The Issue The issues are whether Respondent, Sarasota Housing Authority (the Housing Authority), discriminated against Petitioner, Estella Smith (Ms. Smith), based on her disability in violation of the Florida Fair Housing Act (the Florida FHA), and, if so, the relief to which Petitioner is entitled.
Findings Of Fact Ms. Smith, a 52-year-old female, testified she participated in the Section 8 program for over ten years and never had any problems until she moved to Sarasota. Ms. Smith moved into the Sarasota rental unit in October 2009. The Housing Authority is a public housing authority that administers the Section 8 program, within Sarasota County, Florida, pursuant to 42 U.S.C. section 1437f. Under the Section 8 program, the Housing Authority uses funds, supplied by HUD, to pay a percentage of the monthly rent on a leased "unit" directly to the landlord. The Section 8 program tenant pays the balance of the monthly rent to the landlord. Ms. Smith executed a residential lease for a HUD- approved unit on September 5, 2009, to begin a one-year rental. Ms. Smith agreed to abide by all the terms and conditions of the residential lease, including the timely payment of rent and the number of occupants (one adult and one child) in the rental unit without the written consent of the landlord. On or about October 1, 2009, Ms. Smith moved from Tampa, Florida, to Sarasota, Florida, and resided at the rental unit, 3047 East Tamiami Circle, Apartment A, Sarasota, Florida. On September 8, 2009, Ms. Smith executed the Housing Authority's personal declaration/tenant information form. Under part three of this form labeled: "Family Members (including Head of Household) currently residing in unit," there were blank lines to be completed by Ms. Smith. The following information was requested: name; date of birth; social security number; disabled; Hispanic; race; and relationship. Ms. Smith (or someone at her direction) completed the form including information about herself and her sole dependant. Under the disabled heading on the line for Ms. Smith, the word "Pending" is written. Additionally, in part five of this form labeled: "Expenses," was a question, "Are you or your spouse age 62 or older and/or disabled?" Ms. Smith (or someone on her behalf) checked the box before "no" after this specific question. Ms. Smith testified she suffered a stroke sometime in 2009 and was physically affected by it. However, she was unable to reference the specific time frame except for prior to her "porting" back to Sarasota. Ms. Smith claimed to use both a walker and a wheelchair at various times since suffering the effects of the stroke. Further, she later testified that, when she was in her rental unit, the doorways were narrow but she could maneuver in it. During her initial interview with the Housing Authority in September 2009, Ms. Smith stated she was using a walker that day and never told anyone at the Housing Authority that she was disabled. Ms. Smith admitted she withheld the rent from the landlord. However, she claimed her refusal to pay the rent was based on the lack of heat in the rental unit and the suspension of her laundry room privileges. Ms. Smith further testified Bertha L. Pete (Ms. Pete) provided Ms. Smith with assistance in her daily living activities and started living in Ms. Smith's rental unit after Christmas or in late December 2009. A copy of Ms. Pete's Florida driver's license, which reflects Ms. Smith's rental unit address as Ms. Pete's residence as of January 27, 2010, was admitted into evidence. On February 10, 2010, Ms. Smith executed a request for a live-in aide with the Housing Authority. Ms. Smith named Ms. Pete to be her proposed live-in aide. The date stamp for the Housing Authority reflects that the request was received by the Housing Authority on February 17, 2010. Any proposed live- in aide has to meet the requirements imposed by the Housing Authority and HUD. Ms. Pete did not meet the requirements. Additionally, on February 17, 2010, Ms. Smith executed a verification of live-in aide form to be completed by her physician and returned to the Housing Authority. That completed form was never returned to the Housing Authority. Both parties produced an executed medical doctor's prescription with Ms. Smith's name as the patient. The hand-written notation on the prescription is "patient needs in home aid." This verbiage is not sufficient nor equivalent to the requirements listed on the verification form for a "live-in aide." The Housing Authority did not know that Ms. Smith needed a live-in aide when she completed her application in September 2009. Although Ms. Smith utilized a walker at the time of her initial interview with the Housing Authority, the Housing Authority did not know she was disabled at that time. It is not the Housing Authority's practice to inquire of someone's physical status, as that could be perceived as a discriminatory question. Sharla Frantz (Ms. Frantz), director of human resources for the Housing Authority, is the hearing officer for the Section 8 program. Ms. Frantz testified as to the process utilized in the Housing Authority's Section 8 program. Ms. Frantz testified that Ms. Smith made a request for assistance on January 27, 2010, regarding the lack of heat in her rental unit. The Housing Authority caused an inspection to be made that same day, and a deficiency was noted. The repair was completed, and the rental unit passed a follow-up inspection on February 28, 2010. However, at the time of her complaint, Ms. Smith did not discuss any other conditions or circumstances regarding the rental unit, nor was any request for a live-in aide made. On or about February 11, 2010, the Housing Authority was made aware of a possible unauthorized person living at Ms. Smith's rental unit, as well as her failure to timely pay rent. Several days later, the Housing Authority issued a letter