The Issue Whether Petitioner’s application for a consumer certificate of exemption as a religious institution should be approved.
Findings Of Fact Petitioner is a not-for-profit corporation organized under the laws of the State of Texas 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 Dunedin, Florida. The articles of incorporation and by-laws adopted by Petitioner do not specify the purpose of EDM, nor do they indicate that EDM is formally related to any other organization(s). However, in separately published documents, Petitioner has stated that its purpose is to promote the Gospel message of Jesus Christ through evangelistic and missionary activities. EDM accomplishes its objective or purpose by conducting discussion groups, forums, panels, lectures, or other educational programs in the area of resource management and development. The seminars and educational programs sponsored and provided by Petitioner are offered in cities across the United States and serve evangelical groups and individuals. Evangelical groups participating in EDM seminars include various mission organizations, Christian colleges, and Christian schools. Participation and attendance at EDM sponsored programs are contingent on payment of the required fee to Petitioner. Although EDM provides services to a large number of organizations and individuals, Petitioner is not related to any of those organizations or individuals through a formal affiliation or as a larger hierarchy. The primary focus of EDM seminars is to assist evangelical organizations by providing such groups and individuals with training in financial and fundraising strategies. EDM believes that by effectively developing and implementing such strategies, individuals and organizations can better support and fund the work of the church. In addition to offering seminars and training institutions, EDM also develops and disseminates religious materials and training materials. Examples of topics addressed in EDM one-day seminars include: (1) “Redefining Planned Giving”; (2) “Improving Your Development Department”; “Successful Foundation Grants and Proposal Writing”; “Developing Major Donors for Major Support”; “Writing Effective Newsletters”; and “Strategic Planning for Success.” Petitioner presented testimony that it is related to an organization in California known as Little Church International, Inc. (Little Church). When EDM was first organized, Little Church made a loan to Petitioner; also, Little Church sometimes offers counsel to EDM. Beyond that, it is unclear what, if any, relationship exists between Petitioner and Little Church; what the function or purpose of Little Church is; and who the members or member organizations of Little Church are. Finally, EDM presented no competent and substantial evidence regarding the administrative functions performed by Little Church for or on behalf of Petitioner or any other organizations. Petitioner is in no way obligated to submit to the dictates of Little Church. Moreover, Little Church, is under no legal or other obligation to comply with any requirements of EDM. Although Petitioner claims that it is a member organization of Little Church, and pays a membership fee, Petitioner is unsure of the amount of that membership fee. Moreover, Petitioner established that Little Church: (1) does not direct the day-to- day activities of Petitioner and (2) has no control over Petitioner’s board of directors, officers, or budget. Petitioner acts as a fundraising conduit for an organization known as Living Ministries of South Africa (Living Ministries). There is no formal affiliation between Living Ministries and EDM. However, because Living Ministries consists only of an independent missionary and his wife, Petitioner has agreed to serve as its fiscal agent. In this capacity, EDM processes materials sent to and contributions made to Living Ministries. Petitioner charges Living Ministries a fee for providing these services. There is no formal affiliation between Petitioner and Living Ministries within a larger religious hierarchy. Petitioner has no regulatory authority over Living Ministries; does not control any of the day-to-day activities of Living Ministries; has no control over where the Living Ministries missionaries are placed; or of the contents of the services that Living Ministries provides. EDM does not regularly conduct and carry on religious services and activities. Petitioner holds religious services a few times a year. These services are conducted in conjunction with EDM sponsored seminars and training sessions and are for the exclusive benefit of individuals attending the seminars. Petitioner does not have any ownership or lease interest in any physical facility where weekly services are held for members of any faith or the general public. Rather, Petitioner’s services are held in various hotels or other facilities around the country in which its training programs and seminars are conducted. Several years ago, Petitioner set up a sub-organization called the Association of Christian Development Professionals (ACDP). Petitioner, through ACDP, currently accredits individuals who desire to have a certification from Petitioner. Individuals qualifying for such accreditation or certification are those who have completed certain courses provided by Petitioner. ACDP is not a qualified religious institution and is not within a hierarchy of institutions connected with Petitioner. Moreover, EDM does not control or otherwise participate in the day-to-day activities of the members of ACDP. Petitioner previously held a consumer certificate of exemption which expired as of October 18, 1996. In the process of reviewing the application for renewal, the Department determined that it had previously misapplied the law and that EDM did not qualify as a “religious institution” as defined in Section 212.08(7)(o)2.a., Florida Statutes. The Department determined that Petitioner: (1) was not a state, district, or other administrative office and (2) did not assist, regulate or control other organizations which were formally related to EDM within a specific larger hierarchy. The Department also determined that Petitioner does not qualify under any other category for a consumer certificate of exemption. To qualify as a religious institution, an entity must be: (a) a church, synagogue, or established physical place for worship at which nonprofit religious services and activities are regularly conducted and carried on; (b) a nonprofit corporation the sole purpose of which is to provide free transportation services to church members and attendees; (c) a state, district or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within the state or district organization; or (d) a corporation qualified as nonprofit under Section 501(c)(3) of the Internal Revenue Code, that owns or operates a Florida television station. In the instant case, Petitioner has no established physical place for worship; its sole purpose is not to provide free transportation services to church members and attendees, and it does not operate a television station. Thus, it cannot qualify under the first, second and fourth parts of the definition. Notwithstanding the Department’s determination to the contrary, Petitioner contends that it qualifies as a religious institution because it is a state, district, or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within a state or district office. Under the Department’s policy, in order to qualify as a state, district or administrative office, EDM must be a part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. This interpretation is consistent with prior agency orders and is reasonable. Petitioner is not a part of a larger organization within a hierarchy. Even assuming that Petitioner is part of a hierarchy, there are no identifiable members or organizations beneath Petitioner in the hierarchy which it assists or regulates. While EDM is engaged in laudable and worthwhile activities, it does not qualify as a religious institution for tax purposes and, therefore, is not entitled a consumer certificate of exemption.
