The Issue The issue is whether Respondent violated the Code of Ethics for Public Officers and Employees.
Findings Of Fact The Parties Mayor Hammond served as mayor of Century, Florida, from 2004 to 2008. All allegations are derived from this period. Mayor Hammond did not have a vote on the Town Council, but was the chief executive officer of the town. Before becoming mayor, Mayor Hammond was a member of the Town Council. During the time she was a member of the Town Council, Bennie Barnes was mayor. He served from 2000 until 2004. Pursuant to Section 112.320, Florida Statutes, the Commission serves as the guardian of the standards of conduct for the officers and employees of the state, and officers and employees of counties, cities, or other political subdivisions of the state. Eddie Hammond's Utility Accounts As chief executive of Century, Mayor Hammond had supervisory authority over all town employees, including the Town Clerk, and general supervisory authority of all departments and agencies of the town. The town operates its own utilities, including water, sewage, natural gas, and garbage collection. Accordingly, Mayor Hammond exercised authority over these activities. Mayor Hammond had experience in determining the amount of utility bills, preparing bills, collecting them, and causing services to be terminated. She did this for the Town of Century for ten years and for Gulf Power Company for 18 years. During all times pertinent, Dorothy Sims was the Town Clerk. Ms. Sims was Mayor Hammond's first cousin. The supervisor of utility operations was Mayor Hammond's son, Eddie Hammond. He had worked for the Town of Century for 26 years and had been Superintendent of the Gas Department for about 20 years. His immediate supervisor was Town Clerk Sims. Utility bills in Century are payable by the tenth of the month, and a five dollar late charge is added on the fifteenth, if the bill has not been paid. If a bill is not paid by the twentieth day of the month, service is discontinued. Eddie Hammond is often the person who shuts off the gas, should a citizen fail to remit by the twentieth day. Because Century is a small town and town officials know most of its citizens and are aware of the needs of businesses, from time to time service is not discontinued even though payment is not made by the twentieth of the month. For instance, if a person is ill or has some other problem meriting an excuse, and is incapable of paying, Town Clerk Sims might forgive disconnection, at least for a time. In fact, numerous citizens on the utility "cut-off" list had their accounts marked with an "H" or the word "Hold." This meant that despite nonpayment, their utilities would not be disconnected. Beneficiaries of this policy included Saved Ministries, Winn-Dixie, and Leola Robinson, for example. In fact, Ms. Robinson was permitted a "hold" even though she owed $2,111.78. The "hold" was based on delays in a "land review" involving the placement of a mobile home. Another "hold" resulted because of the time it took to settle an estate. Another "hold" was placed because the citizen was ill. On the delinquent list of October 21, 2005, 23 people were given a "hold" notation instead of experiencing a cut-off of services. Eddie Hammond and Robert Tims did not pay their utility bills for years, yet their accounts were marked with a "hold." Eddie Hammond amassed a bill of $1,802.49 by October 2005 and Robert Tims grew his to $4,859.46 by October 2005, yet neither had their utility services terminated. Nevertheless, Eddie Hammond did not hesitate to pull the plug on citizens in a less fortunate posture. Eddie Hammond and Robert Tims were long-time employees of Century. During the period 1969 to 2001, Ray Lawson was Town Clerk, and during his incumbency he permitted some town employees to pay their utilities through payroll deductions. Eddie Hammond and Robert Tims were beneficiaries of this plan. Rather than have their utility bills deducted from their pay in an amount that reflected their actual bills, Town Clerk Lawson deducted a set amount each week. In the case of Eddie Hammond, $20.00 was deducted each week. Eddie Hammond was never presented with a utility bill during this period. Robert Tims had $35.00 deducted each week. The sum deducted was often insufficient to cover the cost of Eddie Hammond's utility bill and by the time Town Clerk Lawson departed the position, Eddie Hammond owed several hundred dollars. The mayor of Century from 2000-2004 was Bennie Barnes. In 2001, Town Clerk Lawson was replaced by Town Clerk Sims. Although it was easy to determine how much money Eddie Hammond and Robert Tims owed on their utility bills, Ms. Sims was unable to determine how much money had been withheld from their pay. When Town Clerk Sims became the incumbent, she found the financial records of the town to be a "big mess," and they remained that way for several years. The "mess" was created when Town Clerk Lawson left because he had bad feelings toward Mayor Barnes and the City Council and manifested these feelings by locking his computer and scrambling the town's financial records. Town Clerk Sims could not determine how much, if any, payroll had been applied to the utility bills of the two, and Hammond and Tims did not know either. They were the only two employees of Century in this position. Eddie Hammond was aware that some of the money deducted was paid as child support. The last payment made to his utility bill was July 9, 2001. By October 4, 2001, deductions from his paycheck had been discontinued. Mr. Tims' deduction continued. By 2004, following Mayor Hammond's inauguration as mayor, Town Clerk Sims continued to have over-all responsibility as supervisor of utility services and continued carrying Tims and Eddie Hammond in the "hold" category. The office procedure with regard to utility payments was that each month a printed list of delinquents was prepared by Assistant Clerk Kristina Wood. She gave the list directly to Town Clerk Sims who determined if a delinquent was to be awarded a "hold." Mayor Hammond did not get involved in the decision to terminate or not terminate anyone's utility services. Mayor Hammond paid some of Eddie Hammond's bills, other than his utility bills, because Mayor Hammond and Eddie Hammond did not want his former wives to get involved in his financial affairs. Mayor Hammond never saw Eddie Hammond's utility bill and assumed that, because he worked for the city, he paid it at his job. She was aware that he had money taken from his paycheck because she had seen some of his pay stubs. Eventually Mayor Hammond learned that Tims and Eddie Hammond were on the cut-off list and made inquiry to Town Clerk Sims. Mayor Hammond was informed about the payroll deductions by Town Clerk Sims, who told her that the money to pay the charges was present, but that she could not determine how much money was available. As events unfolded, records were discovered indicating the amounts withheld from Tims and Eddie Hammond, but this occurred after Mayor Hammond paid Eddie Hammond's bill. In early 2006, some citizens took notice of the unseemly situation where Eddie Hammond, the person who routinely cut off peoples' natural gas for failure to timely pay their utility bills, was himself avoiding his utility payment. His failure to pay was about to provide grist for the local journalist's mill. Mayor Hammond soon learned that the local media were about to publicize the situation. That moment was when Mayor Hammond concluded that paying her son's utility bill was ". . . the right thing to do." Accordingly, she wrote a personal check for the amount of the bill, including late charges. This amount was $1,984.30. On March 21, 2006, she took the check to the clerk's office and met with Assistant Clerk Wood. Eddie Hammond was present. Assistant Clerk Wood had a discussion with Mayor Hammond regarding the late charges. She had removed the late charges when Tims paid off his utility bill