 2017, ALJ Boyd entered an Order dismissing Petitioners’ motion for fees, stating he lacked jurisdiction to hear the issue of fees. That Order was not appealed. Prior to the final hearing in this matter, Petitioners successfully petitioned the Seventeenth Judicial Circuit Court to compel the Board to grant them a hearing on entitlement to the fees and to quash the Order denying fees for violation of due process. Petitioners then successfully defended an appeal of that Order by the Board to the Fourth District Court of Appeal and a motion for rehearing thereon. Petitioners are not seeking fees for these extraordinary writ actions as these efforts do not fall under chapters 185 or 120. The parties stipulated that “the Williamses prevailed in challenging the Board’s authority to create a policy suspending the benefits.” The Board never applied its proposed suspension policy to Petitioners. Petitioners continue to receive their benefits to this day. Criminal charges against Petitioners remained pending at the time of the hearing in this matter. Petitioners are only seeking entitlement here to an attorney’s fee and costs award for their successful challenge of the suspension policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioners’ request for prevailing party attorney’s fees and costs. DONE AND ENTERED this 19th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2021. Brandon J. Hechtman, Esquire Wicker, Smith, O’Hara, McCoy & Ford, P.A. 2800 Ponce de Leon Boulevard, Suite 800 Coral Gables, Florida 33134 Pedro Herrera, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Bonni Spatara Jensen, Esquire Klausner, Kaufman, Jensen & Levinson 7080 Northwest 4th Street Plantation, Florida 33317 Kenneth R. Harrison, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Gina Orlando, Administrator City of Coral Springs Police Officers’ Pension Fund 9551 West Sample Road Coral Springs, Florida 33065
