The Issue The issue for determination is whether Petitioner should be granted a consumer’s certificate of exemption pursuant to Subsection 212.08(7)(o), Florida Statutes.
Findings Of Fact The Department of Revenue (Respondent) is the state agency charged with enforcement of Chapter 212, Florida Statues, and the issuance of certificates of exemption. Unto Others, Inc. (Petitioner) is an organization incorporated in the State of Florida as a non-profit corporation. Petitioner’s Articles of Incorporation, Article II, states Petitioner’s purpose as follows: The purposes for which the Corporation [Petitioner] is organized are exclusively religious, charitable, scientific, literary, and educational within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986 or the corresponding provision of any future United States Internal Revenue law. Petitioner made application to the Respondent for a certificate of exemption as a charitable institution pursuant to Subsection 212.08(7)(o)2.b, Florida Statutes. Petitioner did not make application for an exemption as a scientific, religious, or educational institution, but it may in the future apply under these criteria. By Notice of Intent to Deny (Notice) dated January 30, 1998, the Respondent notified Petitioner that its application was being denied. The grounds stated in the Notice for the denial were the following: (1) "Your organization does not provide, nor does it raise funds for charitable institutions which provide one or more of the charitable services listed in the statute [Subsection 212.08(7)(o)2.b, Florida Statutes]."; and (2) "Your organization fails to meet the qualification for exemption from sales and use taxation, as set forth in Section 212.08(7), Florida Statutes." Currently, Petitioner’s sole function is the raising of funds to enable Petitioner to rehabilitate people and dwellings. All of Petitioner’s activities are conducted by non-paid volunteers. No evidence was presented to show that Petitioner rehabilitates any person or dwelling, or holds religious services. No evidence was presented to show that Petitioner governs or administers any office within any hierarchy of a larger organization. No evidence was presented to show that Petitioner participates with or controls another organization. No evidence was presented to show that Petitioner expends more than 50 percent of its expenditures toward any charitable service. No evidence was presented to show that Petitioner disburses more than 50 percent of its expenditures directly for a charitable service or to any entity that directly provides or performs any charitable service. No evidence was presented to show that Petitioner directly provides or performs any charitable service for any entity or person; or that Petitioner provides any goods or services as a charitable service. No evidence was presented to show that Petitioner directly provides a reasonable percentage of any charitable service free or at a substantially reduced cost to persons, animals, or organizations that are unable to pay for such services. No evidence was presented to show that any charitable service was provided free or at a substantially reduced cost. No evidence was presented to show that persons, animals, or organizations actually received any charitable service and that those persons, animals, or organizations were unable to pay for such service(s). Petitioner does not currently provide any of the services listed in Subsection 212.08(7)(o).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer's certificate of exemption to Unto Others, Inc. DONE AND ENTERED this 31st day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1998.
The Issue Whether the Petitioner should receive benefits for the services requested.
Findings Of Fact The Petitioner is a 20-year-old male who has been diagnosed with mental retardation. The Petitioner resides with his parents who provide for his care. Currently the Petitioner receives medical benefits through the father's health insurance. He also receives some funding through social security benefits. The Petitioner is a client of the Developmental Disabilities Program and his eligibility to receive benefits is not disputed by the Department. The Petitioner is eligible for benefits. The Petitioner applied for, and has been denied, dental, companion, personal care assistance, and respite benefits. The Petitioner would have received the benefits requested but for the lack of funding in the appropriations for the Department. Because of the lack of funding, the Department prioritizes those who will receive benefits. Unfortunately, the Petitioner is on a waiting list for the Medicaid Waiver Program, and the Individual and Family Support Program does not have sufficient funds appropriated to pay for the services requested by the Petitioner. The Department may not use general revenue funds to fund services for persons awaiting enrollment in the Medicaid Waiver program. The Petitioner's parents need assistance in providing for the care of their son. The Petitioner must be attended lest he be considered "at risk." The parents have incurred debt to provide for their son, have pursued all avenues for assistance known to them, and have unselfishly tended to his needs. The only way the Petitioner may now receive additional benefits would be if the parents abandon their son so that he might be deemed "in crisis." The Petitioner did not become a client of the Developmental Disabilities Program until after July 1, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order denying the benefits sought by the Petitioner at this time. DONE AND ENTERED this 1st day of November, 2002, in Tallahassee, Leon County, Florida. ___________________________________ 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 1st day of November, 2002. COPIES FURNISHED: Hilda Fluriach, Esquire Department of Children and Family Services 401 Northwest Second Avenue Suite N-1020 Miami, Florida 33128 Alejandro A. Penaloza c/o Alejandro O. Penaloza 12205 Northwest 6th Street Miami, Florida 33182 Jerry Reiger, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner is eligible to receive disability income payments under the State Group Disability Income Self-insurance Plan (DISP).
