The Issue The issue in Case No. 98-3441RX is whether a 15 percent penalty provision of the Florida Housing Finance Corporation's 1998 Application Package for Low Income Housing Tax Credits, adopted and incorporated into the Florida Administrative Code, by reference pursuant to Rules 67-48.002(10) and 67-48.004(1), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. The issue in Case No. 98-3873 is whether Respondent appropriately applied the 15 percent penalty to Petitioner on its 1998 Application for Low Income Housing Tax Credits.
Findings Of Fact The Parties. Petitioner, Lakewood Senior Apartments Limited Partnership (hereinafter referred to as "Lakewood"), was an applicant for 1998 Low Income Housing Tax Credit funding. Respondent, the Florida Housing Finance Corporation (hereinafter referred to as "FHFC"), has been designated by the State of Florida to administer a Low Income Housing Tax Credit Program. Section 420.5099, Florida Statutes. FHFC is governed by a nine-member board (hereinafter referred to as the "Board"). The members of the Board are appointed by the Governor. Intervenors, LCA Development, Inc. (hereinafter referred to as "LCA"), The Gatehouse Group, Inc. (hereinafter referred to as "Gatehouse"), Vestcor Equities, Inc. (hereinafter referred to as "Vestcor"), and The Wilson Company (hereinafter referred to as "Wilson"), were all applicants for 1998 Low Income Housing Tax Credit funding. The Low Income Housing Tax Credit Program. To encourage the development of low-income housing for families, Section 42 of the Internal Revenue Code of 1986, creates federal income tax credits that are allocated to each of the states for award through state-administered programs to developers of rental housing for low-income and very low-income families. Tax credits allocated to developers through the program may be sold by the developer to generate a substantial portion of the funding necessary for construction of low-income housing projects. The program has been in existence in Florida since 1987. Since its inception, in excess of 43,000 affordable housing units have been produced in Florida through the program. Every year each state receives an annual allotment of tax credits. Generally, Florida's annual allotment of tax credits is apportioned among three county groupings based on population: large counties, medium counties, and small counties. Applicants compete for the tax credits allocated to a group based upon which county an applicant's proposed housing is to be located in. Section 420.5099, Florida Statutes, establishes FHFC's responsibility for the allocation of Florida's share of tax credits: The corporation shall adopt allocation procedures that will ensure the maximum use of available tax credits in order to encourage development of low- income housing in the state, taking into consideration the timeliness of the application, the location of the proposed housing project, the relative need in the area for low-income housing and the availability of such housing, the economic feasibility of the project, and the ability of the applicant to proceed to completion of the project in the calendar year for which the credit is sought. Section 42 of the Internal Revenue Code of 1986, requires that each state ensure that the minimum amount of tax credits necessary for an applicant to implement a proposed project are awarded in order to ensure the maximum use of a state's available credits. How tax credits are allocated is required to be reviewed at three distinct phases in order to carry out this goal: the first phase is the initial application/allocation phase; the second phase is a credit underwriting carryover stage; and the last phase is a final cost certification stage. Section 42 of the Internal Revenue Code of 1986, requires that each state establish a qualified allocation plan (hereinafter referred to as the "Allocation Plan") establishing the procedures to be followed in awarding low income tax credits allocated to the state. Consistent with this requirement, FHFC has adopted an Allocation Plan for Florida through the adoption of Chapter 67-48, Florida Administrative Code. The Allocation Plan establishes a competitive application process intended to carry out the first stage required by the Internal Revenue Code. The actual application (hereinafter referred to as the "Application") used to carry out the first stage of the allocation process provided for in the Application Plan is revised by FHFC on an annual basis. The Application is adopted as part of an Application Package, which includes the Application, tabs, and instructions thereto adopted by FHFC. The Application Package is amended each year to refine and clarify the Application Package, and to implement any new directives from the Board. Once revised, the Application Package is adopted by rule. Once the annual Application Package is adopted and an annual application cycle opens, the adopted Application Package is made available to interested persons for completion and submission to FHFC. Completed Applications received by FHFC are evaluated and scored pursuant to the Application Package, projects are ranked within their respective county groupings, and the highest ranked projects are invited to participate in the second stage of the allocation process, credit underwriting. Once an applicant completes credit underwriting and receives a Preliminary Allocation Certification indicating the amount of tax credits preliminarily allocated to the project, the applicant may proceed to construct the project. Once the project is completed, the applicant enters the final phase of the process, the Final Cost Certification phase. The Internal Revenue Code requires that all credits allocated to a state for a particular year must be allocated by December 31 of that year. Any credits not allocated go into a national pool consisting of all credits not used by December 31. All states that use all their credits by December 31 are then eligible to share in the credits available in the national pool. FHFC makes every effort to ensure that it allocates all of Florida's allocated credits so that the State may participate in the national pool. The Application Process. Prior to each application cycle, FHFC revised its previous year's Application Package and adopts an Application Package for the upcoming year by rule. After adopting the Application Package by rule, FHFC opens the cycle and makes the Application Package available. All Applications are required to be fully completed and filed by a date certain specified in the rules. Information contained in the Application is required to be certified true and accurate by the applicant. All submitted Applications are evaluated and scored by a Review Committee pursuant to the procedures established in the rules. See Rule 67-48.004, Florida Administrative Code. In 1998, the Review Committee was a committee of eight persons designated by the rules to organize the scoring of all applications. The Review Committee was made up of seven members of the staff of FHFC appointed to by the Board and one member of the staff of the Department of Community Affairs. Rule 67- 48.002(80), Florida Administrative Code. Following the notification of preliminary scores, applicants are given a week to review the scores of all applicants. See Rule 67-48.005, Florida Administrative Code. Once notified of the preliminary scores, applicants have the right to file a written Notification of Possible Scoring Error (hereinafter referred to as a "NOPSE"). A NOPSE could be filed to point out a possible scoring error on the applicant's score or on any other applicants' score. All NOPSE's filed during the 1998 cycle were reviewed by FHFC to determine if any modification in an applicant's score should be made. Following the resolution of all NOPSE's, the preliminary scores of all applicants are reviewed by the Board. After the Board's review and approval of the preliminary scores and the ranking of applicants, notice of intended funding is provided to each applicant. Following approval of preliminary scores by the Board, applicants are given a second opportunity to challenge their preliminary score or the preliminary score of any other applicant by filing a Direct or Competitive Appeal. See Rule 67-48.005, Florida Administrative Code. No authority for re-scoring any Application, other than as the result of the filing of a NOPSE or a Direct or Competitive Appeal, was authorized for the 1998 cycle pursuant to Chapter 67- 48, Florida Administrative Code. Following the resolution of all Direct or Competitive Appeals, the Board approves the final scores awarded to each Application by final order of the FHFC. Final scores are ranked by county grouping and a "funding line" is determined. The funding line is the point on the ranking sheet for each county group which represents the cut- off between those applicants that will be funded and those that will not. Applicants ranked above the funding line are given the opportunity to advance to the next two phases of the process required for them to receive funds. See Rule 67-48.026, Florida Administrative Code. For example, for the large county group, the amount of tax credits requested by the highest ranked applicant is deducted from the total tax credits available for the large county group. The amount of tax credits sought by the next highest ranked applicant is then deducted from the remaining tax credits. This process is followed until all the tax credits available for the large county group are allocated. The Credit Underwriting Phase. Those applicants to whom tax credits are tentatively allocated during the application process are next invited to "credit underwriting." Rule 67-48.026, Florida Administrative Code. A "credit underwriter" is defined in Rule 67- 48.002(25), Florida Administrative Code, as follows: (25) "Credit Underwriter" means the legal representative under contract with [FHFC] having the responsibility for providing stated credit underwriting services. Such services shall include, but not be limited to, reviewing the financial feasibility and viability of Projects and proposing to the Corporation the amount of a SAIL or HOME loan and/or the amount of Tax Credit needed, if any. The credit underwriter provides a comprehensive analysis of the preliminarily approved Applications, the applicant, the real estate market, the development economics, and the project's ability to proceed. The credit underwriter verifies the accuracy of information contained in the Application, confirms that the Application complies with applicable statutory and rule requirements of the FHFC, and determines whether the project is financially feasible as presented. Although Applications are required by the rules to be reviewed on their face, during the credit underwriting phase the credit underwriter is allowed to look at pertinent information not contained within the submitted Application. The credit underwriter verifies the accuracy and reasonableness of the information provided in an Application. The credit underwriter looks at the availability of financing, the structure of the proposal, and the estimated total project cost. The credit underwriter may adjust the financial projections set forth in the Application. Historically, the credit underwriter typically increases project costs. Ultimately, the credit underwriter recommends a preliminary allocation of tax credits to each applicant above the funding line. The amount of tax credits recommended may differ from that requested by the applicant. The amount initially requested by the applicant, however, cannot be exceeded. The applicant is limited to the lower of the amount applied for, the lowest amount needed for financial viability, or the qualified basis calculation amount. FHFC may accept, modify, or reject the