The Issue Whether Petitioner's application for Firefighter's Supplemental Compensation should be granted?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner graduated from Southern Illinois University in Carbondale, Illinois in May of 1976 with a Bachelor of Science degree. His major was "Radio-Television." Petitioner is currently employed by the City of Delray Beach as a firefighter/paramedic, the job description for which reads as follows: JOB TITLE: FIREFIGHTER/PARAMEDIC GENERAL DESCRIPTION: Skilled technical work in the City's Fire Department in the field of fire suppression, prevention and emergency medical services. Work is performed under the general direction of the Battalion Chief. ESSENTIAL JOB FUNCTIONS: Performs all duties in the Firefighter job description. Responds with necessary equipment to requests for medical assistance, where life is endangered by illness or injury. Administers basic and advanced life support at the scene of an emergency. Transports victims to the closest appropriate medical facility according to protocol, unless turned over to a licensed transport agency with equal or higher medical authority. Maintains basic and advanced life support apparatus and equipment. (These essential job functions are not to be construed as a complete statement of all duties performed. Employees will be required to perform other job related marginal duties as required.) FULL PERFORMANCE KNOWLEDGE, SKILLS, ABILITIES AND PERSONAL CHARACTERISTICS: Knowledge of the positions of firefighter and driver engineer and the skills to perform the duties of each. Knowledge of the geography of the City with respect to streets, hydrants and building access information. Knowledge of the location and layout of all high risk and special hazard occupancies, and the problems encountered with each. Knowledge of the strategy and tactics of handling fire, rescue and medical emergencies and the ability to analyze and respond effectively under stress to each. Knowledge of the record keeping system in use, the components of the system, and the functions of each. Knowledge of paramedic principles, practices and techniques and how they are used in rescue operation. Ability to carry out orders and to see that department and City policies are adhered to. Ability to perform Firefighter and ALS duties effectively. MINIMUM QUALIFICATIONS: High School graduation or possession of an acceptable equivalency diploma. Completion of minimum standards as required by the State of Florida. Successful completion of all medical and fitness requirements and examinations as described by the City. LICENSES, CERTIFICATIONS OR REGISTRATIONS: State of Florida Paramedic Certification. State of Florida Firefighter Certification. Protocol Certification issued by Department Medical Director. Class D Commercial Drivers License. ESSENTIAL PHYSICAL SKILLS: Meet physical requirement as indicated for State certification. Must endure sustained acts of physical exhaustion and endure periods of duty under unfavorable and life threatening situations. Heavy (45 pounds and over) lifting and carrying Reaching Acceptable eyesight (with or without correction) Acceptable hearing (with or without hearing aid) Ability to communicate orally Climbing (including ladders) Pulling Pushing Walking Standing Crawling Kneeling Bending Balancing Smelling Stooping Jumping Throwing Driving Running Swimming ENVIRONMENTAL CONDITIONS: Hazardous conditions: flames, fire, chemicals, smoke, heat, gases, moving vehicles, falling structures and debris, electricity, poor ventilation, poor lighting and related hazards Stressful situations Bio-hazard infectious disease (Reasonable accommodations will be made for otherwise qualified individuals with a disability.) Because of his educational background in "Radio- Television," Petitioner has, on occasion, been requested by his supervisors to produce video tapes used for firefighter/paramedic training or for educating the public concerning the services offered by the City of Delray Beach Fire Department. The production of these video tapes, however, is not one of Petitioner's primary job duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Respondent is not entitled to the supplemental compensation he is seeking pursuant to Section 633.382(2)(a)2., Florida Statutes. DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
Findings Of Fact At all times relevant to this matter, Respondent, Paul Meloy, Sr. (Meloy), was Volunteer Fire Chief of the Fire Protection and Rescue District for Alva, Florida. As such, he was a "public officer" of an "agency" within the meaning of Sections 112.312(2) and 112.313(1), Florida Statutes. Meloy helped to establish a volunteer fire department in the rural community of Alva, Florida in 1973. Meloy was selected as the volunteer fire chief. In 1976, the Alva Fire Protection and Rescue Service District (District) was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. In approximately 1984, Meloy took a 40-hour volunteer firefighting course and became certified as a volunteer firefighter. Full-time firefighters were required to complete a 280-hour firefighting course to become certified as firefighters pursuant to Section 633.35, Florida Statutes. Meloy never took the 280-hour course and has never been a state certified fire fighter pursuant to Section 633.35, Florida Statutes. In 1988, the District joined the State of Florida Retirement System (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator for the District, but did not draw a salary but continued to receive remuneration in the form of the monthly reimbursement for expenses. The full-time firefighters were enrolled in the FRS in 1988 as special risk members, which would allow them to retire at an earlier age than regular members of the FRS and with greater benefits. In June, 1990, Meloy was interviewed by an investigator from the Florida Commission on Ethics (Commission) concerning an Ethics Complaint unrelated to the complaint filed in the instant case. Meloy told the investigator that he was not receiving a salary from the District, but that he was receiving reimbursement for expenses. Additionally, he told the investigator that he was not certified to be a full-time professional firefighter. In 1990, Connie Bull, was employed as a part-time secretary for the District. Until the District received a letter from the Commission explaining that part-time employees should be enrolled in the retirement system, neither Ms. Bull nor Meloy was aware that part-time employees filling established positions were to be enrolled in the retirement system from the date of their employment. Ms. Bull called the Division of Retirement (Division) which is the agency responsible for administering the FRS. She talked with Ira Gaines concerning the requirement for the enrollment of part-time employees. Ira Gaines is the retirement services representative with the Division who is responsible for determining eligibility for members in the special risk plan of the FRS. Neither Ms. Bull nor Mr. Gaines recalls any discussion they may have had concerning certification requirements for enrollment in the special risk class. Ms. Bull obtained enrollment forms from the Division. She and Meloy filled out and signed the enrollment forms. The form Ms. Bull used for her enrollment was for regular membership. The form used by Meloy was for enrollment in the special risk plan. On September 22, 1990, Meloy represented on his enrollment form that he was a firefighter certified, or required to be certified, by the Bureau of Fire and Training and that he was the supervisor or command officer of special risk members whose duties included on the scene fighting of fires. Additionally, Meloy in his capacity as fire chief certified that his position meets the criteria for special risk membership in accordance with Section 121.0515, Florida Statutes, and Florida Retirement System Rules, and he was certified or required to be certified in compliance with Section 943.14 or Section 633.35, Florida Statutes. When he was completing the enrollment form, he told Ms. Bull that he knew that he was not certified. Meloy testified in his defense that when he signed the application form that he knew that he was not a certified full-time firefighter and that he knew that special risk members were required to be certified. Meloy stated that by signing the application he was acknowledging that special risk members were required to be certified not that he was certified. Having judged the credibility of Meloy, I find that Meloy's testimony is not credible. Ms. Bull sent the executed enrollment forms to the Division on October 17, 1990, with a cover letter stating that she and Meloy had worked for the District for some time on a part-time basis, but were unaware that as part-time employees they should have previously have been enrolled in the retirement system. In either 1990 or 1991, after he had executed the enrollment form, Meloy began receiving a salary from the District instead of reimbursement for expenses. In January, 1991, the District purchased back retirement benefits for Meloy from August, 1985 through June, 1988 for $4,207.97. Sometime after the enrollment forms were submitted and Meloy had been enrolled in the FRS, Ira Gaines and