Findings Of Fact On or about February 1, 2005, James S. Purdy, Public Defender for the Seventh Judicial Circuit, State of Florida, hired Petitioner as a "part-time" appellate attorney. Petitioner's duties included representing indigent criminal defendants on appeal. As a "part-time" attorney, Petitioner worked the same number of hours as full-time attorneys. His workload was equivalent to the workload carried by all part-time and full- time appellate attorneys. However, except to attend weekly staff meetings, Petitioner did not perform his duties at the Public Defender's Office. Petitioner and other "part-time" attorneys were free to work from home and/or to maintain a private law office. During Petitioner's employment with the Public Defender's Office, Craig S. Dyer, Deputy Public Defender, was in charge of personnel. James Wulchak, Chief of the Appellate Division, was Petitioner's direct supervisor. Petitioner has been under the continuous care of a physician for Parkinson's disease since his diagnosis in 1997. Parkinson’s disease is a neurological degenerative movement disorder for which there is no known cure. The disease's symptoms initially are responsive to medication but become less responsive over time as the disease progresses. Despite the slow progressive nature of Parkinson’s, Petitioner always was able to compensate for his disability by typing his briefs during the periods of time that his medications were effective in relieving his symptoms. Sometimes he worked before dawn, during the evening hours, or on weekends. Petitioner never informed Mr. Purdy, Mr. Dyer, or Mr. Wulchak that he was unable to perform his duties due to a physical disability. Petitioner never requested or advised his employer of a need for special accommodation to perform his assigned tasks. Petitioner continued to perform the duties required of him as an appellate attorney up through the last day of his employment. Petitioner's employer never contemplated dismissing Petitioner due to his inability to perform satisfactory work. In a meeting on March 25, 2008, Mr. Purdy requested Petitioner's resignation due to an incident unrelated to his disability. Petitioner responded that he needed time to ascertain the status of his insurance benefits. Several days later, Mr. Dyer placed a telephone call to Petitioner. Petitioner again refused to resign. On April 15, 2008, Petitioner attended a routine weekly staff meeting. After the staff meeting, Mr. Dyer and Mr. Wulchak had a private meeting with Petitioner. When Petitioner refused to tender his resignation, Mr. Dyer terminated Petitioner's employment effective immediately. But for the incident unrelated to Petitioner's physical condition, Petitioner's employer would have allowed him to continue to work after April 15, 2008. The next day, Petitioner met with representatives of the Public Defender's Office to surrender files. The Public Defender's Office denied Petitioner's request to be paid for work performed on April 16, 2008. As of April 15, 2008, Petitioner had accumulated 228 hours of annual leave and 242.59 hours of sick leave. Respondent paid Petitioner for 120 hours of annual leave, the maximum allowed. Petitioner did not receive payment for accumulated sick leave because he had not worked six years for the state. At all times relevant here, Petitioner's employment was classified as Select Exempt Service (SES). The DISP is one of the employment benefits that Respondent provides to SES employees under Florida Administrative Code Rules 60P-6 and 60P- The purpose of DISP is to provide employees who are on leave with income once their accumulated leave is depleted. In April 2008, Petitioner filed a claim for disability benefits with the Social Security Administration. On May 5, 2008, Petitioner filed a Notice of Intent to file a claim for benefits under the DISP. In the notice, Petitioner asserted that he was disabled as of April 15, 2008, the last day he was a paid employee. Within 90 days thereafter, Petitioner filed his completed claim for disability income payments under DISP. In a letter dated July 1, 2008, Respondent advised Petitioner that he was not eligible to receive DISP payments because he was no longer a state employee. A letter dated July 5, 2008, advised Petitioner that he would receive Social Security disability income in the amount of $2,060 per month commencing October 2008. Petitioner offered the deposition testimony of Richard Boehme, M.D. in lieu of testimony at hearing. Dr. Boehme, a board-certified neurologist, treated Petitioner several times in 2003 and again in January 2004. Thereafter, Dr. Boehme did not see Petitioner professionally until August 2008. Dr. Boehme's medical opinion was that Petitioner was totally disabled and unable to perform the duties pertaining to his employment as of January 1, 2008. Dr. Boehme's testimony is not persuasive in light of Petitioner's continued productivity up through April 15, 2008. Dr. Boehme did not place any specific limitations on the physical activities of Petitioner. According to Dr. Boehme, there was no medical reason to keep Petitioner from continuing to perform the same duties he performed on his last day at work. The greater weight of the evidence indicates that Petitioner was performing satisfactorily on April 15, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to DISP benefits. DONE AND ENTERED this 13th day of November, 2008, 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 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, 2008. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Henry T. Swann, III Henry Swann, III Post Office Box 4415 St. Augustine, Florida 32085 Dennis Robert Schutt, Esquire Schutt, Schmidt & Noey 2700-C University Boulevard West Jacksonville, Florida 32217 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is entitled to a consumer's certificate of exemption from sales tax as a "charitable institution" as that term is defined by Section 212.08(7)(o)2b., Florida Statutes.