credit underwriter's recommendations. Rule 67-48.026(10), Florida Administrative Code. Applicants successfully completing the credit underwriting phase are issued a Preliminary Allocation Certification which indicates the amount of tax credits preliminarily allocated to the project. The Final Cost Certification Phase. Construction of the project typically takes two to three years from the submittal of the Application. If a project cannot be completed by the end of the calendar year, the applicant must enter into a Carryover Agreement. Pursuant to this agreement, FHFC promises to allocate a "not to exceed" amount of tax credits to the project if it is completed within two years in accordance with the Carryover Agreement. Once the project is completed, the applicant is required to submit a Final Cost Certification. The Final Cost Certification details the actual costs incurred in completing the project, verified by an independent certified public accountant. Prior to 1998, the Final Cost Certification had to be certified by a credit underwriter. One purpose for the Final Cost Certification is to ensure that actual costs are consistent with, and do not exceed, those allowed by federal and state requirements. The applicant is issued an IRS Form 8609 which establishes the amount of tax credits allocated to the applicant. The amount of tax credits allocated after the Final Cost Certification may be less than the originally approved tax credits for the project. The 1998 Application Package; Project Funding & Economic Viability (Project Cost Pro Forma), Form 4. Effective January 6, 1998, FHFC adopted by reference in its rules the 1998 Application Package, "Form CAP98." Rules 67- 48.002(10) and 67-48.004(1), Florida Administrative Code. The adoption of the 1998 Application Package and the allocation of tax credits through the application phase was consistent with the description of the application process, supra. Among the forms required to be submitted as part of the 1998 Application was Form 4, "Project Funding & Economic Viability (Project Cost Pro Forma)." The purpose of Form 4 is to ensure that an applicant had firm commitments for funding from financially capable sources sufficient to cover the costs of the project which would not be covered by tax credits. A total of 150 points were available for the information on Form 4. This was the highest possible single award of points in the 1998 Application. To the extent that firm commitments were not demonstrated on Form 4, an applicant was to be awarded less than 150 points. In two places on Form 4, applicants are informed that they could not request a developer fee in excess of the limits established by the FHFC rules and the 1998 Application Package. For Lakewood's Application, the maximum developer fee was 20 percent of project cost. The parties stipulated that Lakewood's Form 4 demonstrated that all necessary funding for its project was firmly secured. Therefore, the parties agreed that, but for the imposition of the penalty provision at issue in this proceeding, Lakewood was entitled to an award of 150 points for Form 4. The 15% Penalty. The following provision appears on Form 4 of the 1998 Application: FULL POINTS WILL BE AWARDED ONLY IN THE EVENT THAT ALL INFORMATION REQUIRED BY THIS FORM IS PROVIDED IN STRICT ACCORDANCE WITH THE FORM'S REQUIREMENTS. FAILURE TO PROVIDE COMPLETE, ACCURATE INFORMATION IN THE FORMAL AND LOCATIONPRESCRIBED BY THIS FORM WILL RESULT IN A 15% REDUCTION OF POINTS FOR FORM 4. ONLY INFORMATION CONTAINED WITH THIS APPLICATION WILL BE CONSIDERED FOR PURPOSES OF POINTS AWARDED OR APPEALED. (This provision will hereinafter be referred to as the "15% Penalty"). The 15% Penalty appears in materially identical form on Forms 5, 6, 7, 8, 10, and 22 of the 1998 Application. The Development of the 15% Penalty. Since the inception of the Low Income Housing Tax Credit Program in Florida, the application process has become increasingly competitive and litigious. For example, for the 1998 cycle FHFC received Applications for approximately 72.6 million dollars but only approximately 10.7 million dollars of tax credits available. Consequently, only eleven of the ninety Applications will likely be funded from the 1998 cycle. Because of the increased competitiveness and the litigious nature the application process, the Board appointed a Combined Cycle Committee (hereinafter referred to as the "Cycle Committee") to work with the staff of FHFC to improve the Application and application process for the 1998 cycle. The Board also instructed staff to strictly construe the Application, make sure forms in the 1998 Application were as clear as possible, and to implement a penalty for failures to follow the instructions. The development of the 1998 Application Package began in the spring of 1997. On July 14, 1997, the first rule development workshop was held. The purpose of the workshop, which was attended by approximately forty individuals, was to provide a forum for comments and suggestions from developers and other interested persons concerning the Application Package and the process. Following the July 1997 workshop, FHFC prepared a draft of the 1998 Application Package. The draft consisted of the 1997 Application Package with changes proposed for the 1998 cycle noted with strike-through for deleted language and underlining for added language. See Respondent's Exhibit 2, the "Red Book." Among the proposed changes to the 1997 Application Package contained in the Red Book was the inclusion of the following language on Page 1 of the Instructions: FULL POINTS WILL BE AWARDED ONLY IN THE EVENT THAT ALL INFORMATION REQUIRED BY EACH FORM IS PROVIDED IN STRICT ACCORDANCE WITH THE APPLICATION REQUIREMENTS. FAILURE TO PROVIDE COMPLETE, ACCURATE INFORMATION IN THE FORMAT AND LOCATION PRESCRIBED BY THE APPLICATION WILL RESULT IN A REDUCTION OF POINTS AS INDICATED ON EACH FORM. ONLY INFORMATION CONTAINED WITH THIS APPLICATION WILL BE CONSIDERED FOR PURPOSES OF POINTS AWARDED OR APPEALED. This language was repeated throughout the Red Book, modified only to specify that the penalty was 15 percent and to refer to the specific section or form the language was included in. The 15% Penalty applied only to the points available for a form on which an error or omission occurred. The penalty applied regardless of the number of errors or omissions on a form and regardless of the significance of the error or omission. FHFC was aware at the time that it was considering the 15% Penalty that the point difference between the highest and lowest point totals above the funding line for the 1997 cycle for the large county category was 43.03 points. FHFC also knew that historically only a half point to two points separated funded applicants and unfunded applicants. The 15% Penalty modified the previous treatment of errors or omissions on Applications. Prior to 1998 if an error was made in an Application, the Application was either rejected if the error related to certain specified "threshold requirements" or staff simply corrected the error. For example, if an applicant requested a developer fee in excess of the developer fee cap, scorers would adjust the claimed fee downward. No penalty would be imposed on the applicant. Copies of the Red Book were made available to interested persons to review before and during a second rule development workshop held on September 22, 1997. The purpose of this workshop was to review the proposed changes in the Red Book and to give the approximately sixty-five individuals that attended the workshop an opportunity to make comments and suggestions as to how to improve the Application Package and the application process. The 15% Penalty was specifically explained during the September 22, 1997, workshop. Lakewood was represented at the meeting. The following explanation of the 15% Penalty was given: Before we go on into rules and QAP things, I want to add one more global comment to be sure everybody in this room understands the new big change in the application whereby you [sic] if you don't fill it out exactly the way the instructions tell you, you're going to get penalized then and there, okay? There's a 15% penalty on many of these forms. On Form 3 we set out a chart for you to show that if you don't give all the information exactly where you say it is in the application, all your T's are crossed and your I's dotted, you're going to get reduced points. Now, the whole purpose of this is not to make your life miserable or to make our lives miserable. It is to make you pay attention to the application and to reduce appeals, okay? FHFC Exhibit 11. In addition to the two workshops, two public meetings were held by the Cycle Committee to discuss the proposed Application Package. Questions and comments concerning the proposed Application Package were invited. FHFC staff were also available to answer questions concerning the 1998 Application Package and the process at any time up until the deadline for submittal of the 1998 Application. Throughout the period of time during which the 1998 Application Package was being developed, FHFC staff emphasized the need for accuracy on the Application and explained to prospective applicants that the 15% Penalty existed. FHFC formally adopted the 1998 Application Package containing the 15% Penalty. No challenges to the rule which incorporated the 1998 Application Package were filed before the rule became effective. Full-day workshops were subsequently conducted by FHFC throughout the State to explain how to complete the 1998 Application and to answer questions thereon. The 15% Penalty was explained during these workshops. Purpose for the 15% Penalty. It is important for Applications to be complete and accurate during the application phase. The application phase is FHFC's first opportunity to analyze proposed projects in accordance with the Internal Revenue Code and FHFC's rules. The Internal Revenue Code requires that the minimum number of tax credits necessary to complete a project be determined during the application phase. Therefore, even though modifications may be made during the credit underwriting and final phases, FHFC is still required to make sure that Applications approved in the application phase are as accurate as possible. FHFC's purpose for adopting the 15% Penalty was described by Gwen Lightfoot, Deputy Development Officer for FHFC: Well, it's - we have to go into a little bit of history in order to really understand from whence this approach came. When I first came to the Agency, that was in 1992, we had enough credits that everybody that applied that was really ready to go would be able to get the credits. And there were times at the end of the year when staff would be frantically calling up developers and saying, Do you have a site, are you ready to go? You know, you told me that you were going to turn this application in and we didn't get it and we need one more to secure the national pool. And so, you know, that was the atmosphere under which the credit program was operating six years ago. It was critical for us to get the national pool in those days because that would add, oh, $6 million to the amount of credits that we would have, which is thousands of unit. So, each year we got more and more competitive, more and more developers learned about the program, more and more developers realized that they could make a good living with, you know, affordable housing. The mechanism that the code creates encourages public/private partnerships, so this is a good way for the private community to provide affordable housing and make a living. So, the competition became more and more intense. In 1997, by then, it was extremely contentious, litigious, extremely competitive. I can remember - I think it was in 1996, it might have been the year before, we had over 300 