The Issue The issues in this case are (a) whether Respondent committed fraud in seeking to obtain funds from the McKay Scholarship Program, thereby warranting Petitioner's summary suspension of payments to Respondent; and (b) whether Petitioner should revoke Respondent's participation in the McKay Scholarship program for failing to comply with applicable laws.
Findings Of Fact Respondent Muskateer's Academy, Inc. ("MAI") is a Florida corporation that, at all times relevant to this case, operated a private school known as Muskateer's Academy ("Muskateer's"). MAI was closely held by Erick and Jacqueline Cermeno, a married couple. Together, they ran the school, holding (and sometimes swapping) various titles of importance, such as "principal" and "superintendent," which signified their supervisory roles. Located in Hialeah, Florida, Muskateer's served mainly at-risk students who, for one reason or another, were unable or unlikely to succeed in the public school system. On paper, the school's tuition was quite steep. The undersigned infers, however, that few parents, if any, actually paid the "sticker price" for tuition and other expenses that Respondent reported to the Florida Department of Education ("Department") in its student fee schedules, which charges totaled $24,000 per year, per child. Rather, the undersigned infers that, for most students at least, Respondent agreed to accept as payment in full whatever amount was available annually for a particular student under the John M. McKay Scholarships for Students With Disabilities Program ("McKay Scholarship Program"). Respondent operated two separate high schools at Muskateer's. One was a "regular," four-year high school that followed the traditional model, where instructors taught various academic subjects to classes of students, who attended classes for the purpose of learning academic subjects from their teachers. In this high school, tests were given periodically, as a means of measuring the students' mastery of the material. The other program was an "accelerated" high school where each student worked individually, at his own pace. Teachers played a relatively small part in this program, doing little but overseeing the "testing room" in which the students took tests——their primary scholastic activity. Students received course credit for passing tests.1 At the relevant times, there were three or four teachers at Muskateer's. To be a teacher there, a person did not need a bachelor's degree. Instead, MAI was willing to hire individuals having some type of educational background, preferably including at least 40 college credits, more or less. One of the teachers at Muskateer's was Amneris Mesa, whose brother, O. F., attended the school for some period of time. As will be seen, O. F. is one of the key figures in the instant dispute. In August 2006, the Department's Office of Independent Education and Parental Choice ("Choice Office") received a complaint about Muskateer's, the gravamen of which was that MAI was continuing to receive funds under the McKay Scholarship Program for former students who had stopped attending the school. The Choice Office, which administers the McKay Scholarship Program, referred the complaint to the Department's Office of Inspector General ("OIG") for investigation. The OIG's investigation led to the discovery of evidence sufficient to persuade the Commissioner of Education ("Commissioner") that MAI had engaged in fraudulent activity with regard to the McKay Scholarship Program. Consequently, on November 1, 2006, the Commissioner issued an Administrative Complaint against MAI, which charged MAI with fraud and other violations of the laws governing the McKay Scholarship Program. At the same time, the Commissioner immediately suspended all payments to MAI under the McKay Scholarship Program. Being thus cut off from its primary source of revenue, MAI closed Muskateer's on November 18, 2006. As of the final hearing, the school had not reopened. The Commissioner's present case against MAI hinges on allegations that, to induce the payment of funds under the McKay Scholarship Program, the company falsely represented to the Department that three students——O. F., N. P., and C. M.——had "reenrolled" at Muskateer's for the 2006-07 school year, when in fact two of them (O. F. and N. P.) previously had graduated, and the third (C. M.) had dropped out midway through the preceding school year. MAI disputes these allegations, and hence the focus of the hearing largely was on whether the three individuals in question had attended Muskateer's during the 2006-07 school year. Before addressing the contested factual issues, however, a brief examination of the McKay Scholarship Program is in order, to provide context for the findings of fact that will follow. The McKay Scholarship Program affords a disabled student the option of attending a different public school from the one to which he is assigned, or, if he is eligible, the opportunity to receive a scholarship to defray the cost of attending a private school of choice. Once awarded, a McKay scholarship remains in force until the student returns to a public school, graduates, or turns 22, whichever first occurs; provided, however, that he does not drop out, which would render the student ineligible for the scholarship, at least during the period of non-enrollment. To participate in the McKay Scholarship Program, a private school must meet certain conditions as well. Inasmuch as the Commissioner has alleged that MAI failed to comply with some conditions of continued eligibility, the relevant ones will be discussed in greater detail below. For the moment, however, it is sufficient to note that McKay scholarship funding is potentially available to most private schools operating lawfully in the state, for the program is designed to be inclusive in this regard. A private school that wants to participate in the McKay Scholarship Program must notify the Department of its interest and submit information demonstrating compliance with the eligibility requirements. This information——and other data necessary to secure the disbursement of scholarship funds——must be transmitted to the Department electronically, through forms available online to registered users, at a secure website maintained by the Department. To access this site, a private school must first obtain a