The Issue Whether the Respondent, Christina M. Restauri, committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed community association managers pursuant to Florida law. At all times material to the allegations of this case, the Respondent was licensed as a community association manager, license number CAM 0019553. In May 1998, the Respondent became the community association manager for the Association. As such, the Respondent had duties and responsibilities in connection with the day-to-day management of the Association's business. In exchange for the performance of her manager duties, the Association paid the Respondent a salary, provided her with a condominium unit for her residence, paid her utilities, and covered her local telephone service. The Respondent's managerial duties included all office management for the Association, including the collection of fees owed to the Association, the payment of monies owed to vendors by the Association, and the accounting associated with payroll for salaries owed to employees of the Association. The Respondent and the Association entered into a written management agreement that outlined the terms of her employment. The agreement (Petitioner's Exhibit 1) did not require the Association to pay for the Respondent's family health insurance. Additionally, the agreement did not provide for paid sick leave in excess of four days per year. In connection with her responsibilities for payroll, the Respondent controlled the amount of checks made payable to herself for salary owed during the course of her employment. This authority also allowed her to control the amount of monies withheld from her salary to cover her family medical insurance and for the monies payable for federal withholding taxes and social security. On at least two occasions, the Respondent altered her withholding such that no monies were withheld for federal taxes. The Respondent failed or refused to produce a W-4 form that would have supported the change in withholding. Moreover, the Respondent did not produce a W-2 form that would have supported, after-the-fact, that the withholding forms had been modified to support the altered withholding amount. The Respondent failed or refused to produce documentation to establish that she repaid the Association for family medical benefits she received. Initially, the amount to cover the family health benefit was reportedly withheld from the Respondent's paycheck. The adequacy of the withheld amount came into question. Under the terms of her employment, the Respondent was to remit the monthly family health premium to the Association. She did not do so. In fact, copies of checks that were purportedly offered in support of her claim that she had made the payments were never deposited into the Association's account. When the Respondent was challenged as to the amounts owed for health premiums and the matter was to be further investigated, she tendered her resignation. She never produced any of the financial records requested to document any of the matters contested in this proceeding. In addition to the foregoing payroll discrepancies, the Respondent caused herself to be overpaid $125.00 for sick leave. On or about October 12, 2000, the Respondent took $700.00 from the Association's petty cash and loaned it to Sandy Schwenn. Ms. Schwenn was employed by the Association as a secretary and had agreed to repay the funds. The loan was never repaid. The Respondent was not authorized to loan monies from the Association's petty cash fund and admitted the error during a board of directors' meeting on November 15, 2000. Whether the Respondent made good on her promise to repay the loan herself is unknown. Clearly, at hearing the Respondent did not make such representation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order against the Respondent that imposes an administrative fine in the amount of $2500.00, and revokes her license as a community association manager. DONE AND ENTERED this 13th day of November 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 2003. COPIES FURNISHED: Julie Malone, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Christina Marie Restauri 4640 Northwest 30th Street Coconut Creek, Florida 33063 Jennifer Westermann Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202
The Issue Whether the final agency action of the Department of Management Services, Division of Retirement, dated February 22, 2012, complied with section 175.361, Florida Statutes (2012),1/ concerning the dissolution and distribution of the City of Belleair Bluffs Firefighters' Pension Trust Fund.
Findings Of Fact The Pension Trust Fund is a defined benefit pension plan under chapter 175, Florida Statutes. The City participated in the chapter 175 premium tax program with the creation of the Pension Trust Fund. The legislature expressly declared that the purpose of chapter 175 was to establish "minimum standards for the operation and funding of such plans, hereinafter referred to as firefighters' pension trust funds." § 175.021(2), Fla. Stat. Further, the legislature directed that the firefighter pension plans be "managed, administered, operated, and funded in such manner as to maximize the protection of the firefighters' pension trust funds." § 175.021(1), Fla. Stat. Section 175.061 creates a board of trustees for a firefighters' pension trust fund as the legal entity empowered to bring and defend lawsuits, and is "solely responsible for administering the trust fund." § 175.061(1) and (4), Fla. Stat. The board of trustees is directed by statute to act as a fiduciary for the pension trust fund's beneficiaries and participants. §§ 175.071(1) and 112.656, Fla. Stat. The law is clear that a board of trustees is independent of a municipality. §§ 175.071 and 175.311, Fla. Stat. Further, a board of trustees comprises two trustees elected by the firefighters, two trustees who are residents of the municipality appointed by the City Commission, and a fifth member chosen by the majority of the four members. § 175.061(1)(a). Finally, a board of trustees derives its authority and fiduciary duties from chapters 175 and 112. The Board of Trustees in this case was created by and derived its authority under chapter 175. On September 1, 2009, the City’s residents voted to consolidate its fire services with City of Largo. As a result, the Largo Fire Department has provided the City with fire protection since September 30, 2009. Moreover, it was undisputed that the Pension Trust Fund closed as of September 30, 2009. Following the consolidation of the two fire services, City officials and the Board of Trustees began negotiations concerning how to proceed with the Pension Trust Fund. The record shows that the discussions evolved from the Pension Trust Fund being merged with the Largo Firefighters' Pension Fund to discussions concerning the Pension Trust Fund's dissolution and distribution. The negotiations between the City and the Board of Trustees regarding the dissolution and distribution of the Pension Trust Fund discussed a number of alternatives. The record shows that the City and Board of Trustees discussed options such as payment of accrued benefits, a substituted trust managed by the City, and payment of lump sum cash payments in conjunction with a share plan or service distribution payment. The share plan or service distribution plan would have paid a firefighter's accrued benefits plus additional money based on the number of years a firefighter served the City. However, as of early September 2011, the City and the Board of Trustees had not reached an agreement on the dissolution and distribution of the Pension Trust Fund. The key meeting for resolution of this case is the Board of Trustees' meeting on September 9, 2011. The Board of Trustees' meeting minutes and transcript from the September 9, 2011, meeting, show the Board of Trustees' intent to make a decision in strict compliance with section 175.361. Mr. Dehner, the Board of Trustees' attorney, clearly advised the Board that it take a final action in compliance with section 175.361. The record shows that the Board of Trustees voted to accept distribution of accrued benefits only, and voted to have its actuary