Meloy discussed Meloy's certification. Meloy told Mr. Gaines that he had taken a course which certified him as a firefighter. Meloy did not tell Mr. Gaines that he was a firefighter certified pursuant to Section 633.35. Meloy sent Mr. Gaines a copy of a letter dated September 16, 1991, from the Department of Insurance which stated that Meloy had held a Certificate of Competency entitled Volunteer Basic since July 11, 1984. Meloy did not qualify for special risk membership in the FRS. In May, 1992, Meloy was interviewed by an investigator for the Commission concerning the allegations in the Ethics Compliant which had been filed against Meloy. Meloy told the investigator that he knew that the enrollment application which he signed required that the employee had to have taken the 280-hour course to be eligible for the special risk class. By letter dated June 29, 1992, the Division notified Meloy that his membership in the FRS and the Florida Retirement Special Risk Class was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation and that he was not certified in compliance with Section 633.35, Florida Statutes. Meloy did not appeal the Division's decision. If Meloy had been allowed to remain as a special risk member in the FRS, he would have been eligible to draw annually at least $2,024.92 in special risk benefits beginning as early as August, 1995. There was no evidence presented that established that Mr. Meloy had anything to do with Assistant Volunteer Fire Chief Brent Golden's application, membership, or retention of any benefits from the FRS and the parties so stipulated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Paul Meloy, Sr. violated Section 112.313(6), Florida Statutes, as it relates to the allegations concerning his retirement benefits but not as to the retirement benefits of the Assistant Fire Chief, imposing a civil penalty of $2,024.92, and issuing a public censure and reprimand. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5984EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2-4: Accepted in substance. Paragraph 5: Accepted. Paragraphs 6-7: Rejected as unnecessary detail. Paragraphs 8-12: Accepted in substance. Paragraph 13: The first, third, and fourth sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. In practice both Mr. Tiner and Meloy supervised the firefighters during on-the-scene fighting of fires. The last sentence is rejected as irrelevant to the extent that Meloy listed all the duties that he was actually performing for the fire department. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. There was no evidence presented to show that Meloy knew that the Commissioners and not he should have executed the enrollment form on behalf of the employer. Paragraphs 16-17: Rejected as subordinate to the facts actually found. Paragraph 18: Rejected to the extent that it implies that Meloy took no steps to seek help from the Division. He did direct Ms. Bull to call the Division which she did. Paragraph 19: Rejected as subordinate to the facts actually found. Paragraphs 21-22: Accepted in substance. Paragraph 23: Accepted in substance except as to the amount. 13. Paragraphs 24-25: Rejected as constituting argument. Respondent's Proposed Findings of Fact 1. Paragraph 1: Rejected as constituting a conclusion of law. COPIES FURNISHED: Stuart F. Wilson-Patton Advocate For the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 John H. Shearer, Jr., P.A. Post Office Box 2196 Fort Myers, Florida 33902-2196 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
The Issue At issue in this proceeding is whether the son of Floyd Goins, an enrollee of the State of Florida Employees Group Health Self Insurance Plan, is an eligible dependent under the provisions of such plan, and therefore eligible for insurance benefits.
Findings Of Fact Background Floyd Goins (the "Insured") has been employed by the State of Florida, Dade County State Attorney's Office, for approximately 11 years, and was, at all times material hereto, a participant in the State of Florida Employees' Group Health Self Insurance Plan (the "Plan"), with family coverage. On January 17, 1988, the Insured's son, Ronald Goins (Ronald), date of birth March 7, 1965, was involved in an automobile accident in which he sustained serious injury. As a consequence, Ronald was admitted to Jackson Memorial Hospital, where he apparently underwent extensive treatment. As a result of the accident, Ronald suffered severe physical handicap, in that he cannot walk or talk, and is not capable of self sustaining employment. Currently, Ronald resides with his parents, and is wholly dependent upon them for support. As a consequence of the medical expenses incurred on behalf of Ronald, a request for reimbursement was made to respondent, Department of Administration, Division of State Employees' Insurance (Department), under the Plan. Upon review, the Department, relying upon the provisions of Rule 22K- 1.103, Florida Administrative Code, concluded that Ronald, since he was over the age of 19 at the time of the accident and was not enrolled in and attending a school, college or university as a full-time student at the time of the accident, was ineligible for coverage as a dependent under the Plan. Accordingly, the Department denied the request for reimbursement. Thereafter, the Insured assigned to petitioner, The Public Health Trust of Dade County, Florida d/b/a Jackson Memorial Hospital, his interest in any benefits payable for services rendered by such facility as a consequence of Ronald's admission, and further authorized Jackson Memorial to take whatever legal action might be necessary to collect such benefits. As a consequence, petitioner filed a request for formal hearing to contest the Department's conclusion that Ronald was ineligible for coverage under the Plan. 1/ The issue of coverage. Under the provisions of the Plan, an employee's "eligible children" are included within the definition of "eligible dependents" who are eligible to participate in the Plan, provided family coverage has been selected. Rules 22K- 1.103(5) and 22K-1.201(2), Florida Administrative Code. "Eligible children" are defined by Rule 22K-1.103(4), Florida Administrative Code, as follows: "Eligible children" shall mean the employee's . . . own children . . . Such children are eligible for coverage as follows: From their date of birth to the end of the month in which their nineteenth (19th) birthday occurs; From their nineteenth (19th) birthday to the end of the month in which their twenty-third (23rd) birthday occurs, if they are enrolled in and regularly attending on a full-time basis any school, college or university which provides training or educational activities, and which is certified or licensed by a state or foreign country. Such children who are mentally or physically handicapped shall be eligible to continue coverage after attainment of the above age limits and while the employee's or retiree's family coverage is in effect provided such children are incapable of self- sustaining employment by reason of such mental or physical handicap and chiefly dependent upon the employee, retiree or supervising spouse for support and maintenance. (Emphasis added) And, Rule 22K-1.103(9), Florida Administrative Code, defines "full-time basis", as follows: (9) "Full-time basis" shall mean the number of hours required by the school, college or university to qualify an eligible child as a full-time student. In no case shall an eligible child be considered attending on a full-time basis unless such child is currently enrolled and attending, or has, during the previous twelve (12) month period, attended as a full-time student, two (2) semesters, three (3) quarters or eight (8) months at such school, college or university. (Emphasis added) Here, petitioner contends that Ronald was an eligible dependent of the Insured, and therefore covered by the Plan because he was "enrolled in and regularly attending on a full-time basis" Bauder College, an institution licensed by the State of Florida, at the time of his accident or, alternatively, because such accident rendered him "physically handicapped." The proof fails, however, to support the conclusion that Ronald was an eligible dependent of the Insured, at the time of the accident, on either basis. Ronald's educational pursuits. Regarding Ronald's educational pursuits, the proof demonstrates that his public education was interrupted in or about 1984 when he was incarcerated in the State prison system, and that he remained so incarcerated until the later part of 1987. While incarcerated, Ronald apparently pursued some educational program, although no specifics were offered at hearing from which any conclusion could be drawn regarding its "full-time" nature, since the Department of Education awarded to him a high school diploma on December 12, 1984. Ronald apparently also pursued, while incarcerated, a course of study in electronic repair through Sumter Vocational School, during the period of November 1, 1985 to September 20, 1986. [Petitioner's Exhibit 1]. Again, no specifics were offered at hearing from which any conclusion could be drawn regarding the "full- time" nature of this program, but Ronald was awarded a certificate upon its completion. In sum, the proof fails to support the conclusion that Ronald, while incarcerated, was enrolled in and regularly attending any school on a "full-time basis", as that term is defined by Rule 22K-1.103(9), Florida Administrative Code. Moreover, there is no proof of record that Ronald pursued any educational program after September 20, 1986, a date in excess of 12 months prior to his automobile accident, excepting his enrollment at Bauder College. Regarding Ronald's enrollment at Bauder College, the proof demonstrates that on November 3, 1987, Ronald executed an enrollment agreement with Bauder College whereby he elected to pursue an educational program in electronic engineering technology. According to the enrollment agreement, the program was to start January 19, 1988, and the school calendar [Respondent's Exhibit 1] confirms that January 19, 1988, was "ORIENTATION/REGISTRATION - FIRST DAY" of the 1988 Winter Quarter. Ronald was, however, hospitalized on January 17, 1988 as a consequence of his automobile accident, and never started his course of training. 