some time before March 2006 and she informed Mayor Hammond of this. Mayor Hammond told Assistant Clerk Wood to take the late charges off Eddie Hammond's bill since they were removed from Tims' bill. She believed her son should get the same consideration. Assistant Clerk Wood did as directed by pulling up Eddie Hammond's account on the computer and deducting $245.00. Mayor Hammond further asserted that the town continued to owe Eddie Hammond money from the deductions taken from his pay. She wrote a new check for $1,739.30 and gave it to Assistant Clerk Wood, and thereafter the account displayed a zero balance. The greater weight of the evidence demonstrates that Mayor Hammond believed that the town owed Eddie Hammond some amount of money, and at the time the transaction took place it is clear that Century's accounts were in disarray to the extent it was difficult to determine what, if anything, the town owed Eddie Hammond. Her determination that her son should not pay late fees because a similarly situated employee did not pay late fees was not unreasonable. In any event, the "policy" of allowing Eddie Hammond to avoid paying his utility bills was in place prior to Mayor Hammond's election and continued without her intervention until the Spring of 2006. She did not intervene in the case of Robert Tims or others who were not keeping up with their utility bills either. Even though she had 28 years of utility billing experience, she was remarkably incurious with regard to the situation in the Town of Century. This is not, however, the same as wrong-doing. The Little League Concession Stand Century Little League is controlled by a board of directors. The president, from 2001 until the beginning of the 2006 baseball season, was Dabney Longhorne. In that capacity, Mr. Longhorne supervised the registration of participants, the scheduling of games, and oversaw the operation of the ballpark where the games were played. Since 2001, Showalter Park, a facility owned and maintained by the Town of Century, has been the main ballpark at which little league games were played. The facility has a concession stand. Century Little League operated the concession stand from 2001 through the beginning of the 2006 season. Mr. Longhorne met with Mayor Hammond in January 2004 and again in January 2005 to discuss generally the relationship between the town and the little league operation. To the extent the concession stand was discussed during these meetings, the tenor was that it was expected that the little league operation would run it and use the profits generated from it. Mr. Longhorne's wife ran the concession stand, and once Mr. Longhorne mentioned to Mayor Hammond that she was getting weary of running it. He never said the little league was contemplating turning the stand over to the Town of Century or otherwise abandoning the operation of the stand. The profit generated by the concession stand was important to the financial well-being of Century Little League. The money was used to pay umpires, among other expenses. For a number of years prior to the 2006 season, Eddie Hammond moonlighted as chief umpire of the Century Little League. He was paid $35.00 to $45.00 for each game and was paid from $2.00 to $4.50 as a booking fee for each umpire he arranged for the little league games. One of the umpires Eddie Hammond employed was his father, Ray Hammond. In January 2006 while planning for the up-coming season, Mr. Langhorne and Eddie Hammond had a discussion. During that discussion Eddie Hammond suggested he could make more money umpiring elsewhere. He advised he could make more money umpiring in Brewton, Alabama, for example. At the Century Little League Board meeting on Saturday, January 21, 2006, Eddie Hammond's comments were relayed to the board. The board thereafter voted to hire someone else as chief umpire. When Eddie Hammond learned of this he became angry. These events were discussed in the Hammond household. On Tuesday, January 24, 2006, Eddie Hammond called Mr. Langhorne on his cellphone and expressed his anger and, moreover, suggested that retaliation was in the offing. Later that day, Ray Hammond, Eddie Hammond's father, called Mr. Langhorne and left a message asking that his call be returned. Mr. Langhorne did not immediately call Ray Hammond because he determined, correctly, that he might be upset and that in the interval of a couple of days, calm might prevail. When he did call Ray Hammond on Thursday of the same week, Mr. Hammond informed him that the action was a "slap in the face" and that, "Century Little League will be getting a letter from the town stating what will be expected of them." On February 6, 2006, Mayor Hammond, during the Century Town Council meeting, recommended that the town take over the concession stand at Showalter Park. She stated that she had already found someone to operate it and that the profits from it would help pay for the light bill at the park. She also made this recommendation because she was angry at Dabney Langhorne. She did not, however, reveal this to the Century Town Council. Century Little League had received no prior notice of this recommendation and no one from the little league was present at the council meeting. No one spoke against the recommendation. The recommendation was put into the form of a motion by Councilperson McMurray, and everyone on the council voted in favor. Mayor Hammond stated at the hearing that the reason for her action was that she believed Century Little League did not want to operate the stand. Subsequently, Mayor Hammond wrote a letter to Mr. Langhorne dated February 8, 2006. It informed Mr. Langhorne that the Town of Century was taking over the operation of the concession stand. The letter stated that, "We feel this will defray some of the cost of running the parks." The letter also discussed maintenance matters and addressed the cost of lighting for night practices. It also fulfilled Ray Hammond's pledge that Langhorne would be "getting a letter." Clearly the community considered Mayor Hammond's actions to be motivated by revenge. During the 2006 little league season, they boycotted the concession stand. As a result, the concession stand was operated at a loss. In light of all the facts and circumstances revealed by the evidence in this case, including the inconsistent statements made by Mayor Hammond with regard to her reasons for taking the concession stand from the Century Little League, it is concluded that her actions were motivated solely by a desire to avenge the failure of Century Little League to re-employ her son.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Ethics dismiss the allegation that Evelyn Hammond used her position to allow her son, Edward Hammond, to receive utilities without paying for them; and that the Florida Commission on Ethics enter a final order and public report finding that Respondent, Evelyn Hammond, violated Subsection 112.313(6), Florida Statutes, by using her position to retaliate against the Century Little League and its president, Dabney Longhorne, and issuing a public censure and reprimand. DONE AND ENTERED this 6th day of November, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 6th day of November, 2008. COPIES FURNISHED: Mark Herron, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317 James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Dean, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 1876 Tallahassee, Florida 32308 Philip C. Claypool Executive Director and General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
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 Petitioners " . . . provide[d] direct services in a local fiscal agent's area (so that they may) . . . receive the same percentage of undesignated funds as a percentage of designated funds they receive . . . ", Section 110.181 (2)(e), Florida Statutes (2006), in relation to the 2006 Florida State Employees' Charitable Campaign (the 2006 Campaign).