to Ms. Smith detailing the reasons for her termination from the Section 8 program: an unauthorized person living in the rental unit and her failure to pay rent. Ms. Smith requested a hearing from the Housing Authority, which was held on March 2, 2010. As a result of the hearing, the Housing Authority issued a letter detailing the basis for Ms. Smith's termination from the Section 8 program: an unauthorized person living in the rental unit and her failure to pay rent. Ms. Smith was afforded time to prove that the rental amount was paid in full and that Ms. Pete did not live with her. Ms. Frantz testified that at the Housing Authority hearing, Ms. Smith wrote a check for the past due rental amount. However, Ms. Frantz never received proof that the payment was actually made to the landlord. Ms. Smith testified the landlord wanted the payment in cash; however, Ms. Smith did not feel comfortable paying the rent in cash, as it did not provide her with a receipt. The rent was never paid. After waiting several days, the Housing Authority issued another letter to Ms. Smith stating that Ms. Smith was terminated from the Section 8 program for two program violations. It further described that a lease agreement, brought in to the Housing Authority, did not substantiate her claim that an unauthorized person (Ms. Pete) was not living in Ms. Smith's rental unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Estella Smith in its entirety. DONE AND ENTERED this 17th day of August, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of August, 2011.
Findings Of Fact Petitioner enrolled in "Plan A" of the Teachers Retirement System on August 13, 1954 as a teacher in the Orange County Florida school System. Petitioner transferred to Jacksonville, Florida and began teaching in Duval County on August 18, 1959 and continued hem membership in the Teachers' Retirement System "Plan A". Petitioner requested a change from the Teachers' Retirement System "Plan A" to Teachers' Retirement System "Plan E" by letter dated April 5, 1965. Petitioner was approved on March 26, 1966 for Teachers' Retirement System benefits and received disability retirement benefits for a period of time until she re-entered the teaching profession on November 27, 1970 in Duval County, Florida. She subsequently repaid an overpayment of these disability benefits which been paid for a period of time when she had returned to work in Duval County without notice to the Division of Retirement. Petitioner transferred from the Teachers Retirement System to the Florida Retirement System on October 15, 1970 when she signed a ballot entitled "Social Security Referendum and Application for Florida Retirement System Membership". Petitioner complains that she did not know when she signed the ballot that she was in fact changing her retirement from the Teachers' Retirement System to the Florida Retirement System contending that the statements of the person conducting the meeting at which the ballots were distributed informed the group the ballots were for an election for social security coverage. The ballot, however, clearly reflects that if social security benefits are desired, a change in the retirement system is necessary. Petitioner applied for Florida Retirement System disability benefits on October 20, 1971 and was approved. This benefit is $26.07 per month greater than the benefits she would have received had she remained in the Teachers' Retirement System. On October 3, 1975, Petitioner was supplied with the various documents concerning her actions in regard to her retirement benefits and was informed that her election to transfer into the Florida Retirement System was irrevocable and there was no method by which she could be transferred back into the Teachers' Retirement System. She requested a hearing on the transfer.
Recommendation Dismiss the Petition of Petitioner Martha A. Crosson. DONE and ORDERED this 15th day of November, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Martha A. Crosson 801 West Myrtle Independence, Kansas 67301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT MARTHA A. CARSON, Petitioner, vs. CASE NO. 76-1456 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue Whether Petitioner is eligible to participate in the Deferred Retirement Option Program.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1976, a firefighter employed by Miami-Dade County and, as such, a Special Risk member of the Florida Retirement System. Petitioner's date of birth is September 19, 1937. Accordingly, on July 1, 1998, the effective date of DROP, Petitioner was 61 years of age and had approximately 22 years of creditable service as a Special Risk member of the Florida Retirement System. Petitioner was aware that he needed to file an application to join DROP within 12 months of July 1, 1998, but he opted not to file such an application because he believed that the retirement benefits he would receive if he joined DROP within this 12-month period would not be enough for him to "live on" after he stopped working.2 Petitioner thought that it would be in his best interest, instead, to wait until 2003 to retire (and enjoy higher retirement benefits). On June 7, 2001, Petitioner sent an e-mail to Governor Bush, which read, in pertinent part, as follows: Yesterday I met with the head spokesman of FL. State Retirement concerning my participation in the D.R.O.P. [and] he advised me to send this note. As you know it started in 1998 at which time I was offered a small window because of my age (unlawful discrimination) for which I was not able to get into because of the insignificant amount offered as permanent retirement. Since then, as anticipated, my retirement has increased from the high 30's to the low 60's due thanks to you . . . Now, I am asking, by special request, to be allowed to enter into the D.R.O.P. either to finish these two years or to be given an opportunity to go for the whole 5 years, which I doubt I would complete. . . . Petitioner's e-mail correspondence was referred to the State Retirement Director who, by letter dated June 8, 2001, advised Petitioner that Petitioner's "request to join DROP at this late date must be denied."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order finding that Respondent is not eligible to participate in DROP because he did not elect to do so within the time frame prescribed by Subsection (13)(a)2. of Section 121.091, Florida Statutes. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