2/ Therefore, Ronald, although enrolled, was not yet "regularly attending" school when injured and, therefore, was not at the time of his accident an eligible dependent of the Insured. 3/ Ronald's handicapped status. Here, petitioner also contends that, as a consequence of his handicap, Ronald was an eligible dependent under the Plan. Such contention is rejected as contrary to the provisions of Rule 22K-1.103(4), Florida Administrative Code. Handicap, under the facts of this case, is not a factor which renders a person eligible for coverage. Rather, handicap is a factor which permits the child of the insured "to continue coverage" after attainment of the age limits for coverage. Rule 22K-1.103(4)c), Florida Administrative Code. Ronald, not having been a covered dependent at the time he suffered his handicap, had no coverage to continue. Estoppel Notwithstanding the rules which govern eligibility to participate in the Plan, petitioner contends that the Department should be estopped to apply such rules in the instant case. 4/ The predicate for petitioner's argument lies in a brochure [Petitioner's Exhibit 7] that was provided the Insured, and which defines eligible dependents as follows: Your own children . . . ; if they are under the age of 19, if they are full-time students under the age of 23, or if they are determined by the administrator to be mentally or physically handicapped, incapable of self- sustaining employment, chiefly dependent upon your support, and otherwise insurable. Petitioner's claim of estoppel is unpersuasive for a number of reasons. First, the brochure does not purport to replicate the Plan, but to summarize it, and advises all recipients that it "is not a contract since it does not include all of the provisions, definitions, benefits, exclusions and limitations" of the Plan. Under such circumstances, it would not be reasonable to rely solely on the brochure for any definition of coverage. Second, and perhaps most importantly, the proof is not persuasive that the Insured relied upon the referenced provision of the brochure or that he made any change in position as a consequence of such provision.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds that Ronald Goins is not covered by the Plan, and which dismisses the petition with prejudice. DONE and ENTERED this 6th day of December 1991, at Tallahassee, Florida. WILLIAM J. KENDRICK 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 6th day of December 1991.
The Issue Whether Petitioner, who on November 17, 1999 (two days prior to the final hearing in this case) was certified by Respondent to be eligible to receive, effective June 1, 1999, firefighter supplemental compensation pursuant to Section 633.382, Florida Statutes, is entitled to any further relief from Respondent in this administrative proceeding (which was initiated by Petitioner after he had received Respondent's June 2, 1999, notice of its preliminary determination that Petitioner was not entitled to firefighter supplemental compensation).
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In August 1994, Petitioner applied to Respondent for entry in the Firefighters Supplemental Compensation Program (1994 Application). The application materials that Respondent received were a completed and signed Firefighters Supplemental Compensation Program Transcript Request form; a copy of Petitioner's transcript from North Carolina Central University (reflecting that he had graduated on May 10, 1986, with a Bachelor of Science degree in biology), along with a cover letter to Respondent from the Office of the University Registrar; a job description; and a letter to Respondent from Petitioner, which read as follows: Enclosed [y]ou will find information regarding my educational earnings. I received a Bachelor of Science (Biology) in May, 1986 from North Carolina Central University in Durham. Additionally, I have earned 29 credits at Miami Dade Community College [a]nd I [a]m [a] Paramedic. Please [r]eview [t]his information and include me in the supplemental compensation program. I[']d [l]ike to thank you in advance for your time and consideration. The job description that was included in the application materials Respondent received was for the classification of Fire Fighter and read as follows: NATURE OF WORK: Skilled fire-fighting work in combating, extinguishing and preventing fires, and in the operation and maintenance of fire department equipment, apparatus and quarters. Work involves responsibility for protecting life and property by fire-fighting and rescue activities, usually under close supervision. Employees of this class are required to learn and participate in the operation of fire apparatus and equipment, and the performance of hazardous tasks under emergency conditions which may require strenuous exertion under such handicaps as smoke and cramped surroundings. Although fire-fighting and rescue activities are the primary responsibilities of this class, the major portion of time is spent in drilling and studying methods, techniques and organization, and in routine duties in the care and maintenance of fire department property and equipment. Employees of this class may be assigned to duty as communications officer, chief driver and aide, and fire prevention inspector, which involves the application of specialized abilities and knowledge developed through experience and training. Specific orders and directions are given by superior officers, but the work requires initiative and a thorough individual understanding of fire- fighting methods. ILLUSTRATIVE EXAMPLES OF WORK PERFORMED: (The examples of work as listed in this class specification are not necessarily descriptive of any one position in the class. The omission of specific statements does not preclude management from assigning specific duties not listed herein if such duties are a logical assignment to the position. Examples of work performed are not to be used for allocation purposes.) Attends training courses; participation in fire drills and attends classes in fire- fighting and first aid; reads and studies assigned materials related to fire-fighting and prevention. Responds to fire alarms with a company; operates pumps, aerial ladders and auxiliary equipment; lays and connects hose; holds nozzles and directs fog or water streams; raises and climbs ladders; uses chemical extinguishers, bars, hooks, lines and other equipment. Performs general maintenance work in the upkeep of fire department property; cleans and washes walls and floors; makes minor repairs to property and equipment; washes, hangs, and dries hoses; washes, cleans, polishes and tests apparatus. Performs limited fire prevention activities; inspects commercial and residential properties for the existence of fire hazards, and seeks removal of such hazards through education and persuasion. When assigned to the Rescue Division the Fire-Fighter should be able to accurately and efficiently evaluate and gather patient assessment information; interpret assessment finding; formulate a working diagnosis (i.e. possible M.I.); plan, prioritize and implement necessary treatment as per Rescue protocol and/or physician direction via the radio; evaluate treatment outcome and re- assess the patient's status; plan and implement additional treatment or modifications as indicated by re-assessment and follow-up evaluation. When assigned as a fire inspector, inspects buildings and premises; reviews plans for compliance with fire regulations specified in the City of Miami Building Code; checks on complaints; and may aid investigation of arson cases when assigned to fire prevention duties. Performs other related work as required. DESIRABLE KNOWLEDGE, ABILITIES AND SKILLS: (The knowledge, skills and abilities identified in this class specification represent those needed to perform the duties of this class. Additional knowledge, skills and abilities may be applicable for individual positions in the employing departments.) Some knowledge of the street system and physical layout of the City of Miami. Ability to learn a wide variety of fire- fighting duties and methods within a reasonable working test period. Ability to establish and maintain effective working relationships