The Issue Whether the Department of Revenue may retain Petitioner's after-tax lottery prize of $4,074.50 and apply it to reduce the outstanding arrearage for child support in the amount of $11,050.00 as of October 23, 2002.
Findings Of Fact DOR and DOL are the agencies of the State of Florida charged with the duty for the administrative enforcement of the intercept of lottery prize winnings to satisfy past due child support debt. Petitioner made a claim to a lottery prize in the amount of $4,074.50 after-tax on or about May 28, 2002. DOR notified DOL that Petitioner was indebted to the state for court-ordered child support through the court depository and administrative cost in the amount of $13,049.25. Pursuant to Section 24.115(4), Florida Statutes, Petitioner's entire lottery prize in the amount of $4,074.50 after-tax was transferred to DOR by DOL. Petitioner was given written notice on May 30, 2002, of the DOR's intent to intercept his lottery prize in the amount of $4,074.50, it had received from DOL, and apply it to partially satisfy his unpaid child support debt. Petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, regarding the final decision by DOR to retain the $4,074.50 and apply it to the certified child support debt. Petitioner disputes the claim by DOR that he owes child support that is being collected through a court. On October 19, 1984, Catherine Siler, the custodial parent of the children, signed a non-AFDC application for child support enforcement with the Florida Department of Health and Rehabilitative Services, the predecessor to DOR. On October 19, 1984, DOR filed a Uniform Reciprocal Enforcement of Support Act (URESA) petition with the Clerk of Court in Escambia County, Florida, to be forwarded to Indiana. On October 26, 1984, the Escambia County Clerk of Court requested that the Indiana court issue an order to require child support payments to be paid through the Escambia County, Florida Clerk of Court Depository. On May 24, 1985, the Indiana court entered an order requiring the child support payments in the case of Catherine Silver v. Gregory Aull be paid through the Escambia County, Florida Clerk of Court Depository. Florida has received and continues to receive child support payments from Petitioner on behalf of Catherine Siler. At a May 8, 1998, hearing, the Indiana court determined that Petitioner had a support arrearage of $23,009.00. The Indiana court ordered Petitioner to pay the arrearage at the rate of $50.00 per week beginning May 15, 1998. The order required Petitioner to execute a voluntary Wage Withholding Order. Petitioner consistently made payments toward the arrearage and on May 28, 2002, Petitioner had a child support arrearage in the amount of $13,049.25. On October 23, 2002, Petitioner had an arrearage of $11,050.00. DOR intends to apply Petitioner's lottery prize in the amount of $4,074.50 to partially satisfy his past due child support debt.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order wherein it retains the $4,074.50 lottery prize of Petitioner and apply it to reduce the accrued arrearage of $11,050.00 as of October 23, 2002. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 December, 2002. COPIES FURNISHED: Gregory J. Aull 107 Georgia Avenue St. Cloud, Florida 34769 Chriss Walker, Esquire Child Support Enforcement Department of Revenue Post Office Box 8030 Tallahassee, Florida 32314-8030 Louise Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Bruce Hoffmann, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issues for determination are: (1) Whether Respondent, David M. Whitehead, a member of Escambia County Commission, violated Section 112.313(7)(a), Florida Statutes, by having or holding an employment or contractual relationship with B & W Productions of Pensacola, Inc. (B & W Productions) which created a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which impeded the full and faithful discharge of his public duties; whether Respondent violated Section 112.3143(3)(a), Florida Statutes, by voting on measures that came before the Escambia County Commission regarding Carlan Killam Consulting Group, Inc. (Carlan Killam Consulting or Carlan Killam), Baskerville-Donovan, Inc. (Baskerville-Donovan), DelGallo-Morette Construction Company (DelGallo-Morette), and/or Champion International Corporation (Champion), all of whom were sponsors of a television show hosted by Respondent; and (3) if so, what penalty is appropriate.
Findings Of Fact Respondent, David M. Whitehead (Respondent), currently serves as county commissioner for Escambia County, Florida, and has continuously served in that capacity since taking office after his election in 1992. As a county commissioner for Escambia County, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (Code of Ethics), and is a "public officer" as that term is defined in Sections 112.313(1) and 112.3143(1)(a), Florida Statutes. As a county commissioner for Escambia County, Respondent is subject to the provisions of Sections 112.313(7)(a) and 112.3143(3)(a), Florida Statutes. Respondent formed B & W Productions, a Subchapter S, for-profit corporation, for the purpose of producing a morning television show that was to be known as the "Lois and Mike Show" or the "Wake-Up with Lois and Mike Show" (the "Lois and Mike Show"). Respondent is "Mike" on the Lois and Mike Show and co- hosts the show with Lois Benson. B & W Productions was incorporated to shield the personal assets of Respondent and Benson in case of liability. B & W Productions was organized under the laws of the State of Florida, effective June 17, 1998. B & W Productions was active from June 17, 1998, through September 23, 1999. On September 24, 1999, B & W Productions was administratively dissolved for failure to file its annual report, as required by law. During its corporate existence, B & W Productions maintained a corporate bank account at SunTrust Bank, West Florida; produced periodic profit and loss statements of its activities; applied for a federal tax identification number as a Subchapter S corporation; filed a corporate tax return with the Internal Revenue Service; and entered into sponsorship agreements with specific sponsors of the Lois and Mike Show. However, during its corporate existence, the corporation failed to conduct meetings of its shareholders, to take minutes, and to file its annual report. Respondent served as chief executive officer of B & W Productions until approximately March of 1999. In March 1999, after Respondent stepped down as CEO, Benson took over the books and management of B & W Productions. Thereafter, Respondent was not involved in the active management of B & W Productions. In November of 1999, Respondent transferred to Benson "all ownership rights, rights to compensation in any form, and right to any benefits, accrued or accruing in the future, with regard to B & W Productions, Inc., and "Wake Up with Lois and Mike . . . ." Respondent transferred complete ownership of B & W Productions to Benson, free and clear of any obligation for repayment. The Lois and Mike Show began airing on a local cable station in Pensacola known as "BLAB TV" in September of 1998. Respondent and Benson have received no compensation for their efforts in connection with the Lois and Mike Show. Since the Lois and Mike Show first aired, over 200 guests, all local people, have appeared on the show. Daily rundowns of the show for the calendar year 1999 evidence a program highlighting local community events and personal information presented by local residents consistent with a weekly theme developed by Benson. As a political figure, Respondent receives an incidental benefit of appearing as local personality on the Lois and Mike Show. However, the show is not a political show. Rather, consistent with its mission, the show entertains and informs its audience on issues specific to the Pensacola area, highlighting local news and issues, local events, and local people. BLAB TV requires the payment of $1,250.00 for each week that the Lois and Mike Show is aired. Other costs incurred in the production of the show included contract labor and outside production companies used to produce a portion of the show. The primary source of income to pay for the Lois and Mike Show is money paid by sponsors or supporters of the Lois and Mike Show. Using a public broadcasting system model, Benson developed a market plan to secure sponsors