Findings Of Fact Background Respondent, Department of Health and Rehabilitative Services (Department), is the designated state agency responsible for the administration of Medicaid funds under Title XIX of the Social Security Act. Rule 10C- 7.048(2)(a), Florida Administrative Code. Petitioner, Richmond Healthcare, Inc., d/b/a Sunrise Health Center, owns and operates a 240-bed nursing home in Broward County, Florida, and is a participant in the Florida Medicaid Program. As a participant, petitioner is required to submit annual cost reports to the Department. Based on these cost reports, the Department establishes a participant's reimbursement rate. Rules 10C-7.048(4)(a)5 and 10C-7.048, Florida Administrative Code. The annual cost reports are subject to audit at the discretion of the Department. If audited, a direct examination of the participant's books, records and accounts that support the amounts reported in the annual cost report is made to determine the correctness and propriety of the amounts claimed in the cost report. Rule 10C-7.0481, Florida Administrative Code. Pertinent to this case, the Department elected to audit petitioner's cost reports for the period of October 5, 1983, through December 31, 1984. Based on such audit, the Department issued an audit report that disallowed certain costs claimed by petitioner, and proposed to recoup the excess Medicaid payments made to petitioner as a consequence of such disallowance. Petitioner filed a timely protest to contest the Department's decision. The parties' joint stipulation At hearing, the parties stipulated as follows: The parties have recalculated the usual and customary charges at $65.72 per day. The Department of Health and Rehabilitative Services will reclassify costs of $8,282.00 from the capitalized minor equipment to the operating and patient care component. The Department of Health and Rehabilitative Services will reclassify construction period interest to start-up costs from the date of certificate of occupancy to the date of the admission of the first resident to the nursing home. Amortization of this amount for the 15 months ended December 31, 1984, cost reporting period totaled $27,677.00. The adjustment to indirect home office costs will remain as in the audit report. The parties agree that the property ceiling issue will be remanded to the Department of Health and Rehabilitative Services for an informal hearing. All arguments will be presented in writing to the informal hearing officer. Oral argument will be permitted at the request of either party. The parties further agree that the written arguments will be due on the same date that the Proposed Recommended Order is due in the companion rule challenge case. If the rule challenge is dismissed, the parties will file briefs and hold oral argument, if requested, within fifteen (15) days of its dismissal. The parties agree that the only remaining disputed issue in the Petition filed in this matter is the allowable expense for private airplane usage. The expenses for private airplane usage. In rendering its annual cost report, a participant, such as petitioner, is bound by the following provisions of law or contract: Rule 10C-7.48(4), Florida Administrative Code, which provides: (4) Provider Eligibility. (a) Nursing home providers participating in the Medicaid Nursing Home Program shall: * * * Have a Medicaid reimbursement rate established. The provider shall submit a cost report in compliance with the provisions of the Florida Title XIX Long Term Care Reimbursement Plan, as revised April 1, 1983, and subsequently amended January 1, 1984, adopted by reference. The cost report shall be analyzed and a reimbursement rate established in accordance with the Florida Title XIX Long Term Care Reimbursement Plan, as revised April 1, 1983, and subsequently amended effective January 1, 1984. The Florida Title XIX Long Term Care Reimbursement Plan, which provides: * * * Cost Finding and Cost Reporting All providers are required to detail all of their costs for their entire reporting period, making appropriate adjustments as required by this plan for determination of allowable costs. . . . The cost report must be prepared by the facility's independent Certified Public Account, on the forms prescribed by the Department, and on the accrual basis of accounting in accordance with generally accepted accounting principles as established by the American Institute of Certified Public Accountants (AICPA), the methods of reimbursement in accordance with Medicare (Title XVIII) Principles of Reimbursement, the Provider Reimbursement Manual (HIM-IS) except as modified by the Florida Title XIX Long Term Care Reimbursement Plan, and State of Florida Administrative Rules. * * * G. All providers are required to maintain financial and statistical records