Findings Of Fact Petitioner is a nonprofit organization incorporated under the laws of the State of Florida as a corporation. Petitioner has applied to Respondent for a certificate of exemption from sales and use tax based on its claim that it is a "charitable institution" within the meaning of, and pursuant to the provisions of, Section 212.08(7)(o)2.b., Florida Statutes. 2/ The Internal Revenue Service has determined that Petitioner is exempt from federal income tax under Section 501(a) of the Internal Revenue Code as an organization described in Section 501(c)(3). Edy Sanon, Petitioner's executive director, testified in general terms as to the services performed by Petitioner to persons of Haitian descent. Based on that general testimony, it cannot be determined with any degree of certainty the precise services performed by Petitioner. Mr. Sanon testified that his organization provides translation services and referral services that assist Haitian immigrants in adjusting to life in the United States, becoming employable, and obtaining services from various government agencies. Petitioner engages in fund raising and searches for governmental grants for a center where people can come for help. The extent of its resources expended on fund raising was not established. Mr. Sanon testified that Petitioner provides its services free of charge and that it served approximately 800 clients last year. Chapter 212, Florida Statutes, imposes a tax on sales, use and other transactions. Respondent is the agency of the State of Florida charged with administering Chapter 212, Florida Statutes, and its duties include the issuance of certificates of exemption from tax pursuant to Section 212.08(7)(o), Florida Statutes. Pursuant to its rule-making authority, Respondent has adopted Rule 12A-1.001, Florida Administrative Code, to implement the provisions of Section 212.08(7)(o), Florida Statutes. Although Petitioner has been recognized as a nonprofit organization by the Internal Revenue Service, Petitioner must receive a certificate of exemption from Respondent to be exempt from Florida's tax on sales, use, and other transactions imposed by Chapter 212, Florida Statutes. The provisions of Section 212.08(7)(o), Florida Statutes, and Rule 12A-1.001, Florida Administrative Code, provide the criteria for the exemption sought by Petitioner. Section 212.08(7)(o), Florida Statutes, provides, in pertinent part, an exemption from sales tax as follows: (o) Religious, charitable, scientific, educational, and veterans' institutions and organizations. There are exempt from the tax imposed by this chapter transactions involving: * * * b. Sales or leases to nonprofit religious, nonprofit charitable, nonprofit scientific, or nonprofit educational institutions when used in carrying on their customary nonprofit religious, nonprofit charitable, nonprofit scientific, or nonprofit educational activities . . . * * * The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows: * * * b. "Charitable institutions" means only nonprofit corporations qualified as nonprofit pursuant to s. 501(c)(3), Internal Revenue Code of 1954, as amended, and other nonprofit entities, the sole or primary function of which is to provide, or to raise funds for organizations which provide, one or more of the following services if a reasonable percentage of such service is provided free of charge, or at a substantially reduced cost, to persons, animals, or organizations that are unable to pay for such service: * * * (IV) Social 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 . . . 3/ Rule 12A-1.001(3)(g), Florida Administrative Code, implements the provisions of Section 212.08(7)(o), Florida Statutes, and provides, in pertinent part, as follows: (g)1. "Charitable institutions" means only nonprofit corporations qualified as nonprofit pursuant to s. 501(c)(3), United States Internal Revenue Code, 1954, as amended, and other nonprofit entities that meet the following requirements: the sole or primary function is providing a "qualified charitable service" as defined in this subsection; and a reasonable percentage of such service is provided free of charge, or at a substantially reduced cost, to persons, animals, or organizations that are unable to pay for such service. * * * 3.a. For the purpose of this subsection the following terms and phrases shall have the meaning ascribed to them except when the context clearly indicates a different meaning: I. "Persons unable to pay" means persons whose annual income is 150 percent or less of the current Federal Poverty Guidelines . . . * * * "Substantially reduced cost" means the normal charge, market price, or fair market value to a purchaser or recipient, diminished in an amount of considerable quantity. "Sole or primary function" means that a charitable institution, excluding hospitals, must establish and support its function as providing or raising funds for services as outlined in subparagraphs 1. and 2. above, by expending in excess of 50.0 percent of the charitable institution's operational expenditures towards "qualified charitable services", as defined in subparagraph 2.a. - g. within the charitable institution's most recent fiscal year. Petitioner established that it is a nonprofit organization. Petitioner did not present any financial data at the formal hearing. In the absence of that financial information, it cannot be found that Petitioner disburses more than fifty percent of its expenditures to provide or raise funds for a provider of a statutorily listed service. The absence of that information is fatal to Petitioner's application. 4/ The unchallenged testimony of Mr. Sanon was sufficient to establish for the purposes of this proceeding that Petitioner does not charge for its services. Petitioner did not establish at the formal hearing the ability of any of its client to pay a reasonable fee for the services provided by Petitioner. The general testimony of Mr. Sanon failed to establish that the translation, referral, and other services provided by Petitioner are "social welfare services" within the meaning of Section 212.08(7)(o)2.b., Florida Statutes. 5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that denies Petitioner's application for a certificate of exemption. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998.