unique code and establish a confidential password, both of which must be entered correctly in order to logon to the Department's secure web page. If the parent of an eligible student chooses the private school option and secures a place for his child at the private school of choice, then the parent must notify the Department of his decision before the child begins attending the private school. After receiving such notice, the Department verifies the student's enrollment in the private school, obtains from the private school a schedule of the tuition and fees, and receives from the student's school district a "matrix of services" reflecting the student's special educational needs. The maximum amount of the McKay scholarship for a particular student is the lesser of (a) the "calculated amount" (which is roughly equal to the estimated cost of educating the student in the public school to which he is assigned) or (b) the actual amount of the private school's tuition and fees.2 The amount of the student's scholarship is deducted from his public school district's total funding entitlement.3 McKay scholarship payments are made in four equal amounts during the school year to which the scholarship applies. The payment dates are September 1, November 1, February 1, and April 1. Payments are made by warrant payable to the student's parent. The Department mails each warrant to the private school of the parent's choice. The parent is required restrictively to endorse the warrant, authorizing the funds to be deposited only in the private school's account.4 To remain eligible for the McKay scholarship, the student must have regular and direct contact with his teacher(s) at the private school's physical location. Thus, ahead of each payment (after the initial payment), the private school must verify, through the Department's secure, password-protected website, that the student continues to be enrolled in, and to attend, the private school. It is in connection with this ongoing duty to verify continued enrollment and attendance at the private school that MAI is alleged to have engaged in fraudulent activity, namely, reporting to the Department that O. F., N. P., and C. M. were still enrolled in, and attending, Muskateer's when, in fact, they were not. The undersigned will now turn to these allegations, which lie at the heart of this matter. But first: It must be acknowledged that the evidence is in conflict concerning the historical facts relevant to the allegations of fraudulent activity. Given the evidential conflicts, the undersigned supposes that reasonable people might disagree about what happened here. Ultimately, however, it falls to the undersigned, rather than a group of hypothetical "reasonable people," to resolve the evidential conflicts and settle the disputed issues of material fact. Thus, to the extent that any finding below (or herein) is inconsistent with the testimony of one witness or another, or with some documentary evidence, the finding reflects a rejection of all such inconsistent testimony and evidence (none of which was overlooked, disregarded, or ignored) in favor of proof that the undersigned deemed, in the exercise of his prerogatives as the fact-finder, to be more believable and hence entitled to greater weight. O. F. In January 2006, halfway through the 2005-06 school year, O. F. was enrolled as a student of Muskateer's. He began attending the accelerated high school on January 26, 2006. At the same time, his sister, Ms. Mesa, started working for MAI as a teacher in the regular high school. About five months later, O. F. graduated from Muskateer's. O. F. participated in a graduation ceremony on June 3, 2006, and, according to the transcript maintained in his student file, O. F. was awarded a diploma or certificate on that date. The transcript notwithstanding, it is undisputed that O. F. did not actually receive his diploma until several months after his graduation date. MAI contends that it withheld O. F.'s diploma because he had not finished all the tests necessary for graduation. The undersigned finds, however, that the evidence is insufficient to support a finding that O. F. had not finished his degree requirements as of June 3, 2006; indeed, the greater weight of the persuasive evidence is to the contrary. Accordingly, MAI's assertion that O. F. did not graduate from high school at the end of the 2005-06 school year is rejected. On May 26, 2006, MAI reported to the Department, through the Department's secure, password-protected website, that O. F. had reenrolled in Muskateer's for the 2006-07 school year, and that he would resume attending the school on July 1, 2006. On the same date and in the same manner, MAI reported that O. F.'s tuition and fees for the upcoming school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. The foregoing representations regarding O. F.'s reenrollment in Muskateer's for the 2006-07 school year were false. Moreover, the greater weight of the evidence persuades the undersigned that, more likely than not, the individuals responsible for making these representations——namely Mr. And Mrs. Cermeno——actually knew that the representations were false, or they recklessly disregarded the truth or falsity of the matters asserted.5 Despite having graduated, O. F. returned to Muskateer's on three or four occasions in September and October 2006, at which times he took a few tests that he had previously taken and passed. This happened because the Cermenos refused to give O. F. his diploma unless he retook these tests——a condition that was repeated both to O. F.'s mother and his sister (the teacher).6 The undersigned infers that, more likely than not, the Cermenos used the threat of withholding O. F.'s diploma as a means of coercing his "attendance" at Muskateer's during the 2006-07 school year, to create plausible deniability in the event the charge were brought (as it was) that MAI had fraudulently sought to obtain McKay scholarship funds for O. F. At any rate, post-graduation "attendance" such as O. F.'s——to retake exams for no apparent legitimate reason——is not the kind of regular attendance that would support the reasonable inference that the student had enrolled for the 2006-07 school year.7 N. P. N. P. enrolled in Muskateer's on May 3, 2004, and began attending classes in the accelerated high school on August 16, 2004. He