in accordance with 42 CFR 405.453(a), (b, (c), (e). The cost report is to be based on financial and statistical records maintained by the facility. Cost information must be current, accurate, and in sufficient detail to support costs set forth in the report. This includes all ledgers, books, records, original evidence of cost and other records in accordance with HIM-IS which pertain to the determination of reasonable costs, and must be capable of and available for auditing by State and Federal authorities. . . . (Emphasis added) * * * III. Allowable Costs * * * C. Implicit in any definition of allowable costs is that those costs should not exceed what a prudent and cost-conscious buyer pays for a given service or item. . . . HIM-IS, which provides: 2100. PRINCIPLE All payments to providers of services must be based on the "reasonable cost" of services covered . . . and related to the care of beneficiaries. . . . * * * 2102.1 Reasonable Costs... It is the intent of the program that providers will be reimbursed the actual cost of providing high quality care. Implicit in the intention that actual costs be paid to the extent they are reasonable is the expectation that the buyer seeks to minimize its costs and that its actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or service. . . . 2102.2 Costs Related to Patient Care.-- These include all necessary and proper costs which are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities. Necessary and proper costs related to patient care are usually costs which are common and accepted occurrences in the field of the provider's activity. . . . * * * 2103. PRUDENT BUYER General.--The prudent and cost-conscious buyer not only refuses to pay more than the going price for an item or service, he also seeks to economize by minimizing cost. . . . * * * 2304. ADEQUACY OF COST INFORMATION Cost information as developed by the provider must be current, accurate, and in sufficient detail to support payments made for services rendered to beneficiaries. This includes all ledgers, books, records and original evidences of cost (purchase requisitions, purchase orders, vouchers, requisitions for materials, inventories, labor time cards, payrolls, bases for apportioning costs, etc.), which pertain to the determination of reasonable cost, capable of being audited. (Emphasis added) On audit, petitioner provided no books, records or accounts to support the amounts reported in its annual cost report for expenses associated with private airplane usage. Under the circumstances, the Department properly disallowed such costs since their propriety and correctness was not substantiated by petitioner. At hearing, petitioner offered no proof regarding the correctness or propriety of the subject costs, but relied upon the proof offered on behalf of intervenor, Thelma R. Allgood. Ms. Allgood was, at all times material hereto, an owner of 50% of petitioner's stock, and was, after its sale to third parties, contractually obligated to assist and cooperate with petitioner to document the subject claim. At hearing, the proof offered on behalf of intervenor demonstrated that during the period of October 5, 1983, through December 31, 1984, petitioner had contracted with Allgood Healthcare, Inc., which was located in Augusta, Georgia, to provide all of the customary and necessary management services for petitioner. During this period, Ms. Allgood, in addition to owning 50% of petitioner's stock, was, along with her husband, Thomas Allgood, the sole owner of Allgood Healthcare. In view of this community of interest, Allgood Healthcare was considered a home office of petitioner for cost reporting purposes. Between October 5, 1983, and December 31, 1984, Allgood Healthcare used its private plane on 42 occasions to fly Mr. and Mrs. Allgood, as well as other personnel of Allgood Healthcare, to or from petitioner's facility in Broward County, Florida, and the home office in Augusta, Georgia, as well as the cities of Savannah and Atlanta, Georgia. The expenses for these trips totaled $41,228.26, and included aircraft operation costs, pilot charges, pilot's expenses, and fuel. On average, the cost of each trip was approximately $940. 