with other employees and the general public. Ability to understand and follow oral and written instructions. Ability to perform limited mechanical work involved in maintaining fire-fighting and rescue apparatus, equipment and tools. Physical strength, endurance, agility and freedom from serious physical defects as shown by a physical examination. Coordination and dexterity. DESIRABLE BASIC TRAINING AND EXPERIENCE: Graduation from high school or State of Florida Equivalency Certificate OR Equivalent combination of training and experience. By letter dated August 23, 1994, Respondent advised Petitioner that it had determined that he was not qualified to receive supplemental compensation. The letter, which was received by Petitioner on September 6, 1994, read as follows: After reviewing your transcript, it has been determined that you do not possess an appropriate Major Study Concentration Area to qualify for the Firefighters Supplemental Compensation Program at the Bachelor level. Rule 4A-37.084, Florida Administrative Code, does not list Biology as a "Major Study Concentration Area." Rule 4A-37.084, Florida Administrative Code, states: "4A-37.084 Definitions. For purposes of this part, terms used in Rules 4A-37.082-4A- 37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined as follows: 'Bachelor's Degree' means a Bachelor of Arts or Bachelor of Science degree conferred by an accredited post-secondary institution provided the major study concentration area is readily identifiable and applicable as fire related. A firefighter may receive Supplemental Compensation based on possession of a Bachelor's Degree regardless of whether or not an Associate Degree was previously earned. In no event shall receipt of a transcript for an Associate Degree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation. The major study concentration area, at least 18 semester hours or 27 quarter hours, [must] be readily identifiable and applicable as fire related. Specific Authority 633,45(2)(a) FS. Law Implemented 633.382(2) FS. History-New 01-03-90." 1/ At this level of the Firefighters Supplemental Compensation Program it has been determined that your Bachelor Degree is not readily identifiable and applicable as fire related, per Rule 4A-37.084, Florida Administrative Code. Pursuant to Section 120.57, Florida Statutes, and Rule Chapters 4-121 and 28-5, Florida Administrative Code (F.A.C.), you have a right to request a proceeding to contest this action by the Department. You may elect a proceeding by completing the attached Election of Rights form or filing a Petition. Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail, the Petition or Election should be addressed to the Florida Department of Insurance, at 612 Larson Building, Tallahassee, Florida 32399-0300. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered to 448 Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0300. The Petition of Election must be received by, and filed in the Department within twenty-one (21) days of the date of your receipt of this notice. If a proceeding is requested and there is no dispute of fact, the provisions of Section 120.57(2), Florida Statutes, would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request. If you dispute material facts which are the basis for this agency's action, you may request a formal adversarial proceeding pursuant to Section 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapters 4-121 and 28-5, F.A.C. and contain: A statement identifying with particularity the allegations of the Department which you dispute and the nature of the dispute; An explanation of what relief you are seeking and believe you are entitled to; Any other information which you contend is material. These proceedings are held before a State hearing officer of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request the hearing be conducted in Tallahassee. Unless a Petition or Election or your written submission challenging this action is received by the Department within twenty-one (21) days from the date of the receipt of this notice, the right to a proceeding shall be deemed waived. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding. Any request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. Petitioner did not file a "Petition or Election or . . . written submission challenging this action [described in Respondent's August 23, 1994 letter]" within 21 days of the date of his receipt of the letter. He next corresponded with Respondent in May of 1999, when he applied for a second time for entry in the Firefighters Supplemental Compensation Program. Along with a completed and signed Application for Initial Entry into Supplemental Compensation Program (Second Application), he sent Respondent a copy of his transcript from North Carolina Central University and an "official job description for current position held: FIREFIGHTER/PARAMEDIC," which was different than the job description that had accompanied his 1994 Application and which read as follows: Firefighter Definition: The term firefighter is used to describe all individuals assigned to the various areas within the City of Miami Fire Department. The responsibilities of a Firefighter are very diverse and require specialized training in many areas. Fire Suppression: These individuals are responsible for protecting life and property by means of fire extinguishment. This individual must have a working knowledge of pumps, water friction and resistance tables as well as ropes, foams and nozzles, infra- red cameras and basic building construction and style. Throughout the fire service, physical fitness is important. Hazardous Material Team: Work involves protecting life and property from toxic substances. Must have a working knowledge of fundamental chemistry and chemical interactions with each other. Must be able to identify Department of Transportation Placards to determine substances being transported by vehicles. Additionally, individuals must be familiar with explosive ranges of gases and mixture that have the potential to explode or cause harm to others. Must understand hazardous materials containment areas and the various levels of protective clothing w[o]rn. Emergency Medical Services: Work involves protecting life through use of basic life support and advance life support methods. Individuals involved in these services work under the license and management of a medical director. Paramedics are generally assigned to these positions when possible. Individuals should be able to accurately gather and interpret patient information to formulate a working diagnosis and provide necessary treatment as per protocol or physician[']s direction. Personnel [are] responsible for calculating and administering various drugs under stressful conditions (i.e. cardiac arrest and major trauma) and reporting patient status and treatment via radio to the medical director. A working knowledge of anatomy and physiology, medical terms and conditions is required. Fire Prevention Bureau: Work involves inspecting buildings and premises; reviewing plans for compliance with fire regulations specified in the City of Miami Building Code; checking on complaints; investigating arson cases and conducting public education throughout the City of Miami. Petitioner did not indicate, in submitting his Second Application, that he was seeking anything other than prospective entry in the Firefighters Supplemental Compensation Program. Respondent preliminarily determined that Petitioner's Second Application should be denied because his "Major Study Concentration Areas of Biology does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code, for entry in the program," and so advised Petitioner, who subsequently requested an administrative hearing on the matter. Respondent, however, subsequently changed its mind regarding Petitioner's eligibility for the program and, by letter dated November 17, 1999 (two days prior to the final hearing in this case) advised Petitioner that, "[u]pon [f]urther review of [his] application, it had "found [Petitioner] to be eligible" and that he would receive supplemental compensation effective June 1, 1999. Respondent also prepared and sent to Chief James Fisher of the City of Miami Fire Rescue an Official Acceptance Notification, which read as follows: James E. Kemp, Social Security Number, . . ., has met the eligibility requirements for entry into the Firefighters Supplemental Compensation Program. Effective June 1, 1999, Mr. Kemp will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.085 for possession of a Bachelor's degree. Mr. Kemp will be eligible to receive up to $110.00 a month until such time as he may become ineligible in accordance with Rule 4A- 37.087. Please insure that the referenced firefighter's name and the amount of Supplemental Compensation paid, appears on your Quarterly Report (form FSTE-3). If any further information is needed, please do not hesitate to contact us. (A copy of this Official Acceptance Notification was sent to Petitioner.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding that Petitioner is not entitled to the additional relief he is seeking. DONE AND ENTERED this 5th day of January, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 5th day of January, 2000.