graduated (at least in the ceremonial sense) at the end of the 2004-05 school year but never received a diploma. N. P. testified that he never returned to Muskateer's as a student after he (ceremonially) graduated. In other words, N. P. claims that he was not a student of Muskateer's during either the 2005-06 school year or the 2006-07 school year. N. P.'s testimony in this regard is corroborated by the testimony of his aunt (and legal guardian), Altagracia Moreta. Additionally, N. P.'s testimony is corroborated by the absence of well-kept, reliable documentation——such as enrollment registers and attendance records——attesting to his ongoing attendance at Muskateer's after the 2004-05 school year. The undersigned considers the lack of such documentation to be a telling fact. Consequently, although there is conflicting evidence, the undersigned finds that, more likely than not, N. P. did not attend Muskateer's during the 2005-06 and 2006-07 school years, as he testified. On May 4, 2005, MAI reported to the Department, through the Department's secure, password-protected website, that N. P. had reenrolled in Muskateer's for the 2005-06 school year, and that he would resume attending the school on August 8, 2005. On the same date and in the same manner, MAI reported that N. P.'s tuition and fees for the 2005-06 school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. On May 26, 2006, MAI reported to the Department, through the Department's secure, password-protected website, that N. P. had reenrolled in Muskateer's for the 2006-07 school year, and that he would resume attending the school on July 1, 2006. On the same date and in the same manner, MAI reported that N. P.'s tuition and fees for the 2006-07 school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. The foregoing representations regarding N. P.'s reenrollment in Muskateer's for the 2005-06 and 2006-07 school year were false. Moreover, the greater weight of the evidence persuades the undersigned that, more likely than not, the individuals responsible for making these representations——namely Mr. And Mrs. Cermeno——actually knew that these representations were false, or they recklessly disregarded the truth or falsity of the matters asserted. C. M. In July 2004, C. M. registered to attend Muskateer's. He began attending the accelerated high school on August 16, 2004. C. M. testified at hearing (via deposition) that he continued to attend Muskateer's while this proceeding was pending, having been in class there as recently as "yesterday" (January 17, 2007). C. M. did not know what courses he was currently taking or how many other students currently were attending Muskateer's. (Recall that Muskateer's closed its doors on November 18, 2006, and, as of the final hearing, had not reopened).8 Whatever credibility C. M. still possessed after giving testimony such as that just described was shredded when Petitioner impeached him with a prior inconsistent (actually, contradictory) statement. On August 22, 2006, C. M. told the OIG's investigator that he had stopped attending Muskateer's in December 2005 and never returned. The investigator made an audio recording of C. M.'s statement, which was received in evidence, but C. M. was not under oath at the time he gave the statement. The undersigned finds that C. M. is not a believable witness, and his testimony, being unreliable and unpersuasive, is given no weight.9 The documents in C. M.'s disorderly (and seemingly incomplete) student file are likewise insufficient to establish, to the required degree of persuasiveness (namely, that the fact is more likely true than not), the dates on which C. M. attended Muskateer's as an enrolled student. The bottom line is that the evidence is insufficient to permit the undersigned to make a finding as to when (or whether) C. M. stopped attending Muskateer's (prior to its closure on November 18, 2006).10 Lacking sufficient proof regarding the dates during which C. M. attended Muskateer's as a duly enrolled student, it is impossible to determine whether MAI engaged in any fraudulent activity with regard to C. M. Determinations of Ultimate Fact The greater weight of the evidence establishes that, to induce the state to disburse McKay scholarship funds for the benefit of O. F., MAI engaged in fraudulent activity, to wit: MAI intentionally reported to the Department that O. F. had reenrolled in Muskateer's for the 2006-07 school year, while either (a) knowing that this representation of material fact was false or (b) recklessly disregarding the truth or falsity of this material representation, which was, in fact, false. The greater weight of the evidence establishes that, to induce the state to disburse McKay scholarship funds for the benefit of N. P., MAI engaged in fraudulent activity, to wit: MAI intentionally reported to the Department, on separate occasions, that N. P. had reenrolled in Muskateer's for the 2005-06 and 2006-07 school years, while either (a) knowing that these representations of material fact were false or (b) recklessly disregarding the truth or falsity of these material representations, which were, in fact, false. The greater weight of the evidence is insufficient to establish that MAI engaged in fraudulent activity in connection with its efforts to obtain McKay scholarship funds for the benefit of C. M. The greater weight of the evidence establishes that, by failing to keep and maintain complete and orderly records of enrollment and attendance, MAI failed to meet its obligation under Section 1002.39(8)(a), Florida Statutes, to comply with all of the requirements set forth in Section 1002.421, which mandates that private schools participating in the McKay Scholarship Program must, among other things, conform to all the requirements outlined in Section 1002.42, Florida Statutes, including Section 1002.42(4), which directs that private schools must prepare and keep attendance records in accordance with the provisions of Section 1003.23(2), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order (a) suspending payment of McKay Scholarship funds to MAI in connection with the 2006-07 school year (b) revoking MAI's participation in the McKay Scholarship Program. DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee, Leon County, Florida. S 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 2nd day of April, 2007.