for the Lois and Mike Show. The plan proposed different tiers of sponsorship: segment sponsors; traditional commercial sponsors; and friends and benefactors. Benson developed lists of potential sponsors which included a wide range of businesses in the Pensacola area. These businesses included but were not limited to Baskerville-Donovan, DelGallo-Morette and Champion. Various potential sponsors including Baskerville-Donovan, DelGallo-Morette and Champion, were targeted for a personal solicitation from either Benson and/or Respondent. Initially, B & W Productions was responsible for billing and collecting sponsorship fees. However, in December 1998, three months after the show was first aired, responsibility for billing and collection of sponsorship fees was assumed by BLAB TV. Since BLAB TV took over these responsibilities, all sponsors of the Lois and Mike Show are billed directly by BLAB TV. Both Respondent and Benson personally paid a portion of the costs for the airing and production of the Lois and Mike Show. Respondent paid approximately $16,000.00 of his personal funds for the production of the Lois and Mike Show. Benson expended approximately $30,000 of her personal funds for the production of the show. These payments have at various times been characterized as loans and capital contributions. In March of 1999, Respondent determined that he could not put anymore of his personal funds into B & W Productions and did not do so. Both before and after the airing of the first Lois and Mike Show, Respondent solicited funds from sponsors to help pay the amount charged by BLAB TV for airing the show. Sponsorships were solicited from over 200 individuals and entities in the Pensacola community by Respondent and Benson. Respondent solicited funds in 1998 for the sponsorship of the Lois and Mike Show from a number of sources, including Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette, all of whom gave money for the sponsorship of the Lois and Mike Show. There was never any discussion at the time the solicitations were made that any of these potential sponsors might have matters before the Escambia County Commission (County Commission or Commission). Respondent has not solicited sponsors for the show since March of 1999. Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette have all had matters come before the Escambia County Commission after giving money for the Lois and Mike Show. Respondent, as a county commissioner for Escambia County, has voted on matters that have come before the County Commission regarding Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette after those companies gave money to support the airing and/or production of the Lois and Mike Show. However, Respondent has never been employed by and has never owned property with or engaged in a business enterprise with Baskerville-Donovan, Carlan Killam Consulting, Champion, or DelGallo-Morette. Since July of 1998, Respondent has cast approximately 3,000 votes as a member of the County Commission. He has never abstained from a vote as a county commissioner or filed a conflict of interest disclosure form based upon payments that have been made by any entity to B & W Productions or for the Lois and Mike Show. Baskerville-Donovan provides architectural and engineering services to Escambia County. These services are provided pursuant to an on-going contract with the county. Respondent solicited a sponsorship from Baskerville- Donovan. Subsequently, Baskerville-Donovan became a regular sponsor of the Lois and Mike Show paying $200 a month, beginning September or October 1998, and continuing through April 2000. The following matters that came before the Escambia County Commission for a vote regarding Baskerville-Donovan just before and after it became a sponsor of the Lois and Mike Show: On June 23, 1998, the Commission approved issuance of a Task Order to Baskerville-Donovan on Contract PD 95- 96.74 in the amount of $394,568 to design several road projects to the 35 percent stage. This item was unanimously approved by the Commission upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Baskerville- Donovan. On September 22, 1998, the Commissioner approved the extension of six contracts with various consultants, including Contract PD 95-96.74 to Baskerville- Donovan for the second consecutive one- year option period, October 1, 1998, through September 30, 1999, at the same price, terms, and conditions. The extensions applied to contracts that had been awarded on August 6, 1996. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid by Baskerville-Donovan to B & W Productions. On December 22, 1998, the Commission approved Addendum Number 7 to Contract 95-96.63 to Baskerville-Donovan in the amount of $316,775.60 to provide full- time inspection and contract administration for the University Parkway Widening and Realignment Projects. This item was unanimously approved by the Commission with Respondent seconding the motion for approval made by Commissioner Boss. This vote occurred after sponsorship funds were paid to B & W Productions by Baskerville-Donovan and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On January 21, 1999, the Commission approved issuance of a Task Order on Contract PD 95-96.74 to Baskerville- Donovan, in the amount of $490,729.00 to design various paving and drainage projects to the 30 percent stage. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On January 21, 1999, the Commission approved extension of five current contracts with various consultants, including Contract PD 95-96.100 to Baskerville-Donovan, for the third consecutive one-year option period, March 14, 1999, through March 13, 2000, at the same prices, terms and conditions. The extensions applied to contracts that had been awarded March 14, 1998. The item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On February 4, 1999, the Commission approved Amendment Number 4 to Contract PD 94-95.59 between Escambia County and Baskerville-Donovan, in the amount of $51,200, for architectural and engineering services for various projects. (The original contract was approved on April 25, 1995.) This item was unanimously approved as part of the Commission's Consent Agenda, with Respondent moving approval of the Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On April 22, 1999, the Commission approved the expenditure of approximately $3,000 to Baskerville-Donovan to complete the design package for renovations to the Board Chambers located in the Old Courthouse. This item was approved by a vote of 4-0, with Commissioner Robertson absent. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On May 20, 1999 the Commission approved three items extending Contract PD 95- 96.83 to allow three consultants, including Baskerville-Donovan, to proceed with various tasks with respect to the extension of I-110. In the first vote, the Commission unanimously approved extension of the contract to allow consultants to proceed with the preparation of applications associated with the request for funds for the I-110 extension project. In the second vote, the Commission unanimously approved extension of the contract to allow the consultants to proceed with design and preparation of other documents required in connection with extension of I-110 to Nine Mile Road. In the third vote, the Commission approved, by a vote of 3-2, extension of the contract to allow consultants to proceed with design and preparation of related documents for further extension of I-110 using as much of the Gulf Power right-of-way as possible. With respect to each vote, Respondent seconded the motion for approval and voted in the affirmative on each item. These votes occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On October 7,1999, the Commission approved Contract PD 98-99.83 to Baskerville-Donovan, in the amount of $100,000 for a feasibility study for the Central Commerce Park. This item was approved unanimously by the Commission upon motion seconded by Respondent. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. With respect to each of the matters which were the subject of votes referenced in paragraph 25, neither Respondent nor B & W Productions provided any services to Baskerville- Donovan. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting Baskerville-Donovan's performance under any of these contracts. Moreover, neither Respondent nor B & W Productions provided any services with respect to any of the projects which were the subject of the Commission votes. Finally, neither the Respondent nor B & W Productions benefited from the votes of the County Commission approving various items involving Baskerville-Donovan. Respondent has never been employed or retained by Baskerville-Donovan. Respondent has never been engaged in a business enterprise with Baskerville-Donovan as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange. Carlan Killam Consulting provides architectural services to Escambia County, and has done so since 1973. These services have been provided to the county through on-going contracts. Carlan Killam Consulting provided one payment of $1,500.00 to sponsor the Lois and Mike Show. That payment was made on or about July 29, 1998. Benson initially approached Charles Carlan, the president of Carlan Killam Consulting, about sponsoring the Lois and Mike Show. Subsequently, Carlan met with Respondent and decided to have his company sponsor the show because it showed the positive side of Pensacola, as opposed to the negative side shown in the regular media. Carlan Killam Consulting engaged in a similar sponsorship endeavor with respect to the Pensacola Independent Newspaper. The following matters came before the Escambia County Commission for a vote regarding Carlan Killam Consulting just before and after it became a sponsor of the Lois and Mike Show: On June 23, 1998, the Commission, upon motion by Respondent, unanimously approved the issuance of a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $254,920 to design several road projects to 30 percent stage. This vote occurred before sponsorship funds were paid by Carlan Killam. On July 28, 1998, the Commission unanimously approved, as part of its Consent Agenda, a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $379,618 for various road paving and draining design projects. This vote occurred before any sponsorship funds were paid by Carlan Killam. On September 22, 1998, the Commission approved extensions of six current contracts with various consultants, including Carlan Killam (Contract PD 95.96.74), for the second consecutive one-year option period, October 1, 1998, through September 30, 1999, at the same prices, terms and conditions. (The extensions applied to contracts that had been awarded August 6, 1996.) This item was unanimously approved as part of the Commission's Consent Agenda. The vote occurred after the one-time sponsorship payment was made to B & W Productions by Carlan Killam. On November 24, 1998, the Commission considered and unanimously approved the Proposal Review Committee's ranking of firms based on their letters of interest regarding providing professional architectural consulting services to prepare a 10-year master space plan. Carlan Killam ranked second. This vote occurred after Carlan Killam made a one- time sponsorship payment to B & W Productions. On December 3, 1998, the Commission approved issuance of a Task Order on Contract PD-96.74.3P to Carlan Killam in the amount of $134,748 for services on various waste water projects. This vote occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions. On December 22, 1998, the Commission approved issuance of a Task Order on Contract 95-96.74 in the amount of $104,927 for design, engineering, and surveying services for storm-water and drainage projects. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions. On March 18, 1999, the Commission approved issuance of three task orders on Contract PD 95-96.74 to Carlan Killam in amounts of $136,476; $504,771; and $69,087. These items were unanimously approved as part of the Commission's Consent Agenda. Respondent was not present for this meeting. On April 22, 1999, the Commission approved issuance of a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $110,666 for the design and engineering for various road projects. This item was unanimously approved as part of the Commission's Consent Agenda for this date. This vote occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Production. On May 20, 1999, the Commission approved three items extending Contract PD 95-96.83 to direct named consultants, including Carlan Killam, to proceed with various tasks with respect to the extension of I-110. In the first vote, the Commission unanimously approved extension of the contract to allow consultants to proceed with the preparation of applications associated with the request for funds for the I-110 extension project. In the second vote, the Commission unanimously approved extension of the contract to allow the consultants to proceed with design and preparation of other documents required in connection with extension of I-110 to Nine Mile Road. In the third vote, the Commission approved, by a vote of 3-2, extension of the contract to allow consultants to proceed with design and preparation of documents for further extension of I-110 using as much of the Gulf Power right-of-way as possible. With respect to each item, Respondent seconded the motion for approval and voted in the affirmative. These votes occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions. On October 21, 1999, the Commission approved issuance of Task Order on Contract PD 95-96.83 to Carlan Killam in an amount not to exceed $263,727.28, to provide the first phase of project development to study the I-110 extension to Nine Mile Road. This item was approved by the Commission, by a vote of 4-1, with Respondent voting in the affirmative. This vote occurred after the one-time sponsorship payment was made to B & W Productions. With respect to each of the matters which were the subject of votes referenced in paragraph 31, neither Respondent nor B & W Productions provided any services to Carlan Killam. Moreover, neither Respondent nor B & W Productions had any responsibility for evaluating or inspecting Carlan Killam's performance under the aforementioned contracts or for providing any services with respect to any of the projects which were the subjects of these votes. Finally, neither Respondent or B & W Productions benefited in any manner from the votes of the County Commission approving various items involving Carlan Killam. Respondent has never been employed or retained by Carlan Killam. Respondent has never been engaged in a business enterprise with Carlan Killam as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange. DelGallo-Morette provides construction services to Escambia County. Benson suggested that Respondent contact DelGallo- Morette as a potential sponsor. Both Respondent and Benson discussed sponsorship of the Lois and Mike Show with Steve DelGallo, the president of DelGallo-Morette. Subsequently, DelGallo-Morette provided a one-time payment of $2,500 to sponsor the Lois and Mike Show. That payment was made on or about August 21, 1998. Benson's credible testimony was that she and DelGallo are good friends and that if there was any reason for DelGallo-Morette to sponsor the show, it was because she had just recently drawn the house plans for DelGallo free of charge. Matters that came before the Escambia County Commission for a vote regarding DelGallo-Morette just before and after it became a sponsor of the Lois and Mike Show include the following: On June 23, 1998, the Commission approved the unanimous recommendation of the Bid Review Committee to award a lump sum contract to DelGallo-Morette, in the amount of $89,5000 as the lowest, most responsive, and most responsible bidder, for a renovation construction project. This item was unanimously approved by the Commission, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by DelGallo-Morette. On June 30, 1998, upon motion by Respondent, the Commission approved an increase in maximum price, by a sum not to exceed $385,000, for telecommunication system improvements at the M.C. Blanchard Judicial Center pursuant to a contract approved by the Commission on November 19, 1996, with Brown and Root Building Company, in association with DelGallo-Morette. This vote occurred prior to any sponsorship funds being paid to B & W Productions by DelGallo-Morette. On November 24, 1998, upon motion by Respondent, the Commission unanimously approved a guaranteed maximum price on the Escambia County Control Booking and Detention Facility in the amount of $14,661,576 with Brown and Root Building Company, as the contractor, in association DelGallo-Morette and a total project cost of $16,054,682 relative to Contract PD 97-97.155. This vote occurred after the one-time sponsorship payment was made paid to B & W Productions by DelGallo-Morette. On March 18, 1999, the Commission approved amending Contract PD 95-96.113 with Brown and Root Building Company, in association with DelGallo-Morette, to increase the guaranteed maximum price of $900,000 to provide for additional costs for construction change orders and other items associated with renovation of the M.C. Blanchard Judicial Center Expansion Project. This item was unanimously approved as part of the Commission's Consent Agenda by a vote of 4-0. Respondent was absent and did not vote. With respect to each of the matters which were the subject of votes referenced in paragraph 37, neither Respondent nor B & W Productions provided any services to DelGallo-Morette. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting DelGallo-Morette's performance under the contracts addressed by the votes. Neither Respondent nor B & W Productions provided any services with respect to any of the projects which were the subjects of those votes. Further, neither Respondent nor B & W Productions benefited in any manner from the votes of the Commission approving various items involving DelGallo-Morette. Respondent has never been employed or retained by DelGallo-Morette. Moreover, Respondent has never been engaged in a business enterprise with DelGallo-Morette as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange. Champion is a forest products company whose primary products are a variety of papers, lumber, and plywood. Champion has a contract with Escambia County for the disposal of ash at the landfill in exchange for natural gas. In August or September 1998, Respondent and Benson met with representatives of Champion to discuss sponsorship of the Lois and Mike Show. Benson made most of the presentation which focused on the negative public image of Champion in the community at that time. Champion's negative image resulted from Champion's planned wastewater discharge into Escambia Bay. The Escambia County Commission did not have regulatory jurisdiction over this issue. Rather, regulatory jurisdiction resided at the Department of Environmental Protection and the Environmental Protection Agency. Champion was a segment sponsor of the Lois and Mike Show for a year, beginning in September 1998 through September 1999, at a rate of $260 a month. As a segment sponsor, Champion paid $260 monthly. From October 1999 through December 1999, Champion paid $178.50 per month to sponsor the show and in December 1999, Champion paid $119 in sponsorship fees. After December 1999, Champion discontinued its sponsorship of the show. The following matters that came before the Escambia County Commission regarding Champion before and after it became a sponsor of the Lois and Mike Show: On July 28, 1999, the Commission approved retaining Chris H. Bentley, Esquire, to monitor and advise the Commission on Champion's permitting activities regarding discharge of treated wastewater into Escambia River. This item was unanimously approved by Commission upon motion seconded by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion and did not address any item which Champion had before the Commission. On September 22, 1998, the Commission amended its License Agreements with Champion for the period January 1, 1998, through December 31, 1998, to include installation of gas monitoring wells at various landfill sites which was inadvertently omitted from the prior approved agreements. This item was unanimously approved by the Commission, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion. On October 8, 1998, the Commission took two actions concerning Champion. First, it voted to accept, for filing in the minutes of the Commission, the "Escambia County Citizens' Executive Point Paper" regarding Champion's proposed discharge of wastewater into the Escambia River. This action was taken unanimously, upon motion seconded by Respondent. Second, the Commission voted to approve the staff's making a written request to Environmental Protection Agency's (EPA) "Technology Team" to evaluate the impact of Champion's proposed wastewater discharge into Escambia Bay relative to the request of the Escambia County Citizen's Coalition, Inc. This action was taken unanimously, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion and did not address any item which Champion had before the Commission. On November 5, 1998, the Commission discussed a proposal from the Department of Environmental Protection that Escambia County form a partnership with Santa Rosa County and the EPA for a unified peer review approach to Champion's proposed relocation wastewater discharge point and to analyze the processing of wastewater discharge permitted for Champion and its impact on Escambia Bay and Perdido Bay. The Commission voted unanimously to refer to DEP's proposal to the County's Department of Neighborhood and Environmental Services for analysis and recommendation. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and did not address any item which Champion had before the Commission. On November 24, 1998, the Commission approved the renewal of four License Agreements with Champion for the operation of water quality monitoring and gas wells located at various landfill sites, for the period January 1, 1999, through December 31, 1999. This item occurred after sponsorship funds were paid to B & W Productions by Champion. On February 2, 1999, the Commission adopted a resolution urging Champion to use monies encumbered for construction and permitting of its proposed pipeline to the Escambia River to fund improvements to the effluent being dumped into Eleven Mile Creek. This item was approved by the Commission, by a vote of 3-2, with Respondent voting in the affirmative. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and did not address any item which Champion had before the Commission. On April 8, 1999, the Commission authorized staff to negotiate the purchase of a parcel of property from Champion to be used as a district park. This item was unanimously approved by the Commission, upon motion made by Respondent, with Commissioner Boss absent. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On April 22, 1999, the Commission amended a previously approved Qualified Industry Tax Refund Incentive for Champion's dimensional lumber production facility. This item was unanimously approved by the Commission, upon motion made by Respondent, with Commissioner Robertson absent. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On June 22, 1999, the Commission adopted an ordinance establishing an economic development ad valorem tax exemption for Champion for its expansion of its Pensacola Mill located in Cantonment and for its hiring of additional employees. (Champion had expended $40 million in improvements at the facility that resulted in increased production and employment.) An employee of Champion met individually with Respondent as well as other members of the Commission to discuss this issue. The value of the ad valorem tax exemption to Champion was $1.8 million spread over 6.9 years. This item was unanimously approved by the Commission. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On July 15, 1999, the Commission approved the purchase of real property for a park from Champion for $375,000. This item was approved as part of the Commission's Consent Agenda by a vote of 4-0, with Respondent absent. With respect to each of the matters which were the subject of votes referenced in paragraph 43, neither Respondent nor B & W Productions provided any services to Champion. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting Champion's performance under the items addressed by the votes. Neither Respondent nor B & W Productions provided any services with respect to any of the matters which were the subject of these votes. Neither Respondent nor B & W Productions benefited in any manner from the votes of the Commission on these items involving Champion. Respondent had no interest in the real property which the Commission directed staff to negotiate with Champion regarding purchase by the county. Respondent has never been employed or retained by Champion. Moreover, Respondent has never been engaged in a business enterprise with Champion as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange. Respondent was present and voted in favor of all of the issues involving sponsors as set forth in paragraphs 25, 31, 37, and 43 above, except as otherwise noted. All of the aforementioned sponsors paid for the sponsorship of the Lois and Mike Show. Furthermore, two of these sponsors, Baskerville-Donovan and Champion, continued to make monthly sponsorship payments in months just before, as well as after the votes, in the amounts of $200 and 260, respectively. Since the sponsorships reduced the personal contributions that had to be made by Respondent and his business associate, Benson, for the airing of the Lois and Mike Show, they directly benefited from money received from sponsors who did business with and regularly appeared before the Escambia County Commission. The facts show that all four of the above-mentioned sponsors were doing business with the Escambia County Commission and that both Baskerville-Donovan and Champion made sponsorship payments for the Lois and Mike Show during this interim period after dissolution but prior to the time that Respondent transferred his interest in the show to Lois Benson. Neither Respondent nor Benson believed that soliciting sponsorship from businesses that appear before the Escambia County Commission for a vote was a conflict. However, Respondent's contractual relationship with B & W Productions, and its interest in the Lois and Mike Show, his direct solicitation of sponsorships from businesses appearing before the County Commission, and Respondent's and B & W's dependence upon funds derived from those sponsors, constituted a continuing and frequently recurring conflict between Respondent's private interests and the performance of his public duties as a member of the Escambia County Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Ethics Commission enter a final order and public report finding that Respondent, David Whitehead: (1) did not violate Section 112.3143(3)(a), Florida Statutes; and (2) violated Section 112.313(7)(a), Florida Statutes. It is further recommended that for the violation of Section 112.313(7)(a), Florida Statutes, the Commission impose a civil penalty of $2,000 against Respondent and issue a public censure and reprimand. DONE AND ENTERED this 15th day of August, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2000. COPIES FURNISHED: James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Akerman, Senterfitt & Edison, P.A. 301 South Bronough Street, Suite 200 Tallahassee, Florida 32801 Sheri L. Gerety, Agency Clerk Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
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 proceeding is whether Petitioner's lottery prize should be withheld and used to pay an outstanding debt for child support.
Findings Of Fact The Petitioner did not appear and no evidence was presented.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order dismissing the Petitioners request for a formal hearing, and transferring Petitioner's lottery prize to the Department of Revenue in partial satisfaction of Petitioner's debt for past public assistance obligation. DONE and ENTERED this 20th day of October, 1995, at 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 20th day of October, 1995. COPIES FURNISHED: James Merriweather 1333 7th Street West Jacksonville, FL 32209 Chriss Walker, Esquire Child Support Enforcement Department of Revenue P. O. Box 8030 Tallahassee, FL 32314-8030 Louisa Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, FL 32399 Stephen S. Godwin, Esquire Office of the Comptroller Suite 1302, The Capitol Tallahassee, FL 32399-0350 Hon. Robert F. Milligan, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 Harry Hooper, Esquire Department of Banking and Finance The Capitol - Room 1302 Tallahassee, FL 32399-0350
The Issue Whether Petitioner, Children's Charity Fund, Inc., qualifies under Section 212.08(7)(o)2.b., Florida Statutes, for a consumer certificate of exemption as a charitable institution.
Findings Of Fact Petitioner, Children's Charity Fund, is a not-for-profit corporation and qualifies as a tax-exempt organization pursuant to Section 501(c)(3) of the United States Internal Revenue Code. Petitioner maintains an office in Sarasota, Florida. The articles of incorporation specify that the nature of the business to be transacted and the purpose to be promoted by Children's Charity Fund "shall be exclusively charitable, including raising funds in any lawful manner" for the following purposes: (1) to educate and inform the public about the needs of handicapped and disabled children; (2) to provide referral services and maintain a hot-line for handicapped children; (3) to provide services "in whatever form possible that the Board may deem necessary" for handicapped children and their parents; and (4) to buy medical equipment for handicapped and disabled children. The Children's Charity Fund claims entitlement to a consumer certificate of exemption based primarily on the fourth purpose listed in paragraph 2 above. In carrying out this purpose, the Children's Charity Fund purchases various types of medical equipment for handicapped and disabled children who reside in Florida as well as in other states. The medical equipment is provided to children who need the equipment, but whose parents have no insurance or their requests for the equipment have been turned down by Medicare, Medicaid, or their insurance companies. In determining which applications for medical equipment it will approve, the Children's Charity Fund has not established income limits for the applicant family. The circumstances of each family are considered on a case-by-case basis and factors other than income are also considered. To date, Children's Charity Fund has never denied an application for medical equipment for a handicapped or disabled child, regardless of family income, if such equipment was needed by the child. In addition to purchasing medical equipment for handicapped and disabled children, the Children's Charity Fund provides Christmas gifts and tickets to events organized and promoted by the Children's Charity Fund such as charity softball games. The Children's Charity Fund claims that these gifts and tickets are charitable services. During its most recent fiscal year, the Children's Charity Fund spent less than 50% of its operational expenditures on qualified charitable services. The evidence at hearing established that during the relevant time period, Children's Charity Fund spent less than 35% of its total operating expenditures on qualified charitable services. This percentage does not meet the requirements of Rule 12A-1.001(3)(g)3.e., Florida Administrative Code, which mandates that the organization seeking tax exempt status as a charitable institution spend "in excess of 50.0 percent of [its] operational expenditures toward qualified charitable services." During its most recent fiscal year, Children's Charity Fund spent approximately 50% of its operating expenditures to pay for fundraising activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer certificate of exemption to Petitioner, the Children's Charity Fund, Inc. DONE AND ENTERED this 18th day of May, 1998, in Tallahassee, Leon County, Florida. Carolyn S. Holifield Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1998. COPIES FURNISHED: Ken Bowron, Sr. Executive Director Children's Charity Fund, Inc. 2011 Bispham Road Sarasota, Florida 34236 Kevin J. O'Donnell Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue 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 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