issues on appeal, and that's just insanity. So in this scope of things we tried to come up with a way to make sure that this application was accurate and complete and - well, I guess those are the best words - because we have a mandate in the Federal code and in the State code that we can allocate no more credits than is absolutely necessary for the project viability. That means it is critical for us to have an accurate and complete application. The overall purpose of the app is to be an objective mechanism by which we can maximize the use of the credits. We have got to have a way to be sure that we are getting the best bang for our buck, I guess is a good way to say it. So, when we laid the penalty over the entire application, we were searching for a rational, fair, objective approach which was designed to reduce appeals, to be fair to everybody, come up with a mechanism by which we could award partial points for people who had done, you know, the main thrust of the particular question but had for some reason not done it perfectly, rather than make them lose all of the points for an issue, we only make them lose a%age of the points. The other big thing that played into the decision to go with this penalty approach is that in the six years that I have been reviewing these applications there is a very strong and direct correlation between an applicant's ability to put together a complete, thorough, accurate, well thought out and organized application. And the product that they produce and the way that they handle the compliance period. These properties are not just coming in the door, getting their credits and going out the door and never seeing the agency again. We have to monitor them for 50 years. So, the attention to detail is so critical that, in addition to being a mechanism to select between really good applicants, it is also - it lets them know, it helps teach the applicant what they are in for with regard to detail and long-term commitments. It is just the whole thing to help us get an accurate and complete application so we can accurately allocate credits. (Transcript 71) By its terms, the 15% Penalty applied regardless of the magnitude of the error committed on an Application. For example, if an amount was overstated by $1.00, a 15 percent penalty applied. The application of the 15% Penalty was based upon an objective determination of whether an error occurred. The staff had no discretion to make a subjective determination as to the significance of an error or omission. Although it was not the intent of FHFC for the imposition of the 15% Penalty to be the determining factor in whether an applicant was awarded tax credits, the effect of the 15% Penalty can have that impact. Imposition of the 15% Penalty on Lakewood. On or about March 10, 1998, Lakewood submitted a completed 1998 Application to FHFC for 1998 tax credit funding. Lakewood sought approximately 1.14 million dollars in tax credits for a 150-unit apartment complex to be located in Orange County, Florida. Lakewood's Application was completed by Don Paxton, an employee of the developer, contractor, and management company for Lakewood. Mr. Paxton attended the September 22, 1997, rule development workshop. Mr. Paxton was aware and understood that the 15% Penalty had been included in the 1998 Application and that it was intended to punish for inaccuracies contained in submitted Applications. He also was aware that the 15% Penalty applied to inaccuracies on Form 4. Finally, Mr. Paxton was aware that the developer fee available for Lakewood's proposed project was limited to 20 percent of project cots. On Form 4 of Lakewood's Application, Lakewood claimed a developer fee in excess of the 20 percent of project cost limitation Lakewood was subject to. The developer fee requested by Lakewood was $1,959,714.00, or $240,000.00 in excess of the maximum developer fee Lakewood could request. The excess amount included in the developer fee cost claimed by Mr. Paxton represented an advisory fee which Lakewood had agreed to pay to Affordable Housing, an advisory group specializing in the development and marketing of tax credit- financed housing for senior citizens. Nothing in Lakewood's submitted 1998 Application informed FHFC that the excess amount included as a development fee by Lakewood was attributable to Affordable Housing. Based upon what was provided to FHFC by Lakewood in its Application, it was reasonable for FHFC to conclude that Lakewood was requesting a developer's fee in excess of 20 percent of project cost. Mr. Paxton included the advisory fee because of an instruction of page 10 of Form 4 that "Consulting fees, if any, must be paid out of the developer fee." Mr. Paxton knew, however, that Affordable Housing was not a consultant as the term "consultant" is used in the 1998 Application Package. Mr. Paxton's interpretation of the instruction concerning the payment of consultant fees on page 10 of Form 4 was not reasonable. Mr. Paxton also included the advisory fee as part of the developer fee because that was the only way for Lakewood to treat the $240,000.00 fee as a cost eligible for tax credit reimbursement. While it was a part of the total project cost, it was not part of the project cost eligible for reimbursement with tax credits. The inclusion of the advisory fee as part of the developer fee did not diminish the fact that Lakewood's Form 4 demonstrated secure financing and, consequently, the economic feasibility of its project and its ability to proceed. Due to the excessive developer fee included by Lakewood on Form 4, the scorers of Lakewood's Application imposed the 15% Penalty. A total of 22.5 points was deducted from the 150 points Lakewood would otherwise have been entitled to for Form 4. With the reduction of Lakewood's total score by 22.5 points, Lakewood fell below the funding line for the 1998 cycle. Without the 22.5 point penalty, Lakewood would have been above the funding line. Other Applications of the 15% Penalty. FHFC applied the 15% Penalty to other applicants during the 1998 cycle for errors on Form 4, including the inclusion of developer fees in excess of applicable limits. For example, the penalty was imposed on Applications 8, 9, 30, 58, and 59. FHFC initially imposed the 15% Penalty on the Application of Kay Larkin because the requested developer fee combined with the requested consulting fee, which was separately listed, exceeded the applicable developer fee. FHFC took this position even though the separately listed consulting fee was included as an ineligible cost. Kay Larkin challenged the 15% Penalty. FHFC subsequently agreed to remove the penalty because it was decided that FHFC should not have combined the eligible developer costs and the ineligible consulting fee. The developer fee standing alone did not exceed the developer fee cap. The Kay Larkin matter is distinguishable from this matter because Lakewood listed the entire amount as an eligible developer fee. In the case of the 1998 Application filed by Harvard House, FHFC did fail to impose the 15% Penalty for the inclusion of a developer fee in excess of the developer fee cap. It failed to impose the penalty through oversight. Although Lakewood pointed this error out in a NOPSE it filed concerning its score, no NOPSE or direct or competitive appeal was filed by any applicant concerning the Harvard House Application. FHFC, therefore, had no authority pursuant to the 1998 Application to modify the score it had awarded Harvard House. FHFC committed the same error in scoring the Application submitted by Orchid Trace, which had included a developer fee in excess of the limit of $1.00. Again, although Lakewood raised this error in a NOPSE concerning its score, no NOPSE or direct or competitive appeal concerning Orchid Trace's score was filed. FHFC's imposition of the 15% Penalty to Applications which included developer fees in excess of the developer fee caps was consistent except to the extent that FHFC inadvertently failed to impose the penalty on Harvard House and Orchid Trace. Some applicants failed to include a general contractor fee on the Project Cost Pro Forma of Form 4. General contractor fees were limited to 14 percent of project cost. FHFC did not, however, impose the 15% Penalty on those applicants for their omission. Two applicants above the funding line, Magnolia Pointe and Nantucket Bay, failed to include any general contractor fee on the appropriate line. Most applicants, including Lakewood, left some line blank on the 1998 Application and were not penalized. The following instruction was included on page 1 of the 1998 Application: BE SURE TO ANSWER ALL QUESTIONS, FOLLOW ALL INSTRUCTIONS AND FILL IN ALL LINES. DO NOT LEAVE ANY BLANKS. IF AN ITEM IS NOT APPLICABLE TO THIS PROJECT, INDICATE BY USING "N/A". INCOMPLETE OR BLANK ITMES WILL RESULT IN LOSS OF POINTS. Applicants were not specifically required to report a general contractor fee on their Form 4. In some cases, applicants did not incur general contractor fees. Consequently, on those forms where the applicant did not include a general contractor fee, the FHFC had to assume that the applicant did not intend to pay a general contractor fee. Where a particular item was not specifically required or FHFC could not know whether an item had been left off in error, FHFC interpreted the 15% Penalty to not require the imposition of a penalty for merely failing to mark the item "N/A." Intervenors' Standing. Intervenors are engaged in the business of providing affordable residential rental units for low income and/or very low income persons. Intervenors, through subsidiaries or affiliates, submitted Applications to FHFC seeking allocation of tax credits from the 1998 combined cycle pursuant to Section 420.5099, Florida Statutes (1998). Intervenors, through subsidiaries or affiliates, also submitted Applications seeking tax credits from one or both of the preceding two cycles (1996 and 1997), and anticipate filing Applications in the 1999 cycle. For the 1998 cycle, Intervenors, through subsidiaries or affiliates, submitted the following Applications for projects located in FHFC's large county group and were awarded the following points: Company Project Scores LCA 050C - Magnolia Pointe 652.75 Gatehouse 075CS - Nantucket Bay Apartments 644.47 077C - The Rosemary 656.00 Vestor 040C - Courtney Manor Apartments 640.75 Wilson 047C - Windermere Apartments 640.75 The scores for Intervenors' projects were based upon FHFC staff's comparative review and scoring of the Applications submitted in the 1998 cycle, resolution of all direct and competitive appeals, informal hearings conducted by FHFC designated Hearing Officers, and Board action at its August 21 and September 11, 1998, meetings. At the commencement of the final hearing in these cases, the Board had not entered final orders on the scoring of the 1998 Application. The projects of LCA and Gatehouse, however, were above the funding line and were issued "at risk" invitations to credit underwriting. The projects of Vestcor and Wilson were tied with a third applicant for the remaining tax credits for the large county group, which was not sufficient to fund all three projects. On October 16, 1998, the Board voted to issue final orders confirming the scores of all applicants except Lakewood. The Board issued final orders for the funding of all of Intervenors' projects. If Lakewood prevailed in this proceeding and the 15% Penalty was not imposed, its score would rank it ahead of Vestcor's and Wilson's projects. Based upon the Board's action at the October 16, 1998, meeting, however, the projects of Vestcor and Wilson will still be funded.
The Issue The issue to be resolved in this proceeding is whether there is cause for termination of employment of George Arias with the employer, Palatka Housing Authority.