Findings Of Fact On September 20, 1977, Victor Sosa, at the time an employee of petitioner, and Leroy Patten, then as now a field agent for the Department of Commerce, visited respondent's premises. A Mr. Chavez told the investigators that Jose Isidro Guillamo, respondent's sole corporate officer, was not on the premises and could not be reached. In response to Mr. Patten's questions, Mr. Chavez said he was ignorant of details about respondent's workmen's compensation insurance. Mr. Sosa asked Mr. Chavez to produce invoices reflecting purchases of alcoholic beverages. Mr. Chavez replied that most of the invoices were at an accountant's office, but joined Mr. Sosa in looking for invoices behind a counter at which customers sat. In the course of the search, Mr. Sosa noticed a clipboard hanging from a nail. The clipboard contained guest checks used as lottery slips. Nearby drawers yielded paper napkins similar employed. The search never uncovered any invoices on the premises. At no time did petitioner give respondent permission to store invoices off the premises. On September 20, 1977, and continuously until March 20, 1978, respondent did not maintain in force workmen's compensation insurance for its employees. On September 20, 1977, no notice of workmen's compensation insurance coverage was posted on the premises.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for thirty days and thereafter until respondent shall secure compensation for its employees in accordance with Section 440.38 (1), Florida Statutes (1977). DONE and ENTERED this 26th day of June, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dennis E. LaRosa, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 La Dominicana Corporation d/b/a La Dominicana Restaurant c/o Jose Isidro Guillama and Mario Cartas 1416 San Marco Coral Gables, Florida 33134
The Issue Whether Leroy Smith and/or Alice Longwood are entitled to the $5,000.00 prize for a winning lottery ticket presented by Leroy Smith to the Lottery for collection?
Findings Of Fact On March 7, 1988, Mr. Smith completed a Lottery Winner Claim Form (hereinafter referred to as the "Form") and submitted the Form and a Cool Million instant-winning lottery ticket (hereinafter referred to as the "Ticket"), number 02-114569-303, good for a prize of $5,000.00 for collection. On the back of the Ticket Mr. Smith listed his name and address on the spaces provided for the person claiming the prize and signed the Ticket. The space on the back of the Ticket where the first name of the person claiming the prize was to be listed had been covered with a "white-out" material and "Leroy" written in. At the bottom of the Form Mr. Smith indicates that this was done to replace his first name for a nickname that had previously been entered on the ticket. Mr. Smith also listed his name, Social Security Number, address and phone number on the Form. Mr. Smith signed the Form as the "Claimant." In a letter dated March 8, 1988, DHRS notified the Lottery that Mr. Smith owed $7,478.20 in Title IV-D child support arrearages and $150.00 in court-ordered costs, a total of $7,628.20, as of March 8, 1988. By letter dated March 18, 1988, Mr. Smith was notified that the $5,000.00 prize for the Ticket he submitted was being transferred to the Comptroller for possible payment of his Title IV-D child support arrearages and court costs. The $5,000.00 prize was forwarded from the Lottery to the Comptroller on March 22, 1988. Mr. Smith was notified by the Comptroller by letter dated March 23, 1988, that the Comptroller intended to apply the $5,000.00 prize toward his unpaid obligation. Mr. Smith requested a hearing to contest the proposed action of the Comptroller. The Title IV-D child support arrearages and court costs owed by Mr. Smith are related to two child support cases involving Mr. Smith. First, on December 1, 1981, Mr. Smith was ordered to pay child support to Deidah Brown in an Order of Dependency and Support issued by the Circuit Court, Seventh Judicial Circuit, in and for Flagler County, Florida. On November 6, 1984, Mr. Smith was ordered to pay child support to Patti Victoria Smith by the same court. Mr. Smith's total obligation as of the date of the formal hearing was $7,348.20: $3,578.20 in public assistance arrearage, $3,620.00 in non-public assistance arrearage and $150.00 in court-ordered costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED that a final order be Issued providing for payment of the $5,000.00 prize attributable to the Ticket to DHRS. DONE and ENTERED this 22nd day of November, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1743 The Petitioners have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioners' Proposed Findings of Fact Proposed Finding Paragraph number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-2 1. 3 1-4. 4 5. 5 6. 6 7-8. 7 10. 8 Statement of law COPIES FURNISHED: Jo Ann Levin Senior Attorney Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Leroy Smith Post Office Box 1465 Bunnell, Florida 32010 Patrick Loebig, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Louisa Hargrett, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301 Alice Longwood Post Office Box 1753 Bunnell, Florida 32010 Rebecca Paul, Secretary Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301 Tom Bell, General Counsel Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301
The Issue The issue in this case concerns the application of Section 24.115(4), Florida Statutes, to a claim for payment filed by a person who owes a child support arrearage but who did not purchase the lottery ticket presented for payment.