Findings Of Fact At all times material hereto, Respondent held a class "H" certificate of registration numbered GH-8500083 issued by Petitioner pursuant to Chapter 496, F.S. According to Respondent's application for registration which was submitted on or about January 23, 1984, Respondent is the President of an organization known as, "Citizens Benevolent Association - Displaced Inmate Dependent Mission." The purpose of that organization is to give housing, employment, food, clothing and toys to the dependents of inmates in central Florida. It was further indicated that the organization would raise less than $4000 each year, and contributions it received would be used to carry out the purpose of the organization. In February, 1986, Willie Rister, regional office supervisor and investigator for Petitioner, attempted to meet with Respondent concerning his charitable organization, and particularly its financial records. After two unsuccessful attempts to meet with Respondent, Rister contacted Respondent on March 12, 1986, and was told that all financial records of the organization had already been turned over to him. Respondent's financial records fail to reveal or inaccurately reveal the income and expenses of the organization. Specifically, they fail to account for all contributed funds and in-kind contributions, as well as disbursements. It appears that the organization's funds and Respondent's personal funds have been comingled, and no distinct records have been kept. It is not possible to determine which expenditures are personal and which are to carry out the purpose of the organization. The financial records are simply a listing of receipts without any explanation of the source or method of raising these funds, which appear to total approximately $9000 for 1985. Rister testified that he was unable to find any people who had been helped by Respondent or his organization. Contributed funds were used primarily for the personal expenses of Respondent or his family, or here not fully accounted for and were not used for any charitable purpose associated with the organization. Respondent advertised his organization in the Sebring News, indicating that his organization finds jobs and housing for the dependents of inmates. There is no evidence that his organization ever performed these services, and in fact the evidence presented indicates it did not.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order revoking Respondents certificate of registration numbered GH-8500083. DONE AND ENTERED this 1st day of December, 1986 in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1986. COPIES FURNISHED: Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32399 James V. Antista, Esquire Department of State The Capitol Tallahassee, Florida 32399 John Joseph Heinrich 109 North Self Avenue Avon Park, Florida 33825
The Issue Does Petitioner qualify for a consumer's certificate of exemption as a "church" as defined in Rule 12A-1.001(3)(c), Florida Administrative Code, or as a "religious institution" as defined in Section 212.08(7)(o) 2.a., Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Friends Housing and Care, Inc. (Petitioner), is a non-profit corporation exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code. Petitioner has filed under the fictitious name statute and is doing business under the name Woodmere at Jacarande. Petitioner's Amended Articles of Incorporation dated October 25, 1996, state Petitioner's purposes as follows: To provide elderly families, elderly persons, and handicapped persons housing and related facilities and services specially designed to meet the physical, social, psychological, economic and spiritual needs of the aged and contribute to their health, financial security, happiness and usefulness in longer living. To plan, construct, operate, maintain, and improve housing and related facilities and services for elderly families and elderly persons. To acquire by gift or purchase, hold, sell, convey, assign, mortgage, or lease any property, real or personal, necessary or incident to the provisions of housing and related facilities and services for elderly families and elderly persons. To borrow money and issue evidence of indebtedness in furtherance of any or all of the objects of its business; and to secure loans by mortgage, pledge, deed or trust, or other lien. To engage in any kind of activity, and enter into, perform and carry out contracts of any kind, necessary or in connection with, or incidental to the accomplishment of any one or more of the nonprofit purposes of the corporation. To conduct educational or scientific research on a non-profit basis and to cooperate with foundations, educational institutions, and research centers in promoting same, with the aim of increasing knowledge and enhancing life in our society. To foster and encourage spiritual life and bring the human spirit into intimate relation with the Divine Spirit, to provide definite, organized opportunity for the development of spiritual values and for the renewal of our strength in accordance with generally accepted faith and practice of the Religious Society of Friends. Note 1 of Petitioner's audited financial statements containing the independent auditor's report dated January 8, 1997, states that Petitioner ". . .was created by Friends (Quakers) to plan and develop a Not-for-Profit Condominium Retirement Community in Florida to meet the needs of Friends and others who wish to retire or live in a Quaker-sponsored retirement community in Florida. " Note 3 to the same financial statements indicates that Petitioner's operations have been devoted to raising capital, obtaining financing, purchasing land and beginning construction on the planned retirement community. As reflected in the unaudited financial statement dated April 30, 1997, of the total reflected year-to-date expenses of $820,681: $299,548 went to architectural fees; $71,985 was spent for engineering fees; $84,265 was spent for pre-construction management fees; and $40,331 went to advertising. Only $200 was directed to worship expenses. Neither the audited financial statements nor any of the notes thereto indicate that Petitioner is engaged in any religious activities or worship services. Petitioner's retirement community will comprise 32.7 acres, with a 3.7 acre easement. There will be about 700 condominiums constructed on this acreage. Currently, it is anticipated that the first condominiums will be available for occupancy sometime in 1999. Thus, currently there are no residents residing at the Petitioner's retirement community. Petitioner will be constructing an 80,000 square foot commons building which will contain an "auditorium chapel" consisting of approximately 5,500 square feet. This building has not been constructed. The "auditorium chapel" will be used for "religious purposes and multiple-purposes." It is anticipated that both silent and program services of the Friends (Quaker) faith will be held in the chapel. Other religious faiths would also be included. There will also be located within the commons building a 6,000 square foot dining facility, 4,000 square foot library, a gift shop, beauty and barber shops, post office, banking facility, game rooms, and lounge area. Petitioner sells its condominiums to members of the general public of retirement age, regardless of their religious affiliation or even if they have no religious affiliation. Purchasers do not have to be members of the Friends (Quaker) faith. In fact, the retirement community will be a "non- denominational community." The price of the condominiums ranges from about $82,000 for a one-bedroom (676 square foot) unit, to well over $200,000 for a large (2100 square foot) unit. In addition to the sales price, Petitioner will charge its residents a monthly condominium fee to cover maintenance. An activity or club fee will also be charged by Petitioner to cover residents' social activities and transportation costs. If a resident needs medical attention, Petitioner will provide the care and bill the resident's insurance company for the cost of the care. Several witnesses testified that the meetings held at Petitioner's location were held under the name "Woodmere Friends Fellowship," while other witnesses testified that the meetings held at Petitioner's location were held under the name "Woodmere Fellowship." The newspaper advertisements or other published advertisements advertising meetings at Petitioner's location did not refer to "Woodmere Friends Fellowship" or "Woodmere Fellowship." An advertisement appearing in "Quaker Life" in June 1997, indicated that "All Friends Fellowship" was located at Woodmere at Jacaranda. A newsletter from Petitioner dated January 1997, stated that "Friends Inter-Faith Fellowship" was begun at Woodmere Information Center and that several prospective residents from the Venice/Englewood area had "voiced interest in having a meeting in this area. Presently, these meetings are being held every Sunday evening at 6:30 p.m." Additionally, this newsletter stated that these meetings were consistent with Petitioner's federally-recognized religious affiliation. However, Petitioner is never identified as a church or religious institution in this newsletter. By