provide the City with the information showing the amount of additional funds necessary to fund the Pension Trust Fund's distribution. Section 175.361(1) provides that a board of trustees inform a municipality if additional assets are required to fund distribution of the nonforfeitable benefits. The conclusion that the Board of Trustees took a final action in compliance with section 175.361 is confirmed by Mr. Langere's testimony. The record shows that the Board directed Mr. Patrick Donlan of Foster and Foster, its actuary, to provide the City with two options as to the costs for the distribution. The first option concerned the cost of a proposal by the City to dissolve the Pension Trust Fund. The City's proposal, as it was characterized by the Board, consisted of eight firefighters receiving lump sum cash payments of their accrued benefits with a share plan. The share plan would pay the eight firefighters additional money based on each firefighter's years of service. The remaining four firefighters in the Pension Trust Fund would receive insured annuities. The Board of Trustees also directed Mr. Donlan to determine the cost of Board's action in selecting dissolution and distribution of the Pension Trust Fund by purchasing eight annuities and four lump sum cash payments. The transcript for the Board of Trustees' meeting shows the following: SECRETARY WATERS: I make a motion that if the City does not act favorably to the City proposal, what we've been calling "City Proposal - Proposal Number One," then the Board requests that the City pay in accordance with the 9/9/11 letter from Foster & Foster updated as of 9/16/11. The motion received a second, and was unanimously approved by the Board of Trustees. The letter from Mr. Donlan, dated September 9, 2011, set out the Pension Trust Fund's current value and the amount of additional funds required from the City in order to fund the distribution of the accrued benefits with the purchase of eight insured annuities and four lump sum cash payments. Moreover, Mr. Donlan's letter determined the amount of funds required from the City to finance the distribution. Finally, the September 9, 2011, letter set out the costs of a "share plan" allocation. The Board of Trustees' action at the September 9, 2011, meeting, directed the actuary to update the distribution costs using a September 16, 2011, date. The reason for the changed date is that the cost of purchasing annuities varies based on the prevailing interest rates on a particular date. The Board of Trustees chose September 16, 2011, as the date for determining the cost of purchasing the annuities, because the date was the closest date to the City Commission's next scheduled meeting on September 19, 2011. On September 16, 2011, Mr. Donlan wrote Ms. Sullivan, and provided the City with the market value of the Pension Trust Fund on September 15, 2011, and the costs to fund the distribution of the Pension Trust Fund under two scenarios: 1) the City's "Share Plan or Service Distribution Plan"; and 2) the accrued benefit plan approved by the Board of Trustees. The letter shows that, at the time, the current value of the Pension Trust Fund was insufficient to distribute the accrued benefits. Consequently, under either option, the City would be required to pay additional funds in order to distribute the accrued benefits. Mr. Donlan outlined the City's costs under the City's proposed share plan or service distribution plan. Under the City's proposal, eight firefighters would receive lump sum cash payments of their accrued benefits and "service distributions" based on the years of service, and four firefighters would receive insured annuities. Mr. Donlan's letter noted that if the City adopted this proposal, the decision would allow the City to access additional state money to pay for the service distributions. Under the “share plan or service distribution plan,” the City would be required to provide $1,024,786.00 to fund the distribution. The second cost option outlined by Mr. Donlan detailed the cost of funding the Board of Trustees' decision that eight firefighters receive insured annuities, and four firefighters receive lump sum cash payouts. Unlike the “share plan or service distribution plan,” state money would not be available to pay for the accrued benefit plan.3/ The actuary's letter clearly states that under the accrued benefit plan, the City would be required to provide $1,265,330.00 to fund the distribution of the Pension Trust Fund. On September 19, 2011, Mr. Daniel Waters, the Board of Trustees' Secretary, informed the City Commission in writing that the Board of Trustees had met and "accepted a motion concerning the method of payout to the former Belleair Bluffs Firefighters' Pension Members." Further, Mr. Waters informed the City Commission about the costs of the Board's adopted annuity plan, and provided a copy of the actuary's September 16, 2011, letter. The record shows that on September 26, 2011, the City Commission held a special meeting concerning the Pension Trust Fund. The City Commission's minutes show that the City had its actuary prepare documentation showing the financial implications for the City under four different scenarios.4/ Further, the City Commission minutes show that the City Commission failed to take any action, other than to authorize Mayor Arbutine "to write a letter requesting a 90-day extension in order to keep the Share Plan alive while continuing to come to an agreement." Consequently, the City did not provide the additional funds of $1,265,330.00 necessary to distribute the Pension Trust Fund as determined by the Board. On September 29, 2011, Mayor Arbutine wrote the Department seeking its assistance with resolving a problem with the termination of the Pension Trust Fund. Mayor Arbutine's letter outlined the City's liability to fund the options presented by the Board of Trustees. Specifically, Mayor Arbutine lamented that the Board of Trustees' decision would harm the City financially, and that he did not accept that "the City's only option is to pay for whatever method the Board decides is best for the plan members." Consequently, the Mayor asked the Department to take no action pursuant to section 175.361 to effect the dissolution of the Pension Fund for 90 days. The Board did not distribute the Pension Trust Fund on or before September 30, 2011. The Department received information from the City and the Board of Trustees’ decision concerning the Pension Trust Fund's dissolution and distribution. The Department reviewed materials and interviewed the parties. Based on its review, the Department, on February 22, 2012, wrote the City that the Department "has determined that the method of distribution of the asset value as determined by the Board of Trustees is required under section 175.361, Florida Statutes." Further, the Department states the following: In conjunction with this letter, the Department is also corresponding with the Board of Trustees, copy enclosed, instructing them to have the plan actuary prepare an updated financial analysis of the City's required contribution, with a 30-day lock-in period price for the purchase of annuities. This will allow the City of Belleair Bluffs to secure the necessary resources to make the required cash contribution to the plan. The Department provided the City with notice that the February 22, 2012, letter, constituted final agency action, and set out the City's administrative hearing rights. On March 14, 2012, the City filed its Petition for Formal Administrative Hearing with the Department.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that the Board of Trustees complied with section 175.361, Florida Statutes, and that the City be directed to comply with the Department's determination to effectuate the distribution of the Pension Trust Fund through the purchase of eight insured annuities and four lump sum cash payouts for the specific plan members. The undersigned retains jurisdiction to award reasonable attorneys' fees and costs pursuant to section 175.061(5), Florida Statutes, upon the entry of a final order. DONE AND ENTERED this 7th day of December, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2012.