The Issue The issue in this case is whether Petitioner is entitled to receive supplemental compensation under the Firefighters Supplemental Compensation Program.
Findings Of Fact At all material times, Petitioner has been employed as a firefighter with the City of Deland Fire Department. By submitting course transcripts on September 18 and 20, 1989, Petitioner applied to the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance for additional compensation under the Firefighter Supplemental Compensation Program. The course transcripts were from Brevard Community College and Valencia Community College. The Brevard transcript showed that, over a four-year period ending September 13, 1989, Petitioner had earned 69 semester credit hours, for which he was awarded an associate in arts degree in August, 1988. (All credit hours reported below are semester credit hours.) The courses for which Petitioner earned credits at Brevard are as follows (three credit hours for each course unless indicated otherwise in parentheses): general psychology, general chemistry I and II, general chemistry lab I and II (each 1), engineering graphics (4), college algebra, weight training (1), communications I and II, stage band (1), archery (1), fundamentals of speech communication, swimming (1), college trigonometry, first aid and safety (2), organic chemistry I and II, organic chemistry lab I and II (each 1), academic/career planning, U.S. history I and II, oceanography, introduction to physical geology, cardiopulmonary resuscitation (1), tennis (1), survey of American literature, contemporary humanities of the 20th century, and--following the receipt of the degree-- developmental psychology. After earning his associate in arts degree, petitioner took ten credit hours at Valencia Community College during the second session of the 1988-89 school year. The courses and their credit hours are: fundamentals of emergency medical technology (4), fundamentals of emergency medical technology practice (3), and emergency medical technician clinical practicum (3) By notice dated October 18, 1989, the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance informed Petitioner that the information that he had submitted for entry into the Supplemental Compensation Program was not acceptable. The notice explains that Petitioner "does not have 18 hours fire science within degree transcript." The notice advises at the bottom: "When you have all of the appropriate paperwork properly filled out, please resubmit." By letter dated November 8, 1989, Frederick C. Stark, Chief of the Bureau of Fire Standards and Training, informed Petitioner that his transcripts failed to disclose a "major study concentration area" to qualify for supplemental compensation. The letter quotes Rule 4A-37.071(2), Florida Administrative Code: The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically identified in Rule 4A-37.073 are considered by the Division to be readily identifiable and applicable as fire-related. The letter advises Petitioner of his right to a hearing. Following some communications from Petitioner, Mr. Stark wrote another letter to Petitioner dated November 27, 1989. The letter states in its entirety: After further review of your transcript from Valencia Junior College, may I suggest that you take the necessary courses needed to get an Emergency Medical Technology degree. I feel that this would be the best way to go since you already have courses in this area. If I can be of any further assistance please call me at [number omitted]. Petitioner re-enrolled in Brevard Community College for the second semester starting January 8, 1990. He completed a three-credit hour course in statistics and a two-credit hour course in medical terminology. He also received credit, through a CLEP examination, for four credit hours in general biology. On June 18, 1990, Petitioner resubmitted the transcript materials showing the additional coursework at Brevard Community College. By letter dated July 10, 1990, Mr. Stark informed Petitioner that his application for entry into the Firefighters Supplemental Compensation Program had been denied for noncompliance with Section 633.382, Florida Statutes, and Chapter 4A-37, Florida Administrative Code. The letter quotes Rule 4A-37.085(2) as follows: "To be eligible to receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following requirements must be met: Possess an eligible Associate or Bachelors Degree." Prior to advising of a right to a hearing, the letter concludes: "it has been determined that your Degree is not readily identifiable and applicable as fire-related, per Rule 4A- 37.084. By letter dated July 17, 1990, to the Bureau of Fire Standards and Training, Petitioner requested a formal administrative hearing. The letter states that Petitioner had at least 18 semester hours readily identifiable and applicable as fire-related. In the July 17 letter, Petitioner asserts that he had called Mr. Stark prior to taking the additional courses and had been told that he needed only six additional semester hours, because he had 12 semester hours in approved courses. The letter claims that Mr. Stark had approved specific courses prior to Petitioner's taking them and had said it was unnecessary to confirm anything in writing. Petitioner complains in the letter that he was only lately told that he could meet the 18 semester-hour requirement only by earning a new associate degree. To earn an associate in arts or associate in science degree from Brevard Community College, a student must satisfy various requirements, such as completing a "prescribed course of study which includes at least 64 semester hours of credit," according to the college catalog. The associate in arts degree offers no opportunity to declare a major. 