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 tax exemption to Petitioner, Evangelical Development Ministries, Inc. DONE AND ENTERED this 4th day of March, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIED Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1998. COPIES FURNISHED: Rex D. Ware, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 H. Andrew Read, President Evangelical Development Ministry, Inc. 5232 Forest Lane, Number 106 Dallas, Texas 75244 Linda Lettera General Counsel 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue As the parties have stipulated, the issue in this case is whether Respondent Florida Housing Finance Corporation (the “Corporation”) properly interpreted Rule 67-48.032(2), Florida Administrative Code, and the corresponding provisions on the same subject found in paragraph 2, at page 2, of the Corporation’s 2000 Qualified Allocation Plan (collectively, the "Instructions"), when it applied the Instructions to determine the substantial interests of Petitioners and Intervenors.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Corporation and Its Duty to Allocate Federal Income Tax Credits The Corporation is a public corporation that administers governmental programs relating to the financing and refinancing of housing and related facilities in Florida. It is governed by a nine-member board composed of eight persons whom the governor appoints plus the Secretary of the Department of Community Affairs, sitting ex-officio. Among other things, the Corporation is the state's designated "housing credit agency" as defined in the Internal Revenue Code. As such, the Corporation has the responsibility and authority to establish procedures necessary for the allocation and distribution of low-income housing federal tax credits, which are created under and governed almost entirely by federal law. These tax credits, which are designed to encourage the development of low-income housing for families, provide a dollar-for-dollar reduction of the holder’s federal income tax liability and can be taken each year, for up to ten years, that the low-income housing project for which the credits were awarded continues to satisfy Internal Revenue Code requirements. Housing tax credits are allotted annually to the states on a per capita basis and then awarded, through state-administered programs, to developers of rental housing for low-income and very low-income families. Once awarded, there is a market for these tax credits; consequently, a developer may sell them at a discount to obtain immediate cash for its project. As a populous state, Florida receives between $18 million and $18.5 million in federal tax credits each year. The Corporation allocates the state's share of tax credits to eligible recipients pursuant to a Qualified Allocation Plan ("QAP") that federal law requires be prepared. The QAP, which must be approved by the governor, is incorporated by reference in Rule 67-48.025, Florida Administrative Code. In accordance with the QAP, the Corporation employs various set-asides and special targeting goals that play a substantial part in determining which applicants will receive tax credits in a particular year. While targeting goals are "aspirational" in nature, set-asides are relatively inflexible. Thus, special targeting goals may be met if credits are available. In contrast, credits that were reserved (or "set- aside") for specific project types will be awarded to applicants whose developments fall within the defined set-aside. The set-asides that have spawned the instant dispute are the Geographic Set-Asides and the Non-Profit Set-Aside. The Geographic Set-Asides require that a pre-determined portion of the available tax credits be awarded to applicants in each of the following county groups: Large County, Medium County, and Small County. In 2000, the allocation percentages for these groups were 64%, 26%, and 10%, respectively. The Non-Profit Set-Aside, which is a function of federal law, requires that at least 12% of the credits be awarded to non-profit applicants. None of the other set-asides is either at issue here or affects the analysis or outcome. The same is true of the special targeting goals. For simplicity's sake, therefore, special targeting goals will be ignored in the discussion that follows, and it will be assumed, unless otherwise stated, that the Geographic and Non-Profit Set-Asides are the only factors (besides merit) that affect the Corporation's award of tax credits. The Petitioners and Intervenors (Collectively, "Petitioners") Lakesmart is a Florida limited partnership which has as one of its general partners a non-profit corporation. In the 2000 application cycle, Lakesmart applied to the Corporation for an award of tax credits from the Medium County allocation. Lakesmart is a "Non-Profit Applicant" for purposes of the Non- Profit Set-Aside. RPK is a Florida limited partnership. In the 2000 application cycle, RPK applied to the Corporation for an award of tax credits from the Large County allocation. For purposes of the Non-Profit Set-Aside, RPK is a "for-profit Applicant." Meadow Glen and Coral Village are Florida limited partnerships. Each has a non-profit corporation as one of its general partners. Both applied to the Corporation in the 2000 application cycle for an award of tax credits from the Medium County allocation. Each is considered a "Non-Profit Applicant" for purposes of the Non-Profit Set-Aside. Evaluation, Ranking, and the Tentative Funding Range To distribute the finite amount of tax credits available each year, the Corporation has designed a competitive process whereby potential recipients file applications that the Corporation grades according to selection criteria set forth in the QAP. Points are assigned based on compliance with these criteria. At the end of the evaluation process, each applicant that met the threshold requirements will have earned a final score that determines its rank in terms of relative merit, with higher-scored projects being "better" than lower-scored projects. Because of the set-asides, however, credits are not awarded simply on the basis of comparative scores. Instead, the Geographic Set-Asides require that the applicants be sorted and ranked, according to their scores, within the Large County, Medium County, and Small County groups to which they belong and from whose credit allocations the successful applicants will be funded. As a result, therefore, if the several applicants with the three highest scores in the entire applicant pool were all in the Large County group and the applicant with the fourth highest score were in the Small County group, for example, then the latter applicant would be ranked first in the Small County group. This means, to continue with the example, that if the first- and second-ranked projects in the Large County group were to exhaust the credits allocated to that group, then the applicant with the third highest score overall would not be funded, while the applicant with the fourth highest score in the applicant pool (but ranked first in a county group) would be funded. 16/ After the Corporation has sorted the applicants by county group and ranked them, within their respective groups, from highest to lowest based on the applicants' final scores, it draws a tentative funding line within each group. Applicants above these lines are within the tentative funding range and thus apparently successful. Conversely, an applicant below the tentative funding line in its county group will not receive tax credits unless, to satisfy a set-aside or fulfill a special targeting goal, it is moved into the funding range. In the 2000 application cycle, a preliminary outcome which had occurred only once before, in 1997, happened again: the aggregate of credits requested by the non-profit applicants within the tentative funding range did not amount to the Non- Profit Set-Aside percentage — 12% in 2000 — of total available credits. Therefore, the Corporation needed to elevate as many apparently unsuccessful non-profit applicants into the funding range — and concomitantly to remove as many apparently successful for-profit applicants from the funding range to make room for the favored non-profit applicant(s) — as necessary to fulfill the 12% quota. An Aside on Categorical Ranking The separation of applicants into three groups according to the Geographic Set-Asides, and the effect that has on determining which applicants will receive credits, was mentioned above. To better understand the parties' dispute regarding the procedure for satisfying the Non-Profit Set-Aside when, as in 2000, it is necessary to award credits to a putatively unsuccessful non-profit applicant at the expense of a putatively successful for-profit applicant, a second, more detailed look at the implications of categorical ranking will be helpful. Because of the Non-Profit Set-Aside, the set of all qualified applicants ("Applicant Pool") is divided into two classes: non-profit and for-profit corporations. As will be seen, the class of non-profit corporations is further separated, for purposes of the Non-Profit Set-Aside, into two subclasses: domestic non-profits and out-of-state, or foreign, non-profits. Finally, to repeat for emphasis, all qualified applicants, regardless of class or subclass (if applicable), fall within one of three groups according to the Geographic Set-Asides: Small County, Medium County, and Large County. The following chart depicts the relevant classification of applicants within the Applicant Pool: Applicant Pool Non-profits For-profits Domestic Foreign Small County Medium County Large County Because, as the chart shows, each applicant fits into several categories, applicants may be ranked in order of their comparative scores in a variety of combinations, depending on how they are sorted, e.g. all applicants, all Large County for- profits, all foreign non-profits, etc. Once the Corporation has drawn the tentative funding lines (which, recall, are county group-specific) and determined preliminarily which applicants will receive funding and which will not, two additional categories exist: applicants within the funding range and applicants below (or outside) the funding range. Owing to the nature of the instant dispute, however, the only non-profits discussed below are those outside the tentative funding range, unless otherwise stated, and the only for-profits considered are those within the tentative funding range, unless otherwise stated. 