Findings Of Fact Petitioner, Palatka Housing Authority, is a local governmental entity responsible for low-income housing in Palatka, Florida. The Authority is governed by an appointed Board of Directors. The day-to-day operations of the Authority are managed by an Executive Director with back-up from the Deputy Executive Director. The Authority receives the vast majority of its money from the federal government and the funds involved in this case were federal moneys. Around June 1995, the Respondent, George Arias, was employed as the Executive Director by Petitioner, the Palatka Housing Authority. Previously, Mr. Arias had been the assistant director of the San Antonio Texas Housing Authority for many years. Part of Mr. Arias’ employment agreement with the Palatka Housing Authority, included a provision that the Palatka Housing Authority pay Mr. Arias up to $3,000.00 for his moving expenses from San Antonio, Texas, to Palatka, Florida. Additionally, Mr. Arias was to receive compensation of about $45,000.00. The salary was not based on an hourly wage, and Mr. Arias did not have a fixed work schedule. However, Mr. Arias was expected to achieve on average over-time a forty (40) hour week. As part of his employment, the Respondent was directly responsible for the day-to-day management of the Palatka Housing Authority in accordance with the local, state, and federal regulations. He was responsible for overseeing such things as employee supervision, travel vouchers, petty cash disbursements, and payment of bills and purchases. He was also responsible for ensuring implementation of appropriate fiscal controls over the flow of the Palatka Housing Authority funds in order to demonstrate that such funds were disbursed appropriately and for appropriate purposes. In this endeavor, Mr. Arias was assisted by Carolyn White the Deputy Executive Director. It was Carolyn White who reviewed the monthly credit card statements and made notations on the statements to indicate some information about a given charge. Sometime in August 1995 Mr. Arias asked the Board Chairman, Gene Buchanan, for permission to apply for a Barnett Visa credit card in the name of the Public Housing Authority. Mr. Buchanan thought a credit card was a good idea and authorized Mr. Arias to apply for the credit card. On August 19, 1995, Mr. Arias applied for and received a Barnett Visa credit card in the name of the Public Housing Authority. Three cards were issued with an initial credit limit of $5,000. The credit cards were given to Mr. Arias, Ms. White, and Mr. Buchanan. The credit card statement was paid out of the Public Housing Authority travel account which was derived from federal money. At some point, Mr. Arias told Ms. White she could use the credit card for personal expenses as he was doing. Mr. Arias' "policy" was not communicated to the Board or approved by the Board. Mr. Arias had no authority to authorize public funds for private use. Additionally, Mr. Arias’ “policy” was not communicated to George Buchanan, the other card holder at the Palatka Housing Authority. Over the next few months charges to the credit account exceeded the credit limit. Mr. Arias asked Mr. Buchanan to increase the credit limit. The limit was eventually increased to $10,000. However, around March 1996, Mr. Buchanan grew suspicious at the request to increase the credit limit and asked the Public Housing Authority's CPA to look at the credit card statements. When the auditor reviewed the credit card statements, it was discovered that both Mr. Arias and Ms. White had used the Public Housing Authority credit card to purchase personal items and pay personal bills. Mr. Buchanan used the credit card two or three times, all of which were for Palatka Housing Authority business purposes. In the case of Mr. Arias the evidence clearly demonstrated that he used the Palatka Housing Authority credit card (1) to pay for a personal vacation for him and his wife to Las Vegas, Nevada; and (2) to pay for several hotel rooms, meals, gas, transportation and other personal expenses while on personal visits to San Antonio, Texas, and when no Palatka Housing Authority business was scheduled or performed. These charges far exceeded the $3,000.00 allotted for moving expenses and were not items connected with Mr. Arias’ move from San Antonio, Texas. Mr. Arias’ use of the credit card for these purposes was clearly improper and constitutes grounds for termination of his employment with the Palatka Housing Authority. Once the personal use of the credit card was discovered by the CPA both Mr. Arias and Ms. White claimed that they intended to pay the money back once the total amount of the personal expenditures was established in the year-end audit currently being conducted. However, there was no indication in the books and records of the Public Housing Authority that any items of a personal nature were marked or identified as personal for a reviewer to find. On balance, the claim of intended repayment is not credible. However, even assuming the repayment statement to be true, the use of and the lack of fiscal controls for documenting or identifying the personal expenditures on the credit card statements were totally inadequate. The lack of controls amounted to a failure of Mr. Arias to perform his duty as Executive Director responsible for fiscal operations. The use of the credit cards for personal expenditures clearly violated the federal and Public Housing Authority rules prohibiting use of federal or Public Housing Authority money for personal use. It was the responsibility of Mr. Arias to be familiar with these prohibitions and the need for appropriate fiscal controls over the Authority’s funds. Moreover, given Mr. Arias’ long employment with public housing authorities, he unquestionably was aware of these problems and the need for appropriate fiscal controls. Mr. Arias was also responsible for ensuring that there were sufficient fiscal controls over the preparation and approval of travel vouchers and ensuring that these processes were followed. The evidence was clear that travel vouchers were not done in a timely manner since many vouchers for travel almost a year past were not done. These vouchers were only prepared when requested by the CPA for his review. Again there were not fiscal controls sufficient to process the travel vouchers or to ensure their accuracy. In several instances per diem for meals had been paid to Petitioner and several other employees. However, when the travel occurred meals were charged on the Visa credit card. The per diem was never reimbursed and the result was a double payment by Public Housing Authority for meals. Other instances of double payments occurred when petty cash was used to pay for items purchased at various merchants such as Pic-N-Save and Wal-Mart, when those same items had been charged to the Visa credit card. These duplicate payments were a direct result of poor or no fiscal controls. Additionally, in at least one instance, Palatka Housing Authority paid for Mr. Arias’ wife to travel to a business conference with him. Ms. Arias’ airfare was never reimbursed to the Palatka Housing Authority. Similar problems of personal expense items being charged and paid by Palatka Housing Authority, occurred with the authority’s gas credit cards. These items of personal expense were never reimbursed by the person incurring the charge. Again, the lack of fiscal controls is apparent. Finally, around December 8, 1995, Mr. Arias authorized a retroactive pay increase for himself in the amount of $6,175.00, and Carolyn White in the amount of $2,160.76. Tapes of the September 25, 1995, Palatka Housing Authority board meeting, at which the salary increases were discussed, revealed that the board intended to revisit the issue of increased pay if Mr. Arias and Ms. White received good evaluation scores prior to March 31, 1996. In short, the board never authorized the pay increases, but only planned to revisit the issue. Mr. Arias and Ms. White both received good evaluation scores. However, the board never revisited the pay issue, and never authorized the pay increase. Therefore, the salary increase was inappropriate. Given these facts, the evidence demonstrates that Mr. Arias failed to perform his duties as Executive Director and should be terminated from that position.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That a Final Order be entered by the Petitioner Palatka Housing Authority terminating the employment of George Arias. DONE AND ENTERED this 30th day of September, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1997. COPIES FURNISHED: Donald E. Holmes, Esquire 222 North Third Street Palatka, Florida 32177 Paul M. Meredith, Esquire 626 Reid Street Palatka, Florida 32177 Stanley Hodge, Chairman Palaka Housing Authority Post Office 1277 Palatka, Florida 32178
The Issue When a tenant abandons a lease without written notice and by law the landlord is relieved of the obligation to notify the tenant of his claim on the tenant's security deposit, must the landlord return the deposit pursuant to Section 83.49(3)(a), Florida Statutes? If a landlord does not return the deposit under the circumstances above, is the landlord in violation of Section 83.49(7), Florida Statutes?
Findings Of Fact Robert Vento leased an apartment at Seaward Apartments on or about November 4, 1980. Vento paid a security deposit for faithful performance of the lease in the amount of 550. This deposit was paid in two increments. See Exhibit 1. There was no written lease, but the rent was payable each month. It is found that the lease was a month-to- month tenancy. On November 10, 1980, Vento verbally advised the manager of the apartment that he was abandoning the premises to return to New Jersey because of the illness of his wife. Vento did not give written notice of his abandonment of the premises. The owner of the premises at that time, Prosper Mamane, did not give written notice to Vento of intention to make a claim against the security deposit paid by Vento. Mamane has not returned any portion of the security deposit to Vento. Prosper Mamane was licensed at all times pertinent to the events above by the Division of Hotels and Restaurants and held License No. 23-7896-H.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Division of Hotels and Restaurants take no action against the license of the Respondent, Prosper Mamane. DONE and ORDERED this 30th day of July, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 30th day of July, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard I. Kroop, Esquire 420 Lincoln Road Mall, Suite 512 Miami Beach, Florida 33139 R. B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANTS, Petitioner, vs. CASE NO. 81-1324 PROSPER MAMANE, t/a SEAWARD APARTMENTS, Respondent. /
The Issue Whether Petitioner is entitled to a foster care license upon satisfactory evidence of financial ability to provide care for children placed in her home.
Findings Of Fact Petitioner took the required courses through the Department and applied for a foster home license. She passed all home visits with flying colors and was recommended for licensure. Her application contained a family financial statement which reflected her monthly income as $660.00 and her estimated monthly liabilities (expenditures) as $625.62. The Department calculated Petitioner's residual income as $34.38 by deducting her usual expenses from her usual income. Because substitute care parents must have sufficient income to assure the stability and security of their own family without relying on foster care payments and must have sufficient income to cover four to six weeks of a foster child's care during anticipated lag time in receiving foster care payments, Petitioner's application was denied. The $660.00 Petitioner declared in her financial statement is made up of $460.00 monthly social security income plus $200.00 from unenumerated sources. Petitioner is not employed outside the home. Petitioner testified credibly that, as of the date of hearing on January 18, 2001, she had nearly $15,000.00 saved in her bank account, mostly as the proceeds of the "Black Farmers Settlement" of a class action lawsuit. In support of her testimony, Petitioner also had admitted in evidence an undated letter addressed to her, showing transmittal to her of a check for $50,000.00 "cash award," in the cases of Pigford et al. v. Glickman, and Brewington et al. v. Glickman. Petitioner also had admitted in evidence an AmSouth "Official Check," dated January 3, 2001, made out to her in the amount of $14,928.88. This appears to be a certified cashier's check she asked for in order to demonstrate her bank balance for the hearing. Petitioner further testified that she had made a deposit to her checking account. She had admitted in evidence an AmSouth customer receipt (deposit slip) showing an AmSouth account balance of $59.85 to which a $3,000.00 check had been deposited on November 1, 2000. The numbers on this item did not match those on her check cashing card or her voided check, which items were also admitted in evidence. However, there is no reason to believe the numbers would match, considering modern automatic banking safeguards. What, precisely, this receipt was intended to demonstrate is unclear. Much of Petitioner's $50,000.00 settlement monies went to pay for hip replacement surgery, and she is fully recovered. Prior to making her application and while she was still in training, that is, prior to November 29, 1999, the Department allowed Petitioner to take in some foster children on an emergency basis. The understanding at that time was that Petitioner would bear all the children's expenses with no reimbursement by any government program except for their medical aid. During this period, Petitioner frequently complained that she had no money to put gas in her car to bring a certain child or children to the Department office for their medical care or to see their case workers. As near as can be determined from this record, these events occurred in the fall of 1999 or early in the year 2000, but without information as to when Petitioner received her lump-sum class action settlement, it is impossible to assess whether these events occurred before or after Petitioner received her class action settlement. Petitioner's Lease for Voucher Tenancy, Section 8, Tenant-Based Assistance Rental Voucher Program, signed April 7, 2000, stated that she lives in the home with four other individuals: Irene Turner, Lionel Cook, Iman McCullough, and Christina Honeycutt. However, a June 26, 2000, Home Study Report concluded, based on visits in April and May 2000, that Petitioner lives alone. Iman McCullough, a foster child, lived in Petitioner's home for a short period in 1999, but by September 2000, she was living in another foster home. Christina Honeycutt, also a foster child, lived in Petitioner's home only briefly in 1999. Another individual listed on the April 7, 2000, lease as a resident of the home is Lionel Cook, one of Petitioner's sons. However, the June 26, 2000, Home Study Report stated that Petitioner did not know her sons' addresses or phone numbers and that she had stated she has no contact with them. The Petitioner's Section 8 rent is $30.00 per month, calculated on five residents in the home. It is conceivable that a change in the number of people in the home may alter the amount paid for rent. There was no evidence presented concerning how much per child Petitioner would receive if her application were granted. Petitioner testified that she hoped to have four children assigned to her. The June 26, 2000, Home Study Report recommended that she receive five children.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying Petitioner's application for a foster home license at this time and without prejudice to reapply. DONE AND ENTERED this 1st day of March, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of March, 2001.