Findings Of Fact Stipulated Facts The Florida Legislature created the Florida State Employees' Charitable Campaign in 1993 ("Campaign"). § 110.181(1)(a), Fla. Stat. (2006). The Act requires the Department to "establish and maintain" an annual Campaign, which "is the only authorized charitable fundraising drive directed toward state employees within work areas during work hours, and for which the state will provide payroll deduction." § 110.181(1)(a), Fla. Stat. (2006). State employees are provided annually with a pledge card that allows them to direct their donations to particular charities. Each employee is given a booklet containing a list of those charities that have qualified to participate in the Campaign. Each employee can either pick from the pre-qualified list, or the employee can give "undesignated funds" that go to no particular charity. The Act requires the creation of a Statewide Steering Committee ("Committee") of seven members appointed by the Administration Commission, and two members appointed by the Department Secretary, all serving staggered terms. § 110.181(4), Fla. Stat. In addition to the Committee, the Act calls for the creation of several other steering committees, one "in each fiscal agent area," whose purpose is to "assist in conducting the campaign and to direct the distribution of undesignated funds" ("local steering committees"). § 110.181(2)(d), Fla. Stat. The Department is required to select through the competitive procurement process a "fiscal agent" or agent whose duties are limited to "receiv[ing], account[ing] for, and distribut[ing] charitable contributions among the participating charitable organizations." § 110.181(2)(a), Fla. Stat. United Way of Florida, Inc., served as the state wide fiscal agent during the 2006 Campaign. Petitioners are 21 charities that were approved by the Committee and participated in the 2006 Campaign. Petitioner Community Health Charities is a "federation" or "umbrella" agency within the meaning of Rule 60L-39.0015(j), Florida Administrative Code, representing each of the other Petitioners in the 2006 Florida State Employees' Charitable Campaign ("2006 Campaign" or "FSECC"). Each Petitioner is either a charity or a federation within the meaning of the Act that participates in the annual statewide campaign and has a direct interest in the proper administration of the Act, including the distribution of designated and undesignated charitable funds generated thereby. Additional Facts Section 110.181(3), Florida Statutes, grants rulemaking authority to the Respondent in association with the time and manner for charitable organizations to participate in the Campaign. This process is undertaken upon the recommendations of the Committee. In accordance with those opportunities Respondent had adopted administrative rules to implement Section 110.181, Florida Statutes. Among the rules in the Florida Administrative Code were the following: 60L-39.001 (scope and purpose); 60L- 39.002 (general requirements); 60L-39.003 (Statewide Steering Committee); 60L-39.004 (Eligibility Criteria for Participation by Charitable Organizations); 60L-39.005 (Application Procedures); and 60L-39.006 (Duties and Responsibilities of the Fiscal Agent). None of these rules defined the term "direct services" in a "local fiscal agent's area", referred to in Section 110.181(2)(e), Florida Statutes (2006), as that statute controls the opportunity for a charitable organization to receive undesignated funds from the 2006 Campaign. This has been explained as the "first tier distribution" of undesignated charitable contributions made by state employees. After the 2006 Campaign commenced, Respondent adopted a rule that defined the term "direct services." Florida Administrative Code Rule 60L-39.0015(1)(i) provided that definition. The rule was effective January 23, 2007. It defined the term "direct services" as: Direct services. Identifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served. The 2006 Campaign began in the summer of 2006. December 22, 2006, was the deadline for applying for first tier undesignated funds. Application was made upon a form created for use in the 2006 Campaign. Petitioner's Exhibit numbered 2. On October 17, 2006, by e-mail, Petitioners were made aware of the direct local services certification form and its guidelines, contained in one document, Petitioners' Exhibit numbered 2. Explanations were provided. The e-mail came from John Kuczwanski, Committee Chairman. This document referenced distribution of the first tier undesignated funds for the 2006 Campaign. It said in pertinent part: As a result of recent changes to the FSECC Law (s. 110.181(2)(d) and (e), Florida Statutes), the Statewide FSECC Steering Committee is in the process of implementing rules and a process by which federations and unaffiliated/independent organizations will submit information, regarding provision of direct local services in each fiscal agent United Way area, in order to receive a pro- rata share of undesignated funds. The final process and rules will take effect in 2007, and will become a part of the 2007 FSECC application cycle and are a result of input during our rules promulgation process. Because these formal rules will not be implemented until 2007, an interim process will be in place for the 2006 FSECC. As such, the following process will be utilized by federations and unaffiliated/independent organizations to determine where direct local services are being provided, and thereby eligibility for a pro-rata share of 2006 undesignated funds. Attached is a spreadsheet, which you must complete and submit to the Statewide FSECC Steering Committee no later than close of business on Friday, December 22, 2006. Instructions for Federations: On the attached spreadsheet, please enter the requested information for your federation and each of your member agencies (that have been approved to participate in the 2006 FSECC) that provide direct local services in the appropriate Fiscal Agent United Way sections. Each section identifies which county(ies) are included in that fiscal agent area. Only enter agencies in the fiscal agent section(s) in which that agency provides direct local services, as defined on the spreadsheet. The attached spreadsheet (form), in relevant part contained the following: 2006 Florida State Employees' Charitable Campaign Direct Local Services Certification Form GuidelinesDEADLINE: December 22, 2006 [Forms received after the deadline will result in ineligibility for a pro-rata share of undesignated funds.] Federation Name: OR Unaffiliated/Independent Organization Name: Contact Person: Email Address: Telephone Number: INSTRUCTIONS: Please enter the requested information below for each of your federation's member agencies (that have been approved to participate in the 2006 FSECC) that provide direct local services in the appropriate United Way Fiscal Agency sections below. Unaffiliated/independent organizations should provide the requested information in the appropriate sections for the areas in which your organization provides direct local services. Name of Organization Organization Address Address(es) where the direct service(s) were delivered in the previous calendar year (2005) Description of the type of direct service(s) delivered ["Direct services" is defined as identifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served.] # of people served/Population served * * * The form goes on to describe the areas served by the United Way fiscal agents, as examples United Way of the Big Bend, with its respective counties and the United Way of Brevard County, with its respective counties. It was contemplated that the charities seeking participation in distribution of first tier undesignated funds identify the organization by name, its address, addresses where direct services were delivered in the previous calendar year, etc., in relation to all of the United Way fiscal agent areas. Petitioners and other charities seeking participation in the first tier distribution of undesignated funds were expected to proceed without further direction from the Committee or Respondent when completing the 2006 Direct Local Services' Certification Form. Concerning the rule adoption process referred to in the e-mail, on October 16, 2007, the Committee had met to review proposed rules under consideration that supported the process of charitable campaigns recognized in Section 110.181, Florida Statutes. Prior to that date, the Respondent had held meetings and conducted workshops related to rule development. As a result, Florida Administrative Code Rule 60L-39.015, and an amendment to Florida Administrative Code Rule 60L-39.005, were adopted and became effective January 23, 2007. The amendment within Florida Administrative Code Rule 60L-39.005(5), incorporated by reference Form DMS-ADM-102, effective January 23, 2007, the same date the overall Florida Administrative Code Rule 60L-39.005 was amended. The incorporated form differed in appearance when compared to the 2006 Direct Local Services Certification Form with guidelines that had been provided in relation to the 2006 Campaign. The difference was that the Form incorporated by reference was titled "Agency Direct Local Services Certification Form". It spoke of a March 1 deadline with no specific year. It spoke of a need to provide the federation name, contact person and telephone number. It carried the same headings in the five columns related to the provision of the information about direct services in the 27 United Way fiscal agent areas. In its instructions it stated: Each federation is required to submit this form for all member agencies that provide direct local services, as defined in Rule 60L-39.0015(i), Florida Administrative Code, in the appropriate local fiscal agent sections below and provide with their annual application package. Independent or unaffiliated agencies must provide this form with their annual application. Gwen Cooper, president and CEO of Community health Charities of Florida (CCH), helped