The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 April, 2011.
The Issue The issue presented is whether Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program should be approved.
Findings Of Fact Petitioner is employed as a Captain with the Metro-Dade Fire Department. Petitioner earned a Bachelor of Arts Degree from the State University of New York at Buffalo, an accredited academic institution, on February 12, 1969. At the time that Petitioner attended that university, it did not offer courses in fire science. Petitioner applied to Respondent for supplemental compensation at the bachelor's degree level. His university transcript, which accompanied his application, indicates that Petitioner's major study concentration area was psychology. The Metro-Dade Fire Department requires its officers to attend an officers' training program. That program does not award college credits, and Petitioner did not attend that program as part of the course-work required to earn his bachelor's degree. Rather, it is an in-service training program. Although that program does include some instruction in some basic psychological principles, there is no indication that that program is different from in- service training programs for supervisors and managers in any occupation. Although Metropolitan Dade County does offer a tuition refund program for its employees, that program is unrelated to the State's Firefighters Supplemental Compensation Program and has different criteria. Further, Petitioner's bachelor's degree was not earned in conjunction with that program. Petitioner's job description as a captain does require that he possess supervisory skills. Those supervisory skills appear to be the same supervisory skills required in any occupation. His job description does not require that he have a degree or training in psychology. The only educational requirement for employment as a fire captain with the Metro-Dade Fire Department is graduation from a standard high school or possession of a Florida G.E.D. Petitioner's transcript for his bachelor's degree does not reveal a sufficient number of course hours which are readily identifiable and applicable as fire-related. Although it does reveal the titles of the courses taken by Petitioner in earning his bachelor's degree, it is not accompanied by any catalog from the university which explains the contents of any of the courses taken by him. Accordingly, none of the courses taken by Petitioner is readily identifiable and applicable as fire-related. Petitioner is not employed by the Metro-Dade Fire Department as a psychologist or counselor. To the extent that his job requires him to utilize basic psychological-managerial principles, it is because his job includes being a supervisor-manager and not because his job requires an expertise in psychology.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April, 1991. LINDA M. RIGOT 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 23rd day of April, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's first, second, fourth through twelfth, fifteenth, and seventeenth unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting argument. Petitioner's third unnumbered paragraph has been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's thirteenth and sixteenth unnumbered paragraphs have been rejected as being irrelevant to the issues involved herein. Petitioner's fourteenth unnumbered paragraph has been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 2, 4, 5, 9, and 10 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 11, and 13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony Respondent's proposed findings of fact numbered 6 and 12 have been rejected as being irrelevant to the issues involved herein. Respondent's proposed findings of fact numbered 7 and 8 have been rejected as being unnecessary for determination of the issues herein. Copies furnished: Andrew K. Levine, Esquire Department of Insurance and Treasurer Division of State Fire Marshall 412 Larson Building Tallahassee, Florida 32399-0300 Dean J. John 6890 Scott Street Hollywood, Florida 33024 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issues for determination are whether Petitioner, Paul F. Meloy (Meloy), is an employee of Petitioner, Alva Fire Protection and Rescue District (District), and is entitled to participate in the Florida Retirement System (FRS) pursuant to Section 121.051, Florida Statutes (2001). (All references to statutes are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Section 121.051 requires participation in the FRS by all employees hired after December 1, 1970. The District hired Meloy after 1970. Meloy has worked for the District as the fire chief and administrator since the District's inception in 1976. Meloy was instrumental in establishing the District. The other requirement imposed by Section 121.051 for participation in the FRS is that Meloy must be an employee. Section 121.021(11), in relevant part, defines an employee as any person receiving salary payments for work performed in a regularly established position. Respondent denies that the payments Meloy receives from the District are salary payments. Respondent asserts that the payments are reimbursement for expenses. Respondent denies that the payments to Meloy are compensation. Section 121.021(22) defines the term "compensation" to mean: . . . the monthly salary paid a member by his or her employer for work performed arising from that employment. The payments from the District to Meloy since October 1990 have been compensation. In October 1990, the District began paying Meloy a monthly salary "for work performed arising from his employment with the District." Before October 1990, the District reimbursed Meloy for expenses he incurred in housing fire trucks in the garage at Meloy's auto service business. The District also reimbursed Meloy for the maintenance and repair of District vehicles. In 1988, the District began reporting the payments made to Meloy as salary for purposes of the federal income tax. Each year from 1988 to the present, the District has reported the payments to Meloy on a W2 Wage and Tax Statement. Between 1988 and October 1990, the District stopped housing vehicles in Meloy's garage, and Meloy stopped servicing vehicles for the District. In October 1990, the amount of the monthly payment to Meloy increased substantially. Thereafter, the District provided annual cost of living increases to Meloy. The payments to Meloy from October 1990 to the present have been unrelated to expenses incurred by Meloy. Those payments have been regular monthly salary payments for work performed to implement the policy of the District and to administer the day-to-day operations of the District. Even if the payments are salary payments, Respondent argues that Meloy did not receive those payments for work performed in a regularly established position. Section 121.021(52)(b) defines a regularly established position as one that will be in existence for six months. Meloy's position has been in existence since 1976. It will be in existence for six months. Respondent asserts that the position occupied by Meloy is a temporary position defined in Section 121.021(53)(b). Section 121.021(53)(b) defines a temporary position as one that will exist for less than six months or as defined by rule, regardless of its duration. Respondent claims that the position occupied by Meloy is a temporary position because it is an "on call position" defined in Florida Administrative Code Rule 60S- 1.004(5)(d)5. The rule defines an on call position as one filled by employees who are called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Meloy performs some of his duties unexpectedly when called anytime 24 hours a day. He performs his other duties in the normal course of business. Meloy does not maintain any time sheets, and the District does not require Meloy to perform his duties within an established work schedule. Meloy does not occupy an "on call position" within the meaning of Rule 60S-1.004(5)(d)5. Meloy's employment does not cease when the purpose of his being called is satisfied. Meloy has been performing his on-call duties and his other duties for approximately 25 years. In 1994, Mr. William D. Wilkinson became the Chairman of the District (Wilkinson). Wilkinson is also the Court Administrator for the Circuit Court in the Twentieth Judicial