1/ The associate in science degree offers various majors. The associate in science technical program offers a major in fire technology that is designed to "qualify fire personnel for career advancement." The coursework described in this program represents strong evidence of the kind of courses that are fire- related. The coursework for the associate in science degree with a major in fire technology requires, among other things, the following courses and credit hours: two English courses (3 each), one physical science course (3), one chemistry course (3), one algebra course (3), two government courses (3 each), one human relations course (3), and two physical education courses (1 each). Although Petitioner did not take the identical courses required for the associate in science degree with a major in fire technology, he took comparable courses that, in each case, were more difficult than those required for the associate in science degree. The courses that Petitioner took that correspond in subject matter and credit hours to the Brevard requirements for a major in fire technology are: general psychology (3), general chemistry I (3), college algebra (3), communications I (3), fundamentals of speech communication (3), weight training and swimming (2), and U.S. history I and II (6). Other fire-related courses are first aid and safety (2) and cardiopulmonary resuscitation (1). Petitioner thus earned, prior to receiving his associate in arts degree, 26 hours in courses that are readily identifiable and applicable as fire-related. Valencia Community College is similar to Brevard Community College in offering no majors within the associate in arts degree. Valencia's associate in science degree with a major in fire science requires the following courses and credit hours: composition (3), U.S. government (3), psychology in business and industry (3), business math (3), fundamentals of speech (3), technical communication (3), introduction to general chemistry (4), introduction to sociology (3), and humanities (3). when measured against the requirements of Valencia Community College for a major in fire science, in terms of subject matter and credit hours, Petitioner earned a total of 25 or 28 credit hours in fire-related courses. Adding the first aid and cardiopulmonary resuscitation courses, Petitioner earned, in this comparison to the Valencia requirements, between 28 and 31 credit hours in courses that are clearly fire-related and within a major study concentration area that is fire-related. Neither an associate nor bachelor degree is required for Petitioner's present job as a firefighter. His job responsibilities include preventing and extinguishing fires, maintaining firefighting equipment, and conducting life support activities. His specific responsibilities include raising and climbing ladders, using chemical extinguishers, performing rescue activities, conducting fire education, performing life-support activities, and attending training courses to learn more about fire prevention and protection.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance, Division of State Fire Marshall, issue an amended final order determining that Petitioner is eligible to receive supplemental compensation of $50 monthly commencing no later than the first full calendar month following the date of the initial final order entered in this case. RECOMMENDED this 11th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Attorney Lisa S. Santucci Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Peter T. Campbell, III 445 Clarewood Boulevard Titusville, FL 32796
The Issue Whether Petitioner, Children's Charity Fund, Inc., qualifies under Section 212.08(7)(o)2.b., Florida Statutes, for a consumer certificate of exemption as a charitable institution.
Findings Of Fact Petitioner, Children's Charity Fund, is a not-for-profit corporation and qualifies as a tax-exempt organization pursuant to Section 501(c)(3) of the United States Internal Revenue Code. Petitioner maintains an office in Sarasota, Florida. The articles of incorporation specify that the nature of the business to be transacted and the purpose to be promoted by Children's Charity Fund "shall be exclusively charitable, including raising funds in any lawful manner" for the following purposes: (1) to educate and inform the public about the needs of handicapped and disabled children; (2) to provide referral services and maintain a hot-line for handicapped children; (3) to provide services "in whatever form possible that the Board may deem necessary" for handicapped children and their parents; and (4) to buy medical equipment for handicapped and disabled children. The Children's Charity Fund claims entitlement to a consumer certificate of exemption based primarily on the fourth purpose listed in paragraph 2 above. In carrying out this purpose, the Children's Charity Fund purchases various types of medical equipment for handicapped and disabled children who reside in Florida as well as in other states. The medical equipment is provided to children who need the equipment, but whose parents have no insurance or their requests for the equipment have been turned down by Medicare, Medicaid, or their insurance companies. In determining which applications for medical equipment it will approve, the Children's Charity Fund has not established income limits for the applicant family. The circumstances of each family are considered on a case-by-case basis and factors other than income are also considered. To date, Children's Charity Fund has never denied an application for medical equipment for a handicapped or disabled child, regardless of family income, if such equipment was needed by the child. In addition to purchasing medical equipment for handicapped and disabled children, the Children's Charity Fund provides Christmas gifts and tickets to events organized and promoted by the Children's Charity Fund such as charity softball games. The Children's Charity Fund claims that these gifts and tickets are charitable services. During its most recent fiscal year, the Children's Charity Fund spent less than 50% of its operational expenditures on qualified charitable services. The evidence at hearing established that during the relevant time period, Children's Charity Fund spent less than 35% of its total operating expenditures on qualified charitable services. This percentage does not meet the requirements of Rule 12A-1.001(3)(g)3.e., Florida Administrative Code, which mandates that the organization seeking tax exempt status as a charitable institution spend "in excess of 50.0 percent of [its] operational expenditures toward qualified charitable services." During its most recent fiscal year, Children's Charity Fund spent approximately 50% of its operating expenditures to pay for fundraising activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer certificate of exemption to Petitioner, the Children's Charity Fund, Inc. DONE AND ENTERED this 18th day of May, 1998, in Tallahassee, Leon County, Florida. Carolyn S. Holifield Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1998. COPIES FURNISHED: Ken Bowron, Sr. Executive Director Children's Charity Fund, Inc. 2011 Bispham Road Sarasota, Florida 34236 Kevin J. O'Donnell Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Did the Department of Children and Family Services (Department) improperly deny funds to Maurice Parkes for the purchase of bottled water?