the members of the federation, the other Petitioners in this cause, complete the 2006 Direct Local Services Certification Form with guidelines. This included contacts by telephone and e-mails to address the proper response to the form on the part of the member charities. In addition, Ms. Cooper prepared a different form, designed to assist the member charities in presenting needed information. That form called for a deadline of December 5, 2006, for submission to her of information provided by the member charities on the form prepared by Ms. Cooper. The return information was then edited and utilized in her preparation of the 2006 Campaign Direct Local Services Certification Form with guidelines that had been made available by the Committee on October 17, 2006. An example of the instructions for a member charity as filled out by the charity on the form created by Ms. Cooper is Respondent's Exhibit numbered 6 pertaining to the Leukemia & Lymphoma Society, Palm Beach Chapter. The completed Direct Local Services Certification Forms with guidelines for the 2006 Campaign for all CHS member charities is Petitioners' Exhibit numbered 12A. Importantly, the instructions provided in the Cooper form directed to the CHC member charities, stated: INSTRUCTIONS: Please enter the requested information below for each fiscal agent regional area where your agency provides direct local services. Simply recording the office in that region is not enough. Please keep your descriptions concise and general. There is no need to give lengthy details for each region. If you know the number of people served in that region, please record it. If not, please provide an estimate or put NA. If you do not provide services in a particular regions (sic), please put NA in the Description column. If you have more than one office in a particular region, please list all the offices. We will review all submissions and call with questions. Feel free to add lines as needed. This record is for services rendered in Calendar Year 2005. As can be seen, this was a departure from the instructions provided by the Committee in the 2006 Campaign Direct Local Services Certification Form with guidelines previously described, Petitioners' Exhibit numbered 12A representing the completed form for all CHC member charities. The Committee met on February 14, 22, and 28, 2007, to consider the 2006 Campaign Direct Local Services Certification Forms with guidelines completed by Petitioners and other charitable groups. Dr. Kenneth Armstrong, Jr., Executive Director of the United Way of the Big Bend, attended the February 14, 2007, Committee meeting. At the meeting he presented the Committee members with a document intended to express his opinion concerning the basis for deciding whether Petitioners and other charitable organizations were entitled to receive first tier undesignated funds. Petitioners' Exhibit numbered 4. In this document, Dr. Armstrong critically comments on the entitlement of Petitioners, unaffiliated and independent charitable agencies to receive first tier undesignated funds. In his written remarks, he opposes the right for some Petitioners to receive the first tier undesignated funds, while explaining his reasons. These suggestions were favorably received by Respondent's counsel who advised the Committee during the meeting. In particular, counsel stated that he found Dr. Armstrong's approach created an " . . . incisive analysis of the kind of activities that could not reasonably be considered direct services . . . ". While the Committee was left to arrive at its own decision concerning Petitioners' entitlement to receive first tier undesignated funds, Dr. Armstrong's ideas given credence by Respondent's counsel were accepted as part of that process. The work was not completed on February 14, 2007, and the Committee reconvened on February 22, 2007, to continue consideration of the 2006 Campaign Direct Local Services Certification Forms. The Committee met again on February 28, 2007, to consider the 2006 Campaign Direct Local Services Certification Forms. By then the forms had been divided among the Committee members, with each Committee member being responsible for review and recommendation in relation to his or her part of the assignment. The discussion in the session was at best abbreviated concerning the decision to include or reject a charity in a locale in relation to receiving first tier undesignated funds. One Committee member left the meeting and his portion of the assignment was dealt with by the remaining Committee members reviewing the annotations of the missing member indicating denial or approval of a given charity. There were other notes as well on these materials assigned to the Committee member who left the meeting. The remaining Committee members approved the recommendations by the missing Committee member. On March 8, 2007, the Committee made its decision and e-mailed Petitioners concerning its position on the "2006 FSECC Direct Local Services Certification" spreadsheets (forms). The e-mail is Petitioners' Exhibit numbered 10. The reference line in the e-mail is "Distribution of 2006 FSECC undesignated funds -- Direct Local Services Certification". The reason for this preliminary decision was: After three meetings, the FSECC Statewide Steering Committee has completed its review and voted on all 2006 FSECC Direct and Local Service Certification spreadsheets previously submitted for its consideration. Attached is the final spreadsheet that lists all charitable organizations that were approved by the Committee and deemed, based on the information submitted, to be providing direct local services in at least one United Way fiscal agent area. Charitable organizations not included on the attached list were not deemed to be providing direct local services, based on the information submitted. Direct local services, as defined on the certification form and in Rule, are "identifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served." The 59 charitable organizations included on the attached list will receive a pro-rata share (based on their local designation percentages in 2006) of the 2006 undesignated funds, in the Fiscal Agent United Way areas within which they were deemed to be providing direct local services, as indicated on the attached by an "X" in specific United Way fiscal agent columns. Thank you, The FSECC Statewide Steering Committee The above-quoted language in the e-mail notification that refers to the certification form is understood to mean the 2006 Campaign Direct Local Services Certification Form with guidelines. The comment in the e-mail concerning the "rule" where it says "identifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served" is taken directly from Florida Administrative Code Rule 60-39.0015(1)(i), effective January 23, 2007, with its definition of "direct services." As the March 8, 2007, e-mail summarizes, CHC had 16 member originations approved. At the time the preliminary decision was communicated, the Committee had approved approximately 18.64 percent of Petitioners' individual submissions. The basis of the denial of the remaining submissions seeking receipt of first tier undesignated funds was not explained. This led to the original petition challenging the decision to deny rights to receive first tier undesignated funds filed on March 30, 2007. The history of the case beyond that point has been explained in the Preliminary Statement, to include the basis for proceeding before DOAH. On August 24, 2007, after the case had been referred to DOAH for hearing, Respondent published notice in the Florida Administrative Weekly, Volume 33 No. 34, to this effect: The Florida Department of Management Services announces a public meeting to which all persons are invited. DATE AND TIME: September 10, 2007, 9:00 a.m. - 12:00 Noon PLACE: 4050 Esplanade Way, Room 101, Tallahassee, Florida GENERAL SUBJECT MATTER TO BE CONSIDERED: Review and Approval of Local Steering Committee Members. Community Health Charities lawsuit and re-visit on direct services determinations. A copy of the agenda may be obtained by contacting: Erin Thoresen, Department of Management Services, 4050 Esplanade Way, Suite 235, Tallahassee, FL 32399-0950, (850)922-1274. If any person decides to appeal any decision made by the Board with respect to any matter considered at this meeting or hearing, he/she will need to ensure that a verbatim record of the proceeding is made, which record includes the testimony and evidence from which the appeal is to be issued. * * * Respondent's Exhibit numbered 24. The notice by its terms did not explain in any detail what might be achieved during the course of the meeting to consider the pending "lawsuit" and revisit issues in relation to direct services determinations. The "lawsuit" related to the pending administrative proceeding in DOAH Case No. 07-3547. Barton Cooper, CHC Director of Corporate Development, attended the meeting with Petitioners' counsel. No presentation was made by Petitioners, as they were uncertain of Respondent's intentions when the meeting was advertised in the Florida Administrative Weekly, and understood that litigation was ongoing before DOAH. Nonetheless, Mr. Cooper expressed his appreciation for the Committee's willingness to revisit the issue of the remaining Petitioners' entitlement to receive first tier undesignated funds. On this occasion the Committee conducted an additional review of material provided by Petitioners. Those materials were constituted of Petitioners' Exhibit numbered 12A, the original December 22, 2006, Direct Local Services Certification Forms for the rejected applicants for first tier undesignated funds and Exhibit 2 to the Amended Petition for Formal Administrative Hearing filed March 30, 2007, with the Respondent. (Exhibit 2 became Petitioners' Exhibit numbered 12B, admitted at the final hearing.) This exhibit provides additional information concerning member charities within CHC and supporting argument for their inclusion in the distribution