1/ The above makes clear, it is hoped, that a reference to the "highest scored" applicant, without more, may describe many applicants, such as the highest scored domestic non-profit, the highest scored non-profit in the Small County group, the highest scored foreign non-profit in the Large County group, and so on. More information is needed to pinpoint a particular entity. For ease of reference, and to facilitate the discussion and disposition of the present dispute, the following abbreviations will be used in this Recommended Order as shorthand descriptions of applicants’ defining characteristics: Abbreviation Meaning NP Non-profit applicant FP For-profit applicant High- highest scored Low- lowest scored D domestic entity (i.e. organized under Florida law) F foreign entity (i.e. organized under the law of a state other than Florida) S, M, and L Small, Medium and Large County, respectively ! highest or lowest scored within the indicated category; e.g. High- NP(S!) means highest scored non- profit within the Small County group; Low-FP(S!) means lowest scored for-profit in the Small county group x, y variables Combining these abbreviations provides an increasingly precise description, as more information is added. For example: Combination Description High-NP Highest scored non-profit in some, unknown category High-NP[D!] Highest scored domestic non- profit, unknown group; is not necessarily the highest scored non-profit in the class of non- profits High-NP[F!] Highest scored foreign non-profit, unknown group; is not necessarily the highest scored non-profit in the class of non-profits High-NP[D!](S) Highest scored domestic non- profit, located in the Small County group; not the highest scored non-profit within the Small County group High-NP[D](S!) Highest scored non-profit in the Small County group; is a domestic corporation but is neither the highest scored non-profit nor highest scored domestic non-profit High-NP[D](S) Highest scored domestic non-profit in the Small County group; is neither the highest scored non- profit, the highest scored domestic non-profit, nor the highest scored non-profit in the Small County group Low-FP! Lowest scored for-profit in the class of for-profits Low-FP(M!) Lowest scored for-profit in Medium County group; is not necessarily the lowest scored for- profit in the class of for-profits The Controversy: Gored Oxen and Leapt-Over Frogs The solution to the problem that arose in the 2000 application cycle when an insufficient number of non-profit applicants wound up initially within the tentative funding range is found in two places: Rule 67-48.032, Florida Administrative Code, and the 2000 QAP. Although the language of the two is not identical, the parties agree that the rule and the pertinent QAP provisions have the same meaning, despite their differences in wording. The undersigned has concluded, however, that the differences, though subtle, substantially affect the outcome of this case. It is necessary, therefore, to read them carefully. Rule 67-48.032(2), Florida Administrative Code, provides in pertinent part: To ensure that the minimum 10% is set aside, the Corporation has determined that an initial allocation of 12% to qualified Non- Profits will be met. In order to achieve the initial 12% set aside, Applications from Applicants that qualify or whose General Partner qualifies as a Non-Profit entity pursuant to Rule 67.48.002(71), F.A.C., HUD Regulations, Section 42(h)(5)(c), subsection 501(c)(3) or 501(c)(4) of the Code and organized under Chapter 617, Florida Statutes, or organized under similar state law if organized in a jurisdiction other than Florida and meet scoring threshold requirements shall be moved into the funding range, in order of their comparative scores, with Applicants whose Non-Profit entity is organized under Florida law receiving priority over Non-Profit entities of other jurisdictions, until the set-aside is achieved. The last Non-Profit Development that is moved into the funding range in order to achieve the 12% initial set-aside shall be fully funded even though that may result in a higher Non-Profit set-aside. This will be accomplished by removing the lowest scored Application of a for-profit Applicant from the funding range and replacing it with the highest scored Non- Profit Application below the funding range within the applicable Geographic Set-Aside pursuant to the QAP. This procedure will be used again on or after October 1, if necessary, to ensure that the Agency allocates at least 10% of its Allocation Authority to qualified Non-Profit Applicants. Any for-profit Applicant so removed from the funding range will NOT be entitled to any consideration or priority for the receipt of current or future Housing Credits other than placement on the current ranking and scoring list in accordance with its score. Binding Commitments for Housing Credits from a future year will not be issued for Applicants so displaced. Paragraph 2, at page 2, of the Corporation’s 2000 QAP states: [The Corporation] has determined that an initial allocation of 12% to qualified Non- Profits will ensure that the 10% requirement will be met in the event that all Developments included in the initial 12% do not receive an allocation. In order to achieve the initial 12% set-aside a tentative funding line will be drawn. Then, Applications from Non-Profit Applicants that meet scoring threshold requirements shall be moved into the tentative funding range, in order of their scores with Applicants whose Non-Profit entities are organized under Chapter 617, Florida Statutes, having priority, until the 12% set-aside is achieved. This will be accomplished by moving the lowest scored Application of a for-profit Applicant in the funding range down in ranking so it is ranked below the lowest Non-Profit Applicant within the funding range and moving the highest scored Non-Profit Applicant organized under Chapter 617, Florida Statutes below the funding range within the applicable Geographic Set- Aside pursuant to the QAP up in ranking so it is ranked one ranking space above the for-profit Applicant that was moved down in ranking. If no such Applicant exists, the highest Non-Profit Applicant organized under similar statutes from another state which is below the funding range within the applicable Geographic Set-Aside pursuant to the QAP, will be moved into funding range in the same manner as stated in the previous sentence. This procedure will be used again on or after October 1, 2000, if necessary, to ensure that the [Corporation] allocates at least 10% of its Allocation Authority for 2000 to qualified Non-Profit Applicants. Any for-profit Applicant so removed from the funding range will NOT be entitled to any consideration or priority for the receipt of current or future housing credits other than placement on the current ranking and scoring list in accordance with its score. Binding Commitments for housing credits from a future year will not be issued for Applicants so displaced. The last Non- Profit Applicant moved into the funding range, in order to meet the initial 12% set- aside or in order to meet the minimum 10% set-aside after October 1, 2000, will be fully funded contingent upon successful credit underwriting even though that may result in a higher Non-Profit set-aside. After the full Non-Profit set-aside amount has been allocated, remaining Applications from Non-Profit organizations shall compete with all other Applications in the HC Program for remaining Allocation Authority. The Corporation's interpretation of Rule 67-48.032, Florida Administrative Code, and paragraph 2 of the 2000 QAP (collectively, the "Instructions") to determine the procedure for satisfying the Non-Profit Set-Aside in connection with the 2000 application cycle has caused considerable controversy — and led to this proceeding. The controversial interpretation was publicly manifested on September 15, 2000, when the Corporation published a preliminary ranking sheet on its web site which reflected adjustments that its staff had made to fulfill the Non-Profit Set-Aside. Within days, adversely affected applicants were complaining that the Corporation's staff had misinterpreted the Instructions. The Corporation's staff had construed the Instructions to mean that when it is necessary to displace a for-profit within the tentative funding range to satisfy the Non-Profit Set-Aside, the following procedure must be followed: Remove Low-FP!