The Issue The ultimate issues in this case are: 1) whether certain agency statements made by the Respondent, DIVISION OF RETIREMENT, regarding the application of the provisions of Chapters 175 and 185, Florida Statutes, to pension plans for municipal fire fighters and police officers are "rules" as defined by Section 120.52(16), Florida Statutes; 2) if so, whether the agency is required to promulgate such "rules" in accordance with Section 120. 535, Florida Statutes; and 3) whether such "rules" constitute an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes Specifically, the issues in this case relate to the criteria required of municipal pension plans to qualify for state funds. Chapters 175 and 185, Florida Statutes, provide for pension plans for fire fighters and police officers, and authorize two types of pension plans. "Chapter plans" are created by state law, and "local law plans" are created either by special act of the Legislature or by municipal ordinance. The gist of the CITY OF ST. PETERSBURG's Section 120.535 Petition is that the DIVISION is attempting by non-rule policy to impose the same requirements relating to terms, conditions, and benefits on local law plans that the DIVISION requires of chapter plans. Specifically, the alleged non-rule policies of the DIVISION of which the CITY complains are: 1) the definition of "credited service"; 2) the definition of "average final compensation"; 3) the disallowance of a Social Security offset; 4) the interpretation of "disability retirement"; 5) the requirement that all of the CITY's pension plans be in compliance in order to receive state funds; 6) the release of funds to other municipalities not found in compliance; 7) the failure to enforce Rule 60Z-1.004, Florida Administrative Code, which defines "credited service;" and, 8) the application of a declaratory statement issued to the City of Boca Raton to other municipalities. As set forth below, the requirements for local law plans have been the subject of extensive prior litigation. In rejecting a challenge to the constitutionality of these statutes, the Court in City of Orlando v. State Department of Insurance, 528 So.2d 468 (Fla. 1st DCA 1988) stated: Chapters 175 and 185 create a purely voluntary program whereby municipalities may receive state-collected taxes, imposed on property and casualty insurance premiums, with which to fund retirement programs for local police and fire fighters. In exchange for receipt of these funds, the legislature has established certain criteria under which the funds must be operated and managed. Id. at 469. The dispute in this case again focuses on determining what criteria the legislature has established for the operation and management of such local pension plans in order to establish whether a local plan complies with the statute for purposes of receiving state-collected tax funds. Petitioner, CITY OF ST. PETERSBURG, and Intervenors, FLORIDA LEAGUE OF CITIES and CITY OF LARGO, take the position that Respondent, DIVISION OF RETIREMENT, has made non-rule policy statements, and required compliance therewith, which go beyond the criteria established by the legislature for participation in the program. Petitioner contends that such statements violate Section 120.535, Florida Statutes, because the statements constitute unpromulgated rules, and further that such statements violate Section 120.56, Florida Statutes, because the statements constitute invalid exercises of delegated legislative authority. Respondent, DIVISION OF RETIREMENT, takes the position that the statements are not "rules" as defined in Section 120.56(12), Florida Statutes, that even if the statements are "rules" it is not practicable or feasible for the agency to promulgate the statements as rules, and that the statements merely apply the provisions of Chapters 175 and 185, Florida Statutes, as intended by the legislature, and therefore do not violate Section 120.56, Florida Statutes.
Findings Of Fact Parties Petitioner, the CITY OF ST. PETERSBURG (CITY), is a municipality of the State of Florida which participates in the voluntary program to receive state- collected taxes imposed on property and casualty insurance with which to fund retirement programs for its municipal fire fighters and police under Chapters 175 and 185, Florida Statutes, respectively. Intervenor, CITY OF LARGO (LARGO), also is a State of Florida municipality participating in such local plans for fire fighters and police. LARGO has standing to intervene in this proceeding. Intervenor, FLORIDA LEAGUE OF CITIES (LEAGUE), represents municipalities participating in such local plans for fire fighters and police. The LEAGUE has standing to intervene in this proceeding. Respondent, DIVISION OF RETIREMENT (DIVISION), is the agency of the State of Florida charged with the statutory duty to administer the voluntary program by which municipalities receive state-collected taxes imposed on property and casualty insurance with which to fund local plans under Chapters 175 and 185, Florida Statutes. Prior to 1993, the Florida Department of Insurance was the responsible state agency to administer Chapters 175 and 185, Florida Statutes. Intervenors, MICHAEL MOORE and RICHARD FEINBERG are municipal fire fighters with the CITY and have standing to intervene in this proceeding. (Russell M. Rizzo, a municipal police officer and an intervenor in case No. 95- 2637, did not request to intervene in the Section 120.535 action, case No. 95- 5089.) History Chapters 175 and 185, Florida Statutes, relating to pension plans for fire fighters and police, authorize two types of retirement or pension plans. One type is called "chapter plans" and the other is known as "local law plans." Chapter plans are created under state law, and the provisions of Chapters 175 and 185, Florida Statutes, control the plans' terms, conditions and benefits. Local law plans are purely voluntary and are created either by special act of the Legislature, or by municipal ordinance. The special act or municipal ordinance contain the provisions relating to the terms, conditions, and benefits of the local law retirement plan. Both chapter plans and local law plans receive funds from the state-collected premium tax on property and casualty insurance. The CITY has operated local law retirement plans for fire fighters and police since 1951. The CITY's police and fire fighter plans were first chartered by special act of the Legislature. The fire fighter charter plan has been closed to new members since approximately 1970. The CITY in 1970 established a supplemental retirement plan for fire fighters which was enacted by CITY ordinance. The CITY's police and fire fighter pension plans are subject to union negotiation, and cannot be unilaterally amended. City of Tallahassee v. Public Employee Relations Commission, 393 So.2d 1147 (Fla. 1st DCA 1981). In this respect, the CITY may not have the authority to make unilateral changes to its local law plans in order to comply with directives of the DIVISION. The CITY has voluntarily participated on a continuing basis in the program created under Chapters 175 and 185, Florida Statutes, whereby the CITY has received state-collected taxes imposed on property and casualty insurance premiums with which to fund its local plans for fire fighters and police. The CITY has received such funds until calendar year 1994. In 1986 the Legislature significantly amended Chapters 175 and 185, Florida Statutes. See Chapters 86-41 and 86-42, Laws of Florida. Chapter 86-41 pertained to municipal fire fighters; Chapter 86-42 pertained to municipal police officers. As indicated above, the constitutionality of these statutes was upheld in City of Orlando v. State Department of Insurance, supra. In section 1. of each act, the Legislature added substantially the same legislative intent language: Therefore, the