1/ During the same time-frame, the cost for a round trip economy fare ticket between Augusta and Fort Lauderdale by commercial airline was approximately $430. To demonstrate its entitlement to claim the expenses for private airplane usage on its costs report, it was incumbent upon petitioner to demonstrate that such costs were reasonable and related to patient care. Petitioner has failed to demonstrate either prerequisite. The only proof offered to demonstrate that the subject costs were related to patient care was through the testimony of Mr. Allgood. Mr. Allgood, admittedly a person with no knowledge of patient care or cost reporting, accompanied his wife on approximately one-half of the subject trips and opined that the purpose of those trips, as well as those on which he had no personal involvement, were related to patient care. Mr. Allgood was, however, unable to recall any specific trips he made; any dates he, his wife, or any other specific person were on the premises; or what precisely was done at any particular time that would demonstrate that the trip was related to patient care. Under the circumstances, Mr. Allgood's testimony is not persuasive, and his conclusion that the subject costs for private airplane usage were related to patient care is not credited. 2/ Regarding the reasonableness of the expenses incurred, the proof demonstrated that the cost per trip for use of the private plane was $940, while the cost for a round trip ticket by commercial airline was $430. To support the reasonableness of this expense, intervenor again offered the testimony of Mr. Allgood, who opined that where two passengers were on a trip, the cost was comparable to commercial travel. Mr. Allgood's testimony was, however, unpersuasive to demonstrate the reasonableness of the cost to patient care. Notably, Mr. Allgood, who admitted performing no services related to patient care, accompanied his wife on approximately one-half of the trips. Under such circumstances, his presence was unnecessary, and the costs for transporting Ms. Allgood by private plane, even assuming she performed services related to patient care, were unreasonable. With respect to the remaining trips, Mr. Allgood was shown to have no personal knowledge regarding those trips, and his testimony that at least two passengers were present on each of those trips is not credited. In fact, to the extent proof is available, it indicates that a number of trips were made with only one passenger, and that on several occasions the expense of a trip, ostensibly a round trip (Augusta-Fort Lauderdale- Augusta), were incurred to transport one or two passengers in one direction only.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that: Petitioner's protest of the Department's disallowance of the expenses associated with private airplane usage as Medicaid resident costs be dismissed, and Upon review of the property ceiling issue which is hereby remanded to the Department, that it enter a final order consistent with its findings on that issue, the parties' stipulation, and the recommendation contained in this order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of January, 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1989.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 7% day of Serrmenser , 2011, in Tallahassee, Florida. jd. ft ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Page 1 of 2 Filed September 13, 2011 1:23 PM Division of Administrative Hearings Copies furnished to: Kristina L. Schlieter, Esquire Agency for Health Care Administration (Interoffice Mail) Javier Talamo, Esquire Kravitz & Talamo, LLP 7600 West 20th Avenue, Suite 213 Hialeah, Florida 33016 (U.S. Mail) Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Building Tallahassee, Florida 32399-3060 Michael Blackburn, Chief, Medicaid Program Integrity Kathy Herold, Medicaid Program Integrity Finance and Accounting Health Quality Assurance Department of Health CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to 7 the above named addressees by U.S. Mail on this the [Z day of Sle bs, 2011. Richard Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 Page 2 of 2
The Issue Whether Respondent violated various provisions of the Insurance Code, specifically Sections 626.561(1), 626.611, 626.621 and 626.9521, Florida Statutes, which warrants that Respondent's licenses as an insurance agent should be disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: 1. Respondent was, at all times pertinent, licensed as a general lines agent and health agent in Florida 2 Respondent was the registered agent, sole director and officer of Sunshine State Insurance of Manatee, Inc. As a result of her corporate capacity, Sheryl Ann Satterfield is responsible for actions of employees working under her direct supervision and control. FINDINGS REGARDING COUNT I On or about April 5, 1991, Respondent's employee solicited an application for automobile insurance from Miguel A. Coronado of Bradenton, Florida. The automobile insurance was to be provided by the Nu-Main of Florida Agency. At this same time, the premium for the automobile insurance was quoted as $414.00 for a six month coverage. After being informed of the premium amount, Mr. Coronado paid Respondent's employee $146.00 in cash as a down payment on the premium. Receipt #6557 was issued which acknowledged receipt of said premium. On or about April 26, 1991, Mr. Coronado