(x!) and replace it with High- NP[D](x). 2/ If there is no domestic non- profit in county group x, then replace Low- FP!(x!) with High-NP[F](x!). 3/ This construction permits High-NP[D!], if there is one, High- NP![F!] if not, to remain outside the funding range, because it might not be in county group x. In practice, the process that the Corporation’s staff had settled upon operated, in the circumstances presented, to the detriment of Petitioners. Here is how it worked. After the tentative funding range was established, the lowest scored for- profit in the class of for-profits was in the Small County group. 4/ There were no non-profits, domestic or foreign, in that group to elevate, however, and so Low-FP!(S!) could not be removed; the fall-back procedure was followed. See endnote 4. As it happened, RPK was Low-FP(L!) and had a lower score than Low-FP(M!). Thus, under the Corporation's staff's interpretation of the Instructions, as revealed by the rankings posted on September 15, 2000, High-NP[D](L!) was moved into the funding range in the place of RPK, even though High-NP[D](L!)'s final score was lower than that of Lakesmart — which was High- NP. (Coral Village and Meadow Glen were the second- and third-ranked domestic non-profits, respectively, in the Medium County Group. Sorted by class, Lakesmart, Coral Village, and Meadow Glen would be ranked first, second, and sixth in the class of non-profit applicants.) 5/ The second lowest-scored for-profit in the class of for-profits was also in the Large County group. Thus, it became Low-FP!(L!) after RPK was removed. It, too, was replaced by the Large County non-profits that became, in turn, High-NP[D](L!) as the next highest-ranked non-profit in that group was moved up into the funding range to satisfy the 12% Non-Profit Set-Aside. In all, the Corporation's staff proposed to elevate — and hence award tax credits to — four non-profit applicants whose final scores were lower than Lakesmart's and Coral Village's. One of those four putative beneficiaries had a lower final score than Meadow Glen's. Lakesmart and others who disagreed with the Corporation’s staff advanced an alternative interpretation of the Instructions. In their view, to ensure that the Non-Profit Set-Aside is met requires the following maneuver: Remove Low-FP(x!) and replace it with High- NP[D!](x). 6/ If there is no domestic non- profit outside the funding range, then replace Low-FP(x!) with High-NP. 7/ This interpretation admits the possibility that Low-FP! might remain in the funding range, because it might not be in county group x. Under this interpretation, favored by all Petitioners, Lakesmart and Coral Village would be elevated into the funding range, rather than being "leap-frogged" by lower-scored non- profits, and RPK would not be displaced. (Of course, Petitioners' interpretation would require that some other for- profit ox be gored — one having a higher score than RPK's.) These competing interpretations of the Instructions were presented to the Corporation's board for consideration at its public meeting on September 22, 2000. After a discussion of the issues, in which members of the public participated, the board voted unanimously to accept the interpretation that the staff had acted upon in preparing the September 15, 2000, rankings. Later in the same meeting the board adopted final rankings, which were prepared in accordance with the approved interpretation, that resulted in the denial of Petitioners' applications for tax credits. The 1997 Awards: Precedent or Peculiarity? Petitioners maintain that their interpretation of the Instructions is supported by a supposed precedent allegedly set in 1997 that, they say, was binding on the Corporation in 2000. In the 1997 cycle, it so happened that after drawing the tentative funding lines, the sum total of credits sought by non-profits within the preliminary funding range failed to reach the then-required threshold of 10%. Thus, for the first time, the Corporation faced the need to replace higher-scored for- profits (that were apparently in line for funding) with lower- scored non-profits that otherwise would not have received credits. The QAP that governed the 1997 awards provided for the Non-Profit Set-Aside but was silent on the procedure for satisfying it: The Agency will allocate not less than 10% of the state’s allocation authority to projects involving qualified, non-profit Applicants, provided they are non-profits organized under Chapter 617, Florida Statutes, and as set forth in Section 42(h)(5) of the Internal Revenue Code, as amended, and Rule Chapter 9I-48, Florida Administrative Code. Respondent's Exhibit 2, page 8. Rule 9I-48.024(3), Florida Administrative Code (1997), did contain directions for carrying out the required substitution. It prescribed the following procedure for elevating non-profits: If 10% of the total Allocation Authority is not utilized by Projects with Non-Profit Applicants, Applications from Non-Profit Applicants that meet scoring threshold requirements shall be moved into the funding range, in order of their comparative scores, until the 10% set-aside is achieved. This will be accomplished by removing the lowest scored Application of a for-profit Applicant from the funding range and replacing it with the highest scored Non-Profit Application below the funding range within the applicable Geographic Set-Aside pursuant to section (2) above. Petitioners' Exhibit 1. These provisions will be referred to hereafter as the "1997 Directions," to distinguish them from the Instructions. Gwen Lightfoot was the Corporation's Deputy Development Officer in 1997. In that capacity, she was directly responsible for implementing the rules relating to the award of low-income housing tax credits. To satisfy the Non-Profit Set- Aside, Ms. Lightfoot followed the 1997 Directions as she understood them. In so doing, she sorted the eligible non- profits by class (i.e. without regard to their respective county groups) and ranked them in score order, from the highest scoring project to the lowest scoring project. 8/ Then, Ms. Lightfoot moved the highest scoring non-profit in the class of non-profits to a position immediately above the for-profit with the lowest score in the same geographic set-aside as the favored non-profit so that the non-profit project would be fully funded. That is, she replaced Low-FP(x!) with High-NP!(x!). This process was repeated, moving the next highest ranked non-profit to a position immediately above the lowest-ranked for-profit in the same geographic set-aside as the elevated non-profit, until the Non-Profit Set-Aside was met. Although the Corporation presently argues that its board was not fully informed in 1997 as to the procedure that Ms. Lightfoot followed in fulfilling the mandate of the Non- Profit Set-Aside, a preponderance of evidence established that Ms. Lightfoot's actions were within the scope of her authority and taken in furtherance of her official duties; that the board was aware of what she had done; and that the board took no action to change the results that followed from Ms. Lightfoot's interpretation and implementation of the 1997 Directions. Ms. Lightfoot's application of the 1997 Directions, in short, was not the unauthorized act of a rogue employee. Rather, as a matter of fact, her action was the Corporation's action, irrespective of what any individual board member might subjectively have understood at the time. In the years following the 1997 awards, Rule 9I- 48.032, Florida Administrative Code, was re-numbered Rule 67- 48.032 and amended three times, the most recent amendment becoming effective on February 24, 2000. As a result, the 1997 Directions evolved into the language of Rule 67-48.032(2) which, though not identical, retains the essential meaning of its predecessor. During the same period, the QAP was also amended three times, the version controlling the 2000 application cycle having been approved by the governor on December 16, 1999, and adopted by reference in the Florida Administrative Code on February 24, 2000. Unlike the revisions to Rule 9I-48.032(3), however, the changes in the QAP that relate to the issue at hand are significant, because the 2000 QAP sets forth a procedure for fulfilling the Non-Profit Set-Aside when the collective amount of credits sought by non-profits in the tentative funding range falls short of the mandated mark, whereas the 1997 QAP did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Corporation enter a final order dismissing the petitions of Petitioner Lakesmart, Petitioner RPK, and Intervenors Meadow Glen and Coral Village. DONE AND ENTERED this 7th day of February, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 February, 2001.