Findings Of Fact John Wallace began service as a Sumter County school board member on January 1, 1959. (Joint Stipulation). On or about January 1, 1959, he completed a blue-top computer enrollment card (Petitioner's Exhibit 1), which also designated his wife Effie as his first beneficiary of his retirement benefits and his daughter, Mrs. Kindle Johnson, as the second beneficiary. (Joint Stipulation). Effie Wallace died January 22, 1963. (Joint Stipulation) John Wallace married Estell Loudin June 9, 1964. (Joint Stipulation). John Wallace executed an election to transfer to the Florida Retirement System, effective December 1, 1970. (Petitioner's Exhibit 2). (Joint Stipulation). John Wallace died September 8, 1975. (Joint Stipulation). On November 12, 1975, Betty Carruthers, an employee of the Sumter County School Board, notified the Division of Retirement of Mr. Wallace's death. Margie Smith in the Division of Retirement completed a form (Petitioner's Exhibit 4) setting forth the information she received from Betty Carruthers in the November 12, 1975, telephone conversation. Not having any beneficiary designation form in the School Board file, Carruthers simply advised Smith that petitioner was Wallace's second wife, his first wife, Effie, having predeceased him. Smith's quick check of the Division of Retirement records management section did not uncover Wallace's designation of beneficiary form. (Petitioner's Exhibit 1, 5). On March 9, 1977, the Division of Retirement received petitioner's FR- 11, an application (albeit on the incorrect form) for her deceased husband's benefits, along with certain supporting documents. In an April 13, 1977, letter (Petitioner's Exhibit 6) sent out over David Ragsdale's name but written and signed by a benefits calculation specialist trainee, petitioner was erroneously informed that she was the beneficiary of her husband's benefits, since he had designated his first wife Effie, who had predeceased him. But after the letter went out, it came to the attention of Marjorie Smith that the April 13, 1977 letter was incorrect since Wallace's original January 1, 1959 designation of beneficiary form designated Wallace's daughter, Mrs. Kindle [sic] Johnson, who is still living, as Wallace's second beneficiary. In a June 5, 1977, latter (Petitioner's Exhibit 7), again sent out over David Ragsdale's name but dictated by Marjorie Smith and signed by Ragsdale's secretary, petitioner was informed that respondent had located the designation of beneficiary card, signed by Mr. Wallace, designating his daughter, Mrs. Kindle [sic] Johnson, as his second beneficiary. On June 20, 1977, Randall Thornton, petitioner's attorney at the time, wrote a letter (Petitioner's Exhibit 8) to David Ragsdale, seeking a copy of the beneficiary card upon which the respondent based its decision in the June 15, 1977, letter to petitioner. On July 12, 1977, Mr. Thornton sent another letter to the respondent, attention Mrs. Ferguson (Petitioner's Exhibit 9), asking again for a copy of the beneficiary designation upon which its decision was based awarding Mr. Wallace's retirement benefits to his daughter. On the same date, respondent sent Mr. Thornton a letter (Petitioner's Exhibit 10), enclosing a copy of the original enrollment card. (Petitioner's Exhibit 1). Thornton's secretary called petitioner into the office on July 15, 1977, the day after Thornton received and reviewed respondents' July 12, 1977 letter. Petitioner looked at the copy of Wallace's designation of beneficiary form and stated that she did not believe her husband had written both his first wife's name and his daughter's name as first and second beneficiaries, respectively, at the same time. She did not, however, prove this at final hearing. Petitioner did not prove that there is or ever was another designation of beneficiary executed by Mr. Wallace other than Petitioner's Exhibit 1. Prior to 1972, if a member of the Florida Retirement System or any pension plan in existence prior to December 1, 1970, wanted to change his designated beneficiary, he would complete another blue-top enrollment card. In 1972, a new enrollment form, FRS-M10, was instituted consisting of three identical parts. If a member of the Florida Retirement System completed the form, the original would be sent to the respondent, with a copy to the agency employing the individual and a copy to the individual. (Carruthers deposition, p.4). Respondent has searched its records and has found no other designation of beneficiary form signed by Mr. Wallace apart from Petitioner's Exhibit 1. The files at the Sumter County School Board have been searched and no designation of beneficiary signed by Mr. Wallace found. (Carruthers deposition, p.3). Petitioner's attorney Randall Thornton has searched his files and found no designation of beneficiary signed by Mr. Wallace other than Petitioner's Exhibit (Thornton deposition, p.18)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Administration, Division of Retirement, enter a final order denying petitioner's request for benefits on the ground that she is not, in law and fact, entitled to benefits resulting from the death of her husband, John Wallace. RECOMMENDED this 9th day of July, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1984.