received a cancellation from Instant Auto Credit stating that his automobile was an unacceptable vehicle. After receiving this notice, Mr. Coronado went to the Sunshine State Insurance office to discuss the cancellation with Respondent. Respondent refused to refund the $146.00 premium to Mr. Coronado. Respondent never forwarded the $146.00 premium funds received from Mr. Coronado to Nu-Main of Florida. Further, Respondent failed, and refused to refund the premium to Mr. Coronado upon demand. Respondent misappropriated funds held in trust for her own use and benefit. FINDINGS REGARDING COUNT II On or about November 26, 1990, Jodi Spencer of Sarasota, Florida went to Respondent's agency for the purpose of obtaining automobile insurance. Ms. Spencer made a premium down payment of $197.00 on a quote of $697.00 annual premium. Respondent's employee issued receipt #7874 which acknowledged receipt of the $197.00 premium down payment. The auto insurance was to be provided by Nu-Main of Florida, Inc., and American Skyhawk Company. On February 11, 1991, American Skyhawk Insurance Company sent Ms. Spencer a cancellation notice. Respondent was to return $24.50 of unearned commission to Ms. Spencer which she failed to do. FINDINGS REGARDING COUNT III On or about December 31, 1990, Matthew Baker of Bradenton, Florida, went to Sunshine State Insurance Agency to obtain automobile insurance. At this time, Matthew Baker paid a down payment of $197.00 on an annual premium of $1,313.00. The insurance was to be provided by First Miami Insurance Company. Respondent's agency issued receipt #6851 upon receipt of the aforementioned premium down payment. On January 31, 1991, First Miami Insurance Company sent Mr. Baker a cancellation notice. At the time of cancellation Respondent was to return an unearned commission of $154.60. Respondent has failed to return $154.60 in unearned commission to Mr. Baker. FINDINGS REGARDING COUNT IV On or about January 11, 1991, Edwin Soto of Bradenton, Florida, was cancelled by First Miami Insurance Company with whom he had an existing automobile insurance policy. Edwin Soto had purchased this First Miami Insurance Company policy from Respondent. (Testimony of Edwin Soto). As a result of this cancellation Mr. Soto is owed $70.61 from Respondent which she has failed to return to him. FINDINGS REGARDING COUNT V In January 1991, William M. Woodyard of Bradenton, Florida, met with Respondent to renew his general liability and worker's compensation insurance. At this same time Mr. Woodyard gave Respondent his premium down payment. During the latter part of 1991, Mr. Woodyard went to Sunshine State Insurance of Manatee, Inc. to obtain a copy of his worker's compensation policy. Upon Mr. Woodyard's arrival, he met with Joe Money, President of Sunshine State Insurance Group, Inc. No record of insurance or coverage for Mr. Woodyard or his company existed. Previously, Capital Premium Finance Company had issued two return premium checks to Mr. Woodyard. Respondent deposited Mr. Woodyard's return premium checks into the Sunshine State Insurance Agency's checking account in the total amount of $440.80. Mr. Woodyard was entitled to receive a premium refund check and unearned commission check from Respondent. Mr. Woodyard did not receive any premium refund or unearned commission funds from Respondent.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Respondent's licenses as an insurance agent in this state be REVOKED. DONE and RECOMMENDED this 20th day of October, 1992, at Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992. APPENDIX The following constitute specific rulings, pursuant to Section 120.59 (2), Florida Statutes, upon the parties respective proposed findings of fact (PFOF) Petitioner's PFOF: 1. - 27. Accepted in substance. Respondent's PFOF: Respondent did not file proposed findings of fact. COPIES FURNISHED: Willis F. Melvin, Jr., Esquire Daniel T. Gross, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, Florida 32399-0300 Ms. Sheryl Ann Satterfield P.O. Box 333 Polk City, Florida 33868 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this “a” day of Deste , 2013, in Tallahassee, Florida. ye Dudek, cle t Agency for Health Care Administration Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 1 of 3 Filed October 24, 2013 3:14 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Michael J. Glazer, Esquire Jennifer F. Hinson, Esquire AUSLEY & McMULLEN 123 S. Calhoun Street, P.O. Box 391 Tallahassee, Florida 32301 melazer@ausley.com jhinson@ausley.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Electronic Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Electronic Mail) Richard Zenuch, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Electronic Mail) Florida Department of Health Medical License #ME0060415 (Via Email Only) Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order - Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the ZZ “day of LASDf2S 2013. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630/(850) 921-0158 FAX Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 3 of 3