The Issue In Case No. 99-2748, should Elvira Demdam, d/b/a San Juan Retirement Home, be administratively fined for operating an unlicensed facility, and if so, in what amount? In Case No. 99-2755, should Elvira Demdam, d/b/a Ingleside Retirement Home, be administratively fined for exceeding the home's licensed capacity, and if so, in what amount?
Findings Of Fact AHCA is the state agency responsible for licensing and regulation of ALFs in Florida. Respondent, Elvira Demdam, operates both Ingleside Retirement Home and San Juan Retirement Home in Jacksonville, Florida. Gloria Wolfe is employed by AHCA to inspect ALFs for compliance with state and federal regulations for such facilities. Elvira Demdam is the licensee for Ingleside Retirement Home. The effective date of the license for Ingleside was October 27, 1997. Its expiration date was October 26, 1999. On April 26, 1999, Ms. Wolfe surveyed a facility doing business as San Juan Retirement Home due to a complaint that San Juan was operating as an unlicensed ALF. During Ms. Wolfe's inspection, San Juan Retirement Home had four residents, all of whom were being provided personal services by the home, including assistance with meals, administration of medications, and assistance with other essential activities of daily living. Therefore, the San Juan facility was being operated as an ALF on April 26, 1999. In a letter dated April 27, 1999, AHCA imposed a moratorium on admissions, effective April 26, 1999, on Ingleside Retirement Home, because Ms. Demdam had an interest in Ingleside Retirement Home and an interest in San Juan Retirement Home, which was operating without a license. The moratorium for Ingleside was to remain in force until the unlicensed facility (San Juan) ceased operation, and no residents could be readmitted without approval of AHCA. On April 27, 1999, Ms. Wolfe's superior, Mr. Robert Dickson, recommended a $1,000.00 sanction, based on Ms. Wolfe's report and because he believed that previous sanctions had been recommended against the Ingleside Retirement Home within the licensure period for the same type of deficiency. However, at hearing, he did not specify any previous sanctions against Ingleside, similar or otherwise. Elvira Demdam is the licensed administrator of Ingleside Retirement Home and should have known of the legal requirement that San Juan Retirement Home be licensed. Indeed, by her own admission, Ms. Demdam had been a nursing home administrator for four years, knew of the licensure requirement, and had been attempting to license the San Juan facility since at least 60 days before the property was transferred to her. San Juan was licensed to another person at the time Ms. Demdam took it over. That prior license had expired in December 1998, and Ms. Demdam did not get San Juan Retirement Home licensed in her name until July 1999. Ms. Demdam's exhibits support her testimony that much of her license application paperwork for San Juan Retirement Home was lost in the mail or within AHCA and that ACHA repeatedly required that she re-submit the same documents. However, she did not establish that the Agency failed to grant or deny her application within 90 days of submission of all necessary application items. The fact remains that on April 26, 1999, Ms. Demdam was operating San Juan Retirement Home without a valid ALF license. Although Ms. Demdam asserted that one or more of the San Juan residents were non-blood relatives who had lived with her as family members since 1995, she offered no corroborative evidence on this issue, and this assertion is not found to be credible. Ms. Wolfe also participated in a May 4, 1999, monitoring visit and survey of Ingleside Retirement Home. At that time, she found Ingleside to be operating in excess of its licensed capacity. Ingleside Retirement Home is licensed for 18 residents, but in fact, had 19 residents on that date. Ms. Wolfe personally reviewed residents, room by room, and made a census of Ingleside Retirement Home on May 4, 1999. Her census shows that a nineteenth resident, S.W., had been admitted to Ingleside in March 1999. Ms. Wolfe's investigation revealed that this resident was not noted in Ingleside's admissions/discharge log. Despite arguments that this deficiency constituted a Class III violation, an A-004 "not classified" deficiency was actually issued. (See ACHA Exhibit 4, page 3) Ms. Demdam's explanation for the extra resident in Ingleside Retirement Home was that she had taken in S.W. at the request of a case worker for the Department of Children and Family Services (DCF) as an emergency placement on a weekend for a projected stay of only two to four weeks but that due to unforeseen circumstances, DCF had not removed S.W. timely. It is unclear from this record whether the patient, S.W., put the census of Ingleside over 18 patients in March, the time that she was first taken in. It is also unclear exactly how long S.W. caused Ingleside's census to exceed the 18 patients provided for on its license, but as of May 1999, Ms. Demdam was providing care for S.W. and another Ingleside resident, J.J., without pay. Mr. Dickson testified that he recommended a $1000.00 fine as a sanction for having the one extra resident in Ingleside Retirement Home on May 4, 1999, because of prior sanctions recommended within the licensure period for the same type of deficiency. However, the only similar deficiency or sanction he noted during his testimony was the Ingleside moratorium which had been based upon the lack of licensure of the San Juan facility. By a letter dated May 7, 1999, AHCA notified the Respondent of the findings supporting the imposition of a moratorium at Ingleside. Ms. Demdam testified credibly that she moved S.W. out of Ingleside Retirement Home as soon as she was notified and that she cleared-out the four residents of San Juan Retirement Home as soon as possible. Mr. Dickson views both ALF citations very seriously because operating an ALF without a license can be prosecuted by the State Attorney as a third-degree felony (see Section 400.408(1)(b)-(c), Florida Statues, (Supp. 1998) and because he views Ms. Demdam's long practice and licensure in the ALF field to demonstrate her knowing and willful disregard of the law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding Respondent guilty of operating an unlicensed facility and imposing an administrative fine in the amount of $1,000 in DOAH Case No. 99-2748; and That the Agency for Health Care Administration enter a final order finding Respondent guilty of exceeding her licensed capacity at Ingleside Retirement Home, and imposing an administrative fine in the amount of $500.00 in DOAH Case No. 99-2755. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration Fort Knox Building 3, Suite 3408D Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elvira Demdam, Administrator San Juan Retirement Home Un-Licensed 6561 San Juan Avenue Jacksonville, Florida 32210 Elvira Demdam, Administrator Ingelside Retirement Home 732 Camp Milton Lane Jacksonville, Florida 32220 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact On March 21, 1979, the Department of Transportation began negotiations to acquire real property in Dade County, Florida, for a right-of-way in connection with the expansion of I-95. In October of 1979, representatives of DOT found the Petitioner's trailer on land located on the right-of way. This trailer was not being used as a residence, but was used for storage of feed for horses being raised by the Petitioner. The Petitioner claimed to be occupying the property pursuant to a lease from the owner. The representatives of DOT advised the Petitioner that he must move the trailer off the property, but that he could file a claim for relocation benefits. Subsequently, the Petitioner presented DOT with a claim for the expenses of moving the trailer off the subject property. The Petitioner also submitted a lease dated May 1, 1979, from Henry Milander to the Petitioner, leasing the subject property for a term of two years, in support of his claim to be in lawful possession. This lease, however, was not executed by Henry Milander, but by Michael Manin, whose signature was neither witnessed nor notarized. The Petitioner subsequently submitted a power of attorney executed by Henry Milander to Michael Manin, dated approximately three years prior to the date of the Petitioner's lease. This power of attorney was witnessed, but was not notarized. Neither the lease nor the power of attorney had been recorded on the public records of Dade County. The DOT representatives conducted a title search, and found that the record owner of the subject property was Ruth Milander Tabrah, as trustee of a trust established by Henry Milander in 1955. This trust had not been terminated, and was in existence during the time periods relevant to this proceeding. Thereupon, the DOT advised the Petitioner that his claim for relocation benefits had been disallowed because his occupancy of the subject property was "inconsistent with the rights of the true owner". The Petitioner's request for a formal administrative hearing challenges the determination of DOT that he is not eligible for relocation benefits.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of Richard E. Kimball for relocation assistance payments be denied. THIS RECOMMENDED ORDER entered on this 15th day of April, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS 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 15th day of April, 1982. COPIES FURNISHED: Richard E. Kimball 18930 S.W. 312 Street Homestead, Florida 33030 Charles G. Gardner, Esquire 562 Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether the Respondents, individually and jointly, on March 24, 1999, established, maintained, or operated migrant housing on their properties located on Rosebud Lane in Arcadia, Florida, without first obtaining permits from the Department of Health.