The Issue At issue herein is whether or not the City of North Miami or the Special Policemen's Fund of the City of North Miami is entitled to participate in the distribution of the tax fund established pursuant to Chapter 185, Florida Statutes, for calendar years 1976 and 1977. The parties have stipulated to the following facts: The Wyatt valuation as of 1-1-73 required payments of $517,011 from all sources and $419,554 from the City of North Miami (City) in order to fund the normal cost and actuarial deficiency of the North Miami Employees Retirement System Pond (Fund) for the Fund's 1974 calendar year. The City contributed $328,275 for that fund year. Due to the underfunding, the State tax revenues for the 1974 calendar year derived from Chapters 175 and 185, Florida Statutes, were withheld by the Department of Insurance. The Wyatt valuation as of 1-1-75 indicated that $919,430 was due from all sources and $743,653 from the City to fund the normal cost and actuarial deficiency of the North Miami Employees Retirement System Fund for the Fund's calendar year 1975. The City paid $282,187 for the fund year. Due to the underfunding in 1974 and 1975, the calendar year 1975, Chapter 175 and 185 funds were withheld by the Department of Insurance. The Wyatt valuation as of 1-1-75 again indicated that $919,430 was due from all sources and $743,653 from the City in order to fund the normal cost and actuarial deficiency of the North Miami Employees Retirement System Fund for the Fund's calendar year 1976. Due to the adoption of a fiscal accounting year by the Fund, no funds were contributed by the City to the North Miami Employees Retirement System Fund for the first nine months of 1976. The Wyatt valuation as' of 1-1-75 also indicated that $743,653 was required to be paid during the City's 1976-1977 fiscal year. The City budgeted and paid $755,000 to the North Miami Employees Retirement System Fund during the City's 1976-1977 fiscal year. In November of 1976 the Department of Insurance released tax revenues for calendar years 1974 and 1975 which had previously been withhold. The Coopers-Lybrand valuation as of 1-1-77 indicated that the City was required to contribute $765,006 to fund the normal cost and actuarial deficiency of the North Miami Employees Retirement System Fund for the Fund's fiscal year 1977-1978. That amount was budgeted by the City of North Miami for payment during the City's fiscal year 1977-1978. In addition to the stipulated facts, evidence reveals that the valuation for North Miami Employees Retirement System Fund performed by The Wyatt Company as of 1-1-75 was based on financial data up to December 31, 1974. That valuation added all previously required amounts which had at been paid into that Fund prior to December 31, 1974, to the actuarial deficiency of the Fund and indicated that if the City paid a total of $743,653 into the Fund during its 1976-1977 and 1977-1978 fiscal years, the underfunding which had previously occurred could he remedied over the course of the years remaining in the forty- year funding period, October 1, 1972, to September 30, 2012. The Department of Insurance (Department) released the 1974 tax revenues derived pursuant to Chapters 175 and 185, Florida Statutes, on November 8, 1976, based upon proof that the City of North Miami had budgeted $755,000 for the North Miami Employees Retirement System Fund during the City's 1976-1977 fiscal year. In addition to the release of the Chapters 175 and 185 revenues for the 1974 calendar year on November 8, 1976, the Department also released the 1975 calendar year revenues at that same time. There was conflicting testimony as to the reason for the release of the 1975 revenues. The City contends that the Department of Insurance knew or should have known of the funding deficiency for the 1975 calendar year of the North Miami Employees Retirement System Fund and agreed that deficiency and any other required amounts which had not been paid prior to the 1976-1977 fiscal year of the City could be added to the actuarial deficiency of the Fund. On the other hand, the Department contends that it did not know of the funding deficiency for the 1975 calendar year of the North Miami Employees Retirement System Fund and agreed only that required amounts which had not been paid by the City to the North Miami Employees Retirement System Fund prior to January 1, 1975, could be added to the actuarial deficiency of the Fund inasmuch as the 1974 calendar year of the Fund was the first funding year after the commencement of an amended plan and new forty year funding period in accordance with The Wyatt Company valuation as of 1-1-73. The facts centering around the dispute are as follows. Myles J. Trailins, Esquire, was the City Attorney for the City of North Miami, Florida, from September, 1975, through January, 1977. Based on a dispute between the State Insurance Commissioner, the State Comptroller, and the City of North Miami and the Special Policemen's Fund of North Miami concerning the funding of the North Miami Employees Retirement System Fund in June, 1976, City Attorney Trailins filed on behalf of the City, a petition for the issuance of an Alternative Writ of Mandamus against Gerald Lewis as State Comptroller to compel the release of warrants which had been cut and issued but which were being withheld by the State Insurance Commissioner. Following the issuance of the writ by the Supreme Court of Florida and after telephone and written communications between the parties, an agreement was reached that resulted in dismissal of the aforementioned litigation, Supreme Court Case No. 49,692, following the immediate disbursement of past due sums which the City contended were unlawfully retained by the Respondent and the Comptroller, Gerald A. Lewis. Additionally, the parties agreed to the following covenants: Beginning fiscal year 1976-1977 and successive years thereafter, the City of North Miami agreed to fully fund the North Miami Employees Retirement System Fund in the amount determined by the City's actuaries. For each year thereafter for so long as the City continued to contribute the full amount as determined by the City's actuaries, the Respondent, the State Insurance Commissioner, and the then State Comptroller, Gerald Lewis, would not withhold or prevent the disbursal of monies due Petitioners, the City of North Miami and the Special Policemen's Fund, in accordance with Chapter 185, Florida Statutes. Any and all monies then outstanding from the City of North Miami due the North Miami Employees Retirement System Fund prior to fiscal year 1976- 1977 would be amortized and paid in accordance with Sub-section 189.07(4), Florida States. That Gerald Lewis as Comptroller of the State of Florida (at that time) would forthwith prepare and forward warrants due the City of North Miami and the Special Policemen's Fund for 1974 and 1975 and the Insurance Commissioner would not block the release of said warrants. The City of North Miami and the Special Policemen's Fund would enter into a stipulation for dismissal with Gerald Lewis as the then Comptroller of the State in Supreme Court Case No. 49,692. The agreement resulted in dismissal of the litigation which was initially agreed to verbally on November 4, 1976, in a telephone conversation between Attorney Trailins and