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by the Honorable Robert S. Cohen, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Motion to Dismiss and Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Sky Powersports North Orlando, LLC to sell Slingshot Motorcycles manufactured by Polaris Industries, Inc. (SLNG) at 855 North US Highway 17-92, Longwood (Seminole Count), Florida 32750. Filed February 13, 2015 4:10 PM Division of Administrative Hearings DONE AND ORDERED this (3 County, Florida. Filed in the official records of the Division of Motorist Services this 13 _ day of February, 2015. Moke: Ur Nalini Vinayak, Dealer License Administrator Copies furnished to: Nalini Vinayak Dealer License Section Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Michael W. Malone Polaris Sales and Service, Inc. 2100 Highway 55 Medina, Minnesota 55340 Robert S. Cohen Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 day of February, 2015, in Tallahassee, Leon Cobuv Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 e Charles R. Northey Sky Powersports North Orlando, LLC 246 McLean Point Winter Haven, Florida 33884 Nathan D. Stickney Sky Powersports North Orlando, LLC 709 Elkhorn Fern Lane Deland, Florida 32720 Jonathan Breenen Butler, Esquire Akerman, LLP 777 South Flagler Drive Suite 1100, West Tower West Palm Beach, Florida 33401 NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORTS CENTER, Petitioner, vs. Case No. 14-6038 POLARIS SALES AND SERVICE, INC., AND SKY POWERSPORTS NORTH ORLANDO, LLC, Respondents. ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Respondent’s Motion to Dismiss and to Relinquish Jurisdiction, filed on January 23, 2015, and Petitioner’s Notice of No Objection to Respondent’s Motion to Dismiss, filed on February 5, 2015, and the undersigned being fully advised in the premises, it is, therefore, ORDERED that: 1. Respondent’s Motion to Dismiss and to Relinquish Jurisdiction is granted. 2. The final hearing scheduled for September 8 through 11, 2015, is canceled. 3. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. DONE AND ORDERED this 6th day of February, 2015, in Tallahassee, Leon County, Florida. ROBERT S. COHEN 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 6th day of February, 2015. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399 (eServed) William Edward Van Cott Government Operations Consultant Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway, Room A-430 Tallahassee, Florida 32399 (eServed) Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 (eServed) Michael W. Malone Polaris Sales and Service, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Charles R. Northey Sky Powersports North Orlando, LLC 246 McLean Point Winter Haven, Florida 33884 Nathan D. Stickney Sky Powersports North Orlando, LLC 709 Elkhorn Fern Lane Deland, Florida 32720 Jonathan Brennen Butler, Esquire Akerman, LLP Suite 1100 West Tower 777 South Flagler Drive West Palm Beach, Florida 33401 (eServed) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORT CENTER, CASE NO.: 14-6038 Petitioner, vs. POLARIS SALES AND SERVICE, INC., AND BROWARD SKY POWERSPORTS NORTH ORLANDO, LLC, Respondents, / RESPONDENT'S MOTION TO DISMISS AND TO DICTION Respondent, POLARIS SALES AND SERVICE, INC. ("Polaris"), by and through their undersigned counsel and pursuant to Sections 120.569, 320.642 and 320.642, Florida Statutes, and Florida Administrative Code Rule 28-106.204, respectfully move for entry of an Order dismissing the Petition initiating this proceeding and relinquishing the Division of Administrative Hearings' jurisdiction over this proceeding. As grounds, Polaris states as follows. 1 This proceeding was initiated by the Petition Protesting Establishment of Dealership Pursuant to Florida Statutes Section 320.642 ("the Petition") filed by Petitioner CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORT CENTER (‘Cycle Sport"). In relevant part, Cycle Sport is protesting Polaris’ Notice of Intent to establish Sky Powersports North Orlando, LLC ("Sky") as an additional dealer for the sale of Polaris' line of Slingshot motorcycles at 855 North U.S. Highway 17-92, Longwood, Florida ("the Notice of Intent"). 