Findings Of Fact At all times pertinent to the issues herein, the State of Florida's Department of Health, and the DeSoto County Public Health Unit were the agencies in DeSoto County, Florida, responsible for the management and permitting of migrant labor camps and residential migrant housing within that county. Jack L. Sikes has been an environmental specialist II with the DeSoto County Health Unit for 18 years. His duties comprise the management of the migrant housing program within the county, including permitting and inspection of migrant residential housing units and camps. Migrant housing is defined within the Health Department as any structure housing five or more workers engaged in seasonal work, and who have changed their residence during the preceding year. Inspection standards applied to migrant housing relate to health and safety issues, such as cleanliness, refrigeration, hot and cold water, lights, bedding, and structural problems of the facility which impact safety. For the 1998-1999 growing year, permits were issued for 108 migrant worker camps in the county. In the 1997-1998 year there were only 16-17 permits issued for camps. The increase is due to state emphasis on increased safety for migrant housing. By far the greatest percentage of migrant workers are of Hispanic origin. The migrant population increases significantly in DeSoto County during the citrus harvest period which extends from November through June. On March 23, 1999, Mr. Sikes and a co-worker, as a part of a continuing search for un-permitted migrant housing, conducted a drive-through inspection of several mobile homes situated on Southwest Rosebud Lane in Arcadia, Florida. Eight of the lots on Rosebud Lane have mobile homes on them while the other lots are vacant. On this visit, Mr. Sikes did not see any of the indications normally present when a structure is used for a family home such as toys in the yard, laundry drying, etc. As a result, he suspected the homes, some of which were obviously occupied, were being used as migrant housing. The next day, March 24, 1999, at approximately 5:00 p.m., Mr. Sikes and a Spanish-speaking inspector, Robert Schultz, returned to the area and went to the structure located at 1408 Southwest Rosebud Lane, where in response to the inspectors' knock, the door was opened by an Hispanic individual who identified himself as Mario Hernandez. Through the interpretation services of Mr. Schultz, Mr. Hernandez indicated that he lived at that house with his five cousins, all of whose names were recorded on the "Documentation of Hand Laborer" form on which the answers to the interview questions were written. As recounted by Mr. Sikes, Mr. Hernandez spoke for the group as his cousins were not present when the interview began. Mr. Hernandez indicated that he and his cousins arrived in DeSoto County from another location to pick oranges during the first week of November 1998 and took up residence at 1408 Southwest Rosebud Lane. The mobile home they were occupying was large enough to be permitted for six residents. Mr. Hernandez also indicated he and his cousins were renting the mobile home but did not know from whom. Though this statement is hearsay, it is corroborated by an examination of the electricity billing records and other independent evidence of record. A four-fold November increase in electric usage over the mid-October 1998 electric bill indicates the structure was most likely unoccupied before November 1998 but was occupied for several months thereafter. In fact, just after the inspectors left the home, a bus discharged several other men who appeared to be migrant workers and four of them went in the direction of 1408. When Mr. Sikes and Mr. Schultz went to 1375 Southwest Rosebud Lane they found several Hispanic men getting out of a utility van and going into the mobile home. The inspectors went to the house and were invited in. Mr. Schultz translated. During the course of the conversation, the men indicated they had just returned from the fields where they worked picking oranges. They said they all lived in the mobile home with a sixth man who was not present at the time. They also indicated they had come to DeSoto County from Mexico around the first of the year to pick oranges, and had rented the mobile home from someone whose name they did not know. When the picking season was completed in DeSoto County, they intended to move on to other farm work elsewhere. The inspectors spoke with the driver of the bus who identified himself as a crew leader for Turner Foods for whom the migrant laborers also worked. The driver attempted to interfere with the inspectors' questioning of the workers who got off the bus, and as a result, the inspectors requested that he leave the area. Within five minutes of the driver's departure, Respondent Gary L. Frierson drove up and asked Mr. Sikes what was going on. Mr. Sikes advised Mr. Frierson that he and Mr. Schultz were conducting a housing investigation and that based on what information they had gathered, Mr. Frierson needed to obtain a residential migrant housing permit for the properties. Mr. Frierson did not deny he owned the property, but, by the same token, did not admit to owning it either. Mr. Frierson said he was trying to sell the property, but, due to tax considerations, was restricted to selling a limited number of parcels per year. Taken together, the evidence of record is abundantly clear that the occupants of both 1375 and 1408 Southwest Rosebud Lane on March 24, 1999, were migrant farm workers, and the properties were being used as residential migrant housing without being permitted as such. The question remains, however, as to who owned the property and was utilizing it in the fashion described. The public records of DeSoto County reflect that Alice H. Frierson is the owner of record of the property located at 1408 Southwest Rosebud Lane, and Gary L. and Alice H. Frierson, jointly, are the owners of record of the property located at 1375 Southwest Rosebud Lane. Respondents presented several documents in an effort to establish they did not own the properties in question. As to Lot 14 and Lot 22, Bokara Acres, unrecorded Agreements for Deed dated December 31, 1998, between both Mr. and Mrs. Frierson and Wayne Radloff as to Lot 14, and Ricardo Sanchez as to Lot 22, provide for a future transfer of title to each buyer, providing the buyer pays all amounts due on the purchase price. Identical Agreements for Deed were also issued the same date to Mr. Radloff for four other properties in the subdivision. As to Lot 14, a second Agreement for Deed, dated January 1, 1999, purports to transfer a future interest in the same property to Fernando Gomez, and on that same date, Mr. Radloff executed an Assignment of Agreement for Deed to Fernando Gomez. On January 9, 1999, Mr. Radloff also executed a Quit-Claim Deed for Lots 13 and 14 to Gary L. and Alice H. Frierson. As to Lot 22, on March 28, 1999, Mr. Gomez executed a Rescission of Agreement for Deed and Mutual Release to the Friersons in which the December 31, 1998, transfer of the property to Gomez was rescinded, thereby restoring title to Mr. and Mrs. Frierson. This is four days after the visit on March 24, 1999 by the inspectors, Mr. Sikes and Mr. Schultz. By none of the documents, however, did legal title transfer from Mr. and Mrs. Frierson to Mr. Radloff, Mr. Gomez, or Mr. Sanchez. In fact, Mr. Frierson admitted that he collected the rent from the occupants of both parcels weekly from January through March 24, 1999, though he indicated he had no idea which individuals occupied which property. All Mr. Frierson could recall was that a Hispanic man would come out to the truck each time Mr. Frierson went there and beeped his horn, and would give him the money due. He could not identify the man or even say if it was the same man each time. While the Department contends that the unrecorded Agreements for Deed are a sham designed to isolate Respondents from their legal responsibility to obtain permits for the property which they operate as residential migrant housing, Respondent vehemently denied this and produced a series of witnesses who, over several years past, have purchased real estate from them through the same process. None of these individuals experienced any difficulty in obtaining title to the property when they completed payment in full. It should be noted, however, that while these individuals have had no difficulty with the transactions, they are permanent residents of the area, and the situation regarding the parcels in question differs considerably. On none of the transfer documents in issue are the name and address of the person who prepared the document legible, and other technical deficiencies make the agreements un-recordable. When those factors are considered in conjunction with the coincidental concurrence of the documents with the arrival of the migrant workers, and the fact that all interest in the property reverted to Mr. and Mrs. Frierson immediately after the date of the Department inspection, the inescapable conclusion is that the transfers to Mr. Radloff/Mr. Gomez and Mr. Sanchez were not bona fide transfers of an interest in property, but were an effort to obscure the actual ownership of the property to avoid the responsibilities which go with the ownership of residential migrant housing. Other evidence of record supports that conclusion. For example, Respondents presented no documentary evidence to indicate they had ever received any of the weekly payments called for under the Agreements for Deed as to either property but claim that they received a down payment, and that Mr. Frierson collected "rent" each week. For the five properties sold to Mr. Radloff/Mr. Gomez for a total consideration of $63,000, the total down payment was $300. For the property sold to Sanchez for $20,000, the down payment was $100. Respondent admits he has no records to show the down payment or the monthly rental payments he received on either property. Respondents paid the electricity for both properties during the entire time the properties were under the Agreements for Deed through their account with the utility company and were not reimbursed. They provided water to 1375 Southwest Rosebud Lane free of charge from a well on adjacent property they owned. They paid property, casualty, flood, and hurricane insurance for both properties throughout the entire period and were not reimbursed. They did not advise the county property tax office that they had transferred interest in the property to someone else. Though Respondent gave a key to each property to the respective "purchaser," he never saw either at the property. All but one of the properties in which an interest was transferred to Mr. Radloff, Mr. Gomez, or Mr. Sanchez, are vacant and the location of the "buyers" is unknown. Mr. Frierson indicated that he frequently sells property by unrecorded Agreement for Deed. This is standard procedure for him. He claims he paid the electric bills on the properties when they were previously used as rental properties, and he did not cancel the service -- a thing he has done in the past when the buyer is short of cash or cannot pay the power company deposit. In one case under consideration here, he claims, the tenant paid more than was called for, so he used the accrued overpayment to pay the electric bill. As for insurance, he continued his coverage because he wasn't sure the buyer could get coverage. Respondent asserts he does not want to operate migrant housing and has told this to Mr. Sams of the Health Department. He wants single families, and the family which occupied one of the properties in issue on June 7, 1999, went in after the rescission of the Agreement for Deed. Mr. Frierson claims the family's rental business is far less formal than a normal rental operation. Many renters who terminate usually do so by leaving without notice. Many of the renters are Hispanics, whom he describes as quite naïve about paper work. When Mr. Sanchez advised him he wanted out of their agreement, Respondent prepared a Rescission and Release and a Quit-Claim Deed, though he admits the use of both is probably overkill. As to the transactions with Mr. Radloff, Respondent claims he entered into it on the basis of advice from his tax accountant to avoid a higher tax obligation. When he found that he didn’t have the tax problem after all, he bought the lots back and transferred them to Mr. Gomez, which, he contends was his original intention. Mr. Frierson contends that the money paid to him by Mr. Radloff actually came from Mr. Gomez, which, to Respondent, explains the concurrent transfers. He also contends that shortly after the transfer, Mr. Gomez came to him and wanted out of the deal, as had Mr. Sanchez, and he, Mr. Frierson, agreed. Respondent claims, however, that he had no idea of how the properties were used when Mr. Gomez and Mr. Sanchez had control of them. He overlooks the fact that he collected the rents weekly during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order in this matter imposing administrative fines of $500.00 on Gary L. and Alice H. Frierson for the proven violation at 1375 Southwest Rosebud Lane, and an additional $500 fine on Alice H. Frierson for the proven violation at 1408 Southwest Rosebud Lane, both in Arcadia, Florida. DONE AND ENTERED this 30th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 30th day of September, 1999. COPIES FURNISHED: Susan Mastin Scott, Esquire Department of Health Post Office Box 9309 Ft. Myers, Florida 33902-0309 James M. Beesting, Esquire 207 East Magnolia Street Suite B Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Respondent, Connie B. White, committed violations alleged in the Administrative Complaint.