James R. Vereen, acting on behalf of Philip F. Aschler, the then Insurance Commissioner and Treasurer. Said agreement was reduced to writing and the correspondence attached to an Affidavit dated November 2, 1976, and November 5, 1976. The State Insurance Commissioner and Treasurer takes the position that an additional cash payment in the amount of $452,669 was required to be made by the City to the Fund for fully funding the pension fund for the fiscal year 1976-1977. This position appears to be contrary to the agreement entered into by and between the parties on or about November 5, 1976. Evidence reveals that said amount was not budgeted by the City of North Miami nor was such amount due or required to be paid to the pension fund as calculated by the City's actuaries since the City had already contributed the actuarily determined amount required to fully fund the pension fund for fiscal years 1976-1977 pursuant to the stipulation and agreement between the parties. Additionally, it was noted that the Comptroller, apparently noting full compliance pursuant to Chapters 175 and 185, Florida Statutes, certified the City's full compliance for fiscal years 1974 through 1976 by disbursing all sums collected on behalf of the City from the premium excise tax for said years. Section 185.35, Florida Statutes, sets forth certain requirements for cities to participate in the distribution of the tax fund establishing Sections 185.07, 185.08 and 185.09, Florida Statutes. Subsection (1)(j) of Section 185.35, Florida Statutes, provides in pertinent part that commencing on July 1, 1964 (the municipality) shall contribute to the plan annually an amount which together with the contributions from the police officers, the amount derived from the premium tax provided in Section 185.08, and other income sources will be sufficient to meet the normal costs of the plan and to fund the actuarial deficiency over a period not longer than forty years. Subsection 185.07(4) provides that the Municipal Police Officers Retirement Trust Fund in each municipality...shall be created and maintained in the following manner: (4) By payment by the municipality or other sources of a sum equal to the normal costs and the amount required to fund over a forty year basis any actuarial deficiency shown by a quinquennial actuarial valuation. The first actuarial valuation shall be conducted for the calendar year ending December 31, 1963. Based on the above factors and since the City has recognized the above referred to actuarial deficiencies as legal obligations of the City and is amortizing the actuarial deficiencies over a forty year period in accordance with Florida Statutes, Subsection 185.07(4), I shall recommend that the Petitioners are entitled to the Chapter 185 monies for calendar years 1976 and 1977.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Insurance Commissioner authorize the warrants for the Chapter 185 monies due the City of North Miami and the Special Policemen's Fund of the City of North Miami for the years 1976 and 1977 be cut by the Comptroller and remitted to the petitioners in accordance with Chapter 185, Florida Statutes. ENTERED this 31st day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Willard K. Splittstoesser, Esquire City Attorney of North Miami 776 Northeast 125th Street North Miami, Florida 33161 Donald A. Dowdell, Esquire Legal Division Office of Insurance Commissioner and Treasurer 428-A Larson Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner is entitled to a consumer certificate of exemption as a religious or charitable institution.
Findings Of Fact Petitioner has submitted seven (7) exceptions to the Hearing Officer's Findings of Fact in the Recommended Order. Exceptions 1, and 3 through 6 filed by Petitioner are rejected. Exception 2 is accepted to the extent it states that Petitioner does not hold worship services. The remainder of this exception is rejected. Exception 7 is rejected, except for the first sentence which indicates that the date of purchase of the vehicle was 1995, not 1993. Petitioner's First Exception-- Finding of Fact No. 1: Petitioner's statements as to how Petitioner was advertised are not relevant and, therefore, are rejected. Petitioner's Second Exception-- Finding of Fact No. 2: Accepted that Petitioner does not have worship services. This determination has been made by the Hearing Officer's Findings of Fact. See Findings of Fact No. 2 and 3. The remainder of this exception is rejected as being irrelevant. Petitioner's Third Exceptions-- Finding of Fact No. 3: The Hearing Officer's Finding of Fact, Paragraph 3 of the Proposed Recommended Order, that Christian-Muslim Church of God (ALLAH) is not part of any established religion is supported by substantial competent evidence. Thus, Petitioner's exception to this finding is rejected. The statement that Petitioner's founder will write a "Consolidated Moral Bible" is not relevant, and is therefore rejected. The Hearing Officer's finding that Petitioner has generalized plans to establish regular religious services, but has not yet done so, is supported by substantial competent evidence. Therefore, Petitioner's exception to this finding is rejected. The statement as to how assemblies of the church will be organized by Petitioner in the future is not relevant, and is therefore rejected. Petitioner's Fourth Exceptions- Finding of Fact No. 4: Petitioner's statements as to where Petitioner's funds are deposited is not relevant, and therefore is rejected. Petitioner's statements as to the type of donations its founder, Mr. Savas, personally makes are not relevant and, therefore, are rejected. The Hearing Officer found that Petitioner does not qualify as a "religious institution" under s212.08(7)(o) 2.a., Florida Statutes. The Hearing Officer's finding is supported by substantial competent evidence. Thus, Petitioner's exception to this finding is rejected. Petitioner's statement as to why Petitioner needs the sales tax exemption is not relevant and, therefore, is rejected. Petitioner's Fifth Exceptions-- Finding of Fact No. 5: The Hearing Officer found that Petitioner is not registered as, or classified as, any type of legal entity. The Hearing Officer also found that the Petitioner is not a church or charitable institution as those terms are defined under s212.08(7), Florida Statutes for purposes of sales tax exemption. The Hearing Officer's findings are supported by the record and by substantial competent evidence. The remainder of Petitioner's exceptions are not material. Therefore, all of Petitioner's exceptions to Paragraph 5 are hereby rejected. Petitioner's Sixth Exception-- Finding of Fact No. 6: The Hearing Officer found that Petitioner is not registered as, or classified as, any type of legal entity and that Petitioner does not qualify as a "charitable institution" pursuant to s 212.08(7)(o)2.b., Florida Statutes. These findings are supported by substantial competent evidence. Therefore, Petitioner's exception to this paragraph is rejected. Petitioner's Seventh Exceptions-- Finding of Fact No. 7: Accepted that Petitioner's founder purchased his car in 1995, and applied for a consumer's certificate of exemption at that time. The statements as to the beliefs of Petitioner's founder are irrelevant or immaterial, and are rejected accordingly.