2. On January 15, 2015, however, Polaris filed formal notice of withdraw of the Notice of Intent with the Florida Division of Motor Vehicles, whereby Polaris withdrew its request that Sky be authorized as an additional dealer of the Slingshot line. A copy of Polaris Notice of Withdraw is attached as Exhibit A. 3. As a consequence of Polaris' withdraw of its Notice of Intent, there is no longer any basis or need for an administrative hearing on Cycle Sport's Petition protesting the Notice of Intent, Rather, Cycle Sport's Petition is now moot as there are no substantial interests or rights of the parties to be adjudicated nor any disputed facts to be determined. 4. Polaris accordingly requests that the Division of Administrative Hearings dismiss this proceeding and relinquish jurisdiction of this matter to the Division of Motor Vehicles. Respectfully submitted, !s/ Jonathan B. Butler Jonathan B. Butler, Esq. Florida Bar No. 56197 Akerman LLP 777 South Flagler Drive, Suite 1100 West West Palm Beach, FL 33401 Office: (561) 671-3642 Fax: (561) 659-6313 E-mail: jonathan. butler@akerman.com Secondary e-mail: luke.bovat@akerman.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 23, 2015, I electronically filed the foregoing document with the Division of Administrative Hearings via eALJ, and served the foregoing documents via U.S. Mail and email on Robert C. Byerts, Esq. and Nicholas Bader, Esq., Bass, Sox and Mercer, 2822 Remington Green Cir, Tallahassee, FL 32308. /s/ Jonathan B. Butler Jonathan B. Butler, Esq. Florida Bar No. 56197 G— PSLaARIs “~~ SALES inc. Polaris Sales Inc, 2100 Highway 55 Medina, MN 55340-9770 763-542-0500 763-847-8149 fax January 15, 2015 Nalini Vinayak, Administrator Dealer License Section Division of Motor Vehicles 2800 Apalachee Parkway Room A-312, MS-65 ; Tallahassee, FL 32399-0635 Dear Nalini Vinayak, On October 30, 2014, Polaris Sales Inc. provided the Florida Division of Motor Vehicles with notice that It intended to authorized Sky Powersports North Orlando, LLC., d/b/a Sky Powersports North Orlando as a dealership for the sale of Slingshot at 855 North Highway 17-92, Longwood, FL, 32750. Polaris hereby formally withdraws that notice of intent to authorize. Please acknowledge receipt of this letter and notice of withdrawal, Should you require any additional Information, please contact Peggy Payne at 763-847-8403. Sincerely, % ee ¥ UMICHAUL ULE bus Michael W. Malone ~ { VP Finance, CFO
The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s determination that the three applicant-parties were eligible for the allocation of low-income housing tax credits; and its intended decision to award such tax credits to Ocean Breeze East Apartments, LLC, are contrary to governing statutes, rules, or the solicitation specifications.1/
Findings Of Fact Parties and Process Florida Housing is a public corporation and, for the purposes of these proceedings, is an agency of the State of Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits.3/ Florida Housing is authorized by law to allocate tax credits (and other funding) by means of requests for proposal or other forms of competitive solicitation. On October 6, 2017, Florida Housing published the RFA, starting the competitive application process being challenged in this proceeding. Completed applications were due December 28, 2017.4/ As explained below, all of the non-agency parties (HTG Heron, Channel Side, and Ocean Breeze) in this case applied for funding for a proposed development in Palm Beach County. According to the terms of the RFA, only one application for each county was to be funded. Moreover, the RFA’s stated goal was to fund one application wherein the applicant applied and qualified as a non-profit applicant. This non-profit goal did not apply within each of the six counties included in this RFA; one non-profit applicant in any of the six counties could satisfy the non-profit applicant goal for the entire RFA. No challenges were made to the terms or requirements of the RFA. HTG Heron is an applicant to the RFA, requesting an allocation of $1,541,751.00 in competitive tax credits. Its application, assigned number 2018-289C, was deemed eligible for consideration but was not selected for funding under the RFA. Channel Side is also an applicant to the RFA. It is requesting an allocation of $2,100,000.00 in competitive tax credits. Its application, assigned number 2018-278C, was deemed eligible for consideration but was not selected for funding under the RFA. Ocean Breeze is an applicant requesting an allocation of $2,070,000.00 in competitive tax credits. Its application, assigned number 2018-286C, was deemed eligible for consideration and was selected for funding under the RFA, subject to a credit underwriting review process. Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. See § 420.507(48), Fla. Stat. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. A review committee was appointed to evaluate the applications and make recommendations to Florida Housing’s Board of Directors (the Board). Thirty-three applications for the RFA were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA; Florida Administrative Code Chapters 67-48 and 67-60; and applicable federal regulations. The review committee found 25 applications eligible and eight applications ineligible. Through the ranking and selection process outlined in the RFA, seven applications were recommended for funding, including Ocean Breeze. The review committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 16, 2018, the Board met and considered the recommendations of the review committee for the RFA. The same day, the applicants to the RFA received notice of the Board’s determinations as to whether the applications were eligible or ineligible for consideration for funding, and which of the eligible applicants were selected for award of tax credits, subject to satisfactory completion of a credit underwriting process. Such notice was provided by the posting of two spreadsheets, one listing the “eligible” applications to the RFA and one identifying the applications which Florida Housing proposed to fund.5/ Relevant to this proceeding, Florida Housing announced its intention to award funding for Palm Beach County to Ocean Breeze, which received the maximum points available. Channel Side and HTG Heron were deemed eligible and scored the maximum number of points, but were not recommended for funding. Each applicant-party timely filed a Notice of Protest and Petition for Formal Administrative Proceedings. RFA The RFA contemplated a structure in which each applicant is scored on eligibility items and obtains points for other items. To determine if an application is eligible for funding, it must meet all of the requirements listed in section 5.A.1, of the RFA. The following eligibility terms and requirements are challenged in this proceeding: The evidence of control of the development site (site control) by Ocean Breeze and Channel Side; and The address of the development site provided by HTG Heron. For scoring the applications, the RFA allows up to a total of 20 points with the following point allocations: Submission of Principal Disclosure form stamped by Corporation as “Pre-Approved” (5 points); Development Experience Withdrawal Disincentive (5 points); and Local Government Contribution Points (5 points) or Local Government Area of Opportunity Points (10 points). As explained in pages 66-67 of the RFA, the first step in evaluating the applications is the sorting order. All eligible applications are ranked by first sorting all eligible applications from the highest score to the lowest score, with any scores that are tied separated in the following order: First, by the Application’s eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.11.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.b.(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); [sic] Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and [sic] And finally, by lottery number, resulting in the lowest lottery number receiving preference. In other words, those competing for the RFA must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors before it is scored. After scoring, any tiebreakers are determined strictly by the luck of the draw. After applications are filed, but before they are scored, Florida Housing randomly assigned each a lottery number, and the highest scoring applicant with the lower number wins any ties, thus becoming the intended funding recipient. The notice of the intended award does not end the process, and the selection of an applicant for funding does not guarantee distribution of tax credits to that applicant. Florida Housing’s representative, Ms. Button, explained at the hearing: Q Okay. What happens once a preliminary agency action from Florida Housing becomes final agency action? A The awardees who are recommended or preliminarily approved for funding, once that becomes final, those applicants are then invited to credit underwriting by Florida Housing. * * * Q Can you provide some general information about credit underwriting? A Credit underwriting is essentially a de novo review of all the information that the applicant has provided in their application to proceed forward with the proposed development. Florida Housing retains their party underwriters who review that information and provide recommendations to Florida Housing. Similarly, the RFA provides that each selected awardee must complete a credit underwriting process before receiving funding or credits. The RFA states on page 68: Notwithstanding an award by the Board pursuant to his RFA, funding will be subject to a positive recommendation from the Credit Underwriter based on criteria outlined in the credit underwriting provisions in Rule Chapter 67-48, F.A.C. Rule 67-48.0072, in turn, provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team’s experience, past performance or financial capacity is satisfactory. Thus, an