letter dated February 17, 1997, William R. Martin, Petitioner's Chairman, advised the Department that "[o]ur Worship group is being identified as the Woodmere All Friends Fellowship." In an advertisement dated February 1, 1997, Woodmere at Jacaranda, a Quaker-sponsored, resident-owned retirement community, invites interested people to attend a fellowship hour at 6:00 p.m. the first and third Sunday of each month. This advertisement does not refer to Petitioner as a church or religious institution. The bulletins, advertisements, newsletters, and other evidence submitted by the Petitioner do not refer to Petitioner as a church or religious institution. The hours of operation posted on the doors to Petitioner's premises indicate that Petitioner is open Monday through Friday from 9:00 a.m. to 5:30 p.m., and Saturday from 9:00 a.m. to 1:00 p.m. There were no hours listed for Sunday. Additionally, there was nothing to indicate that worship service or religious activities were being conducted by Petitioner on its premises. Although there are meetings being held at Petitioner's location where religious services or activities are being conducted on a somewhat regular basis, there is insufficient evidence to show that Petitioner is responsible for, and conducting, those religious services or activities. Petitioner's sole purpose is not to provide free transportation services to church members, their families, and other church attendees. Petitioner is not a state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. Petitioner does not own or operate a Florida television station whose programs are of a religious nature. Petitioner does not provide regular religious services to Florida state prisoners. Friends Housing and Care, Inc., d/b/a Woodmere at Jacaranda is a Quaker-sponsored, resident-owned, retirement community whose primary function is the development and marketing of a retirement community to members of the general public, regardless of religious affiliation. Petitioner intends to use its sales tax exemption primarily to purchase building materials, including those building materials for the condominiums which it produces for sale to the general public, regardless of their religious affiliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's application for sales tax exemption. DONE AND ENTERED this 25th day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1998. COPIES FURNISHED: Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lattera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Nick Roknich, Esquire Dunlap, Moran, Roknich, and Gibson, P.A. 1819 Main Street, Suite 700 Sarasota, Florida 34236 Ruth Ann Smith, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Community Health Charities of Florida (CHC), is entitled to an award of attorney's fees and costs as a "prevailing small business party" pursuant to Section 57.111, Florida Statutes (2008), by being a prevailing small business party in the underlying case of Community Health Charities of Florida, et. al v. Florida Department of Management Services, DOAH Case No. 07-3547, Recommended Order February 29, 2008; Final Order May 29, 2008. Also, at issue is whether the Respondent Agency's actions, with regard to the underlying case, were substantially justified or whether special circumstances exist which would render an award of attorney's fees and costs unjust.
Findings Of Fact This cause arose upon the filing of a motion or petition for attorney's fees and costs on July 22, 2008, by the Petitioners, CHC and the Charities (the American Liver Foundation, Cystic Fibrosis Foundation, Crohn's and Colitis Foundation, Prevent Blindness Florida, Children's Tumor Foundation, March of Dimes, Lupus Foundation of America, Florida Chapter, Florida Hospices and Palliative Care, Hemophilia Foundation of Greater Florida, National Parkinson Foundation, American Diabetes Association, Leukemia and Lymphoma Society, American Lung Association, ALS Association, Alzheimer's Association, Juvenile Diabetes Research Foundation, Arthritis Foundation, Florida SIDS Alliance, Sickle Cell Disease Association of Florida, Easter Seals Florida, St. Jude Children's Research Hospital, Muscular Dystrophy Association, Nami Florida, National Kidney Foundation, National Multiple Sclerosis Foundation, Huntington's Disease Society of America, and Association for Retarded Citizens). This attorney fee and cost motion was filed in connection with the above Charities having received distribution of undesignated contributions from the 2006 Florida State Employees' Charitable Campaign (FSECC). The Charities made application for the funds and then contested the initial decision of the Steering Committee charged with determining distribution of undesignated contributions (by fiscal agent area). Ultimately, after obtaining a Writ of Mandamus from the First District Court of Appeal, requiring an administrative proceeding and hearing before the Division of Administrative Hearings on the contested claims, the Charities received additional distribution of undesignated contributions. Those additional distributions represent an additional benefit the Charities received upon the entry of the Recommended Order and the Final Order in the underlying proceeding. Therefore, one Petitioner, CHC, in the motion for attorney's fees and costs asserts that it is thus a prevailing party and a small business for purposes of Section 57.111, Florida Statutes, and is entitled to an award of attorney's fees and costs. The Respondent is an Agency of the State of Florida with authority to establish an maintain the FSECC.1/ It administers the decision-making process involving distribution of undesignated funds and issued the Final Order in the original proceeding. The attorney fee and cost proceeding was initially assigned to Administrative Law Judge Charles Adams. Thereafter the case was re-assigned to Administrative Law Judge T. Kent Wetherell, II. He issued an Order, sua sponte, on July 29, 2008, instructing the Petitioners to show cause why the case should not be held in abeyance pending disposition of the appeal of the Final Order in Community Health Charities of Florida v. State of Florida, Department of Management Services, 1D08-3126, the appeal before the First District Court of Appeal. The Petitioners filed a response to the Order to Show Cause stating, in essence, that the issues preserved for appeal involved discreet claims under Section 120.56(4), Florida Statutes. The parties agreed that the portions of the Final Order in the underlying proceeding which granted undesignated fund distributions to the Charities were separable, and not the subject of the appeal to the First District Court of Appeal in the above-cited case. The parties thus stipulated that the case could proceed on the matter of fees and costs, notwithstanding the pending appeal. An Order was entered by Judge Wetherell on August 11, 2008, based upon the responses to the Order to Show Cause. The Order references the parties' agreement that the case could go forward notwithstanding the pending appeal of the Final Order in the underlying case and then, significantly, Judge Wetherell made the following finding: "a closer review of the motion [the motion seeking the award of attorney's fees and costs] reflects that the only Petitioner alleged to be a prevailing small business party entitled to an award of fees under that statute [Section 57.111, Florida Statutes] is Community Health Charities of Florida." Judge Wetherell thereupon proceeded to order that the case style be amended to identify Community Health Charities of Florida (CHC), as the "only Petitioner in this fee case." The Petitioner, CHC, is a Florida non-profit corporation that employs less than 25 full-time employees and has a net worth of less than two million dollars. It is a "federation" under the FSECC Act. A "federation" is defined as an umbrella agency that supplies "common fund raising, administrative and management services to . . . charitable constituent member organizations. . . ." Fla. Admin. Code R. 60L-39.0015(1)(j). Federations were required to file with the Committee (the Steering Committee) a Direct Local Certification Form, describing the direct services that each member charity provided in the various fiscal agent areas. In this capacity, the Petitioner CHC represented 27 member charities in the 2006 charitable campaign. Charitable organizations that