Legislature declares that it is a proper and legitimate state purpose to provide a uniform retirement system for the benefit of fire fighters as hereinafter defined, and intends, in implementing the provisions of s. 14, Art. X of the State Constitution as they relate to municipal fire fighters' pension trust fund systems and plans, that such retire- ment systems or plans to be managed, administered, operated, and funded in such manner as to maximize the protection of the fire fighters' pension trust funds. This chapter hereby establishes minimum standards for the operation and funding of municipal fire fighters' pension trust fund systems and plans. After the enactment of Chapters 86-41 and 86-42, Laws of Florida, the Department of Insurance undertook rulemaking to implement the provisions of the acts. The CITY and the LEAGUE challenged the proposed rules under Section 120.54, Florida Statutes. The Department's proposed rules were upheld by a DOAH Hearing Officer. On appeal, the First District Court of Appeal reversed the order of the Hearing Officer, and held that the majority of the department's proposed rules were invalid because statutory provisions governing chapter pension plans, which were not made expressly applicable by the Legislature to local fire fighter and police plans, did not preempt municipal power with respect to pension plans. Florida League of Cities, Inc. v. Department of Insurance, 540 So.2d 850 (Fla. 1st DCA 1989) review denied 545 So.2d 1367 (Fla. 1989), [hereinafter referred to as the "Rules Case"]. In 1988 the CITY and the Department of Insurance engaged in litigation regarding the compliance of the CITY's local law plans with the Department's construction of the statute. This litigation was ultimately settled by the Department's agreement not to withhold the CITY's premium tax funds. During 1990 and 1991, the Department of Insurance also engaged in litigation with numerous other municipalities regarding compliance of local law plans with the provisions of Chapters 175 and 185, Florida Statutes. The Department settled these cases and continued to distribute premium tax funds to these local law plans with the understanding that the disputed issues would be better resolved through rulemaking. The Department of Insurance conducted staff workshops to discuss rulemaking; however, the Department did not thereafter initiate formal rulemaking under Chapter 120, Florida Statutes, with regard to promulgation by rule of compliance requirements for local law plans under Chapters 175 and 185, Florida Statutes. In 1993 the Legislature transferred statutory responsibility for the administration of Chapters 175 and 185, Florida Statutes, from the Department of Insurance to the DIVISION. The legislative transfer effected a transfer of all programs as well as personnel. Since the legislative transfer in 1993, the DIVISION has made a continuous and good faith effort to present these issues to the Legislature for resolution. During the 1996 Session, HB 1951 and SB 2484 have been introduced. These bills specifically address the issues presented in this case. Stipulated Facts The following facts verbatim were set forth by the parties in the Prehearing Stipulation: The DIVISION admits to the authenticity of all documents contained within its files, including, but not limited to, interoffice memoranda, correspondence to and from the DIVISION and/or the Department of Insurance which are contained in the files of the Division, and any correspondence copied to the DIVISION and/or the Department of Insurance which are contained in the files of the DIVISION. The DIVISION takes the position that Sections 175.032 and 185.02, Florida Statutes, (Definitions), apply to local law plans. (The) Position of (the agency in) Declaratory Statement DMS-DR-94-18 was issued to the City of Boca Raton pursuant to Section 120.565, Florida Statutes. It is the position of the DIVISION that a plan containing a mandatory retirement age violates the Older Worker Benefits Protection Act; and that pension plans which violate this federal law are not eligible for distribution of premium tax funds under Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that fire fighters disabled from duties of a fireman as defined in Section 175.032, Florida Statutes, are eligible for disability benefits. The CITY admits that the Social Security offset contained in its supplemental fire pension plans could possibly reduce a fire fighter's pension below two (2) percent for each year of credited service; however, the CITY specifically has no knowledge that this has or will occur. The CITY admits that Sergeant Rizzo has accrued in excess of thirty- two (32) years of service. The CITY admits that the police pension plan contains a maximum pension plan benefit of 60 percent of the highest pay step of the lowest rank held during the previous three years, which benefit Sgt. Rizzo became eligible for after twenty-five (25) years of active service. The CITY admits after thirty (30) years of service Sgt. Rizzo will retire with a pension benefit equal to less than two (2) percent for each year of active service. The CITY admits that Sgt. Rizzo was permitted to cease all employee contributions to his pension plan after twenty-five (25) years of service. The 1994 premium taxes are withheld from the CITY by the DIVISION. Prior to 1994 the DIVISION, or its predecessor agency, the Department of Insurance, have never withheld Chapter 175 or 185 insurance tax premium moneys from the CITY. The DIVISION has not initiated the rulemaking process with regard to definition of the term "average final compensation" in Section 175.351, Florida Statutes, and there are currently no existing promulgated rules that apply to local law plan definitions for "average final compensation" for the DIVISION. The DIVISION has not initiated the rulemaking process with regard to definition of the term "average final compensation" in Section 185.35, Florida Statutes, and there are currently no existing promulgated rules that apply to local law plan definitions for "average final compensation" for the DIVISION. It is the position of the DIVISION that Rule 60Z-1.004, Florida Administrative Code, defining "credited service" contradicts Chapter 185, Florida Statutes, and is not enforced. It is the position of the DIVISION that all municipal pension plans submitted for review must comply with the non-rule policy at issue in the present case in order to receive Chapter moneys pursuant to Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that the pension plans of the City of St. Petersburg do not fulfill the requirements of Section 175.351, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the pension plans of the City of St. Petersburg do not fulfill the requirements of Section 185.35, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the term "credited years of service" as used in Section 175.351(4) and 185.35(1)(d), Florida Statutes, is to be defined in accordance with the term "aggregate number of years of service" and "aggregate number of years of service with the municipality" under Sections 175.032(1)(a) and 185(1)(b), Florida Statutes, respectively. It is the position of the DIVISION that it has the authority under Chapters 175 and 185, Florida Statutes, and Chapter 60Z, Florida Administrative Code, to withhold Chapter 175 and 185 premium tax money to plans not in compliance with Sections 175.351 and 185.35. It is the position of the DIVISION that it has the authority to release payment of Chapter 175 and 185 premium tax moneys to plans not in compliance with Sections 175.351 and 185.35, Florida Statutes, provided the municipality is making good faith efforts to bring the violations into compliance.
The Issue The issue in this case is who is entitled to payment of remaining retirement benefits due to James E. Brandon, deceased.