The Issue In Case No. 99-2748, should Elvira Demdam, d/b/a San Juan Retirement Home, be administratively fined for operating an unlicensed facility, and if so, in what amount? In Case No. 99-2755, should Elvira Demdam, d/b/a Ingleside Retirement Home, be administratively fined for exceeding the home's licensed capacity, and if so, in what amount?
Findings Of Fact AHCA is the state agency responsible for licensing and regulation of ALFs in Florida. Respondent, Elvira Demdam, operates both Ingleside Retirement Home and San Juan Retirement Home in Jacksonville, Florida. Gloria Wolfe is employed by AHCA to inspect ALFs for compliance with state and federal regulations for such facilities. Elvira Demdam is the licensee for Ingleside Retirement Home. The effective date of the license for Ingleside was October 27, 1997. Its expiration date was October 26, 1999. On April 26, 1999, Ms. Wolfe surveyed a facility doing business as San Juan Retirement Home due to a complaint that San Juan was operating as an unlicensed ALF. During Ms. Wolfe's inspection, San Juan Retirement Home had four residents, all of whom were being provided personal services by the home, including assistance with meals, administration of medications, and assistance with other essential activities of daily living. Therefore, the San Juan facility was being operated as an ALF on April 26, 1999. In a letter dated April 27, 1999, AHCA imposed a moratorium on admissions, effective April 26, 1999, on Ingleside Retirement Home, because Ms. Demdam had an interest in Ingleside Retirement Home and an interest in San Juan Retirement Home, which was operating without a license. The moratorium for Ingleside was to remain in force until the unlicensed facility (San Juan) ceased operation, and no residents could be readmitted without approval of AHCA. On April 27, 1999, Ms. Wolfe's superior, Mr. Robert Dickson, recommended a $1,000.00 sanction, based on Ms. Wolfe's report and because he believed that previous sanctions had been recommended against the Ingleside Retirement Home within the licensure period for the same type of deficiency. However, at hearing, he did not specify any previous sanctions against Ingleside, similar or otherwise. Elvira Demdam is the licensed administrator of Ingleside Retirement Home and should have known of the legal requirement that San Juan Retirement Home be licensed. Indeed, by her own admission, Ms. Demdam had been a nursing home administrator for four years, knew of the licensure requirement, and had been attempting to license the San Juan facility since at least 60 days before the property was transferred to her. San Juan was licensed to another person at the time Ms. Demdam took it over. That prior license had expired in December 1998, and Ms. Demdam did not get San Juan Retirement Home licensed in her name until July 1999. Ms. Demdam's exhibits support her testimony that much of her license application paperwork for San Juan Retirement Home was lost in the mail or within AHCA and that ACHA repeatedly required that she re-submit the same documents. However, she did not establish that the Agency failed to grant or deny her application within 90 days of submission of all necessary application items. The fact remains that on April 26, 1999, Ms. Demdam was operating San Juan Retirement Home without a valid ALF license. Although Ms. Demdam asserted that one or more of the San Juan residents were non-blood relatives who had lived with her as family members since 1995, she offered no corroborative evidence on this issue, and this assertion is not found to be credible. Ms. Wolfe also participated in a May 4, 1999, monitoring visit and survey of Ingleside Retirement Home. At that time, she found Ingleside to be operating in excess of its licensed capacity. Ingleside Retirement Home is licensed for 18 residents, but in fact, had 19 residents on that date. Ms. Wolfe personally reviewed residents, room by room, and made a census of Ingleside Retirement Home on May 4, 1999. Her census shows that a nineteenth resident, S.W., had been admitted to Ingleside in March 1999. Ms. Wolfe's investigation revealed that this resident was not noted in Ingleside's admissions/discharge log. Despite arguments that this deficiency constituted a Class III violation, an A-004 "not classified" deficiency was actually issued. (See ACHA Exhibit 4, page 3) Ms. Demdam's explanation for the extra resident in Ingleside Retirement Home was that she had taken in S.W. at the request of a case worker for the Department of Children and Family Services (DCF) as an emergency placement on a weekend for a projected stay of only two to four weeks but that due to unforeseen circumstances, DCF had not removed S.W. timely. It is unclear from this record whether the patient, S.W., put the census of Ingleside over 18 patients in March, the time that she was first taken in. It is also unclear exactly how long S.W. caused Ingleside's census to exceed the 18 patients provided for on its license, but as of May 1999, Ms. Demdam was providing care for S.W. and another Ingleside resident, J.J., without pay. Mr. Dickson testified that he recommended a $1000.00 fine as a sanction for having the one extra resident in Ingleside Retirement Home on May 4, 1999, because of prior sanctions recommended within the licensure period for the same type of deficiency. However, the only similar deficiency or sanction he noted during his testimony was the Ingleside moratorium which had been based upon the lack of licensure of the San Juan facility. By a letter dated May 7, 1999, AHCA notified the Respondent of the findings supporting the imposition of a moratorium at Ingleside. Ms. Demdam testified credibly that she moved S.W. out of Ingleside Retirement Home as soon as she was notified and that she cleared-out the four residents of San Juan Retirement Home as soon as possible. Mr. Dickson views both ALF citations very seriously because operating an ALF without a license can be prosecuted by the State Attorney as a third-degree felony (see Section 400.408(1)(b)-(c), Florida Statues, (Supp. 1998) and because he views Ms. Demdam's long practice and licensure in the ALF field to demonstrate her knowing and willful disregard of the law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding Respondent guilty of operating an unlicensed facility and imposing an administrative fine in the amount of $1,000 in DOAH Case No. 99-2748; and That the Agency for Health Care Administration enter a final order finding Respondent guilty of exceeding her licensed capacity at Ingleside Retirement Home, and imposing an administrative fine in the amount of $500.00 in DOAH Case No. 99-2755. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration Fort Knox Building 3, Suite 3408D Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elvira Demdam, Administrator San Juan Retirement Home Un-Licensed 6561 San Juan Avenue Jacksonville, Florida 32210 Elvira Demdam, Administrator Ingelside Retirement Home 732 Camp Milton Lane Jacksonville, Florida 32220 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether the Respondent, Department of Children and Families (DCF), may impose a moratorium for new residents at The Haven Center, Inc., for those who are enrolled in the Developmental Services Home and Community-Based Services Waiver Program (DS Waiver).
Findings Of Fact The Respondent is the state agency charged with the responsibility of regulating residential facilities that provide DS waiver services. Sunrise Opportunities, Inc., Sunrise Communities, Inc., and The Haven Center, Inc., are members of the Sunrise group of providers that serve individuals with developmental disabilities. Sunrise Opportunities, Inc., is a charitable, tax-exempt entity that provides residential and day treatment services to individuals under the DS Waiver program. The Haven Center, Inc., owns seven homes located on 23+/- acres in Miami-Dade County, Florida. The homes located at The Haven Center, Inc., are operated by Sunrise Opportunities, Inc. Such homes have been monitored and reviewed by the DCF on numerous occasions. The reviews or inspections have never revealed a significant deficiency. Moreover, historically the DCF has determined that residents at The Haven Center, Inc., have received a high quality of care. For some unknown time the parties were aware of a need to move individuals residing at The Haven Center into community homes in the greater South Miami-Dade County area. Concurrently, it was planned that individuals in substandard housing would then be moved into The Haven Center. This "transition plan" as it is called in the record would be accomplished as improvements were completed to the Sunrise properties. That the parties anticipated the transition plan would be implemented as stated is undisputed. Because it believed the transition plan had been agreed upon and would be followed, Sunrise Opportunities, Inc., incurred a considerable debt and expended significant expenses to purchase and improve homes in the South Miami-Dade County area. Additionally, DS Waiver participants were moved from The Haven Center to the six-person homes in South Miami-Dade County. In fact, over fifty percent of The Haven Center residents have made the move. In contrast with the transition plan, only 12 individuals were allowed to move into The Haven Center. Instead, DCF notified the Petitioners of a moratorium prohibiting the placement of DS Waiver residents into The Haven Center. This moratorium, represented to be "temporary," is on-going and was unabated through the time of hearing. The moratorium prompted the instant administrative action. Upon notice of DCF's intention to impose a moratorium on The Haven Center, the Petitioners timely challenged such agency action. DCF based the moratorium upon an Order Approving Settlement Agreement entered in the case of Prado-Steiman v. Bush, Case No. 98-6496-CIV-FERGUSON, by United States District Judge Wilkie D. Ferguson, Jr. on August 8, 2001. The Petitioners had objected to the approval of the Settlement Agreement in Prado-Steiman but the court overruled the objectors finding they, as providers of services to the DS Waiver residents, did not have standing in the litigation. The Prado-Steiman case was initiated by a group of disabled individuals on behalf of the class of similarly situated persons who claimed the State of Florida had failed to meet its responsibility to such individuals under Federal law. Without detailing the case in its totality, it is sufficient for purposes of this case to find that the Prado-Steiman Settlement Agreement imposed specific criteria on the State of Florida which were to be met according to the prospective plan approved and adopted by the court. At the time the Prado-Steiman case was filed, The Haven Center was licensed as a residential habilitation center. After the Settlement Agreement was executed by the parties in Prado-Steiman, but before the court entered its Order Approving Settlement Agreement, the licensure status of The Haven Center changed. Effective June 1, 2001, The Haven Center became licensed as seven group homes together with a habilitation center. Pertinent to this case are specific provisions of the Prado-Steiman Settlement Agreement (Agreement). These provisions are set forth below. First, regarding group home placements, the Agreement provides that: The parties agree that they prefer that individuals who are enrolled in the Waiver [DS Waiver] live and receive services in smaller facilities. Consistent with this preference, the parties agree to the following: The Department [DCF] will target choice counseling to those individuals, [sic] enrolled