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I make the following relevant findings of fact. On November 2, 1992, Petitioner, Joseph Judah, Jr., the husband of Petitioner, Diana Judah, presented for payment at the DOL's office in St. Petersburg, a lotto ticket which had been purchased by his wife and which had a prize value of $4,989.50. Mr. Judah placed his name, address and signature on the back of the ticket and completed and signed the winner claim form. Additionally, he presented, as proof of identification, his driver's license and social security card. Pursuant to procedures set forth in Chapter 53-4, Florida Administrative Code, on November 3, 1992, DHRS certified to DOL that Mr. Judah owed $13,302.00 in child support arrearages as of that date. DOL transmitted the prize amount to the Office of the Comptroller and applied the entire amount of $4,989.50 to Mr. Judah's child support arrearages. Mr. Judah was notified that the lottery prize would be applied to his outstanding child support arrearages which prompted him to timely request an administrative hearing. It is undisputed that Mrs. Judah purchased a winning lotto ticket with her money and she is not personally responsible for the support of Mr. Judah's child from a prior marriage. At all times material hereto, DOL had in effect Rule No. 53ER87-43, Florida Administrative Code, entitled "Procedure for Awarding Prizes". That rule provides, in pertinent part, that: (6) Until such time as a name is imprinted or placed upon the back portion of the lottery ticket in the designated area, a lottery ticket shall be owned by the physical possessor of such ticket. When a name is placed on the rear of the ticket in the designated place, the person whose name appears in that area shall be the owner of the ticket and shall be entitled to any prize attributable thereto.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Banking and Finance, Office of the Comptroller, issue a Final Order in this case providing for payment to the Department of Health and Rehabilitative Services of the entire $4,989.50 prize money originally claimed by Petitioner, Joseph Judah, Jr. DONE AND ENTERED this 14th day of July, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 14th day of July, 1993. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, FL 32399-0350 William G. Reeves, Esq. General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, FL 32399-0350 Carrole R. Ward, Esquire 12029 Majestic Boulevard, Suite 7 Bayonet Point, Florida 34667 Karen M. Camechis, Esquire Assistant General Counsel Department of Banking and Finance Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Louisa H. Warren, Esquire Department of Lottery Capitol Complex Tallahassee, Florida 32399-4011
Findings Of Fact Respondents hold license 23-3237 COP and at all times here relevant were so licensed. On 7 November, 1977, Respondent, Juan Rodriguez, sold less than five grams of marijuana to Rocco Delio, an undercover policeman, on the licensed premises. Delio paid Rodriguez $11 for the marijuana and two beers. When arrested in December 1977 on a warrant charging him with the sale of marijuana, Rodriguez had an old lottery ticket in his possession as well as a list of numbers which the arresting officers thought to be lottery numbers. Rodriguez testified that the lottery ticket was an old one he bad obtained in Puerto Rico and that he had forgotten the ticket was in his wallet. He further identified the list of numbers as measurements he had taken for a building. Rodriguez denied ever selling any lottery tickets. At his trial on the charge of possession and sale of marijuana and possession of lottery paraphernalia Rodriguez pleaded guilty, upon the advice of counsel, to unlawful sale of marijuana, and adjudication of guilt was withheld. (Exhibit 1). Rodriguez testified that he paid a $300 fine and was told by his attorney that the plea and subsequent withholding adjudication of guilt would not affect his business. At this hearing Rodriguez denied selling marijuana to the policeman who had testified to the contrary. The Petitioner's witness is deemed a much more credible witness and it was this testimony, plus the guilty plea entered in Circuit Court that resulted in the finding that Respondent possessed and sold marijuana on the licensed premises. No evidence was submitted with respect to Counts 3, 4 and 7 of the Notice to Show Cause. The admissions of Respondent with respect to the facts alleged in Counts 5 and 6 were rebutted by Respondent's testimony, which was not contradicted by Petitioner's witness, that the lottery ticket was old and that the list of numbers found on Rodriguez' person was not a list of lottery numbers.
The Issue Whether or not the Department of Banking and Finance is required by law to transmit $2,159.41 to the State of Florida Department of Education or $2500.00 to the Petitioner.
