Findings Of Fact The Amended Petition named Dr. Wanis as the physician providing obstetric services at Cherica’s birth on February 17, 2014. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Sameh F. Wanis, indicates that in the year 2014, the year in which Dr. Sameh F. Wanis participated in the delivery of Cherica Fremond, as indicated in the Petitioner’s Petition for Benefits, Dr. Sameh F. Wanis did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth- Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Sameh F. Wanis in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2014, Dr. Sameh F. Wanis paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physician. The physician payment history/report for Dr. Wanis supports Mr. Daughtry’s affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Wanis had not paid his $5,000 assessment for 2014. At the time of the birth of Cherica, Dr. Wanis was not a participating physician in the Plan.
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact At all times relevant to this matter, Respondent, Paul Meloy, Sr. (Meloy), was Volunteer Fire Chief of the Fire Protection and Rescue District for Alva, Florida. As such, he was a "public officer" of an "agency" within the meaning of Sections 112.312(2) and 112.313(1), Florida Statutes. Meloy helped to establish a volunteer fire department in the rural community of Alva, Florida in 1973. Meloy was selected as the volunteer fire chief. In 1976, the Alva Fire Protection and Rescue Service District (District) was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. In approximately 1984, Meloy took a 40-hour volunteer firefighting course and became certified as a volunteer firefighter. Full-time firefighters were required to complete a 280-hour firefighting course to become certified as firefighters pursuant to Section 633.35, Florida Statutes. Meloy never took the 280-hour course and has never been a state certified fire fighter pursuant to Section 633.35, Florida Statutes. In 1988, the District joined the State of Florida Retirement System (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator for the District, but did not draw a salary but continued to receive remuneration in the form of the monthly reimbursement for expenses. The full-time firefighters were enrolled in the FRS in 1988 as special risk members, which would allow them to retire at an earlier age than regular members of the FRS and with greater benefits. In June, 1990, Meloy was interviewed by an investigator from the Florida Commission on Ethics (Commission) concerning an Ethics Complaint unrelated to the complaint filed in the instant case. Meloy told the investigator that he was not receiving a salary from the District, but that he was receiving reimbursement for expenses. Additionally, he told the investigator that he was not certified to be a full-time professional firefighter. In 1990, Connie Bull, was employed as a part-time secretary for the District. Until the District received a letter from the Commission explaining that part-time employees should be enrolled in the retirement system, neither Ms. Bull nor Meloy was aware that part-time employees filling established positions were to be enrolled in the retirement system from the date of their employment. Ms. Bull called the Division of Retirement (Division) which is the agency responsible for administering the FRS. She talked with Ira Gaines concerning the requirement for the enrollment of part-time employees. Ira Gaines is the retirement services representative with the Division who is responsible for determining eligibility for members in the special risk plan of the FRS. Neither Ms. Bull nor Mr. Gaines recalls any discussion they may have had concerning certification requirements for enrollment in the special risk class. Ms. Bull obtained enrollment forms from the Division. She and Meloy filled out and signed the enrollment forms. The form Ms. Bull used for her enrollment was for regular membership. The form used by Meloy was for enrollment in the special risk plan. On September 22, 1990, Meloy represented on his enrollment form that he was a firefighter certified, or required to be certified, by the Bureau of Fire and Training and that he was the supervisor or command officer of special risk members whose duties included on the scene fighting of fires. Additionally, Meloy in his capacity as fire chief certified that his position meets the criteria for special risk membership in accordance with Section 121.0515, Florida Statutes, and Florida Retirement System Rules, and he was certified or required to be certified in compliance with Section 943.14 or Section 633.35, Florida Statutes. When he was completing the enrollment form, he told Ms. Bull that he knew that he was not certified. Meloy testified in his defense that when he signed the application form that he knew that he was not a certified full-time firefighter and that he knew that special risk members were required to be certified. Meloy stated that by signing the application he was acknowledging that special risk members were required to be certified not that he was certified. Having judged the credibility of Meloy, I