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 tax exemption to Petitioner, the Christian-Muslim Church of God (Allah). DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 18th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4076 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. 1. - 11. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ruth Ann Smith, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 John Savas 1416 Hill Drive Largo, Florida 34640 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The parties stipulated, and the Hearing Officer finds, that the petitioner Omica Housing Corporation, Inc. is a nonprofit Florida corporation which operates physical facilities in Dade County, Florida, and which is a tax exempt Organization under Section 501(c)(3) of the federal Internal Revenue Code. The petitioner has applied to the respondent for a Certificate of Exemption as a nonprofit charitable institution as contemplated in Chapter 212.08(7), Florida Statutes. Such applications have been denied by the Department of Revenue on the ground that petitioner does not qualify as an exempt charitable institution within the purview of Section 212.08(7) Petitioner was organized in 1974 by the founders of Organized Migrants in Community Action, Inc. (OMICA), a nonprofit and sales tax exempt organization concerned with bettering conditions for the farm worker and other low-income persons. One of OMICA's goals was to have safe, modern and decent housing for low-income farm workers. In order to carry out this goal and receive federal funds, petitioner Omica Housing Corporation was formed. Although many of the same persons are involved in the management of both organizations, the two entities are separate and are independently funded, Petitioner's prime goal is to upgrade the environmental conditions of low-income farm workers. This goal has as its chief objective the rehabilitation and construction of housing and as its subobjective the training and educating of farm workers in construction skills and other skills outside of farm work. Petitioner concentrates on providing basic shelter, educational training and employment for farm workers. Ninety to ninety-five percent of petitioner's activities are devoted to the improvement or construction of housing for low income farm workers. Petitioner has rehabilitated over 250 housing units for migrant farm workers. It has worked with Dade County to bring housing units within the migrant labor camps up to County health standards. It has also aided the County in developing recreational facilities and day care centers for the migrant workers. Repair work in connection with the migrant education program of the Dade County School Board has been performed by petitioner. Petitioner has also aided other charitable institutions who work with farm workers and has provided the necessary labor for various housing authorities. All such work is provided to clients without a fee. Approximately ninety-nine percent of petitioner's funding comes from the federal and local governments and from other entities funded by the federal government. The remaining one to two percent comes from private donations. Petitioner operates on about $900,000.00 per year in grant money. CETA grants are used for the training and use of approximately 40 employees. If equipment purchased under these grants is no longer used by petitioner, its ownership reverts to the federal Department of Labor or the CETA consortium. These agencies have declined to pay the sales tax on equipment and other material purchased by petitioner.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Omica Housing Corporation, Inc. be granted tax exempt status as a charitable institution under Florida Statutes, Section 212.08(7). Respectfully submitted and entered this 31st day of January, 1979, in Tallahassee, Florida. COPIES FURNISHED: Joseph C. Segor Chonin and Segor, P.A. 30th Floor, New World Tower 100 N. Biscayne Boulevard Miami, Florida 33132 Edwin J. Stacker Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Harry L. Coe, Jr. Executive Director Department of Revenue Carlton Building Tallahassee, Florida 32304 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes, Petitioner forfeited his retirement benefits under the City of Longwood's (City's) Police Officers' and Firefighters' Pension Trust Fund (Pension Fund) by having pled nolo contendere to felony counts of burglary with assault/battery while armed (firearm) and aggravated assault with a firearm while on duty.
Findings Of Fact The City is a small municipality in southwestern Seminole County lying just north of Altamonte Springs and west of Winter Springs. Petitioner was employed as a patrol corporal by the City Police Department and was a member of the Pension Fund. On January 29, 2011, while on duty, Petitioner was involved in an incident at a residence in the City where his former wife, Kimberly Zeh, also a police officer and then separated but not yet divorced from Petitioner, was temporarily living with a friend, Carol Ericson. At the time of the incident, Petitioner was on duty, in uniform, and in possession of City issued equipment, including a firearm. Around 4:00 p.m. that day, Petitioner drove to the residence in his police cruiser and first attempted to telephone his wife, then rang the door bell, and finally knocked on the door. When there was no response, without permission Petitioner entered the dwelling through a sliding glass door in the kitchen. He did not have a warrant relating to the residence and there were no exigent circumstances that warranted his entry into the residence. Petitioner's mannerisms upon entering the home demonstrated and were consistent with the emotion of anger. After entering the dwelling, Petitioner observed his former wife "walk[ing] across the hallway partially dressed" and Bennett Feld in the bedroom. Mr. Feld is a physician assistant then employed by the Zeh's family physician. Petitioner believed Mr. Feld was having an affair with his wife. Petitioner drew his service weapon, entered the bedroom, and pushed Mr. Feld against a wall. He then pointed his service weapon at Mr. Feld's head and asked: "Do you think you're going to take my wife?" He also stated that if his former wife did not move back home then three dead bodies would be found at the residence. After holstering the weapon, he struck Mr. Feld in the face. Prior to leaving the residence, Petitioner requested that his former wife return home and stated that the incident that just took place would be forgiven. On March 1, 2011, an Information was filed in State of Florida v. John W. Zeh, Case No. 2011-00503-CFA, in the Circuit Court of the Eighteenth Judicial Circuit, in and for Seminole County, charging Petitioner for the incident occurring on January 29, 2011. In relevant part, the Information states: Count I: In that John W. Zeh, on or about January 29, 2011, in the County of Seminole and State of Florida, did violate F.S. 810.02(1) by knowingly entering or remaining in a dwelling, the property of Carol Ericson as owner or Kimberly Zeh as custodian, with the intent to commit an offense therein, and in the course of committing the burglary made an assault or battery upon Kimberly Zeh and/or Bennett Feld, and during the commission of the burglary John Zeh was in actual possession of a firearm, contrary to Florida Statute 810.02(2)(a), 810.02(2)(b) and 775.087. (1 DEB FEL, PBL). * * * COUNT IV: In that John W. Zeh on or about January 29, 2011, in the County of Seminole and State of Florida, while in possession of a firearm, did intentionally and unlawfully threaten by word or act to do violence to the person of Bennett Feld, coupled with an apparent ability to do so, which created well-founded fear in that such violence was imminent, and further did commit the assault with a handgun, a firearm or deadly weapon, contrary to Florida Statutes 784.021(1)(a) and 775.087(2). (3 DEG FEL). On October 11, 2011, Petitioner, represented by counsel, entered a plea of nolo contendere to, in relevant part, the following: (1) burglary with assault/battery while armed in violation of sections 810.02(2)(b) and 775.087(1)(a); and (2) aggravated assault with a firearm in violation of section 784.021(1)(a). On January 4, 2012, Petitioner was adjudicated guilty of the above crimes and was sentenced accordingly. After the incident, Petitioner voluntarily resigned from his position as a City police officer. Upon becoming aware of Petitioner's plea, the Pension Fund initiated proceedings to determine whether Petitioner's pension fund benefits should be forfeited pursuant to chapter 112 and/or the Pension Fund's terms and conditions. On October 15, 2013, the Pension Fund conducted a probable cause hearing resulting in the determination that Petitioner's rights and benefits be forfeited under the Pension Fund. Contrary to Petitioner's assertion, the Notice of that decision was sufficient to apprise him of the intended action. The Notice precipitated the filing of Mr. Zeh's request for a hearing. Paragraphs A.-G. of section 21 of the Pension Plan are identical with section 112.3173(2)(e), cited in the Conclusions of Law, so the Plan provisions will not be restated here. Like the cited statute, subsection (2) of section 21 provides in part that "[c]onviction shall be defined as . . . a plea of guilty or nolo contendere."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees for the City of Longwood Police Officers' and Firefighters' Pension Trust Fund enter a final order determining that Petitioner has forfeited his rights and benefits under the Pension Fund, except for the return of his accumulated contributions as of the date of his termination. DONE AND ENTERED this 30th day of June, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 30th day of June, 2014. COPIES FURNISHED: Jamison Jessup 557 Noremac Avenue Deltona, Florida 32738-7313 Scott R. Christiansen, Esquire Christiansen & Dehner, P.A. Suite 107 63 Sarasota Center Boulevard Sarasota, Florida 34240-9385 Christopher R. Conley, Esquire Fishback, Dominick, Bennett, Ardaman, Ahlers, Langley & Geller, LLP 1947 Lee Road Winter Park, Florida 32789-1834