Circuit of Florida, in which the District is located. After Wilkinson became Chairman, he determined that Meloy receives compensation in a regularly established position and is entitled to membership in the FRS. Wilkinson testified at the hearing. Meloy has sole responsibility for implementing the District's policy and administering the day-to-day operation of the District. Relevant portions of Wilkinson's testimony are instructive. Q. And whose job is it to carry out that policy? A. Mr. Meloy. Q. When you came on board in 1994, Mr. Meloy, was he employed by the district? A. That's correct. Q. How many other administrators does the district employ? A. None. Q. Who runs the day-to-day affairs of the fire district? A. Mr. Meloy. Q. He is required to work a certain work schedule? A. No, sir. Q. What is he required to do as far as hours go? A. Once we set the policy, then we expect, you know, the chief to carry that out. And for however many hours it takes during the week, you know, the month to see it is fulfilled. Q. Do you know if he is on call? A. He is on call 24/7. Q. And what does that mean? A. 24 hours a day, seven days a week. Q. Is that 365 days a year? A. That's correct. * * * Q. Let me ask you to put your other hat on as the court administrator for the 20th Judicial Circuit. Are you involved with the Florida Retirement System? A. Yes, I am. Q. And you are a participant? A. Yes, I am. Q. Your duties as the court administrator, how would you compare that to Mr. Meloy's duties as the fire chief administrator of the Alva Fire District? A. Well, with the exception that I certainly make a lot more than he does for the duties that he has, it is similar. You know, I'm paid an annual salary and expected to get the job done. If you have to work 60 hours, you have to work 60 hours. If you get through sooner, hopefully you do. But that never happens. The District requires Meloy to spend as much time as is needed to implement the policy of the District and to administer the day-to-day business of the District. The hours vary, and there are no set hours. Some days, Meloy's day begins at 6:00 a.m. Other days, Meloy does not get to work until 9:00 a.m. or noon. Some days, Meloy leaves work at 5:00 p.m. and then must return immediately to the office. "It is whatever is needed." The District employs four individuals. One is Meloy. Two are certified firefighters. The other is a part- time bookkeeper. The bookkeeper and the two certified firefighters are members of the FRS. The two full-time firefighters maintain time sheets, and the District pays them for overtime. The District compensation of its full-time firefighters is consistent with compensation on an hourly basis. Meloy is not a certified firefighter, and the District does not compensate Meloy on an hourly basis. Meloy does not maintain or submit time sheets. The District does not pay Meloy for overtime. Like the certified firefighters, Meloy performs some of his duties when called anytime, 24 hours a day. However, neither the certified firefighters nor Meloy has the option to refuse to work when called. The employment positions of the certified firefighters and Meloy do not cease when the purpose for being called is satisfied. Although the bookkeeper for the District is never on call, she maintains a schedule similar to that of Meloy. She works those hours necessary to perform her duties. Like Meloy, the bookkeeper's position does not cease when she completes her work. The District pays compensation to Meloy in accordance with an annual salary rather than an hourly rate. Meloy does not have an established schedule during which he must implement the board's policy and administer the day-to- day operations of the District. Meloy occupies a regularly established position within the meaning of Section 121.021(52)(b). Meloy is the District administrator. The position has been in existence since 1988 and is not a temporary position within the meaning of Section 121.021(53)(b) or Rule 60S-1.004(5). Respondent's final argument is that a determination of Petitioners' request to enroll Meloy in the FRS is barred by the judicial doctrines of res judicata or collateral estoppel. Respondent argues that final agency action determined that the payments received by Meloy through June 29, 1992, are reimbursement for expenses. Respondent argues that nothing has changed since that time, and Meloy cannot now revisit the issue of his compensation. Findings regarding Respondent's final argument require some historical perspective. The District joined the FRS in 1988. At that time, the District purchased past service credit for a number of employees, including Meloy. Meloy enrolled as a member of the Special Risk Class. When Meloy enrolled as a member of the Special Risk Class, a question in the enrollment form asked Meloy if the applicant was certified as a firefighter or required to be certified as a firefighter. Meloy answered in the affirmative. Meloy has always been required to be certified as a firefighter in order to receive retirement benefits as a member of the Special Risk Class. However, Meloy has never been certified as a firefighter pursuant to Section 633.35. Meloy has never completed an essential firefighting course that is a statutory prerequisite to certification. By letter dated June 29, 1992, Respondent notified Meloy that Respondent was terminating Meloy's membership in the FRS. The letter stated two grounds for termination. One ground was that Meloy had not completed the firefighting course required for membership in the Special Risk Class. The second ground was that the payments Meloy received from his employer are reimbursement for expenses rather than compensation. Meloy did not appeal either ground stated by Respondent on June 29, 1992, for the termination of benefits. Meloy does not contest the first ground and is not now seeking enrollment in the FRS as a member of the Special Risk Class. Rather, Meloy now seeks benefits as a member in a regularly established position defined in Section 121.021(52)(b). Meloy does contest the second ground stated by Respondent on June 29, 1992, for terminating Meloy's membership in the FRS. Respondent determined that Meloy did not receive compensation from 1988 through June 29, 1992. The time for appealing that determination has expired, and Meloy cannot now amend the scope of this proceeding to include any payments he received on or before June 29, 1992. Respondent asserts that its determination on June 29, 1992, also establishes that payments received by Meloy after June 29, 1992, are not compensation. Respondent argues that Meloy's duties have not changed, and the payments Meloy receives are reimbursement for expenses. On June 1, 1999, Respondent sent a letter to Wilkinson explaining Respondent's denial of Meloy's application for enrollment in the FRS. In relevant part, the letter stated: By certified letter dated June 29, 1992 (copy enclosed), the State Retirement Director, Mr. A.J. McMullian III, advised Mr. Meloy that he was inelligible for Florida Retirement System (FRS) participation since the monthly payments he received were for "expenses" and not compensation. Subsequent to Mr. McMullian's letter, a hearing was conducted by the Division of Administrative Hearings and Mr. Meloy's payments were defined as expenses as a statement [sic] of fact (copy enclosed). In light of this, the Division has already made a determination that Mr. Meloy is ineligible for FRS participation from 1979 through 1992. Since your letter indicates that Mr. Meloy's duties and payments he has received have not changed since 1988, he remains ineligible for FRS participation. Respondent's Exhibit 10. The DOAH hearing referred to in the letter on June 1, 1999, involved allegations that Meloy had violated state ethics laws when he first attempted to enroll in the FRS in 1988. In 1992, the Florida Commission on Ethics (Commission) investigated Meloy's participation in the FRS. The Commission entered an order finding probable cause that Meloy violated Section 112.313(6) when he submitted his enrollment form for retirement benefits by corruptly using or attempting to use his official position to retain retirement benefits for himself and his assistant fire chief when neither was qualified to receive benefits. The findings concerning the assistant fire chief are neither relevant nor material to this proceeding. Meloy requested