of first tier undesignated funds. As a consequence of the Committee's efforts, approximately 77 percent of Petitioners' applications made originally were approved, leaving 21 Petitioners denied the ability to receive first tier designated funds in one or more of the United Way fiscal agent areas. On September 12, 2007, the Committee made known its "Amended and Revised FSECC Direct Services Determinations for the 2006 Campaign" in correspondence directed to Petitioners. Petitioners' Exhibit numbered 13. In explanation, the written communication stated: On September 10, 2007 the Statewide Steering committee decided to re-visit issues on direct services determinations. In accordance with Exhibit 2 of the Second Amended Petition for Formal Administrative Hearing, the participating Community Health Charities, within the fiscal area listed, were revisited. The Direct Local Services Certification Forms submitted on behalf of your organization and/or your member agencies were reexamined for compliance with the eligibility criteria for a receipt of undesignated funds based upon the provision of direct services. Direct services are defined as "[i]dentifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served." Rule 60L-39.0015(1)(i), Florida Administrative Code. Applicant organizations named above that did not meet the criteria for direct services were denied by the FSECC Statewide Steering Committee. This explanation referred to the definition of direct services found within Florida Administrative Code Rule 60-39.0015(1)(i), effective January 23, 2007. It also mentioned reliance upon Exhibit numbered 2 to the Second Amended Petition for Formal Administrative Hearing (Exhibit 2 accompanied the Amended Petition for Formal Administrative Hearing as well). The memorandum decision pointed out a spreadsheet attached describing those charities whose application forms had been reexamined on September 10, 2007, noting approvals and disapprovals. The attachment to the September 12, 2007, amended revised FSECC Direct Local Services determination for the 2006 Campaign breaks out the agencies approved as to locations within United Way fiscal agents areas, those approved earlier and those approved by actions taken on September 10, 2007. Those approvals are noted by marking the letter "X" in the column for each agency earlier approved or approved on September 10, 2007, as to each charity and every United Way fiscal agent area. Concerning the remaining requests to receive first tier undesignated funds by those 21 Petitioners, information necessary to decide entitlement is found within the 2006 Campaign Direct Local Services Certification Form with guidelines (Petitioners' Exhibit numbered 12A); the explanations found within Exhibit 2 to the Amended Petition for Formal Administrative Hearing, which became Petitioners' Exhibit numbered 12B and a series of exhibits admitted at hearing, Petitioners' Exhibit numbered 21 through 38. Those latter exhibits provide explanations pertaining to the 21 disappointed Petitioners, expanding what is known about the charities, their services, the manner that the services are provided, who receives the services and where the services are received, together with the address(es) of the respective organizations. In addition, the depositions of Paul Andrew Ledford of Florida Hospice and Palliative Care (Joint Exhibit numbered 2); Susanne Homant, National Association of Mentally Ill in Florida (Joint Exhibit numbered 3); Deborah Linton, Association for Retarded Citizens of Florida, Inc. (Joint Exhibit numbered 4); Suzanne Earle, Children's Tumor Foundation (Joint Exhibit numbered 5); Pamela Byrne, Leukemia & Lymphoma Society (Joint Exhibit numbered 6) and Tracy Tucker, Cystic Fibrosis Foundation (Joint Exhibit numbered 7) afford additional insight on the subject of who is served, where they are served etc., pertaining to the subject. Without recounting the details from the various sources previously described, all that information is accepted for purposes of this Recommended Order, as to the facts represented in the exhibits. Based upon information provided in the aforementioned exhibits, the Association for Retarded Citizens/Florida, CHC, Florida Hospices and Palliative Care and the National Alliance for the Mentally Ill of Florida do not provide direct services in fiscal agent areas without intervention between the services offered and persons served in any location. Based upon information provided in the aforementioned exhibits, ALS Association provides direct services in the Heart of Florida United Way fiscal agent area, contrary to the impression held by the Committee before the final hearing. Based upon information provided in the aforementioned exhibits, the Cystic Fibrosis Foundation provides direct services in the United Way fiscal agent areas in Lake and Sumter, Okaloosa-Walton, Santa Rosa, and Volusia-Flagler, for reasons comparable to the practice of the Committee when making its earlier determinations. Based upon information provided in the aforementioned exhibits, the Lupus Foundation of America, Southeast Florida Chapter, provides direct services in the United Way fiscal agent areas in Broward and Palm Beach counties. Of the unapproved requests for first tier undesignated funds made by remaining Petitioners in other specific United Way fiscal agent areas, the facts do not support those requests.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered that allows Petitioners to receive first tier undesignated funds in relation to the 2006 Campaign to the extent identified and denies any additional relief requested in the Third Amended Petition for Formal Administrative Hearing. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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. COPIES FURNISHED: David C. Hawkins, Esquire David C. Hawkins, PLLC 3141 Brockton Way Tallahassee, Florida 32308 Matthew F. Minno, Esquire Gerard York, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 David Andrew Byrne, Esquire Phillips Nizer LLP 666 5th Avenue New York, New York 10103-0001 James A. Peters, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda South, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is entitled to receive Florida Retirement System (FRS) benefits from her deceased spouse’s retirement account, pursuant to FRS Option 3 (lifetime monthly benefit to joint annuitant).
Findings Of Fact Petitioner, Lettie Jones, is the wife of FRS member, James Jones, and a designated beneficiary of his FRS account. Respondent, Department of Management Services, Division of Retirement, is the state agency with the responsibility to administer the FRS. Background Findings Mr. Jones applied to the State of Florida for disability retirement on July 13, 1994. On his application, Mr. Jones noted that the “[m]uscles in [his] feet and legs [were] deteriorating.” In response to a question regarding any other physical impairments, Mr. Jones answered, “Losing strength in right hand.” The record does not reflect the effective date of Mr. Jones’ retirement. Mr. Jones suffered a stroke in April 1996. On January 27, 1997, Mr. Jones obtained from the state an “Estimate of Disability Retirement Benefits” listing the approximate monthly benefit payment amounts for all four FRS payment options. On that date, Mr. Jones also obtained Form 11o, the FRS retirement benefit election option form, and Form FST 12, the FRS beneficiary designation form. On March 18, 1997, Mr. Jones executed Form 11o, choosing Option 2 for payment of his monthly retirement benefits, and Form FST 12, designating Petitioner as primary beneficiary, and his daughter as contingent beneficiary, of his retirement account. Form 11o provides the following explanation of Option 2: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 payments. No further benefits are then payable. Form 11o requires the spouse’s signature acknowledging the member’s election of Option 2. The spousal acknowledgment section appears in a box on Form 11o following the description of Options 1 and 2. The first line inside the box reads, in all capital letters, “THIS SECTION MUST BE COMPLETED IF YOU SELECT OPTION 1 OR 2.” On March 18, 1997, Petitioner signed the box on Form 11o acknowledging her husband’s election of Option 2. Mr. Jones received more than 120 monthly retirement benefit payments prior to his death in 2013. Petitioner’s Challenge Petitioner alleges that Mr. Jones lacked the capacity to make an informed election of benefit payments on March 18, 1997, because he had reduced cognitive function. Both Petitioner and her daughter testified that they accompanied Mr. Jones to the FRS office on March 18, 1997, but were not allowed to “go back” with him when he met with an FRS employee to select his retirement option and execute Form 11o.2/ Petitioner admitted that she did sign the box on Form 11o, which acknowledges spousal election of Option 2, but testified that the form was blank at the time her husband presented it to her for signature. Petitioner signed the spousal acknowledgment on Form 11o the same day her husband executed the form. Petitioner introduced no evidence, other than the testimony of her daughter, that Mr. Jones suffered from reduced cognitive function on March 18, 1997. The fact that Mr. Jones suffered a stroke in 1996 is insufficient evidence to prove that he lacked the mental capacity to make an informed retirement option selection on the date in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the relief requested in the Petition for Administrative Hearing. DONE AND ENTERED this 25th day of October, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 25th day of October, 2016.
The Issue The issues are as follows: (a) whether Respondent took "agency action" when it certified the Okaloosa-Walton College Foundation, Inc. as its direct support organization and endorsed the Foundation's decision to sell the Mattie Kelly property; and whether Petitioners have standing to request an administrative hearing on those issues.