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family care program, and the provisions of in-home subsidies. Petitioner is a developmentally disabled child who lives in his family's home and receives numerous services from the Department for his developmental disability, medical, and physical problems. The services presently being furnished to Petitioner are funded through the Medicaid Waiver Program. The bottled water at issue is not funded through the Medicaid Waiver Program and would have to be funded through General Revenue funds. General Revenue funds appropriated by the legislature for the fiscal year 2001-2002 to the Department have largely been moved to the Medicaid Waiver Program to obtain the benefit of federal matching funds, which are provided at the rate of 55 cents for each 45 cents of state funds. The use of General Revenue Funds to obtain matching federal funds for the Medicaid Waiver Program allows the Department to service some of those developmentally disabled clients that are presently eligible for the Medicaid Waiver Program but have not been receiving services due to lack of funding. There are no uncommitted funds in the General Revenue category of the Developmental Services' budget that could be used to fund the purchase of bottled water for Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request to provide him with bottled water. DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2002. COPIES FURNISHED: Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Maurice Parkes c/o Erika Parkes 2229 Bonita Way, South St. Petersburg, Florida 33712 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner is a Florida not-for-profit corporation which is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code. The Petitioner has established a Mark Twain Scholarship Fund the purpose of which is to give recipients funds to pay for post-secondary tuition and books. On or about September 26, 1994, Petitioner filed an application with Respondent for a consumer certificate of exemption and stated as its basis "other." The applicant then identified itself as "state/church separation" organization. Petitioner did not check any of the other categories for exemptions such as "religious," "educational," or "charitable." The application was reviewed by the Department considering all of the categories listed on the application and available under the pertinent statute. Based on the criteria set forth in Section 212.08(7), Florida Statutes, the Department reached a preliminary decision which denied the Petitioner's application for a certificate of exemption. Petitioner was notified of the denial and timely challenged the agency action. All of the members of the Petitioner's group are voluntary, unpaid, participants who pay yearly dues to join the organization. Students pay $10.00, individuals $30.00, and couples $35.00. If someone were to allege poverty, Petitioner would arrange a free membership for such individual. No evidence of members of that category was presented. The only information about its members Petitioner seeks is their educational background. Documentation regarding financial circumstances of each member is not requested nor kept. Petitioner provides benefits to minors by providing speakers for various topics at the university and high school levels, and by allowing students to attend monthly meetings. Monthly meetings for the south Florida group are held in the Fort Lauderdale library. Other chapters in Tampa and Sarasota also hold meetings periodically and such meetings are, presumably, available to students. In Tampa, for example, Petitioner has an information booth on the campus of the University of South Florida. Petitioner attempts to offer a "scientific and more rationale" point of view to young adults. For the south Florida meetings, approximately 5 to 10 persons under 18 years of age might attend. The average attendance of all members is 20 to 40 persons. Petitioner also produces a public access cable television program consisting of twelve half-hour episodes per year. Topics of this program have included "Sin and Sexuality." Petitioner established the scholarship fund indicated above. One recipient was a woman in prison for life in California who wanted to attend the University of California. More recently, Petitioner conducted an essay contest and two men from that event received awards. None of the scholarship recipients was a minor. The total amounts expended on scholarships by the Petitioner did not exceed 10 percent of its total expenditures. The Petitioner's group started with approximately 53 members but has grown to over 200 members. Petitioner provides support to its members who may encounter scorn or harassment from the public and has a telephone line set up so that messages can be taken twenty-four hours of the day. Someone from the organization can then return the call and assist the caller. Public harassment is not uncommon for members of the group. For example, when Mr. Tzanetakos opposed the use of public monies in connection with the Pope's visit to south Florida, he received so many telephone calls that he had to change to an unpublished number. Mr. Tzanetakos maintains that while his organization's views are an unpopular minority in this country, that they are in the majority in Europe and other places. One of the purposes of the Petitioner's group is to advocate, support, and defend "in all lawful ways the complete and absolute separation of church and state." Another purpose is to promote freedom of expression. Thirdly, the group seeks to "protect the constitutional and civil rights of Atheists as members of a free