an administrative hearing, and the Commission referred the matter to DOAH to conduct the hearing. ALJ Susan B. Kirkland conducted the administrative hearing and entered a Recommended Order on July 8, 1994. The Recommended Order found that Meloy misrepresented his entitlement to membership in the Special Risk Class and did so with wrongful intent. The Order concluded that Meloy violated the relevant statute because Meloy attempted to use his position, or the property and resources entrusted to him, to secure a benefit. The Order recommended a civil penalty, public censure, and a reprimand. The Final Order of the Commission adopted the Recommended Order. The Recommended Order contains three paragraphs that discuss the payments received by Meloy. Those three paragraphs state: 3. In 1976, the . . . District was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. * * * 5. In 1988, the District joined the . . . (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator of the District but did not draw a salary and continued to receive remuneration in the form of the monthly reimbursement for expenses. . . . * * * 18. By letter dated June 29, 1992, [Respondent] notified Meloy that his membership in the FRS . . . was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation. . . . The Recommended Order does not operate under the judicial doctrines of res judicata or collateral estoppel to preclude a determination of whether the payments received by Meloy after 1988 are compensation. The Recommended Order limits the finding that Meloy received payments for expenses to those received in 1988. Paragraph 5 expressly states, "At that time. . . Meloy . . . continued to receive . . . reimbursement for expenses. . . ." The findings in paragraph 18 merely recite the grounds stated by Respondent but do not make findings on the merits of the stated grounds. The findings in paragraph 3 are not probative. The Recommended Order made no findings concerning the payments Meloy received after 1988. Respondent determined that the payments between 1988 and June 29, 1992, were payments for expenses rather than compensation. Irrespective of whether Respondent's determination was legally and factually correct, Meloy did not appeal Respondent's determination. The determination by Respondent on June 29, 1992, involved a separate and distinct application from the application at issue in this case. No determination has been made that the payments since June 29, 1992, either are or are not compensation. The application at issue in this case is a new application for different benefits. Meloy is not applying for benefits to which he would be entitled if he were a member of the Special Risk Class. Nor can Meloy apply for benefits related to the payments received on or before June 29, 1992. Respondent argues that nothing has changed in the course of Meloy's tenure with the District. Payments that were reimbursement for expenses before 1992 arguably have not now been transformed into compensation. Respondent is incorrect. Something has changed in the course of Meloy's tenure with the District. Sometime after September 1990, the payments to Meloy changed from reimbursement for expenses to monthly salary payments. The District no longer housed equipment at Meloy's garage, Meloy no longer serviced the equipment at the garage, and the amount of the monthly payments to Meloy increased from $540 to $833. Relevant portions of the transcript of the administrative hearing in the ethics case are instructive. Meloy asserted in the ethics case that in 1988, he was a volunteer fireman. As a volunteer, rather than a salaried employee, Meloy argued that he was not required to be certified as a firefighter. The attorney who represented the Commission sought to show that Meloy was not a volunteer after 1990 but was a salaried employee of the District. As long as I'm volunteering, I don't have to have it. Q. Okay. You are also the administrator for the full-time firemen, is that right? A. Yes. Q. You have the power to hire and fire them? A. Yes. Q. You set their hours? A. Yes. Q. The district also has a part-time secretary, is that right? A. Yes. Q. And currently that's Ms. Connie Bull? A. Correct. Q. She handles payroll matters? A. Yes. Q. She writes checks? A. Yes. Q. Pays bills? A. Yes. Q. She and you both answer questions that the full-time firemen might have about vacation or sick leave or retirement, is that right? A. To the best of our ability, yes. Q. Okay. Now, before 1990 you were not an employee of the fire district, is that right? A. According to how you define it, I guess. I was paid more as an expense type arrangement up until sometime around '90. I don't remember the exact date. Q. Okay, you received the expense reimbursement prior to 1990 for working on the fire equipment; is that right? A. It covered a lot of things. We worked on the fire equipment there in my business, we housed a lot of equipment there, used my facilities for -- well, we have used my facilities as a station for awhile. Q. When you say your facilities, you mean the Alva garage that you used to own? A. Right. Q. When you got the expense reimbursement, you would get the same amount every month, is that right? A. Yes. Q. It changed some over time, though, didn't it from '73 to 1990? A. Yes. Q. You got that same reimbursement amount regardless of the number of hours that you worked for the district? A. Yes. Q. And regardless of what any actual expenses might be? A. Correct. Q. Now, sometime in 1990 you became an employee of the district on a part-time basis; is that right? A. That's when they started taking out taxes and all and that reverted to more of a salary type reimbursement rather than expense. In other words, I was paying income tax and Social Security and everything and at that time it was considered more of a salary. Q. And they started doing that in 1990 sometime? A. I don't remember the date. It was approximately then. Q. When you started receiving a salary, you stopped getting the reimbursement; is that right? A. Right. Q. Isn't it true that when you first started getting the salary that the amount of the salary was several hundred dollars a month more than what the reimbursement had been? A. I couldn't tell you. Q. Isn't it a fact that the last-- A. I don't believe that would be right, though, because it didn't go up very much any one time, I don't think. I would have to see the figures to tell for sure. Q. All right. Isn't it a fact that the last time you received a monthly reimbursement you were receiving about $540 a month? A. I don't have those figures in front of me. Q. You don't remember? A. No. Q. Isn't it a fact that when you first got a salary in October 1990, you got $833 a month? A. I still couldn't tell you. I don't have those figures in front of me. I have them wrote down if I can get my papers. Q. All right. You don't know how much you get now? A. Yeah, but this ain't 1990. Respondent's Exhibit 3 at 29-32. The state argued in the ethics case that Meloy has been salaried since October 1990 and was required to be certified as a firefighter before enrolling in the FRS as a member of the Special Risk Class. The state now argues that Meloy has never been salaried and cannot enroll in the FRS as member of the regular class. The state cannot have it both ways. Meloy is entitled to membership in the FRS for the period after June 29, 1992. During that time, the District has paid a salary to Meloy that is compensation for duties performed in a regularly established position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' request for Meloy to participate in the FRS. DONE AND ENTERED this 7th day of January, 2002, in Tallahassee, Leon County, Florida. _________ ________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2002. COPIES FURNISHED: J. Frank Porter, Esquire Porter & Jessell, P.A. 1424 Dean Street Ft. Myers, Florida 33901 Thomas E. Wright, Esquire Division of Retirement P.O. Box 3900 Tallahassee, Florida 32315-3900 Erin B. Sjostrom, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Mallory Harrell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issues in this case are whether Respondent, Gary the Carpenter Construction, Inc., failed to comply with the requirements of Sections 440.10, 440.107, and 440.38, Florida Statutes, and, if so, the appropriate amount of penalty which should be assessed against Respondent.