Findings Of Fact DOE, through its Office of Student Financial Assistance, functions as a guarantee agency for purposes of the guaranteed student loan programs. In this capacity, DOE issues a loan guarantee to a participating lender, such as a bank, when the lender has applied for the guarantee in connection with making a student loan to a student borrower. If the student borrower defaults on repaying the loan to the lender, the lender submits to DOE a claim for DOE to repay the loan to the lender. When DOE repays the loan to the lender, the promissory note evidencing the debt is assigned to DOE which then pursues collection of the loan against the defaulting student borrower. On or about November 18, 1988, Petitioner Leonard K. Williams applied for a guaranteed student loan to be made by the Florida National Bank. On or about December 11, 1988, DOE issued its guarantee and the loan was made by the bank to Petitioner. Petitioner's first payment to repay the loan was due on February 1, 1990. He made no payments then or thereafter. On July 1, 1990 he was in default. DOE, as the guarantee agency, paid the bank's claim on December 27, 1990 and the bank assigned the promissory note evidencing Petitioner's indebtedness to DOE. Petitioner purchased a winning Florida Lottery ticket for the Play 4 drawing of November 19, 1991. On November 26, 1991, Petitioner submitted his claim to DOL to claim the prize of $2,500.00. On November 26, 1991, DOE certified to DOL that Petitioner had an outstanding defaulted student loan and requested that the lottery prize money won by Petitioner be transmitted to the Comptroller to be credited toward the Petitioner's student loan debt. The total principal and interest accrued on that debt as of December 11, 1991 was $2,159.41. On December 4, 1991, Petitioner requested from DOE a form captioned, "Physician's Certification of Borrower's Total and Permanent Disability." On January 3, 1992, DOE received the completed form signed by Petitioner's physician, Anne L. Rottman, M.D. Dr. Rottman treated Petitioner from August 18, 1986 through July 19, 1990, treating him for chronic cervical and lumbar spinal pain. She was unable to state when Petitioner's condition began or when he became unable to work, as the condition and disability commenced prior to the date she first saw him on August 18, 1986. Petitioner's condition was static during the time she treated him. Petitioner was unable to work during the time she treated him.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order which withholds $2,159.41 from Petitioner's lottery winnings and transmits that sum to the Department of Education and which also transmits the balance of $340.59 to Petitioner. Since the money has already been effectively transmitted as recommended, the Final Order could simply ratify those prior transmittals. DONE and RECOMMENDED this 17th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Scott C. Wright ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17 day of September, 1992. Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Leonard K. Williams 1425 NE 13th Street Gainesville, Florida 32601 Leonard K. Williams Post Office Box 490955 College Park, Georgia 30349 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Charles S. Ruberg Assistant General Counsel State Board of Education The Capitol, Suite PL-08 Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact On November 28, 1994, a hearing officer of the Seventeenth Judicial Circuit, Circuit Court for Broward County, Florida (Seventeenth Judicial Circuit) conducted an evidentiary hearing on a petition to determine child support filed against Thomas Boganski (Petitioner). By Report dated November 28, 1994, the hearing officer determined, among other things, that Petitioner was liable for a past public assistance obligation in the amount of $8,871, representing monies received by his children from October 1991 through November 1994 and that payments on the child support obligation would be payable through the court. By Order dated December 12, 1994, a circuit judge of the Seventeenth Judicial Circuit ratified and approved the hearing officer's Report; thereby, establishing a child support debt, payable through the court. On June 26, 1995, a hearing officer of the Seventeenth Judicial Circuit conducted an evidentiary hearing on a motion for contempt filed against Petitioner for nonpayment of the child support obligation. By Report dated June 26, 1995, the hearing officer determined, among other things, that Petitioner had a past public assistance obligation and arrears totaling $10,551 as of June 14, 1995. By Order dated July 14, 1995, a circuit judge of the Seventeenth Judicial Circuit ratified and approved the hearing officer's Report. On January 9, 1995, Petitioner presented to the Department of the Lottery (Respondent Lottery) a claim for payment of a lottery ticket which he had purchased. The lottery ticket had a prize value of $2,500. On June 9, 1995, the Department of Revenue (Respondent Revenue) certified to Respondent Lottery that, as of that date, Petitioner had a court- ordered past public assistance debt of $9,500. The $2,500 prize winnings was transmitted to the Department of Banking and Finance, Office of the Comptroller (Respondent Banking and Finance) by Respondent Lottery. Respondent Banking and Finance did not disburse the $2,500 to Petitioner but retained the entire amount. By letter dated May 9, 1995, Respondent Banking and Finance notified Petitioner that the $2,500 prize winnings had been transmitted to it by Respondent Lottery. Furthermore, Respondent Banking and Finance notified Petitioner that the entire $2,500 was going to be applied to his unpaid past public assistance obligation of $9,500.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance, Office of the Comptroller enter a final order providing for payment to the Department of Revenue the lottery prize winnings of $2,500 claimed by Thomas Boganski. DONE AND ENTERED this 27th day of November, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 27th day of November, 1995. APPENDIX Respondents' joint proposed findings of fact 1 - 6 have been adopted in substance in this recommended order. COPIES FURNISHED: Thomas Boganski 1519 North 57th Terrace Hollywood, Florida 33021 Stephen S. Godwin Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Child Support Enforcement Department of Revenue P.O. Box 8030 Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32399 The Honorable Robert F. Milligan Comptroller State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue The issue in this case is whether Petitioner properly and timely re-enrolled students from her private school so they would be eligible for McKay Scholarship Program payments from the Department of Education.