Findings Of Fact James E. Brandon was employed by the Hillsborough County Parks and Recreation Department and was a participant in the Florida Retirement System (FRS). Mr. Brandon had a long standing relationship with Dennis A. Barga. In February 1995, James E. Brandon applied for FRS disability benefits due to a medical condition. On the application for disability benefits, James E. Brandon designated Dennis A. Barga as his primary beneficiary. The application for disability benefits was approved in June 1995, with an effective retirement date of March 1, 1995. James E. Brandon elected to receive benefits under "Option 2" of the FRS, which provides for a lifetime benefit to the covered employee. Option 2 also provides that, if the covered employee does not survive for the ten years following retirement, payment is made to a designated beneficiary for the remainder of the ten year period. James E. Brandon died on August 28, 1995, of the condition which resulted in his disability. James E. Brandon did not personally receive any of his disability benefits. By letter dated September 29, 1995, the Division notified Mr. Barga that he was entitled to receive the remaining benefit payments for the ten year period. At the end of September, the Division sent two checks to the home of James E. Brandon. One check covered the initial benefits period from March 1995 through August 1995. The second check was for the September 1995 benefit. The checks were not returned to the Division and apparently were cashed or deposited. On October 10, 1995, the Division was notified by William Brandon that his brother, James E. Brandon, had completed a form amending his designation of beneficiary and that the form had been filed with the Division. The Division searched its files and located a form, FRS M-10, which was apparently filed on July 25, 1995, by James E. Brandon, and which amends his prior designation to identify sequential beneficiaries. The amended beneficiaries, in order, are William W. Brandon, III, Daniel A. Brandon, and Victoria Weaver Stevens. The Brandons are family members of the deceased. Ms. Stevens is a long-time family friend and was also employed by the Hillsborough County Parks and Recreation Department. FRS Form M-10 is the form adopted by the Division for use by a non-retired FRS participant in designating a beneficiary. Form M-10 does not require execution before a notary public. FRS Form FST-12 is the form adopted by the Division for use by a retired participant in designating a beneficiary. Form FST-12 requires execution before a notary public. The amendment of the beneficiaries should have been executed on a Form FST-12. The Form M-10, which was filed on July 25, 1995, was provided to James E. Brandon by the human resources office of the Hillsborough County Parks and Recreation Department. The form was obtained by Victoria Weaver Stevens apparently at the request of the deceased. The filing of the improper form was through no fault of James E. Brandon. The Petitioner suggests that the signature on the Form M-10 is a forgery. There is no credible evidence to support the assertion. The evidence establishes that the deceased sometimes included his middle initial in his signature, and other times did not. The Petitioner suggests that during the last weeks of the deceased's life, he was overmedicated, was often unaware of his surroundings, and was likely manipulated into changing the designated beneficiaries. There is no credible evidence that James E. Brandon was mentally incapacitated and unable to understand the import of his decisions at the time the amendment was filed with the Division.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order dismissing the Petition of Dennis A. Barga. DONE AND ORDERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 David T. Weisbrod, Esquire 601 North Franklin Street Tampa, Florida 33602 Stanley N. Danek, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Thomas Frost, Esquire 7901 Fourth Street North Suite 315 St. Petersburg, Florida 33702
The Issue The issues are whether the specifications in two requests for architectural and construction management services violate Subsection 120.57(3)(f), Florida Statutes (2003), for the reasons alleged in two written protests.
Findings Of Fact Petitioner is a general contractor/construction management firm in the State of Florida. The firm maintains its principal office in Tampa, Florida, and provides construction management services throughout the state. The state previously certified Petitioner as a certified minority business enterprise (MBE), and that certification remains current. Mr. Paul Curtis is the president and chief executive officer (CEO) of Petitioner, a majority shareholder, and an African-American. Petitioner's president and CEO is licensed by the state as a general contractor, underground utilities and excavation contractor, pollutant storage systems and specialty contractor, and specialty structures contractor. However, Petitioner does not employ any person qualified to provide architectural services. Respondent is a local school district of the state. Respondent is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County, Florida. Respondent routinely obtains the services of architects, engineers, and other professionals through competitive procurement in accordance with Section 287.055, Florida Statutes (2003), the Consultants' Competitive Negotiation Act (CCNA). On December 30, 2003, Respondent posted on its website, a request for proposals (RFP) for architectural and construction management services. On January 20, 2004, Respondent posted a second RFP for architectural and construction services. The two RFPs seek architectural services and construction management services incident to the construction or expansion of approximately 12 public schools (the project). The proposed budget for the project is approximately $66.37 million. Respondent seeks to complete the projects to comply with minimum class-size requirements recently imposed by the state. Petitioner did not submit responses to either RFP at issue in this proceeding. Rather, Petitioner protested the specifications in each RFP. On January 5 and 20, 2004, Petitioner timely served Respondent with respective notices of intent to protest each RFP. On January 15 and February 2, 2004, Petitioner timely served Respondent with a formal written protest of each RFP. Petitioner alleges that each RFP is deficient for identical reasons. First, the RFPs allegedly violate the requirement in Subsection 120.57(3)(a), Florida Statutes (2003), to notify potential bidders that failure to protest the specifications in each RFP within the statutorily prescribed time, waives their right to protest either RFP (the statutory notice). Second, the RFPs allegedly fail to adequately disclose selection criteria used to select a successful applicant. Third, the RFPs allegedly violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Fourth, the evaluation criteria are allegedly confusing or ambiguous and make it impossible to determine the basis upon which Respondent awards points. Finally, Respondent allegedly failed to consider the recent volume of work of each applicant in violation of Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Neither RFP includes the statutory notice. Subsection 120.57(3)(a), Florida Statutes (2003), requires Respondent to provide the statutory notice in any notice of decision or intended decision (notice of decision). Florida Administrative Code Rule 28-110.002(2)(a) defines a notice of decision to include the RFPs. Subsection 120.57(3), Florida Statutes (2003), requires Respondent to "use the uniform rules of procedure" prescribed in Florida Administrative Code Rule 28-110.002. Each RFP is a notice of decision that omits the required statutory notice in violation of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent's violation of Subsection 120.57(3)(a), Florida Statutes (2003), did not result in any injury in fact to Petitioner. Petitioner received actual notice of each RFP and timely protested each RFP. Respondent issued the RFPs and partially evaluated the responses to them in accordance with a procedure prescribed in a publication that the parties identified in the record as Chapter 7.00 of the School Board Policies and Procedures Manual (the Policy Manual). In general, the Policy Manual requires a Professional Services Selection Committee (the Committee) to conduct at least two rounds of evaluation before Respondent can select a successful applicant. During the first round, each member of the Committee evaluates each application in accordance with the evaluation criteria