Findings Of Fact The Foundation was incorporated and first certified as a direct support organization in 1988. The Mattie Kelly property is approximately 13 acres of waterfront property on Choctawhatchee Bay in Destin, Okaloosa County, Florida. It includes the former residence of Mattie Kelly and the real property surrounding the residence. Destin, Okaloosa County, Florida, is a municipality, bounded on the north and west by Choctawhatchee Bay, on the south by the Gulf of Mexico, and on the east by Walton County, Florida. On August 17, 1992, Mattie Kelly executed her Last Will and Testament (will). Article VIII of the will states as follows: I give, devise and bequeath my personal residence located a 1200 Indian Trail Road, Destin, Florida 32541, including all real property surrounding the residence and the sum of Five Hundred Thousand Dollars ($500,000,000) to Okaloosa-Walton Community College for the establishment of the "Mattie Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College." The purpose of the "Mattie M. Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College" shall be: To provide a meeting place for literary societies, fine arts groups, and small performing groups. To provide a location for conferences and seminars offered through Okaloosa-Walton Community College. To provide a location for biology studies and marine science studies associated with Choctawhatchee Bay and the Gulf of Mexico. To provide a location for displaying the coastal heritage of Northwest Florida. The Five Hundred Thousand Dollars ($500,000,000) endowment which forms part of this gift shall be used only for maintenance and operating costs in furtherance of the above purposes, including the perpetual care, maintenance and upkeep of my mausoleum. A Personal Representative's Warranty Deed dated March 6, 1997, conveyed the property to the Foundation. At some point in time, the Foundation decided to sell the property to a real estate developer and entered into a contract to do so. On March 15, 2004, Petitioner Hammet filed a Petition for Administrative Hearing with the Board. The petition questioned whether the Board should support, endorse, and/or not oppose the sale of the property for private real estate development purposes, accept the college president's recommendation about the sale, and certify the Foundation to be operating in the best interest of the state. The Board's March 16, 2004, minutes state as follows in relevant part: ACTION AGENDA DSO Certification/IRS 990 The District Board of Trustees certified that requirements of Direct Support Organization under FS 1004.70 have been met and that the OWCC Foundation is in compliance with the procedures as herein described and accepts Form IRS 990 as submitted. Further, the District Board of Trustees supports and endorses the Foundation Board of Directors in its endeavor to sell the Mattie Kelly Property (Motion: Henderson; Second Rainer. Vote: 6 yes; 2 no (Smith, Wells). Motion carried. On April 22, 2004, the Board referred Petitioner Hammet's petition to DOAH, together with the Board's Motion to Dismiss. DOAH assigned this case DOAH Case No. 04-2049. On June 15, 2004, the Board referred the following to DOAH: (a) Petitioner Coastkeepers' Petition for Administrative Hearing; (b) Petitioner's Motion and Suggestion for Disqualification of Joseph Henderson and James R. Richburg; and the Board's Motion to Dismiss Petition for Administrative Hearing. DOAH assigned the case DOAH Case No. 04-2141. On July 8, 2004, some of Ms. Kelly's relatives filed a suit against the Foundation in Circuit Court. In Count I of the complaint, the relatives sought a declaratory judgment that the Foundation's proposed sale violates Ms. Kelly's will and that the relatives had reversionary rights to the property. In Count II of the complaint, the relatives sought injunctive relief to restrain the Foundation from selling the property to a third party in accordance with a written contract of sale. On April 20, 2005, the Florida Attorney General issued an Advisory Legal Opinion, stating that the Foundation is subject to Florida's Sunshine Law. On May 5, 2005, the Foundation voted to ratify the contract to sell the property and to confirm the prior decision to sell the property. On June 3, 2005, the First Circuit Court entered a "Final Judgment for Defendant" in L. Bernarr Kelly, Carol Kelly and Lowell B. Kelly v. The Okaloosa-Walton Community College Foundation, Inc., No. 2004-CA-405 (Fla. 1st Cir. Ct. June 3, 2005), which states as follows in pertinent part: . . . The Court is convinced by the nature of the Will, and the testimony and evidence that Mattie Kelly had legal advice in her estate planning, that if Mattie Kelly intended for the subject property to be placed in a trust, and if she desired to put restrictions on the subject property to prevent Defendant Foundation from selling it, that she knew how to accomplish this, and that she chose not to do so. The Court finds . . . that Mattie Kelly did not intend to limit or restrict the sale of the subject property in the future to fulfill her desires for the creation of a cultural and environmental institute. . . . The Court finds that the deed dated March 6, 1997, . . . does not contain a reverter clause or language creating any right of reversion. . . . The Court finds that the deed conveyed a fee simple title to the OWCC Foundation with no right of reversion. The Court further finds that this deed was in accordance with the intent of Mattie Kelly at the time she executed her will. The Court finds that Article VIII of the Will which devised the subject property contains no language of trust and no language of reverter, and did not create a charitable trust . . . . The Court further finds that Defendant's proposed sale of the subject property does not include the "mausoleum property." . . . Since the mausoleum property is not being conveyed, the Court finds that the Plaintiffs no longer have standing as to the remaining property, and would deny Plaintiffs relief on this basis, in addition to the foregoing reasons. Therefore, the Court finds for the Defendant, The Okaloosa-Walton Community College Foundation, Inc. and against the Plaintiffs, and ORDERS and ADJUDGES as follows: Defendant Foundation's proposed sale of the subject property is not in derogation of Article VIII of the Last Will and Testament of Mattie Kelly, or the deed which conveyed the subject property to Defendant Foundation. Therefore, Defendant Foundation is not prohibited from selling the subject property, excluding the mausoleum property as described in Addendum #4 to the Contract for Sale and Purchase, in order to fulfill the intent of Mattie Kelly in creating the "Mattie M. Kelly Cultural and Environmental Institute;" however, all monies received from the sale of the subject property, including any matching funds, are to be used in the establishment and operation of the Mattie M. Kelly Cultural and Environmental Institute. [Emphasis added.] On June 8, 2005, Petitioners filed a Joint First Amended Petition for Administrative Hearing, stating as follows regarding standing: Petitioner Hammet's substantial interests will be affected by Respondent's determination because she and her family live within close proximity to the Mattie Kelly property and have often used and enjoyed the property for viewing the coastal heritage of Northwest Florida, and she wishes to continue to use and enjoy the property in the future. The Mattie Kelly property is a special place for Hammet and her family, where they have many pleasant memories and regularly have benefited from this public property being in their neighborhood. Hammet and her family will no longer be able to use and enjoy this accessible public resource if it is sold for private development. Petitioner Coastkeepers' substantial interest will be affected by Respondent's determination because it is a Florida non-profit corporation dedicated to protection of the environment in an area of the Gulf of Mexico Coast that includes Okaloosa and Walton Counties and Choctawhatchee Bay. Preservation of environmentally sensitive lands such as the Mattie Kelly property, and having the Mattie Kelly property as a location for biological studies, marine science studies, and studies of the coastal heritage of Northwest Florida, are vitally important to protecting Choctawhatchee Bay and the interest of Petitioner and its members, who include a substantial number of members who reside in Okaloosa and Walton Counties and have the present intention to use, visit, enjoy, and study biological, marine science and cultural heritage issues associated with Choctawhatchee Bay, the Gulf of Mexico, and the Mattie Kelly property at the Mattie Kelly property. The Mattie Kelly property is ideally suited to provide waterfront environmental education in an otherwise highly urbanized environment, including education of local residents, which is vital to controlling urban runoff, and for highlighting, encouraging, and educating the public of the need to protect Choctawhatchee Bay and the Gulf of Mexico. The Mattie Kelly property would no longer be available for such intended pursuits were the proposed sale of the Mattie Kelly property to private development interest go forward. Moreover, the proposed development of the very property set aside by Mattie Kelly would itself directly contribute to the urban runoff known to be causing problems in Choctawhatchee Bay. Choctawhatchee Bay has many examples of waterfront subdivision development and very little opportunity for environmental protection education in a local setting near where waterfront residential owners already live. These purposes will not be as well-served by educational efforts at OWC's main campus in Niceville, which is not waterfront and miles away from Choctawhatchee Bay. If properly managed, the Mattie Kelly property should be the field trip every school-age child in Okaloosa and Walton County takes, which would be a lasting legacy to Mattie Kelly that would truly be consistent with her express purposes. This opportunity will be forever destroyed if the property is developed as proposed. On June 24, 2005, Respondent filed a Motion to Dismiss Joint First Amended Petition for Administrative Hearing. On July 5, 2005, Petitioners filed a Response to Respondent's Motion to Dismiss Joint First Amended Petition for Administrative Hearing. Neither of the Petitioners holds any title interest in the property.