Findings Of Fact FACES is a private school which has participated in the McKay Scholarship Program since 2005. FACES is owned by Tori Wilson and Toni Ranier, who are sisters. Wilson and Ranier are both actively involved in the School as teachers and administrators. FACES caters to children with autism or autistic-related conditions. It is the duty of the School to re-enroll its students into the McKay Scholarship Program each year in order for them to be eligible to receive McKay Scholarship payments from the Department. McKay Scholarships afford disabled students an opportunity to receive funds to defray the costs of attending private schools, such as FACES. The State of Florida, Department of Education, administers the McKay Scholarship Program through its Office of Independent Education and Parental Choice. For the 2009-2010 school year, there were 12 students to be enrolled at the School. Due to certain disabilities, each of the students was eligible to receive a McKay Scholarship. FACES relies upon the scholarships to fund the cost of operating the School. In some instances, FACES accepts the McKay Scholarship funds for a student as the sole payment for that student's attendance, even though the scholarship is not equal to the cost of educating the student. In such instances, the School will allow the student's parent to provide some sort of alternative payment. That might be in the form of buying provisions needed by the School, e.g., paper products, food, and school supplies, etc; or the School might allow the parent to provide volunteer in-kind services, such as, cleaning, helping with classroom activities, etc. Each year Wilson would log on to the Department website in order to re-enroll her students. (Each returning student would have to be re-enrolled every year. At the same time, any student who was not returning would be withdrawn using the same process.) The process involved creating a Master Fee Schedule and, then, plugging each student's scholarship information into their individual fee schedule. For example, some students may be in need of tutoring services for which additional scholarship funds are available. Others may need a summer program or some technology assistance. Once the Master Fee Schedule was completed, the school could then enter the individual students into the system. The Department established definite guidelines to be followed by schools wishing to enroll students for scholarship purposes. For the 2009-2010 school year, all students had to be re-enrolled no later than August 2, 2009 (a Sunday). The re-enrollment process could have begun as early as April 10, 2009, for that school year. That is, any school could have re-enrolled its students as early as April 10, 2009, but not later than August 2, 2009. On July 13, 2009, Wilson accessed the Department website to re-enroll her students. She had been through the process each of the past four years and was generally familiar with how it worked. However, on that date, when she logged in using her school Code No. 4809 and password (FACES 5525), she experienced problems. Wilson sent a request to the Department website for a new password, which was sent to her via email within a short time. Using the new password, FACES 101, Wilson was able to log on to the website. The first screen Wilson opened contained the normal directive (accompanied by a red exclamation mark) to "Please complete a Fee Schedule Update for the 2009-2010 School Year." But when Wilson clicked on the Update Fee Schedule link, she was only given the option to update the 2008-2009 school year, rather than the upcoming school year (2009-2010). After encountering this problem, Wilson called an undisclosed person at the Department to find out what was going on with the system. She was presumably told that the system had a glitch of some sort, that if no changes to the fee schedule were being made, she could use the previous year's schedule to do re-enrollment or that she could try the process again later. This statement was not corroborated, however. The Department provided contrary evidence saying that other schools had done their re-enrollments on the same day (July 13, 2009) and time that Wilson was experiencing trouble. One school had experienced some problems saving individual fee schedules for four students, but had not experienced problems re-enrolling students. Wilson does not have any records concerning her phone call to the Department due to the fact that she changed telephone providers, and records from the prior provider were not available. Wilson possesses a printout from her computer showing her browser history for July 13, 2009. It is clear that Wilson accessed the Department website on that date. There are a number of references to the re-enrollment portion of the Department's website, including the "student_enroll.asp" and the "student_enroll1.asp," "student_enroll3.asp," and "student_withdraw.asp" URL address segments. Each of those asps is part of the enrollment process, but unless the entire process is completed, those intermediate steps will not effectuate a student enrollment. Wilson believes she was able to "submit" each of her re-enrollments for students on that date, resulting in a prompt saying, "the student has been successfully enrolled, would you like to enroll another student." However, the Department's IT experts opine that it is impossible to have received that prompt without having gone through the entire enrollment process. Department computer logs indicate that Wilson did not click on the link required to save the Master Fee Schedule, a prerequisite to enrolling students for the 2009-2010 school year. Thus, while Wilson may believe she was properly enrolling her students, computer records indicate she did not actually accomplish her goal on that date. On July 20, 2009, Wilson logged on to the website again to see if she could complete the Master Fee Schedule and get her students re-enrolled. She attempted to log on using her new password, FACES 101, but was not able to do so. She finally logged on using her old password, FACES 5525, the same one she had been using for four years. When she was logged on to the website, she was able to update the Master Fee Schedule. She did not attempt to re-enroll her students