on the Waiver who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete the choice counseling by December 1, 2001. * * * 4. The Department and the Agency [Agency for Health Care Administration] agree that, in the residential habilitation centers, if a vacancy occurs on or after the date this agreement is approved by the Court, the Department will not fill that vacancy with an individual enrolled on the Waiver. (Emphasis added) None of the individually licensed group homes at The Haven Center is authorized to house more than 15 persons. All of the group home licenses at The Haven Center were approved before the Prado-Steiman Court approved the Agreement. The Agreement also provides that the parties: . . . have agreed that the Court may retain jurisdiction of this litigation until December 31, 2001, at which time this case will be dismissed with prejudice. The Plaintiffs may seek to continue the jurisdiction of the Court and to pursue any of the relief requested in this lawsuit only if they can show material breach as evidenced by systemic deficiencies in the Defendants' implementation of the Plan of Compliance. In any motion to continue the jurisdiction of the Court, Plaintiffs must demonstrate that alleged breaches and any proposed cure were fully disclosed to the state defendants consistent with the "Notice and Cure" provisions set forth below in paragraphs 7-10 below, that the action requested by the plaintiffs is required by existing law, and the State Defendants have refused to take action required by law. Such relief may not be sought after the scheduled dismissal of the litigation. Absent the allegation of material breach in a pending motion, the Court will dismiss this lawsuit with prejudice on December 31, 2001. (Emphasis added) Also pertinent to this case, the Agreement provides: 19. The parties' breach, or alleged breach, of this Agreement (or of the terms contained herein) will not be used by any party as a basis for any further litigation. "Systemic problems or deficiencies" is defined by the Agreement to mean: problems or deficiencies which are common in the administration of the Waiver, inconsistent with the terms of this Stipulated Agreement, and in violation of federal law. Isolated instances of deficiencies or violations of federal law, without evidence of more pervasive conduct, are not "systemic" in nature. State otherwise, a problem or deficiency is systemic if it requires restructuring of the Florida Developmental Services Home and Community-Based Services Waiver program itself in order to comply with the provisions of federal law regarding the Waiver; but that it is not "systemic" if it only involves a substantive claim having to do with limited components of the program, and if the administrative process is capable of correcting the problem. After the Agreement was adopted the Respondent advised Petitioners to continue with the transition plan. On or about September 1, 2001, the Petitioners and the Respondent entered into contracts for the group homes operated at The Haven Center. Each home is properly licensed, has honored its contracts to provide services to disabled individuals, and has complied with state licensure laws. A licensed Residential Habilitation Center may not have a licensed capacity of less than nine. Advocacy issued a letter dated March 8, 2002, that alleged systemic problems constituting material breaches of the Agreement. Among the cited alleged deficiencies is the failure of the state to ensure . . . that locally-licensed providers receiving waiver funds for providing group- home services in fact are providing services in that setting rather than in institutional settings. Examples include: a) A former residential habilitation center known as Haven is now licensed as a group home in District 11 (Miami/Dade) and receives HCBS waiver funds. There is no evidence that The Haven Center is providing services in any setting other than as licensed by the Respondent. That is, there is no evidence it is not operating as individually licensed group homes. Further, Advocacy had actual knowledge of the instant administrative action. In short, it did not attempt to participate in the Petitioners' challenge to the moratorium. DCF has imposed a moratorium on no other licensed group home in the State of Florida. The group homes at The Haven Center are the sole targets for this administrative decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Family Services, enter a Final Order lifting the moratorium on placements of DS Waiver participants at The Haven Center's group homes. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2002. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Sevices 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue, Second Floor Miami, Florida 33133
Findings Of Fact Based upon the evidence adduced at hearing, the following findings are made: The position of Executive Director of the Sanford Housing Authority became available on July 31, 1981, upon the resignation of Lewis B. Cox, a white male who had held the position for approximately eighteen months. His letter of resignation was dated July 13, 1981. By her letter dated July 27, 1981, addressed to Joseph Caldwell, Chairman, Petitioner informed the Respondent of her application for the vacancy. At the time she had been employed by Respondent for approximately nine and a half years as Social Services Director and as Director of Management. Lewis Cox's letter of resignation included his recommendation that Petitioner be promoted as his successor. (Petitioner's Exhibit #1) Petitioner is a black female. Respondent is a public agency responsible for various housing and community development programs, including rentals to low and moderate income individuals. It receives government subsidies, primarily from the United States Department