The Issue The issue presented for decision in this case is whether the Holiday Rotary Endowment Fund, Inc. (“Holiday Endowment”) is eligible for a consumer certificate of exemption as a charitable institution pursuant to Section 212.08(7)(o), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner, the Holiday Endowment, is an organization incorporated in the State of Florida as a not-for-profit corporation under Chapter 617, Florida Statutes. It was formed in October 1996 by the Holiday Rotary Club of Holiday, Florida, as a vehicle for accruing funds to contribute to the various charities supported by the Holiday Rotary Club. The Holiday Endowment is exempt from federal income tax under Section 501(a) of the Internal Revenue Code as an organization described in Section 501(c)(3), having obtained an exemption letter from the Internal Revenue Service on May 30, 1997. Larry Schalles, Treasurer of the Holiday Endowment, testified that annual fundraising achieves variable results, and that the membership of the Holiday Rotary Club seeks to attain stability in its philanthropic endeavors by placing a portion of its funds into the Holiday Endowment each year. Once the endowment is built up, the interest can be used to pay for scholarships each year, leaving the principal intact. At all times relevant to this proceeding, the sole active function of the Holiday Endowment has been to raise moneys to establish the endowment fund. All moneys raised by the Holiday Endowment are invested in the fund to provide scholarships in the future. All of the Holiday Endowment’s fund raising activities are conducted by unpaid volunteers. At all times relevant to this proceeding, the Holiday Endowment has made no expenditures of any kind. The Department denied the Holiday Endowment’s application for a certificate of exemption on the ground that the Holiday Endowment did not qualify as a charitable institution under the seven criteria set forth in Section 212.08(7)(o)2.b., Florida Statutes. In particular, the Department found that the Holiday Endowment does not expend in excess of 50% of its operational expenditures toward qualified charitable services, meaning that the provision of a charitable service is not the organization’s sole or primary function. As set forth above, the Holiday Endowment has in fact made no expenditures of any kind. The Department also found that the Holiday Endowment does not provide a reasonable percentage of services free of charge or at a substantially reduced cost to persons unable to pay for such service. The Holiday Endowment’s response is that the exemption should nonetheless be granted, because any expenditures it makes in the future will be for charitable purposes.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order denying the certificate of exemption sought by the Holiday Rotary Endowment Fund, Inc. DONE AND ENTERED this 26th day of October, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 26th day of October, 1998. COPIES FURNISHED: Larry C. Schalles, C.P.A. Treasurer, Holiday Rotary Endowment Fund, Inc. 5728 Main Street New Port Richey, Florida 34652 William B. Nickell Assistant General Counsel Department of Revenue 501 South Calhoun Street, Suite 304 Tallahassee, Florida 32399-1050 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 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
The Issue The issue in this case is whether the Petitioner should be issued a sales tax exemption certificate either as a "church" or as a "religious organization."
Findings Of Fact The Petitioner, In His Service, is a not-for-profit organization formed to give structure to a Bible study and prayer group Shirley B. Cole leads. Cole is the Petitioner's "pastor," but she is not ordained, does not officiate at weddings or funerals, and has no formal religious training other than participation in similar study groups in the past. The Petitioner is affiliated with an organization called the Federation of Independent Churches, which has an office on East Bird Street in Tampa, Florida. (In a post-hearing submission, Cole asserted that the Petitioner's "outreach is from Greater Ministries International, basically functioning as a satellite church, but there was no evidence regarding Greater Ministries International.) Portions of the Petitioner's by-laws were admitted in evidence at the final hearing. The by-laws make reference to three officers--president, vice-president, and secretary-treasurer--but Cole testified that she was the secretary and that someone else was the treasurer, and she did not seem to know anything about a president or vice-president. In addition, while the by-laws refer to a board of directors and meetings of the board of directors, Cole does not know anything about either. The Petitioner is small (not more than 15 members). It consists primarily of Cole and her friends and neighbors and some others who hear about the meetings. The group has met in various locations, including Cole's home at 5155 20th Avenue North, St. Petersburg, Florida, and the homes of other members of the group. In addition to Bible study and prayer, the group discusses health issues and other topics of interest and shares reading materials and tapes on topics of interest. From time to time, the group collects items of donated personal property for the use of members of the group and others in need who could use the items. In late June 1998, the Petitioner applied for a sales tax exemption certificate as a church. In response to a question from a representative of the Respondent DOR Cole stated that the Petitioner held services in her home every Thursday from 7:30 to 9:30 or 10 p.m. A DOR representative attempted to confirm Cole's representation by attending a meeting in Cole's home on Thursday, October 8, 1998, but no services were being held there, and no one was home. If there was a meeting on that day, it was held somewhere else. On or about December 28, 1998, DOR issued a Notice of Intent to Deny the Petitioner's application because the Petitioner did not have "an established physical place of worship at which nonprofit religious services and activities are regularly conducted and carried on." In January 1999, Cole requested an administrative proceeding on the Petitioner's application, representing that she was holding the Petitioner's meetings at her home every Monday from 7:30 p.m. On Monday, April 5, 1999, a DOR representative visited Cole's home at 7:30 or 7:35 p.m., but no one was home. At final hearing, Cole testified that she went to pick someone up to attend the meeting and was late returning. Cole had an April 1999 newsletter admitted in evidence. It indicates that she holds weekly Bible study meetings on Mondays at her home. It also indicates: "The week of April 19th will be our maintenance [health] meeting." It also indicates that the Monday, April 26, 1999, meeting would be a "covered dish dinner with prayer and praise fellowship afterward." Cole also had a book/tape loan check-out list admitted in evidence. The list indicates that two items were checked out on January 21, one on February 8, two on February 14, one on February 15, one on March 8, one on March 21, two on March 22, one on April 4, one on April 5, and four on April 12, 1999. (Two entries dated April 13 precede two on April 12, so it is assumed that all were on April 12, 1999). Cole owns her home, pays the taxes, and pays the utility bills. Cole also claims a homestead exemption. There are no signs, no physical attributes, or anything else that would identify Cole's house as a church. No part of the home is set aside for the Petitioner's exclusive use. The Petitioner pays no rent to Cole and does not reimburse Cole for any of her expenses (such as taxes and utility bills) of home ownership. Under local City of St. Petersburg zoning ordinances, Cole would have to obtain a special exception from the Environmental Development Commission to use her home as a church. Cole has not attempted to do so. Had she tried, the special exception would be denied because her home does not meet the ordinance's minimum lot and yard size criteria for such a special exception. (It is not clear whether Cole's home would meet the ordinance's parking, maximum floor area ratio, and maximum surface ratio criteria for a special exception for a church.) In light of past discrepancies between the Petitioner's representations and the facts, it was not clear from the evidence presented in this case that meetings have taken place, are taking place, or will take place in Cole's home on a regular basis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DOR enter a final order denying the Petitioner's application for a tax exemption certificate. DONE AND ENTERED this 18th day of May, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 18th day of May, 1999. COPIES FURNISHED: Shirley Cole, Pastor In His Service 5155 20th Avenue, North St. Petersburg, Florida 33710 Kevin ODonnell, 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