Findings Of Fact Connie B. White, the Respondent, was a licensee of the Division of Real Estate at all times relevant to the allegations against her. The Respondent received a renewal notice for her real estate license and completed the information contained thereon and submitted the renewal request together with the applicable fees to the Department. The Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees pursuant to the laws of the State of Florida. The renewal application provides that "By submitting the appropriate renewal fees to the Department or the agency, a licensee acknowledges compliance with all requirements for renewal." The Respondent submitted to the Petitioner the licensee renewal application together with a check in the amount of $190, annotated that $95 was for her renewal fee and $95 was for her corporation’s renewal fee. In response to an inquiry from the Department, the Respondent wrote a letter, Petitioner’s Exhibit 3, which was authenticated by Judy Smith, the Department’s Investigator. See the transcript of the second hearing, pages 47 and 48. In her letter, the Respondent stated as follows regarding her application: There was never any attempt to defraud in this case. At worst this was merely a misunderstanding caused by change in the requirements. I did not think I had to have the certificate of successful completion of the continuing education in my hands by m[sic]arch 31, 1996 because of the change in the requirement omitting the need to mail in the certificate with the fee. I am sure that I did not obtain a license by means of fraud, misrepresentation or concealment. Enclosed is a copy of certificate of proof of successful completion of the continuing education course start date April 26, 1996, finish date May 28, 1996. While it is uncontroverted that the Respondent was issued a license as a broker in response to her 1996 application, no evidence was presented that the Department "relied" upon the Respondent’s "representations" regarding her qualifications as a condition to issuing her license. The Respondent thought that she did not have to complete the continuing education coursework prior to submitting the fee for the renewal of her license. Respondent took and failed the course in March of 1996, and re-enrolled in the next available course, which she passed. The Respondent thought it was up to her to complete the necessary coursework. The Respondent renewed after sending her answers to be graded, but before receiving the results. The Respondent subsequently learned that she had not passed the course, and re- enrolled in the course as stated above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Administrative Complaint against the Respondent be DISMISSED. DONE AND ENTERED this 20th day of April, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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, 2000.
Findings Of Fact Plotkin is the owner and operator of the Rendale Hotel located at 3120 Collins Avenue, Miami Beach, Florida, which has been operated by Plotkin, a family owned corporation, for more than twenty-five years. The apartment/hotel has 98 studio apartments. In the Spring of 1972, after Plotkin corresponded with DOR, it made the determination that it was exempt from the imposition of sales tax on the rentals it charges. Plotkin made the same determination for consecutive years through and including 1978. Early in September 1978, DOR caused an audit to be made of Plotkin's records and determined that Plotkin was not an exempt facility and that taxes were due for the three years prior to September , 1978, for all rentals to "non- permanent" guests. DOR's auditor utilized only the transcript of guest charges in making his determination. The transcript was compiled from April 1, 1975, a period beyond three years prior to the date of the audit. A transcript is a compilation generally prepared by the night clerk of all the active folio cards or guest ledge cards for that particular day. When tenants or guests were absent from the apartment hotel for various periods of time, they were not carried on the transcript. At times when a tenant had no charges for a particular day, the tenant was not carried on the transcript. As of April 1, 1975, Plotkin had 87 units occupied. As of June 30, 1975, it had 55 units occupied. Thirty of those units were occupied continually during that test period in 1975. As of April 1, 1976, 80 units were occupied and as of June 30, 1976, 55 units were occupied. Twenty-five units were continuously occupied during that three month test period. As of April 1, 1977, 95 units were occupied and as of June 30, 1977, 50 units were occupied. During the test period, 29 units were occupied for a continuous period of time.
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of national origin,1 in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2005).2
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Neiman Marcus Group, Inc., owns and operates specialty retail stores. Its headquarters are located in Dallas, Texas. In the summer of 2005, Neiman Marcus began hiring personnel to work in a new store that would open in the fall of 2005 in the Town Centre mall in Boca Raton, Florida. Ms. Jean-Pierre is a permanent resident alien in the United States. She was born in Haiti in 1970 and entered the United States in 1983. In September 2005, Ms. Jean-Pierre was employed as a sales associate in the accessories section of the Nordstrom department store in the Town Centre mall when she was approached by two women who inquired about Chanel sunglasses. They requested her business card and later called to tell her that they were very impressed with her sales skills. They asked if she was interested in working as a sales associate at the new Neiman Marcus store. Ms. Jean-Pierre applied for a position with Neiman Marcus, went through an interview and a drug test, and was hired to begin work on October 24, 2004. Hurricane Wilma hit South Florida on October 24, 2005, and the Neiman Marcus employees were not able to go to the hiring site during the week following the hurricane. As a result, the newly-hired employees who were to begin work on October 24, 2005, including Ms. Jean-Pierre, were told to report to work on November 1, 2005. Ms. Jean-Pierre's group of newly-hired employees joined the group of newly-hired employees that were to report to work on October 31, 2005. Because there were a large number of people, they were split in two groups. Ms. Jean-Pierre's group went to the store site to begin training on the first day they reported for work, while the other group reported to the hiring center to receive training and to complete the paperwork required of newly-hired employees. Ms. Jean-Pierre's group went to the hiring center on November 3, 2005, for training and to complete their paperwork. All newly-hired employees of Neiman Marcus are required to complete an Immigration and Naturalization Service Employment Eligibility Verification form, known as the "I-9 Form." The I-9 Form consists of three pages. The first page is divided into three sections, two of which must be completed for newly- hired employees. The second page consists of the instructions for completing the I-9 Form, and these instructions "must be available during completion of this form." The third page is headed "Lists of Acceptable Documents" and consists of List A, List B, and List C. Section 1 on the front of the I-9 Form, Employee Information and Verification, must be completed and signed by the employee. The employee must include his or her name, address, maiden name (if applicable), date of birth, social security number, and an attestation, given "under penalty of perjury," that the employee is either a "citizen or national" of the United States, a "Lawful Permanent Resident," or an "Alien authorized to work" in the United States. Section 2 of the I-9 Form, Employer Review and Verification, must be completed and signed by the employer. The employer is required to examine one document from List A ("Documents that Establish Both Identity and Employment Eligibility"), or one document from List B ("Documents that Establish Identity") and one document from List C ("Documents that Establish Employment Eligibility"). The document or documents provided by the employee must be listed in Section 2, and the employer or a representative of the employer must sign the form, attesting, "under penalty of perjury," that he or she has "examined the document(s) presented by the above-named employee, that the above listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment of (month/day/year) and that to the best of my knowledge the employee is eligible to work in the United States." The "Instructions" sheet that must be available during completion of the I-9 Form directs the employee to complete Section 1 of the form "at the time of hire, which is the actual beginning of employment." The instructions direct the employer, in pertinent part, to complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. If employees are authorized to work, but are unable to present the required document(s) within three business days, they must present a receipt for the application of the document(s) within three business days and the actual document(s) within ninety (90) days. . . . Employers must record document title; 2) issuing authority; 3) document number; 4) expiration date, if any; and 5) the date employment begins. Employers must sign and date the certification. Employees must present original documents. Employers may, but are not required to, photocopy the document(s) presented. These photocopies may only be used for the verification process and must be retained with the I-9. (Emphasis in original.) When newly-hired employees report to the hiring site for training, they are placed at a computer to type in the information required in Section 1 of the I-9 Form. It is Neiman Marcus's policy to provide all newly-hired employees, at the time they are completing Section 1 at the computer, a copy of the page setting forth the "Lists of Acceptable Documents," with a copy of the "Instructions" page stapled to that document. When the information required in Section 1 is complete, the I- 9 Form prints out of the computer with the employee's information included. The employee signs the form, and the Neiman Marcus representative examines the documents presented by the employee and completes and signs Section 2 of the I-9 Form. Neiman Marcus requires all newly-hired employees to present original documents from List A or List B and List C for verification within 72 hours of the beginning of employment. If an employee fails to provide the necessary original documents or a receipt for the application of the documents within the 72- hour timeframe, it is Neiman Marcus's policy to suspend the employee's employment with Neiman Marcus and to allow them a week to provide documents required for identification and employment verification. If the newly-hired employee is unable to produce the necessary documents, the employee is terminated, but the employee is advised that they are welcome to re-apply for a job when they are able to produce the original documents that satisfy the requirements on the I-9 Form. It is not Neiman Marcus's policy to specify the documents a newly-hired employee must present to verify his or her identity and employment eligibility. Rather, Human Resource Managers at the various Neiman Marcus stores have been told not to specify any document that must be produced to satisfy the identification and employment verification requirements on the I-9 Form. Donna Bennett is, and was at the times pertinent to this proceeding, the Human Resource Manager for the Neiman