of Housing and Urban Development, and is also supported by rental income. Its governing body is a five-member board of commissioners which during the relevant period consisted of the following: Joseph Caldwell, Chairman (Black, Male) Eliza Pringle, Vice-Chairperson (Black, female) Mary Whitney, Commissioner (Black, female) J. Wain Cummings, Commissioner (White, male) Leroy Johnson, Commissioner (Black, male). On August 13, 1981, at the meeting following Lewis Cox's resignation as Acting Executive Director, the Board appointed Petitioner as Acting Director. No one was appointed to fill her position of Director of Management and she continued to serve in both capacities until the regular Executive Director was finally appointed. This process took approximately fourteen months, from July 31, 1981, until September 29, 1982. As Acting Director, the Petitioner advertised the vacancy by placing notices in the local paper and in professional newsletters. Over one hundred applications or resumes were received. At the suggestion of the Board attorney, the commissioners were each provided copies of all resumes and each selected his or her five top candidates. This was later narrowed to a list of six candidates to be interviewed. Petitioner was the only female candidate on the list. On January 7, 1982, the Board met to appoint an Executive Director. Two separate votes were taken at the meeting and both yielded the same result: Petitioner received two votes and three other candidates received one vote each; none received a majority. On January 16, 1982, the Board met and voted again. Again, the votes were taken twice, with the same result: Petitioner received two votes, Thomas Wilson III received two votes and Willie King, Sr. received one vote. Willie King was designated "second choice" by three commissioners. On January 29, 1982, the Board voted to appoint Willie King, Sr. as Executive Director. While he was not the first choice of any commissioner, he received four votes as second choice. None of the first choice candidates received a majority. (Petitioner's Exhibits #3 - 7, Minutes of Meetings of the Housing Authority of the City of Sanford) Willie King, Sr. declined the appointment. Thus, the process continued with interviews, discussions, and failure to reach a decision, until September 29, 1982, when the Board met, interviewed Elliott Smith, Coordinator of the C.E.T.A Youth Employment Program, and voted again. He was appointed Executive Director after receiving a three-vote majority. At the same meeting Petitioner was commended for her service and for having saved the Housing Authority money by filling two positions. She was then informed that she would resume her position as Director of Management. (Petitioner's Exhibit #10, Minutes of meeting) At the time of final hearing, she was still in that position. Petitioner's lengthy service with the Housing Authority gave her experience in virtually every aspect of the agency's housing programs. The grant programs were primarily handled by the Executive Director. Elliott L. Smith, at the time of his appointment as Executive Director, had no experience in housing programs. He did, however, have approximately seven years experience as coordinator of the Comprehensive Employment and Training Program (C.E.T.A.) for the Seminole County School Board in Sanford, Florida. This is a federal grant program. He also had administrative experience as a supervisor in a mill. (Respondent's Exhibit #1) The advertisements for the position did not require housing program experience, but rather emphasized the need for management experience and familiarity with federal, state, and local programs, and government regulations. (Petitioner's Exhibits #13 and #14). It must be noted that Petitioner's Exhibit #13, an invoice and the text of classified ad in the Evening Herald, was received into evidence without objection. However, the date on the invoice is January 9, 1980, and apparently relates to a prior recruiting effort rather than the 1981 vacancy. It is presumed that since it, like Petitioner's Exhibit #14, was submitted as an example of the recruitment ads, the requirements for the position did not substantially change. Both candidates, Petitioner and Mr. Smith, met the minimum requirements for the position. The Housing Authority has a personnel policy which is recommended by the Executive Director and adopted by the Board. The policy in effect during the relevant period provided very general guidance to the Board in making its appointment: one sentence on the merit system, a nondiscrimination clause and the statement that, "Vacated or newly established positions shall be filled to the fullest extent consistent with efficient operations, by the promotion of qualified, employees." (Petitioner's Exhibit #11). The commissioners, most of whom were newly appointed, had their individual notions of what qualifications the Executive Director should have. No specific objective criteria were developed to assist them in the selection process beyond the policy referred above and the minimum requirements in the vacancy notices. The common, overall goal of the Board, however, was to restore respectability to the Housing Authority. The Sanford black community was split into factions and this impacted the Board which consisted of a majority of black commissioners. The majority of tenants were also black. Relations between the tenants and staff were strained and a negative audit from the U.S. Department of HUD (U. S. Department of Housing and Urban Development) had just been received. Staff morale was low. A previous Executive Director, Thomas Wilson, III who served from 1972 until 1980, was fired by the Board amid rumors of financial mismanagement of the block grant program. This was the same Thomas Wilson who was considered a serious