prescribed in a Project Information Packet incorporated by reference in the RFP and made available to each applicant. Each Committee member assigns a point total for each response (a score). The Committee then designates a threshold score that an applicant must attain in order to advance to the second round of evaluation that involves face-to-face interviews. The Committee prepares a list of those applicants that attain scores sufficient to advance to the second round of evaluation. The parties identified as the "short list," the list of applicants that qualify for the second round of evaluation. In practice, the short list usually includes more than three applicants thereby necessitating a third round of interviews. Once the Committee prepares the short list, Respondent issues a second notice of decision within the meaning of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent sends the notice to all applicants that submitted a response to an RFP. The second notice of decision informs each applicant of the applicant's score and identifies those applicants selected to advance to the second round of evaluation. The second notice of decision includes the statutory notice required in Subsection 120.57(3)(a), Florida Statutes (2003). The deadline for submitting applications in response to the first RFP was January 16, 2004. By January 15, 2004, Respondent had received approximately 30 applications from architects and approximately 30 applications from construction managers. By January 15, 2004, the Committee had evaluated the responses it had received and determined a short list. Respondent had notified the applicants of their respective scores and identified those applicants selected for interviews in the second round of evaluations. When Petitioner filed a written protest of the first RFP, Respondent suspended further evaluations of the applicants pursuant to Subsection 120.57(3)(b), Florida Statutes (2003). Respondent notified bidders of the short list prior to the deadline for filing responses to the RFPs on January 16, 2004. The written protests do not challenge Respondent's issuance of an apparently premature notice of decision. Petitioner submitted no relevant findings of fact or conclusions of law in its PRO concerning Respondent's practice. Nor did the PRO cite to any evidence of record to support a finding concerning Respondent's practice. The deadline for submitting applications in response to the second RFP was February 6, 2004. Petitioner filed a written protest on February 2, 2004. Respondent stopped accepting applications in response to the second RFP in accordance with Subsection 120.57(3)(b), Florida Statutes (2003). The specifications for each RFP adequately disclose selection criteria to prospective applicants, including criteria to be used for interviews during the second round of evaluation. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record that supports a finding concerning the issue. The two RFPs disclose selection criteria to prospective applicants in the same manner. Each RFP includes the following statement: Any applicant interested in providing either architectural or construction management services shall make application by submission of materials prescribed in the Project Information Packet. The Project Information Packet, additional project information, and the weights associated with each qualification and evaluation criteria can be obtained by contacting the Planning & construction Office at (813)272-4112 or via the Internet. . . . Each RFP contains a separate Internet address. Respondent published the foregoing statement in three area newspapers and on Respondent's official website. Petitioner received notice of the RFPs on the official website. The Project Information Packets include a list of the members of the Committee, a summary of Respondent's procedures for acquiring professional services, a two-page chart of the evaluation criteria, and a selection activity schedule. Respondent made the Project Information Packets available to prospective applicants in hard copy and electronically on Respondent's official web site. The Project Information Packets adequately identify and describe evaluation criteria and the weight assigned to each criterion, including those to be used during interviews. The evaluation criteria are not confusing or ambiguous. The language used to describe the criteria does not make it impossible for prospective applicants to determine the basis upon which the Committee will award points. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record to support a finding that the criteria are confusing or ambiguous. DOAH previously approved Respondent's selection criteria. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-3138RP (October 11, 2002), ALJ T. K. Wetherell, II, concluded that the Policy Manual is a valid exercise of delegated legislative authority. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-4668BID (January 3, 2003), ALJ Wetherell concluded that the specification factors and weight assigned to each, comply with the CCNA and are not otherwise arbitrary, capricious, or contrary to competition. After the decisions in the two RHC cases, Respondent slightly adjusted the weights given to certain criteria in order to increase minority and small business participation. Respondent made the adjustments after consulting with the NAACP. In relevant part, Respondent increased the weight given for an applicant's resume from 20 to 25 points. Respondent increased the weight given for recent volume of business with Respondent from 5 to 10 points. Respondent decreased the weight given for Project/Applicant Correlation from 25 to 15 points. The changes to the weights assigned to certain evaluation criteria after the two RHC cases comply with the CCNA, are not confusing or ambiguous, and do not make it impossible for prospective applicants to determine the basis for awarding points. The specifications for each RFP do not violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Petitioner's PRO includes two proposed findings relevant to this issue. The two proposed findings are correct, but not material. Respondent has no practice or procedure in place to certify prospective applicants as MBEs. Rather, Respondent registers an applicant as an MBE if the applicant has been certified as an MBE by another agency. Both public and private agencies, sometimes for a fee to private consultants, certify MBE firms. The National Minority Association certifies companies as MBEs for a fee. Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003), contain no express requirement for Respondent to independently certify applicants as MBEs. The former provision requires Respondent to evaluate whether an applicant is a certified MBE. The latter provision requires Respondent to determine whether an applicant is qualified based on prescribed factors that include certification as an MBE. Petitioner cites no legal precedent that authorizes the ALJ to construe either statutory provision to require Respondent to independently certify applicants for either RFP. Petitioner cites no other legal authority to support its allegation that Respondent must independently certify applicants as MBEs. Respondent's policy of accepting MBE certifications by other agencies and private companies is reasonable. Independent certification would be redundant and a waste of taxpayer resources. Respondent relies on a company identified in the record as Morrison & Associates to conduct background checks on every applicant claiming to be certified as an MBE. In addition, Respondent's Office of Supplier Diversity maintains certification information for new contractors and subcontractors. The Office of Supplier Diversity confirmed for the Committee that each applicant claiming to be an MBE was in fact certified as an MBE. The Committee awards each applicant with an MBE certification the maximum number of points in that category. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points available for MBE certification. Respondent properly determined the volume of work of each applicant in accordance with Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Respondent defines the phrase "recent volume of work" to mean the dollar amount of work performed for Respondent as a construction manager or architect within five years of the date of determination. Respondent awards the maximum number of points to applicants who have not performed any work for Respondent in the previous five years. Respondent determines recent volume of work based on information that does not include work performed by subcontractors. Petitioner has performed work for Respondent in the past, but only as a subcontractor. Petitioner last performed work for Respondent approximately seven years ago. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points for recent volume of work. The information that the Committee would have reviewed would not have identified the work previously performed by Petitioner as a subcontractor. Moreover, the work was performed more than five years ago. Petitioner is a nonprevailing adverse party within the meaning of Section 120.595, Florida Statutes (2003). Petitioner failed to change the outcome of Respondent's proposed use of the RFPs to obtain construction and architectural services for the project. Petitioner did not participate in the proceeding for an improper purpose. The issue of whether Respondent must include the statutory notice in the RFP specifications is a justiciable issue of law. Petitioner's participation in this proceeding was not for a frivolous purpose. Respondent is the prevailing party in this proceeding. Respondent did not submit evidence concerning the amount of attorney's fees and costs that Respondent incurred to defend the written protests or the reasonableness of those fees and costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent issue a Final Order dismissing the two protests. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 July, 2004. COPIES FURNISHED: W. Crosby Few, Esquire Few & Ayala 501 East Kennedy Boulevard, Suite 1401 Tampa, Florida 33602 Arnold D. Levine, Esquire Levine, Hirsch, Segall, Mackenzie & Friedsman, P.A. 100 South Ashley Drive, Suite 1600 Tampa, Florida 33602 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33602 Dr. Earl J. Lennard, Superintendent Hillsborough County School Board Post Office Box 3408 Tampa, Florida 33601-3408 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The Department administers the CDCSAP Act (the "act"). The Florida legislature makes annual appropriations to fund the CDCSAP. These funds are used to finance activities of qualified CDCs. CDCs are community-based organizations which, in concert with state and local governments and private enterprise, facilitate or financially support revenue-generating business for the purpose of community economic development, redevelopment, preservation, restoration and revitalization. To this end, the Department's line staff person for the CDC program, James Fox, who is a planner employed by the Department, reviews applications, gives technical assistance workshops on rules and gives statewide speeches to CDC programs and at their annual meetings. Fox is familiar with the community development corporations statewide and the activities of each CDC program. He has been instrumental in assisting local entities prepare applications to become CDCs to include filing their non-profit corporate status with the Secretary of State. He has authored a pamphlet for the Department which has been distributed to entities desirous of achieving CDC status entitled "How to become a CDC". (Respondent's Exhibit 1). This pamphlet is widely utilized by entities seeking CDC status and provides all of the basic information needed to become a CDC. The act empowers the Department to administer the CDCSAP and authorizes issuance of one and three year administrative grants, planning grants and loans to fund the activities of eligible CDCs. The act requires the Department to monitor expenditures of CDC funds and to provide technical assistance to CDCs. In addition to CDCSAP grants and loans, CDC has also received funding from private foundations and local governments. The Department has adopted Chapter 9B-14, Florida Administrative Code. That chapter implements the act and establishes regulations and procedures governing the CDCSAP. CDCs fiercely compete annually for administrative grants when filing their applications with the Department. These grant applications are reviewed by Fox. There are approximately fifty CDCs statewide and they annually submit applications for grants. Once these applications are received, Fox reviews and scores them pursuant to Rule 9B-14, Florida Administrative Code. In so doing, the Department uses three reviewers and the reviews are individually conducted. In reviewing the grant applications, a funding matrix is used. Using the matrix, a score and rank is made for each application. Next, the division director goes over each application and the matter is discussed with the Department's Secretary. Later a letter of intent is given (to either grant or deny the application). The score lists the rank and order and is not an entitlement to funding. After the applications are reviewed, the Department's senior management lists a "pre-appeal" score and ranking for each applicant. Once the CDCs are notified in writing of the score and ranking in the pre-appeal scoring matrix, they are also advised that the number and amount of administrative grants awarded will be contingent upon passage of a state budget and appropriation for the fiscal year. Applicants are also advised of rights to pursue an appeal regarding the correctness of the scores pursuant to Section 120.57, Florida Statutes. (Respondent's Exhibit 3). If an appeal is initiated, an administrative proceeding is conducted usually under the informal provisions of Section 120.57(2), Florida Statutes. A hearing officer assigned by the Department conducts a hearing and issues a recommended order. A final order is then entered by the Department's Secretary. Thereafter, each applicant is assigned a final score and ranking in the matrix which determines funding order priority. The final scores are usually determined prior to adoption of an appropriations act by the legislature. As noted, the final score does not establish whether a particular CDC will be funded. Section 290.036(3), Florida Statutes and Rule 9B-14.007(3) and 9B- 14.009(11)(a)-(c) provide the parameters within which the Department determines the number, type and amount of administrative grants it will award. When grant applications are submitted and evaluated, the Department is, at the time, unaware of the amount of money available for upcoming grants because the legislature has not passed an appropriations bill for the fiscal year. Final decision with respect to the number and amount of administrative grants is made after the final appropriation bills and summary statement of intent is transmitted to the Department. "Proviso language" is passed by the legislature as part of the appropriations bill. It is signed by the governor, has the force of law and is binding on the Department. Legislative statement of intent language is transmitted to the governor at a date after passage of the appropriations act by chairpersons of the House and Senate committees on appropriations. The intent language is the statement of how the legislature, in its considered opinion, thinks the appropriated funds should be spent. It guides the Department regarding use of appropriated funds. The Department considers and relies on applicable legislative proviso or intent language in deciding its final determination as to number and amount of administrative grants. Absent extraordinary circumstances, the Department follows the statement of intent language in reaching its final funding decision. Over the years, a pattern has emerged which evidences that the Department carefully considers applicable proviso or statement of intent language. Specifically, from a historical perspective, for the 1983-84 funding cycle, the legislature appropriated $1,175,000 for the CDCSAP but did not include either proviso or legislative statement of intent language. The governor vetoed $200,000.00 of that sum leaving $975,000 to fund the program. The Department awarded administrative grants in varying amounts to 23 CDCs. Subsequently, the legislature amended the statute to allow the Department to fund no more than 18 CDCs. (Respondent's Exhibit 7 and Chapter 84-240, Laws of Florida). For the 1984-85 funding cycle, the legislature appropriated $1,600,000 for the CDCSAP and included proviso language directing that no more than 16 CDCs be funded. In accordance with that proviso language, the Department awarded administrative grants of $100,000 each to 16 CDCs. For the 1985-86 funding cycle, the legislature appropriated $1,600,000 for the CDCSAP but included neither proviso nor statement of intent language. The Department awarded grants of $100,000 to 16 CDCs. For the 1986-87 funding cycle, the legislature appropriated $1,600,000 for the CDCSAP and included proviso language directing that no more than 16 CDCs be awarded administrative grants and that a specific CDC be awarded a training