Marcus store in Boca Raton. Amy Wertz was the Human Resources Coordinator and worked for Ms. Bennett at the times pertinent to this proceeding. When Ms. Jean-Pierre reported to the hiring center on November 3, 2005, she completed Section 1 of the I-9 Form on the computer provided by Neiman Marcus and, to verify her identity, presented her Florida driver's license to Ms. Wertz, who was the Neiman Marcus representative verifying employment eligibility for the newly-hired Neiman Marcus employees in Ms. Jean-Pierre's group. Ms. Jean-Pierre advised Ms. Wertz that her "Green Card"3 and her Social Security card had been in her car, which was stolen from the parking lot of her condominium building after the Hurricane Wilma. Ms. Jean-Pierre did not provide Ms. Wertz an original document from either List A or List C to verify her employment eligibility on November 3, 2005. She did give Ms. Wertz her Social Security number and a copy of her Permanent Resident Card, income tax return, and pay stub from her previous employment. Ms. Wertz would not accept these documents for purposes of satisfying the I-9 Form requirement of verification of employment eligibility. On November 3, 2005, Ms. Wertz advised Ms. Bennett that Ms. Jean-Pierre had failed to produce the original document from List A or List C required to verify her employment eligibility. Ms. Bennett directed Ms. Wertz to send Ms. Jean- Pierre home to look for an original document that would satisfy the requirements for establishing her employment eligibility. Ms. Jean-Pierre reported for work on November 4, 2005, without an original document from List A or List C. Ms. Bennett went to the official website of the United States Citizenship and Immigration Services to verify the government policy on the production of documentation to establish employment eligibility. After reviewing the information on the website, Ms. Bennett advised Ms. Jean-Pierre that, if she produced a receipt showing she had applied for a replacement document among those on List A or List C, she could have an additional 90 days in which to produce the original document. Ms. Bennett did not contact Neiman Marcus's corporate legal department with regard to this information before she passed it on to Ms. Jean-Pierre. On November 5, 2005, Ms. Jean-Pierre provided either Ms. Wertz or Ms. Bennett a document printed from the United States Citizenship and Immigration Services website entitled "I-90 Form: Application to Replace Permanent Resident Card" and told them that she had an appointment with the Immigration and Naturalization Service at the end of November 2005.4 Ms. Bennett believed that this document was an acceptable receipt for an application for a replacement document, and she advised Ms. Jean-Pierre that she had 90 days from November 5, 2005, in which to produce the original document. A notation was made on the I-90 Form that "[y]ou have 90 days from today." Ms. Bennett did not consult with anyone at Neiman Marcus corporate headquarters regarding the sufficiency of the document provided by Ms. Jean-Pierre or receive authorization to allow Ms. Jean-Pierre an additional 90 days in which to produce the original document. In late November 2005, Ms. Wertz told Ms. Bennett that Ms. Jean-Pierre had missed her appointment with the Immigration and Naturalization Service because of a death in her family. Ms. Bennett became concerned that Ms. Jean-Pierre did not take seriously the requirement that she provide original documents to establish her employment eligibility within the 90-day grace period, which, according to Ms. Bennett's understanding, began to run on November 5, 2005. Ms. Bennett called Ms. Jean-Pierre into her office and spoke with her about the importance of providing the necessary original documentation. Ms. Jean-Pierre told her that she would take care of the matter. On or about December 15, 2005, Ms. Jean-Pierre produced to Ms. Bennett a document identified as a Citizens and Immigration Services form I-797C, Notice of Action. The "Case Type" specified on the document was "I-90 Application to Replace Alien Registration Card"; the "Receipt Number" noted on the document was "MSC-06-800-46861" the date on which the application was received was noted as December 14, 2005; the applicant was identified as "A37 888 854 Jean-Pierre, Nita"; and the "Notice Type" specified on the document was "Receipt Notice." When she gave Ms. Bennett this document, Ms. Jean- Pierre told Ms. Bennett that it would take between six months and one year to receive the replacement card because of September 11, 2001. Ms. Bennett became concerned that Ms. Jean- Pierre would not be able to provide the required original document within the 90-day grace period. At this time, she contacted Susan Moye, a manager in Associate Relations at Neiman Marcus's corporate headquarters in Dallas, Texas, and arranged to have the I-797C form faxed to Ms. Moye. Ms. Moye consulted with Neiman Marcus's legal department about the sufficiency of the I-797C Form Ms. Jean- Pierre had provided on December 15, 2005. Ms. Moye was advised that this document was not sufficient to meet the I-9 Form requirement that the employer examine the original of one of the documents included on List A or List C to verify employment eligibility. Ms. Bennett was absent from work for a period of time due to the illness and death of her father. During her absence, Ms. Wertz was in communication with Ms. Moye regarding Ms. Jean- Pierre's employment status. Ms. Moye directed Ms. Wertz to notify Ms. Jean-Pierre that the I-797C form she had provided was not sufficient to verify her employment eligibility and that she was suspended from employment for one week to give her the opportunity to obtain an acceptable original document. Ms. Jean-Pierre did not provide the required documentation by the end of the one-week period of her suspension. Ms. Bennett returned to work on December 27, 2005. Ms. Bennett spoke with Ms. Moye about the matter on December 27, 2005, and Ms. Moye told her that Ms. Jean-Pierre needed to provide an original document in order to establish her eligibility for employment and that the document Ms. Jean-Pierre had provided on December 15, 2005, was not an acceptable original document. Ms. Moye advised Ms. Bennett that she would need to terminate Ms. Jean-Pierre. At the time she directed Ms. Bennett to terminate Ms. Jean-Pierre, Ms. Moye was not aware of Ms. Jean-Pierre's race or national origin.5 Ms. Bennett called Ms. Jean-Pierre into her office and explained to her that it was Neiman Marcus's policy to require original documentation of identification and employment eligibility within three days of beginning employment; that the document she provided on December 15, 2005, was unacceptable; and that she was terminated. During this meeting, Ms. Jean-Pierre argued that the document she had provided on December 15, 2005, was acceptable. Ms. Bennett explained to Ms. Jean-Pierre that, in accordance with Neiman Marcus's policy, she needed to produce the original document, not the receipt for an application for a replacement document. When she terminated Ms. Jean-Pierre, Ms. Bennett told her that she was welcome to re-apply for a job when she was able to produce the appropriate documents to establish her employment eligibility. Ms. Bennett did not tell Ms. Jean-Pierre that a "Green Card" was the only acceptable document to establish her employment eligibility. Nor did she tell Ms. Jean-Pierre that she needed to provide more documentation than others because she was Haitian. In January 2006, Ms. Jean-Pierre returned to the Neiman Marcus Boca Raton store and provided Ms. Bennett with a receipt showing that she had applied for a Social Security card on January 10, 2006. Ms. Bennett faxed this document to Ms. Moye, who responded that the receipt was insufficient and that Ms. Jean-Pierre needed to produce an original document. On January 5, 2006, Ms. Jean-Pierre obtained a stamp on her passport indicating that employment was authorized for her, which authorization would expire on January 4, 2007. Ms. Jean-Pierre received her replacement Social Security card on January 16, 2006. Ms. Jean-Pierre did not present an original Social Security card to Neiman Marcus or her stamped passport to Neiman Marcus as verification of her employment eligibility. Ms. Bennett has previously terminated newly-hired employees who failed to timely provide the documents required to establish employment eligibility. Those employees were invited to re-apply when they received their original documents. Several re-applied, provided their original documents, and were re-hired. Of the more than 59 newly-hired employees reporting to work on or about November 1, 2005, Ms. Jean-Pierre was the only employee who failed to produce to Neiman Marcus the required original documentation verifying her employment eligibility. Summary The direct evidence presented by Ms. Jean-Pierre is not sufficient to establish that Neiman Marcus discriminated against her on the basis of her national origin. Ms. Wertz and Ms. Bennett were aware that Ms. Jean-Pierre was from Haiti residing in the United States, but the evidence establishes that both Ms. Wertz and Ms. Bennett were concerned about her failure to produce any original documents as required for verification of employment eligibility and that Ms. Bennett talked to her about the seriousness of the issue and urged her to get the necessary document. Ms. Jean-Pierre's testimony that Ms. Bennett told her she needed more documentation because she was a Haitian is unsupported by any other testimony or documentary evidence. Finally, Ms. Moye, the person who directed Ms. Bennett to terminate Ms. Jean-Pierre, was not aware that she was born in Haiti. Ms. Jean-Pierre's testimony that both Ms. Wertz and Ms. Bennett insisted she must provide a "Green Card" to verify her permanent residence is, likewise, unsupported by any other testimony or documentary evidence. In any event, this evidence would not, of itself, establish that either Ms. Wertz or Ms. Bennett was motivated by the intent to discriminate against Ms. Jean-Pierre because she is Haitian. The evidence presented is sufficient, however, to support an inference that Ms. Jean- Pierre misunderstood the information she received from Ms. Wertz and Ms. Bennett and assumed that they were referring to an original Permanent Resident Card rather than an original document included on the "Lists of Acceptable Documents."6 Ms. Jean-Pierre acknowledged in her testimony that, when Ms. Wertz told her she needed to verify her permanent residence, she interpreted this to mean that she needed to get a replacement copy of her Permanent Resident Card. Similarly, Ms. Jean-Pierre may have interpreted Ms. Bennett's statements that she needed to produce an original document as requiring that she produce a Permanent Resident Card. The evidence presented by Ms. Jean-Pierre is sufficient to establish that Ms. Jean-Pierre is entitled to protection from employment discrimination on the basis of her national origin; that she was qualified for the position of sales associate with Neiman Marcus; and that she was subjected to an adverse employment action because she was terminated from her employment. Ms. Jean-Pierre stated unequivocally in her testimony, however, that she did not know of any other person who failed to verify their employment eligibility that was allowed to work at Neiman Marcus. She has, therefore, failed to establish a prima facie case of employment discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief from an Unlawful Employment Practice filed by Nita Jean-Pierre on September 20, 2007. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 29th day of February, 2008.