find that Meloy's testimony is not credible. Ms. Bull sent the executed enrollment forms to the Division on October 17, 1990, with a cover letter stating that she and Meloy had worked for the District for some time on a part-time basis, but were unaware that as part-time employees they should have previously have been enrolled in the retirement system. In either 1990 or 1991, after he had executed the enrollment form, Meloy began receiving a salary from the District instead of reimbursement for expenses. In January, 1991, the District purchased back retirement benefits for Meloy from August, 1985 through June, 1988 for $4,207.97. Sometime after the enrollment forms were submitted and Meloy had been enrolled in the FRS, Ira Gaines and Meloy discussed Meloy's certification. Meloy told Mr. Gaines that he had taken a course which certified him as a firefighter. Meloy did not tell Mr. Gaines that he was a firefighter certified pursuant to Section 633.35. Meloy sent Mr. Gaines a copy of a letter dated September 16, 1991, from the Department of Insurance which stated that Meloy had held a Certificate of Competency entitled Volunteer Basic since July 11, 1984. Meloy did not qualify for special risk membership in the FRS. In May, 1992, Meloy was interviewed by an investigator for the Commission concerning the allegations in the Ethics Compliant which had been filed against Meloy. Meloy told the investigator that he knew that the enrollment application which he signed required that the employee had to have taken the 280-hour course to be eligible for the special risk class. By letter dated June 29, 1992, the Division notified Meloy that his membership in the FRS and the Florida Retirement Special Risk Class was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation and that he was not certified in compliance with Section 633.35, Florida Statutes. Meloy did not appeal the Division's decision. If Meloy had been allowed to remain as a special risk member in the FRS, he would have been eligible to draw annually at least $2,024.92 in special risk benefits beginning as early as August, 1995. There was no evidence presented that established that Mr. Meloy had anything to do with Assistant Volunteer Fire Chief Brent Golden's application, membership, or retention of any benefits from the FRS and the parties so stipulated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Paul Meloy, Sr. violated Section 112.313(6), Florida Statutes, as it relates to the allegations concerning his retirement benefits but not as to the retirement benefits of the Assistant Fire Chief, imposing a civil penalty of $2,024.92, and issuing a public censure and reprimand. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5984EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2-4: Accepted in substance. Paragraph 5: Accepted. Paragraphs 6-7: Rejected as unnecessary detail. Paragraphs 8-12: Accepted in substance. Paragraph 13: The first, third, and fourth sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. In practice both Mr. Tiner and Meloy supervised the firefighters during on-the-scene fighting of fires. The last sentence is rejected as irrelevant to the extent that Meloy listed all the duties that he was actually performing for the fire department. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. There was no evidence presented to show that Meloy knew that the Commissioners and not he should have executed the enrollment form on behalf of the employer. Paragraphs 16-17: Rejected as subordinate to the facts actually found. Paragraph 18: Rejected to the extent that it implies that Meloy took no steps to seek help from the Division. He did direct Ms. Bull to call the Division which she did. Paragraph 19: Rejected as subordinate to the facts actually found. Paragraphs 21-22: Accepted in substance. Paragraph 23: Accepted in substance except as to the amount. 13. Paragraphs 24-25: Rejected as constituting argument. Respondent's Proposed Findings of Fact 1. Paragraph 1: Rejected as constituting a conclusion of law. COPIES FURNISHED: Stuart F. Wilson-Patton Advocate For the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 John H. Shearer, Jr., P.A. Post Office Box 2196 Fort Myers, Florida 33902-2196 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
Findings Of Fact The Petition named Dr. Szurkus as the physician providing obstetric services at Desmond’s birth on February 14, 2009. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Dennis Szurkus indicates that on February 14, 2009, the date in which Dr. Szurkus participated in the delivery of Desmond Govan, as indicated in the Petitioner’s Petition for Benefits, Dr. Szurkus did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan until September 21, 2009. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Szurkus in relation to an exempt status for the year 2009. The physician payment history/report for Dr. Szurkus supports Mr. Daughtry’s affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that on February 14, 2009, Dr. Szurkus had not paid his $5,000 assessment for 2009. At the time of the birth of Desmond, Dr. Szurkus was not a participating physician in the Plan.