and democratic society." According to its articles of incorporation, Petitioner promotes the following concepts: Because human beings, along with all other species of animal and plants, evolved from a primordial cell, Homo sapien is only a link in the chain of living matter. Because Homo sapiens is the species with the most advanced brain and the most manipulative hands, and because we have developed excessively destructive weapons (nuclear and others), we are solely responsible for the well-being of our own species and to a great extent the rest of the life on planet Earth. Global population control is vital, and the extinction of other living animal and plant species must be avoided. Cooperation and equality--not conflict-- among all peoples must be encouraged and promoted. Because all humans have a common origin, and because the classification of peoples by races and ethnic groups is divisive and detrimental to our species and to life itself, all inhabitants on planet Earth (sic) [should?] be called "Homo Sapiens", and the current national names to denote the geographical origin of peoples and their distinctive cultures. Minors are not specifically mentioned in the Petitioner's articles of incorporation nor given benefits of membership not available to other members or, in the case of the television broadcasts, the public as a whole. Mr. Tzanetakos conceded that one of the television topics, "Euthanasia," may not have been of particular interest to minors. He further acknowledged that it is difficult to get children to watch educational television. The Petitioner does not advertise its programs to the general public, nor does it survey viewers to determine the numbers of minors, if any, that support its television program. Petitioner accepts only "what can be verified by the scientific method and rejects supernatural entities, acceptable only as articles of faith." Accordingly, Petitioner's members do not "worship" god or anything. The Petitioner did not present evidence that it is qualified for accreditation by, or membership in, the Department of Education, the Southern Association of Colleges and Schools, the Florida Council of Independent Schools, or the Florida Association of Christian Colleges and Schools.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Revenue enter a final order denying the application for a consumer's certificate of exemption filed by Petitioner. DONE AND ENTERED this 8th day of March, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 8th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0654 Rulings on the proposed findings of fact submitted by Petitioner: 1. None timely submitted. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 22 are accepted. COPIES FURNISHED: Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Mark Trop Shoreview Building 9999 Northeast Second Avenue, Suite 201 Miami, Florida 33138 Ruth Ann Smith Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Findings Of Fact Respondent, Maria DeSillers, is the mother of Ronald David DeSillers, Jr. (Ronnie), a minor, now deceased. Because of an illness suffered by her son, respondent solicited, either directly or indirectly, funds for the benefit of her son. On January 29, 1987 respondent opened an account in the Coral Gables Federal Savings and Loan Association under the name "Maria DeSillers as Custodian for Ronald David DeSillers, Jr. under the Florida Uniform Transfers to Minors Act" (custodial account). A deposit of approximately $660,000 was made into the custodial account the same day. The establishment of the account was made under the authority of Chapter 710, Florida Statutes (1987), which governs the transfer of property by gift to minors. Under the statutory scheme set forth in Chapter 496, Florida Statutes (1987), charitable organizations, subject to certain exceptions, must register with petitioner, Department of State, Division of Licensing (Division). Although respondent acknowledges that her actions of soliciting funds constituted a charitable organization as defined by Subsection 496.02(2)(a), Florida Statutes (1987), the parties have stipulated that respondent has never registered as a charitable organization with the Division. On April 29, 1987 Ronnie died intestate (without a will). The balance in the custodial account on the day of his death was $509,912.50. The parties have stipulated that, after Ronnie's death, the following transfers and expenditures were made by respondent from Ronnie's custodial account: On May 13, 1987 respondent transferred $227,971 from the custodial account into a Maria DeSillers account which stated it was in trust for her parents, Manuela and Jose Marchante. On June 20, 1987 respondent paid $400 from the custodial account to Plaza Venetia as a deposit on a rental unit. On June 27, 1987 respondent paid $1,350 from the custodial account to Plaza Venetia. The stipulation does not disclose the purpose of this payment. On July 9 and 10, 1987 respondent made cash withdrawals from the custodial account in the amounts of $7,000 and $3,000, respectively. On July 10, 1987 respondent transferred $158,132 from the account in trust for her parents into a Barnett Bank Account entitled "Maria DeSillers." On January 19, 1988 respondent withdrew $25,000 from the custodial account to pay attorney fees. On December 31, 1987 petitioner subpoenaed the bank records of the custodial account and commenced an investigation into the matter. The investigation culminated in the issuance of an administrative complaint against respondent on January 29, 1988 alleging she had violated Subsection 496.04(1)(b), Florida Statutes (1987), by failing to register with petitioner as a charitable organization after having lost her exemption from registration. That prompted this proceeding. The parties have stipulated that the balance in the custodial account was $262,015.37 on November 18, 1987 and $239,287.93 on February 17, 1988. On March 7, 1988 the circuit court in and for the Eleventh Judicial Circuit, Probate Division, appointed Karen Gievers, Esquire, as curator to protect the remaining assets of Ronnie's estate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against Maria DeSillers be DISMISSED with prejudice. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1988.