grant. Pursuant to that proviso language, the Department awarded administrative grants of $85,000 each to 16 CDCs, and a $40,000 training grant to the specified CDC. For the 1987-88 funding cycle, the legislature appropriated $1,337,156 for the CDCSAP and included proviso language directing that no more than 16 CDCs be funded. Pursuant to that proviso language, the Department awarded grants of $83,338 each to 15 CDCs. Another $83,338 was divided to provide grants of $41,669 each to two eligible CDCs which received identical scores for the last funding slot. For the 1988-89 funding cycle, the legislature appropriated $1,337,156 for the CDCSAP and included proviso language directing that no more than 16 CDCs be funded. Pursuant to that proviso language, the Department awarded grants of $72,380 each to 16 CDCs. For the 1989-90 funding cycle, the legislature appropriated $1,337,156 for the CDCSAP and included statement of intent language directing that no more than 16 CDCs be funded. The Department awarded grants of $83,572 each to 16 CDCs. For the 1990-91 funding cycle, the legislature appropriated $1,699,600 for the CDCSAP and included statement of intent language directing that no more than 18 CDCs be funded. The Department followed the statement of intent and awarded grants of $90,564 each to 17 CDCs which scored above the minimum point threshold as set forth in the matrix. For the 1991-92 funding cycle, the legislature appropriated $1,600,000 for the CDCSAP but included neither proviso nor statement of intent language. The Department awarded grants of $88,888 each to 18 CDCs. Final scores and ranking does not establish entitlement to funding under the program. The final score establishes whether a CDC is eligible to receive either a one or three year administrative grant depending on the total number of points received. The score also results in ranking of each CDC so that depending upon legislative appropriations and expressions of intent regarding funding, a funding priority is established. Prior to 1991, the act provided only for the award of one year administrative grants. In 1991, the Florida legislature amended the act to permit the award of multi-year administrative grants and planning grants. (Chapter 91-263, Laws of Florida). The provisions of the act relative to funding provides: The amount of any administrative grant to a community development corporation in one year shall be any amount up to $100,000. The Department may fund up to 18 Community Development Corporations this year as provided for in the general appropriations act. The Department shall develop a diminishing scale of funding each year based on the annual appropriation to ensure compliance with this section and Section 290.0365. See Section 290.036(3), Florida Statutes (1991). To incorporate the 1991 statutory changes into Rule 9B-14, Florida Administrative Code, the Department initiated rulemaking pursuant to Section 120.54 in September 1991. Several workshops were held to gain input from CDCs regarding proposed changes to the rule. In addition, a public hearing was held in January 1992 at which the Department received oral and written comments from CDCs regarding the proposed rule challenges. Amendments were adopted and took effect on March 22, 1992. During the rulemaking process, no comment was submitted regarding the proposed changes to Rule 9B-14.009(11). No party initiated a rule challenge to the proposed amendments pursuant to Section 120.54(4), Florida Statutes. Rule 9B-14.007(3), which was not affected by the 1992 amendments, states in relevant part that "[n]o grant will be awarded for funds exceeding $100.000." Respondent's Exhibit 2 at Rule 9B-14.007(3). Rule 9B-14.009(11), as amended in 1992, now authorizes the award of two types of administrative grants of one and three years duration in addition to planning grants. The pertinent portion of this rule provides: A maximum of 18 administrative grants may be awarded in any fiscal year pursuant to Section 290.036(3), Florida Statutes. Applicants which receive a score of 150 or more points will be awarded a three year administrative grant. Applicants which receive a score of at least 100 points but less than 150 points will be awarded a one year administrative grant. For the 1992-93 funding cycle, prior to the application deadline and after the amendments to Rule 9B-14 were adopted, public application workshops were held in Tallahassee and Miami. At the workshops, representatives of the Department discussed the recent statutory and rule changes to the CDCSAP as well as the proper way to complete applications. The application deadline for administrative grants for the 1992-93 grant cycle was April 1, 1992. The Department received 29 timely applications. When the 1992-93 grant applications were received, evaluated and given tentative scores and rankings, the Department was unaware of the amount of legislative appropriations for the CDCSAP and whether any proviso or statement of intent language would accompany the appropriation. After the applications were evaluated, the preappeal scores and rankings derived and the applicants were notified of the results, several CDCs including Petitioners appealed their scores. Informal hearings were held during late May 1992. The hearing officer's recommended orders were issued June 25, 1992 followed by the Department's final orders on July 8, 1992. Thereafter, each applicant was assigned a final score and ranking. For the 1992-93 funding cycle, 21 CDCs scored above the 100 point minimum threshold. Of these 21, 12 CDCs scored above 150 points and 9 CDCs scored above 100 points but less than 150 points. Each of the Petitioners scored above 100 points but less than 150 points. In late June 1992, the legislature passed an appropriations act which was signed into law on July 2, 1992. On July 14, the Department received a copy of the appropriations act and the accompanying statement of intent regarding the disbursements of appropriated funds of the CDCSAP. The Department requested funding of $1,800,000 for the CDCSAP grant and loan program for fiscal year 1992-93. However, the legislature reduced that funding request to $800,000 for the CDCSAP grants and included a statement of intent language directing that those CDCs which received sufficient point scores under Rule 9B-14 to qualify for a three year administrative grant be funded. The intent language states: It is the intent of the legislature that funds provided in specific appropriation 293A shall be used to award administrative grants in accordance with the provisions of Section 290.036, Florida Statutes, of equal amounts, to those Community Development Corporations that receive a sufficient point score under the Department of Community Affairs evaluation of FY 1992-93 grant applicants to qualify for a three year administrative grant pursuant to criteria established in Chapter 9B-14.009(11) (b), F.A.C. In reaching its decision respecting funding, the Department considered whether to follow the statement of intent language and award 12 grants of $66,666 each, or instead to award 18 grants at $44,444 each. The Department's Secretary ultimately decided to follow the statement of intent language and award grants of $66,666 each to the 12 CDCs which qualified for three year grants under Rule 9B-14. The action of the Secretary was within the discretion accorded by Section 290.036(3), Florida Statutes and Rule 9B-14.009(11)(a) to award "up to" 18 grants. The Department has not issued any type of statement which indicates that, in future funding cycles, it will award only three year administrative grants. The Secretary's decision relates only to the 1992-93 fiscal year. Section 290.036(3), Florida Statutes and Rules 9B-14.007(3) and 9B- 14.009(11)(a), Florida Administrative Code commands the Department to award between 0 and 18 administrative grants each year, provided no single award exceeds $100,000. Flexibility is given to the Department based on the uncertainties each year surrounding the legislative appropriations process. Due to the vagaries of the appropriations process, it is not practical or feasible for the Department to adopt a rule which requires it to award a specific number of administrative grants annually. Nor is it feasible or practicable for the Department to wait for the appropriations bill to be passed before initiating an order on the number of grants it will award. The Department strives to get the administrative funds to the CDCs expeditiously. At a minimum, rulemaking takes several months and would accordingly substantially delay transferring grant monies to the CDCs.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