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board enter a final order dismissing the Petitions for Administrative Hearing. DONE AND ENTERED this 22nd day of August, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2005. COPIES FURNISHED: James R. Richburg, President Okaloosa-Walton Community College 100 College Boulevard Niceville, Florida 32578-1295 Joseph D. Lorenz, Esquire 1270 North Elgin Parkway, Suite C-12 Shalimar, Florida 32579 Steven A. Medina, Esquire Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A. 316 South Baylen Street Post Office Box 12308 Pensacola, Florida 32581
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Tel-World Ministries (petitioner), is a private, non-profit association formed on January 24, 1996. According to its articles of association, petitioner was formed "to operate for the advancement of religion, religious education and charitable purposes, by the distribution of its funds for such purposes, and in particularly to promote understanding and truth and save soul's in Christ Jesus." Its president is Frederick J. Hoffman, a resident of Holly Hill, Florida. Respondent, Department of Revenue (DOR), is charged with the responsibility of administering and implementing the Florida Revenue Act of 1949, as amended. It has the specific task of collecting sales taxes and enforcing the State Tax Code and rules. By law, certain transactions are exempt from the state sales and use tax. Among these are sales or lease transactions by qualified "charitable" or "religious" institutions. In order for an organization to be entitled to an exemption, it must make application with DOR for a consumer's certificate of exemption and demonstrate that it is a qualified religious or charitble organization within the meaning of the law. Once the application is approved, the certificate entitles the holder to make tax-exempt purchases that are otherwise taxable under Chapter 212, Florida Statutes. Claiming that it was entitled to a certificate of exemption as either a religious or charitable organization, petitioner filed an application with DOR on an undisclosed date in early 1996. The application itself has not been offered into evidence. After requesting additional information, on April 26, 1996, DOR preliminarily disapproved the application on the grounds petitioner did not qualify under the statutory definition of a religious institution, and it did not have as its primary purpose one of seven defined charitable purposes set forth in the law. Thereafter, petitioner filed a request for hearing to contest this decision. In its request for hearing, petitioner contended, among other things, that DOR had failed to consider the legislative intent of the law, failed to consider an amendment to the application, and failed to properly interpret its own rules and the general law. Petitioner agrees it is not a church but rather is a ministry. It has no building or established physical location from which it provides charitable or religious services. As described by its president at hearing, its president, and perhaps two other officers, go to other churches, primarily the Seventh Day Adventist Church, and they "assist" the pastors of those churches by giving "input" at mass, prayer, and Bible study classes. The association also disseminates religious materials, including brochures and the like. Under Section 212.08(7)(o)2.b., Florida Statutes, a charitable institution is generally defined as an entity which holds a current exemption from the federal income tax under Section 501(c)(3) of the Internal Revenue Code. The entity must also have as its "sole or primary function" the provision of, or raising funds for organizations which provide, one of seven defined charitable services, if a reasonable percentage of such services is provided free of charge, or at a substantially reduced cost, to persons who are unable to pay for such services. The parties agree that petitioner has a current exemption from the federal income tax under section 501(c)(3) and, in this respect, it meets the statutory requirements. Petitioner contends that its sole or primary function is to provide services of the type that fall within the charitable purpose defined in subparagraph (IV) of the statute. That purpose is defined as being "(s)ocial welfare services including adoption placement, child care, community care for the elderly, and other social welfare services which clearly and substantially benefit a client population which is disadvantaged or suffers a hardship." According to petitioner, it does God's work at other churches by assisting those churches' pastors in saving souls, and thus these services fall within the broad definition of "social welfare services." However, within the narrow context of the statutory exemption, and when the term "social welfare services" is given its plain and ordinary meaning, religious or spiritual activities do not qualify as "charitable" services. In general terms, to qualify as a religious institution, an entity must be (a) a church, synagogue, or established physical place for worship at which nonprofit religious services and activities are regularly conducted and carried on, (b) a nonprofit corporation the sole purpose of which is to provide free transportation services to church members and attendees, (c) a "state, district or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within the state or district organization," or (d) a corporation qualified as nonprofit under section 501(c)(3) that owns or operates a Florida television station. Petitioner has no "established physical place for worship," its sole purpose is not to provide free transportation services to church members and attendees, and it does not operate a television station. Thus, it cannot qualify under the first, second and fourth parts of the definition. Petitioner's president contends, however, that he represents the "state office" of Tel-World Ministries, and therefore the association meets that part of the test. It is noted that the only "office" within the entity is that found in Holly Hill and it is not a part of a larger organization. Under DOR policy, in order to pass muster as a state, district or administrative office, petitioner must be a part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. This interpretation of the law is found in prior agency orders and is deemed to be reasonable. Because petitioner does not comport with this policy, it cannot qualify as a "state administrative office" within the meaning of the law. In summary, while petitioner submitted evidence to show that it is engaged in laudable religious efforts, the entity itself does not qualify as a religious or charitable institution for tax purposes, and thus it is not entitled to a consumer certificate of exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a Final Order denying petitioner's application for a consumer certificate of exemption as a religious or charitable institution. DONE AND ENTERED this 7th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1996. APPENDIX TO RECOMMENDED ORDER Respondent: Respondent's proposed findings, while substantially altered, have been adopted in substance. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Frederick J. Hoffman 1728 Derbyshire Road Holly Hill, Florida 32117 William B. Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Findings Of Fact At all times material hereto, Respondent held a class "H" certificate of registration numbered GH-8500083 issued by Petitioner pursuant to Chapter 496, F.S. According to Respondent's application for registration which was submitted on or about January 23, 1984, Respondent is the President of an organization known as, "Citizens Benevolent Association - Displaced Inmate Dependent Mission." The purpose of that organization is to give housing, employment, food, clothing and toys to the dependents of inmates in central Florida. It was further indicated that the organization would raise less than $4000 each year, and contributions it received would be used to carry out the purpose of the organization. In February, 1986, Willie Rister, regional office supervisor and investigator for Petitioner, attempted to meet with Respondent concerning his charitable organization, and particularly its financial records. After two unsuccessful attempts to meet with Respondent, Rister contacted Respondent on March 12, 1986, and was told that all financial records of the organization had already been turned over to him. Respondent's financial records fail to reveal or inaccurately reveal the income and expenses of the organization. Specifically, they fail to account for all contributed funds and in-kind contributions, as well as disbursements. It appears that the organization's funds and Respondent's personal funds have been comingled, and no distinct records have been kept. It is not possible to determine which expenditures are personal and which are to carry out the purpose of the organization. The financial records are simply a listing of receipts without any explanation of the source or method of raising these funds, which appear to total approximately $9000 for 1985. Rister testified that he was unable to find any people who had been helped by Respondent or his organization. Contributed funds were used primarily for the personal expenses of Respondent or his family, or here not fully accounted for and were not used for any charitable purpose associated with the organization. Respondent advertised his organization in the Sebring News, indicating that his organization finds jobs and housing for the dependents of inmates. There is no evidence that his organization ever performed these services, and in fact the evidence presented indicates it did not.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order revoking Respondents certificate of registration numbered GH-8500083. DONE AND ENTERED this 1st day of December, 1986 in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1986. COPIES FURNISHED: Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32399 James V. Antista, Esquire Department of State The Capitol Tallahassee, Florida 32399 John Joseph Heinrich 109 North Self Avenue Avon Park, Florida 33825
The Issue The issues in these cases relate to the criteria required of municipal pension plans to qualify for state premium tax monies . Chapters 175 and 185, Florida Statutes, provide for pension plans for firefighters 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. In a series of cases, various municipalities and the LEAGUE OF CITIES have challenged the DIVISION OF RETIREMENT's application of statutory criteria to local law plans. On April 11, 1996, a Final Order was entered in Case No. 95-5089RU finding that the DIVISION's policies in this regard violated Section 120.535, Florida Statutes. The Final Order in case No. 96-5089RU is on appeal to the First District Court of Appeal. On August 6, 1996, a Final Order was entered in consolidated Cases Nos. 96-2724RX, 96-2725RX, 96-2871RU, and 96-2874RU, finding that the DIVISION's policies violated Section 120.56, Florida Statutes. Specifically, the issues in these cases now under consideration, are 1) whether the CITY OF ST. PETERSBURG is entitled to premium tax monies for the 1994 and 1995 calendar years; 2) whether the DIVISION OF RETIREMENT has met the requirements of Section 120.57(1)(b)15, Florida Statutes, and demonstrated that the application of the statutory criteria to local law plans is within the scope of delegated legislative authority; 3) whether the DIVISION's promulgation of proposed rules on July 12, 1996, justifies the DIVISION's withholding of the CITY OF ST. PETERSBURG's premium tax monies for calendar years 1994 and 1995; and, 4) whether the DIVISION has acted in bad faith, thereby entitling the CITY OF ST. PETERSBURG to an award of attorneys fees and costs in this case. The gist of the CITY OF ST. PETERSBURG's Petitions 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 to other municipalities of a declaratory statement issued to the City of Boca Raton. As indicated above, and set forth more fully below, the requirements imposed by the DIVISION OF RETIREMENT for local law plans to receive premium tax monies have been the subject of extensive litigation. In rejecting a challenge to the constitutionality of Chapters 175 and 185, Florida 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 these cases 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 premium tax monies. Petitioner, CITY OF ST. PETERSBURG, and Intervenor, CITIES, take the position that Respondent, DIVISION OF RETIREMENT, has made non-rule policy statements (which are now promulgated as proposed rules), and required compliance therewith, which go beyond the criteria established by the legislature for participation in the program. Petitioner contends that such statements are "rules" under Section 120.52(16), Florida Statutes, that these "rules" violate Section 120.56, Florida Statutes, as invalid exercises of delegated legislative authority, and that the DIVISION is prohibited from applying these policies as justification for withholding premium tax monies. Respondent, DIVISION OF RETIREMENT, takes the position that the policy statements have now been promulgated as proposed rules, that the DIVISION has complied with Section 120.535(5), Florida Statutes, and is authorized to apply the policies of the proposed rules to withhold premium tax monies. The DIVISION further contends that the policy statements (now proposed rules) merely apply the provisions of Chapters 175 and 185, Florida Statutes, as intended by the legislature, and therefore the DIVISION has demonstrated pursuant to Section 120.57(1)(b)15, Florida Statutes, that the policy statements are within delegated legislative authority.
Findings Of Fact To the extent relevant, the Findings of Fact in the Final Order in case No. 95-5089RU are adopted and incorporated by reference. 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 (premium tax monies) with which to fund retirement programs for its municipal fire fighters and police under Chapters 175 and 185, Florida Statutes, respectively. Intervenors, CITY OF LARGO, CITY OF PALATKA and the TOWN OF LANTANA, also are State of Florida municipalities participating in such local plans for fire fighters and police. LARGO, PALATKA and LANTANA have had their premium tax monies withheld by the DIVISION for the 1995 calendar year. Intervenor, FLORIDA LEAGUE OF CITIES, represents municipalities voluntarily participating in distribution of Chapter 175 and 185 premium tax monies to fund retirement plans for firefighters and police officers. 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 (premium tax monies) 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. Intervenor, RUSSELL M. RIZZO, is a municipal police officer with the CITY and has standing to intervene in this proceeding. 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 retirement 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. In this continuing effort to address these issue legislatively, during the 1996 Session, HB 1951 and SB 2484 were introduced. These bills specifically provided legislative clarification of the issues presented in these cases. Prior to the 1996 Session, the CITY filed its Petition in case No. 95- 5089RU. On April 11, 1996, the Final Order was entered in case. No. 95-5089RU holding that the DIVISION's non-rule policies violated Section 120.535, Florida Statutes. On May 10, 1996, the CITY filed its Notice of Appeal which is pending in the First District Court of Appeal, Case No. 96-1817. The DIVISION has made a continuing good faith effort to present these issues to the Legislature for resolution. As indicated above, HB 1951 and SB 2484, specifically addressing and clarifying the issues raised in these proceedings, were introduced during the 1996 Session. On April 30, 1996, HB 1951 was passed by the Florida House of Representatives; however, HB 1951 along with SB 2484 died in the Florida Senate on May 4, 1996. The 1996 Florida Legislature failed to enact any legislation addressing or otherwise clarifying the issues raised in these proceedings. On May 31, 1996, the DIVISION noticed a rules workshop addressing these issues in the Florida Administrative Weekly. On June 12, 1996, the DIVISION disseminated proposed rules. On June 21, 1996, the DIVISION conducted the rules workshop. On July 12, 1996, the DIVISION published proposed rules and amendments, 60Z-1.004, 60Z-1.006, 60Z-1.026, 60Z-1.027, 60Z-1.028, 60Z-2.017, 60Z-2.018, and 60Z-2.019, which address the issues raised in these proceedings. On July 30, 1996, the CITY and the LEAGUE OF CITIES, pursuant to Section 120.54 Florida Statutes, filed Petitions challenging the DIVISION's proposed rules. The Section 120.54 petitions, cases Nos.96-3560RP and 96-3561RP, are scheduled for hearing August 29, 1996. On August 6, 1996, the Final Order was entered in consolidated Cases Nos. 96-2724RX, 96-2725RX, 96-2871RU, and 96-2874RU holding that the DIVISION's policies violated Section 120.56, Florida Statutes. 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 sixty (60) percent of the highest pay step of the lowest rank held during the previous three (3) 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 Sections 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.