The Issue Whether the Petitioner qualifies for a consumer's certificate of exemption as a "Religious Institution" or "Church" or as a "Charitable Institution" as defined in Chapter 212, Florida Statutes.
Findings Of Fact Petitioner was incorporated in the State of Florida as a nonprofit corporation on May 11, 1995. On February 21, 1995, Petitioner filed an application for a consumer's certificate of exemption as a charitable institution. The Department under its statutory powers denied the application and advised the Petitioner of his right to a hearing on his application. George B. Cooper is the incorporator president and treasurer of Petitioner. Mr. Cooper serves as the pastor of the Petitioner. Mr. Cooper is a Seventh Day Adventist and attended religious training with that denomination. He is not an ordained minister. The business office and business address of Petitioner is in Jacksonville, at the home of a friend of Mr. Cooper. Mr. Cooper resided in Jacksonville initially, and started his missionary activities there. He subsequently moved the mission to Daytona Beach, and resides in Jacksonville and overnights in Daytona Beach when engaged in mission work. Mr. Cooper leases one-third of a private residence located at 610 Winchester Street, Daytona Beach, Florida. Mr. Cooper provided receipts for $1075 for leasing this space from February, 1995, until July, 1995, and a letter from the landlord which indicates that she is aware that Mr. Cooper conducts religious services there. The leasehold includes a large meeting room with chairs for persons attending services and a podium from which Mr. Cooper leads religious services which include prayer, song and preaching. A small room is available with a cot and sleeping bag to provide a place for homeless to overnight. Mr. Cooper sleeps at the mission when in Daytona Beach. In addition the leasehold includes access to bath and kitchen facilities. Clothes and food are also stored at the mission which Petitioner provides to persons in need. These clothes and food items are gifts in kind obtained from individuals and organizations. Mr. Cooper does not maintain complete records of the items given to him or of the items which he gives away. Mr. Cooper testified that he received $4667 between May and December, 1994 which included $4000 which he received from distribution of religious tracts and pamphlets. Mr. Cooper testified that his expenditures between May and December, 1994 were $5150. This included expenses of $2100 for travel, rent and utilities, $383 for office materials, $100 for literature and gifts of food, clothes and money in the amount of $2567. None of the gifts of money were to other religious or charitable organizations. The Petitioner's mission in Daytona Beach provides clothes, food and minimal temporary shelter to homeless persons and others in need, together with preaching the gospel. To this end, Mr. Cooper conducts church services at regular times during the week and is available to provide care to those who come by his mission 24 hours a day when he is in Daytona Beach.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the application of the Petitioner as a religious institution be approved. DONE and ENTERED this 7th day of September, 1995, in Tallahassee Florida STEPHEN F. DEAN, 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 September, 1995. APPENDIX The Department filed proposed findings which were read and considered. The following states which of those findings were adopted and which were rejected and why: Respondent's Recommended Order: Findings: Paragraphs 1, 2 Paragraphs 1, 2 Paragraphs 3, 4 Subsumed by Paragraphs 3, 4 Paragraph 5 Subsumed in part in 3, 4; and rejected in part as irrelevant Paragraphs 6, 7 Subsumed in Paragraph 1 Paragraph 8 Irrelevant There is no allegation that the application was incomplete Paragraph 9 Irrelevant except that the Department automatically considers alternative basis for exemptions Paragraph 10 Subsumed in Paragraph 1 Paragraph 11 Subsumed in Paragraph 6 It is irrelevant that there are no signs or ads or telephone These are not required of a church. Paragraph 12 Deleted from Respondent's findings Paragraph 13 Statement of Case Paragraph 14 The listing of items is not necessary as a finding. Paragraph 15 Subsumed in Paragraph 6 Paragraphs 16, 17 Subsumed in Paragraph 4 Paragraph 18 Subsumed in Paragraph 5 Paragraph 19 Irrelevant and invades the province of the fact finder Paragraph 20 Conclusion of Law COPIES FURNISHED: George B. Cooper, Pastor 2172 McQuade Street Jacksonville, FL 32209 and 610 Winchester Street Daytona Beach, FL 32114 Nancy Francillon, Esquire Lisa M. Raleigh, Esquire Assistant Attorneys General Office of the Attorney General The Capital-Tax Section Tallahassee, FL 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