provide "direct services in a local fiscal agent's area" are entitled to receive "the same percentage of undesignated funds as the percentage of designated funds they receive." § 110.181(2)(e), Fla. Stat. (2006). CHC is not a provider of services or direct services. Therefore, it, itself, did not receive any undesignated funds. The charitable organizations named above, are the entities which received undesignated funds related to direct services they provided in local fiscal agents' areas. Some received them through the initial decision of the subject Steering Committee, and some after the underlying administrative proceeding was litigated through Final Order. On February 28, 2007, the Steering Committee, under the Respondent's auspices, conducted a public meeting in which it found the charities named above provided direct services in 18 percent of the fiscal agent areas in which they had applied. The Committee therefore denied Charities their share of undesignated funds in the remaining fiscal agent areas. That Committee decision was announced by memorandum of March 12, 2007, which provided the Petitioners with a point of entry to dispute the initial decision in an administrative proceeding. On March 30, 2007, the Petitioners filed an Amended Petition which alleged that they had provided direct services in all the fiscal agent areas in which they applied for undesignated funds, and identified alleged deficiencies in the Committee's decision-making process. That Amended Petition was ultimately referred to the Division of Administrative Hearings for conduct of a formal proceeding, by Order of the First District Court of Appeal, requiring the Agency to refer the Amended Petition to the Division of Administrative Hearings. With the Amended Petition pending before the Division of Administrative Hearings, the Steering Committee called an unscheduled meeting on September 10, 2007, to further address the Petitioners' claims and re-visit the earlier decision denying some applications for undesignated funds. Thereafter, the Respondent changed its initial decision by increasing the percentages of fiscal agent areas where direct services were provided and undesignated funds awarded to the Petitioners, the Charities, as a result of the September 10, 2007, meeting. This percentage thus increased from 18 percent to 77 percent as a result of "additional review of material provided by Petitioners." The Respondent Agency ultimately rendered a Final Order that adopted the decision of the Statewide Steering Committee, approving 77 percent of the Petitioners' previous submittals, as well as the finding of the Administrative Law Judge with regard to the three additional member charities. The Respondent had maintained in the original proceeding that the Committee must limit its consideration to the Direct Local Certification Form. The Petitioners, on the other hand, argued that they were entitled to a de novo review of the Agency action before the Division of Administrative Hearings. Reserving ruling on that matter, Judge Adams permitted the Petitioners, at the Final Hearing, to introduce additional evidence of direct services provided in those fiscal agent areas in which their applications had been denied by the Committee. The issue of direct services was considered de novo before the Division. The judge considered not only the direct local services certification form, but also supporting evidence of direct services introduced by the Petitioners at the Final Hearing. On considering that evidence, the Administrative Law Judge found that three additional member charities, not previously approved by the Committee, had provided direct services, which entitled them to receive undesignated funds. The Final Order entered by the Respondent Agency adopted the Administrative Law Judge's ruling. No exceptions were filed to that Recommended Order, thus the Agency waived its appellate rights with respect to any issue it might have raised, and the Charities prevailed as to the relief they sought in the Amended Petition. In their affidavits filed with the Motion for Attorney's Fees and Costs on July 22, 2008, the attorneys Byrne and Hawkins, for the above-named Petitioners, stated that they were "retained" by those Petitioners, meaning all the above- named charities and also the Petitioner CHC. In the affidavits they stated that those Petitioners "incurred" the attorney's fees and costs to which the affidavits relate. As stated above, the attorney's fee Motion was filed and joined-in by all the above-named charities and CHC. The Petitioners in the underlying case, which was appealed to the First District Court of Appeal, were all the above-named charities and CHC. Nonetheless, the Petitioner CHC took the position at the hearing in this proceeding that an agreement or understanding existed with the affiliate charities, whereby CHC would bear the attorney's fees and costs on behalf of all the affiliate charities. CHC has an agreement concerning how revenue it receives is shared with its national office and member charities. CHC pays its national office a percentage of revenue. It sends money to the national office and the national office also sends an allocation of funds to CHC. CHC is a member of the Arlington, Virginia-based Community Health Charities of America. For the fiscal year beginning July 1, 2006, CHC withheld 25 percent of charitable donations from Florida employees to its affiliated charities as its fee. This is the maximum amount authorized by Florida law in order for it to participate in the FSECC. § 110.181(1)(h)1., Fla. Stat. (2006). In the 2006 campaign at issue, CHC did not file an application in its own name to the Steering Committee for receipt of undesignated funds. As Ms. Cooper testified "we did not apply." CHC received no allocation or award of undesignated funds either in the initial Steering Committee consideration process or as a result of the underlying proceeding through the Agency's Final Order. All the undesignated fund distributions were made to the charities themselves, who were the entities who filed applications to the Steering Committee seeking receipt of undesignated funds. The Steering Committee, which made the initial decisions about distribution of undesignated funds is composed of appointed volunteers. The members of the committee are not compensated and do not have support staff to assist them in their fact-finding review of applications concerning receipt of undesignated funds. The committee members personally review all applications. Review of the applications takes many hours by each member of the committee, much more time than is spent in actual committee meetings. The combined net worth and number of employees of some or all of the Charities, was not established. It was not established that the net worth of one or more of the charities filing this Motion for Attorney's Fees and participating as Petitioners in the underlying case, is less than two million dollars, nor that one or more of them have less than 25 employees. The legislature appropriated $17,000.00 dollars to DMS to administer the FSECC for 2006. Substantially more than that appropriated sum has been expended by DMS to administer the campaign. DMS has no insurance coverage which would pay attorney's fees and costs if they were awarded. DMS is also subject to at least a four percent budget "hold back" for the current fiscal year and is contemplating laying off employees in January 2009, due to budget reductions. If DMS is ordered to pay attorney's fees and costs to CHC, DMS will bill the fiscal agent, United Way, for payment of those amounts from the FSECC charitable contributions. Contrary to the situation with the Petitioner Charities, who made the original filing of the Amended Petition in the underlying case and were named as parties in the filing of the Motion for Attorney's Fees at issue in this case, CHC did offer evidence that its net worth was less than two million dollars and that it had less than 25 employees. Thus, it established this threshold for being considered a small business party. It is also true, however, that the Recommended Order from the Administrative Law Judge and the Final Order from the Agency in the underlying proceeding specifically make no mention of CHC as a prevailing party and award nothing of benefit to CHC, as opposed to the other actual charities, who filed the subject applications.