Findings Of Fact The Department of Financial Services (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Respondent, Gary the Carpenter Construction, Inc. (hereinafter referred to as “GTC”), is a Florida corporation, which at the times relevant employed subcontractors in the performance of its general contracting business located in Key West, Florida. GTC and its subcontractors, at the times relevant, were performing construction activities in the State of Florida. On March 25, 2008, GTC was renovating a structure at 1300 Virginia Street, Key West, Florida. An investigator of the Department’s Division of Workers’ Compensation (hereinafter referred to as the “Division”), conducted a compliance check at the construction site, determining that GTC was the general contractor and that it was using an out-of-state business entity, Pryjomski Construction (hereinafter referred to as “Pryjomski”), as a subcontractor. A Stop-Work Order was issued to Pryjomski. Pryjomski is a Michigan corporation. As a result of the Division investigator’s findings with regard to Pryjomski, on or about April 22, 2008, a Business Records Request was made by the Division to GTC. In response to the records request, GTC provided documentation of its workers’ compensation coverage. Those records were reviewed by Russell Gray, the Department’s “Penalty Calculator.” Based upon his review of GTC’s records, it was found that GTC’s employees were covered for workers’ compensation insurance through an employee leasing service. The records provided by GTC also indicated, however, that GTC utilized the services of numerous subcontractors. A review of Department records concerning the subcontractors revealed that four of the subcontractors utilized by GTC did not meet coverage requirements: Christian Construction, Perez Painting, Pryjomski, and Tiles Etcetera. The accuracy of the penalty assessment proposed by the Department attributable to Christian Construction and Perez Painting was stipulated to by the parties, and GTC did not contest that amount of the penalty assessment attributable to those two subcontractors. Pryjomski As to Pryjomski, it was discovered that it had two Certificates of Liability Insurance (hereinafter referred to as “Certificates”), both with issuance dates after March 25, 2008, the date the Division’s investigator conducted the compliance check at GTC’s construction site. A 2007-2008 workers’ compensation policy was issued two days after March 25, 2008, and a 2006-2007 workers’ compensation policy was issued September 29, 2009. Obviously, these policies were obtained by Pryjomski because it had no coverage for 2006-2007 and 2007- 2008, as of March 25, 2008. Even if the policies obtained by Pryjomski had been effective prior to March 25, 2008, the policies were written by an out-of-state insurance company not licensed to write policies in Florida, and the policies did not have a Florida Endorsement under “Item 3A” of the declaration page of the policies. Any policy issued to an out-of-state business like Pryjomski must have an endorsement indicating that the foreign entity is paying Florida rates for Florida classification codes. This endorsement is found under “Item 3A” of the declaration page of a policy. The Pryjomski policies did not have the appropriate endorsement. At the times relevant to this matter, Pryjomski was not listed by the Department as a business with appropriate workers' compensation coverage in Florida. GTC could not, therefore, have exercised due diligence in an effort to ensure that Pryjomski had the required insurance coverage when it utilized Pryjomski’s construction services. If due diligence had been exercised, GTC would have been aware of Pryjomski’s lack of appropriate coverage. Based upon documentation provided by GTC, the Division calculated the total amount of Pryjomski’s “payroll” for which GTC was responsible. Absent any receipts for materials for which the payments were made by GTC to Pryjomski, the Division treated 20 percent of the payments as non-payroll pursuant to Florida Administrative Code Rule 69L-6.035(1)(i). Payroll for 2007, less materials, was determined to be $22,106.00. For 2008, payroll, less materials, was determined to be $10,811.93. Utilizing the “finish carpentry” classification code (number 5437) and the approved manual rate therefore of the National Council on Compensation Insurance of 13.01, the penalty for 2007 was determined to be $4,313.99. The rate for 2008 was determined to be 10.47, and the penalty was determined to be $1,698.02. Tiles Etcetera Tiles Etcetera had previously been issued a Certificate of Exemption from coverage for Gregory Veliz, the president of Tiles Etcetera. That Certificate, however, expired on August 23, 2007. Any contract amounts paid to Tiles Etcetera by GTC while the Certificate was in effect are not subject to assessment and have not been included in the penalty assessment in this matter. Amounts paid by GTC to Tiles Etcetera while the Certificate of Exemption had expired are subject to penalty. Based upon documentation provided by GTC, the Division calculated the total amount of “payroll” paid to Tiles Etcetera for which GTC was responsible. Absent any receipts for materials for which the payments were made by GTC to Tiles Etcetera, the Division treated 20 percent of the payments as non-payroll pursuant to Florida Administrative Code Rule 69L- 6.035(1)(i). Payroll for the period from August 24, 2007, to October 19, 2007, less materials, was determined to be $22,269.17. Utilizing the tile installation classification code (number 5438) and the approved manual rate therefore of the National Council on Compensation Insurance of 8.34, the penalty for 2007 was determined to be $2,786.88.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Respondent, Gary the Carpenter Construction, Inc., failed to secure the payment of workers’ compensation for its employees, in violation of Section 440.107, Florida Statutes; and Assessing a penalty against Gary the Carpenter Construction, Inc., in the amount of $11,122.74. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 31st day of March, 2009. COPIES FURNISHED: Kristian E. Dunn, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Jerry D. Sanders, Esquire Vernis & Bowling of Key West, P.A. 604 Truman Avenue, Suite 3 Key West, Florida 33040 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