at that time, because she believed they had already been re-enrolled on July 13, 2009. Unfortunately, she did not check to verify the enrollment on July 20, 2009. Wilson believes she completed the entire enrollment process for her students on July 13 and 20, 2009. Her testimony is entirely credible as to that belief, but she has no corroborating verification of the facts. The Department computer logs indicate that the enrollment process had begun, but had not been completed. The Department sent out an email on July 31, 2009, to a number of schools who had McKay Scholarship students. The email advised the schools that as of the date of the email, "Our records indicate that one or more McKay Scholarship students enrolled in your school during the 2008-2009 school year has not been re-enrolled for the 2009-2010 school year. McKay students must be re-enrolled by August 2, 2009, in order to be eligible for a first period scholarship payment on September 1st." The email was sent to HAPPYFACES@BELLSOUTH.NET, which was FACES' email address of record at the Department as of the date of the email. FACES had actually stopped using that email address regularly in April or May of 2009, but did not notify the Department of that fact until some time later. However, as of July 2009, when the email was sent out, FACES was still using the address as a contact source for parents of potential new students. It was, therefore, still being used for some purpose. FACES' contention that it did not receive the July 31, 2009, email is not credible. Based upon the changes FACES was going through with its communications systems at that time, however, it is very possible the email was never accessed by Wilson. On August 5, 2009, Wilson logged on to the website to withdraw a student, only to find that none of her students' re-enrollments (which she verily believed to have been accomplished previously) appeared on the website. She immediately sent an email to the Department regional manager (Hyle) assigned to her geographic area. The email advised Hyle about the students not showing up as re-enrolled and inquired about receiving payments for those students. Hyle told her that other schools were having problems as well (although that statement was not true),1 asked Wilson to send him information concerning her students, and said he would speak to his supervisor. Several exchanges between Wilson and Hyde ensued. Thereafter, Wilson received an email from Laura Harrison, director of the scholarship programs, saying the information submitted by Wilson was not sufficient to establish re-enrollment of the students at FACES. Harrison reiterated what Wilson had already heard from other persons within the Department, i.e., the evidence shows a visit to the website to change her password on July 13, 2009, but no re-enrollment of students was accomplished on that date. Following notification to Wilson that the student enrollment was deemed untimely by the Department, there were three disturbing events: First, the Department erroneously advised Wilson that FACES did not have a current fire inspection; in fact, FACES did. Second, the Department erroneously advised FACES that it did not have a current health certificate; in fact, FACES did. Third, the Department took several months to issue its final agency action (despite requests by FACES' attorney) so that FACES could challenge the decision. These events reflect unfavorably on the Department, but do not affect the outcome of this case. They are noted only because they were raised by Wilson as part of her case-in-chief. The Department's database analyst and web application developer established the following facts: Wilson logged on to the Department website on July 13, 2009, using IP address 70.152.251.108 with school code 4809; On that same date, other schools logged into the website and made student changes, including re-enrollment and withdrawals; Wilson, on behalf of FACES, did attempt to engage in the re-enrollment process on that date, starting at 6:54 p.m; There were a number of entries by FACES on that date, but none of the entries went beyond phase three of the enrollment process, identified as reenroll3.asp by the server; Wilson logged on to the Department website again on July 20, 2009, on behalf of FACES; The server log shows that other schools logged in on that same date and at the same time; FACES completed its Master Fee Schedule on that date beginning at 2:52 p.m., but upon completing the schedule, FACES logged out of the website; FACES logged on to the Department website on August 5, 2009, at 11:24 a.m., at 4:36 p.m., at 6:15 p.m., and at 7:40 p.m; Other users logged on to the website at the same time FACES was on-line; FACES re-enrolled its students on that date, although it was three days after the deadline for doing so; and The re-enrollment of students by Wilson on August 5, 2009, ultimately, resulted in a computer code called "studentenroll=true" at 3:25 p.m. Clearly, no matter what Wilson attempted to do on July 13, 2009, regarding the enrollment of her students, she did not fully accomplish that task. The computer records and testimony of the Department's witnesses are clear and unequivocal. The enrollment process was not completed prior to the deadline of August 2, 2009. FACES school does not generate a surplus of income from which it might operate without the McKay Scholarships. Loss of the scholarships would be a significant financial strain on the School. Both Wilson and Ranier appear willing to suffer financial shortfalls in order to keep the School running, but cannot do so without scholarship funds. However, due to the technical failure to meet the enrollment deadline, FACES does not appear to be entitled to the scholarships for the 2009-2010 school year. Despite the findings herein, it is abundantly clear that Wilson's testimony was honest and sincere. She was simply mistaken concerning the completion of her enrollment process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Dr. Eric Smith, as Commissioner of Education, denying the claim by Petitioner, FACES Private School, for the September 2009 McKay Scholarship Program awards. DONE AND ENTERED this 23rd day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 23rd day of September, 2010.