contender for the position when his successor, Lewis Cox, resigned. (See paragraph 4, above). During the recruitment and hiring process, the commissioners received intense pressure from the various factions in the community supporting various candidates or urging certain qualifications. Amid the procedural and political chaos surrounding the hiring, several notable rumors or controversies emerged. One such rumor was that Commissioner Cummings had made a statement to the effect that Petitioner had done a good job, but that it was a job for a man and he could not vote for her. He denies that statement and any prejudice against the Petitioner on account of her sex or race. He alleges that he voted against her because she was so closely connected to Thomas Wilson, having worked directly under him during his controversial tenure as Executive Director. Commissioner Whitney also denied in her testimony at the hearing that she heard the statement from Mr. Cummings. This testimony conflicts with her signed statement dated February 1, 1982, received into evidence, over objection, as Petitioner's Exhibit #16. On cross- examination, she denied having drafted the statement and could not remember who brought it to her to be signed. The statement is not a sworn statement. Commissioner Whitney consistently voted for hiring the Petitioner. Commissioner Eliza Pringle did not hear the alleged statement by Commissioner Cummings either, but she generated a controversy on her own. At some point during review of the applications, she commented that photographs would be nice since they would reveal whether the applicant was male or female. She explained that the comment was a flippant remark on some of the names of the applicants. She denied any sexist animus. She stated that the Petitioner is related to her through some distant cousins who, in turn, are related to the McCoys, a prominent black family connected to one of the black Sanford factions. One of the McCoys held two terms on the Housing Authority Board. Commissioner Pringle did not wish to fuel the factionalism by hiring a relative. She supported Elliot Smith because, as a former school teacher, she was familiar with his C.E.T.A work in the schools, and felt he could make a contribution to the community. Commissioner Leroy Johnson voted for Thomas Wilson to be hired back to his former position. He thought Wilson needed another chance and had the best experience. Later, when Elliot Smith was interviewed, he supported Smith because of his skills in working with people and in writing federal grants. Elliott Smith was a contender late in the hiring process because his C.E.T.A. position was eliminated. No woman has ever been Executive Director of the Sanford Housing Authority. Petitioner conceded, however, that even if Lewis Cox had been a woman he would have been hired because of his strong financial background. Willie King, the candidate who was offered the appointment, but declined, also had a background in financial affairs. As protracted as the process was, a common bond of frustration joined all the commissioners in their search for an Executive Director. Like a deus ex machina, Elliott Smith appeared on the scene at the eleventh hour, fourteen months after the vacancy was created, and obtained the three votes necessary for a majority. By those who voted for him, he was viewed as having the necessary skills without the close ties to the Housing Authority which appeared to taint the other leading candidates.
Recommendation Based upon the foregoing, it is recommended that the Human Relations Commission enter a final order finding that Respondent did not discriminate against Petitioner and denying Petitioner's claim for relief. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986. APPENDIX TO FINAL ORDER IN CASE NO. 84-2640 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in paragraphs 1 and 3. Adopted in paragraph 1. Adopted in paragraph 1. The statement that all prior Executive Directors had been males is adopted in paragraph 13. Adopted in paragraph 3. Adopted in paragraph 5. Rejected as being contrary to the evidence. Adopted in paragraph 1 and 4. Adopted in substance in paragraphs 6 and 7. Adopted in paragraph 4. Adopted in paragraphs 4 and 5. Adopted in substance in paragraph 3. Adopted in substance in paragraph 5. Rejected as contrary to the evidence. Adopted in part in paragraph 9. The first sentence regarding the absence of any objective standards is too broad to be consistent with the evidence. Rejected as being unsupported by competent substantial evidence. See paragraph 8 and 9. Adopted in paragraph 8. Rejected as being unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as unnecessary and immaterial. Adopted in paragraphs 1 and 3. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 5, except that Smith was appointed on September 29, 1982, rather than September 19th. Adopted in substance in paragraph 9 and 13. Adopted in substance in paragraph 13. Rejected as unnecessary. Adopted in paragraph 11, except the final sentence, which is unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 13. Rejected as cumulative and unnecessary. Rejected as contrary to the weight of the evidence, although it is accepted that black politics is one factor in the decision-making function of the board. See paragraph 9. Adopted in paragraph 10. Adopted in substance in paragraph 10. Adopted in part in paragraph 11. The last sentence is rejected as being inconsistent with the weight of the evidence. Adopted in substance in paragraph 12. Adopted in substance in conclusions of law, paragraph 8. COPIES FURNISHED: Dana Baird, Esquire Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Harry L. Lamb, Esquire 621 N. Fern Creek Avenue Orlando, Florida 32803 Ned N. Julian, Esquire Post Office Box 1330 Sanford, Florida 32771