The Issue Whether the Petitioner, Christopher Rayborn, is entitled to participate in the Florida Retirement System (FRS).
Findings Of Fact The Petitioner, Christopher Rayborn, is by training and experience a nurse. He was first hired by Jackson Memorial Hospital (also identified in this record as Jackson Memorial Hospital Public Health Trust) in 1988. At that time Petitioner was employed into a regularly established, full-time position of nurse and was enrolled in the FRS. In 1991 the Petitioner terminated his employment at Jackson Memorial Hospital (Jackson). It is undisputed that Petitioner was entitled to participation in the FRS for the period of employment at Jackson from 1988-1991. In 1994 the Petitioner was again recruited to work at Jackson. Recruiters for Jackson attempted to fill the many vacancies in the nursing staff with permanent full-time employees. Such permanent full-time employees were eligible for benefits including retirement through the FRS. Also available were positions designated as "temporary relief/pool nurse." The "pool" nurses did not receive benefits. They did, however, receive a higher rate of pay. Regardless of the position, new employees were given forms, including the FRS participation form, to complete for Jackson. This Petitioner completed the FRS form and attended the workshop for all new Jackson employees. Had the Petitioner accepted a full-time permanent nurse position, he would have received all benefits then available to Jackson permanent employees including participation in the FRS. The Petitioner would have been subject to disciplinary rules for permanent employees and would have been required to work the shifts and hours designated by the employer. Instead, the Petitioner opted to receive a higher hourly rate of pay. By so doing, the Petitioner selected a position that was designated as a temporary relief/pool nurse that did not provide benefits. The Petitioner did not accrue paid leave and did not receive other benefits available to full-time employees. Any participation contributed for the Petitioner in the FRS for the period 1991 through 1998 was done in error. As a temporary employee he was not authorized to participate. In 1996 the Petitioner's job description was changed to "on call/pool nurse." Again, this position did not provide benefits and provided the Petitioner with a higher rate of pay than the full-time permanent nurse positions paid. As an on call/pool nurse the Petitioner worked 40 hour weeks but did not have to accept any work assignment or schedule which he did not want to work. He was entitled to decline shifts or schedules according to his personal interests. Jackson was required to continue the on call/pool nurse system due to the tremendous shortage in nurses. Had sufficient numbers accepted full-time permanent nurse positions, the use of on call/pool nurses would not have been necessary. In 1998 the Petitioner accepted a full-time permanent nurse position with Jackson. When moved into the full-time position, the Petitioner accepted a lower rate of pay and was entitled to benefits. He was not offered participation in the FRS at that time, however, because effective January 1, 1996, Jackson no longer participated in the FRS. Given the nurse staffing needs of Jackson, the use of on call/pool nurses continued uninterrupted for the period 1991 through 1998. None of the on call/pool nurses receiving the higher rate of pay were eligible for benefits from Jackson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a Final Order denying the Petitioner's request for participation in the FRS for the period subsequent to 1991. DONE AND ENTERED this 27th day of October, 2000, 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 27th day of October, 2000. COPIES FURNISHED: Roberta Fulton Fox, Esquire Law Offices of Roberta Fox, P.A. Grove Plaza, Seventh Floor 2900 Southwest 28th Terrace Miami, Florida 33133 Thomas E. Wright, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Florida Commission on Human Relations (FCHR) does not make a "cause" or "no cause" determination, as provided in Section 760.11(3), Florida Statutes, but rather issues a Notice of Dismissal, pursuant to Section 760.11(8), Florida Statutes. Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(6), Florida Statutes. Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if Petitioner fails to name Respondent in the Petition for Relief filed with the FCHR, as required by Section 760.11(1), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Manuel Pedraza in DOAH Case No. 02-0237, and FCHR Case No. 99-0849, for failure to timely file his Petition for Relief and for failure to properly name Respondent in the Petition. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE 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 21st day of June, 2002. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach Law Offices, P.A. 2532 Garden Street Titusville, Florida 32796 W. Russell Hamilton, III, Esquire Morgan, Lewis & Bockius, LLP 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