application might fail in this de novo credit underwriting phase and never receive funding, even though it was “awarded” tax-credit funding as a result of a proceeding such as this one. In that event, page 67 of the RFA provides: 4. Returned Allocation Funding that becomes available after the Board takes action on the [Review] Committee’s recommendation(s), due to an Applicant withdrawing its Application, an Applicant declining its invitation to enter credit underwriting, or an Applicant’s inability to satisfy a requirement outlined in this RFA and/or Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. Therefore, if an intended applicant (such as Ocean Breeze), was nominally selected for funding at the end of the eligibility and scoring phase, but failed to garner a positive recommendation from the credit underwriting process, the next eligible applicants in the queue (such as HTG Heron and Channel Side) would be awarded the tax credits. As a result, in this consolidated proceeding, the objective of Petitioners is to displace any and all applicants in more favorable positions. Here, Petitioner Channel Side challenges the eligibility of both the Ocean Breeze and HTG Heron applications; and Petitioner HTG Heron challenges the eligibility of Ocean Breeze. Ocean Breeze, in turn, challenges both HTG Heron’s and Channel Side’s eligibility. The specific issues raised as to the three challenged applications will be discussed below. OCEAN BREEZE APPLICATION HTG Heron and Channel Side challenge Ocean Breeze’s eligibility based on the RFA requirements relating to site control. The parties have stipulated, and the undersigned finds, that site control must have been demonstrated as of the application deadline of December 28, 2017. The RFA provides three ways an applicant can demonstrate site control: (1) eligible contract, (2) deed or certificate of title, or (3) lease. Ocean Breeze utilized the first method to satisfy the site control requirement by submitting a document titled “Purchase and Development Agreement” (PDA) as Exhibit 8 to its Application. The PDA included two attachments: the “Legal Description” and a “Reverter Agreement.” Petitioners challenge the enforceability of the PDA on two apparent grounds: (1) it was not executed by the applicant6/; and (2) it was executed before the applicant was properly incorporated to do business within the State of Florida. The RFA, however, does not mention “enforceability” of a contract in its definition for “Eligible Contract.” The requirements for establishing site control though an eligible contract are found on page 30 through 31 of the RFA. Eligible Contract - For purposes of this RFA, an eligible contract is one that has a term that does not expire before June 30, 2018 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018; specifically states that the buyer’s remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant, is provided. Any assignment must be signed by the assignor and the assignee. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided, and, if a contract, must contain the following elements of an eligible contract: (a) have a term that does not expire before June 30, 2018 or contain extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018, and (b) specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance. The initial paragraph of the PDA identifies the parties to the PDA as “Boyton Beach Community Redevelopment Agency,” as the “Seller,” and “Ocean Breeze East Apartments, LLC” as the “Purchaser.” Paragraph 14 of the PDA designates the following for purposes of notices: If to Purchaser: Ocean Breeze East Apartments, LLC Attn: Lewis Swezy 7735 NW 146 Street, Suite 306 Miami Lakes, FL 33016 Under the signature block, however, the PDA states it was executed on behalf of the “Purchaser” by “OCEAN BREEZE APARTMENTS LLC By Ocean Breeze East GP LLC” and signed by Lewis Swezy, “Title: Authorized Member” on December 8, 2017. “Ocean Breeze East, GP, LLC” does not exist and never has in Florida. The parties admit that this entity was not in existence on December 8, 2017, and was never subsequently formed. Ocean Breeze admits the identification of “Ocean Breeze East, GP, LLC” was in error. The PDA was executed on behalf of the “Seller” by BBCRA and signed by Steven B. Grant, “Title: Chair” on December 15, 2017. Paragraph 4 of the PDA indicates that its effective date is the date when the last party signed the PDA; in this case being the date the BBCRA executed the document--December 15, 2017. The Reverter Agreement is executed by the “Purchaser” “Ocean Breeze East Apartments, LLC” and signed by Lewis Swezy, “Title: Manager of Manager,” on December 12, 2017. The Reverter Agreement is executed by the “Seller,” BBCRA, and signed by Steven B. Grant, “Title: Chairman” on December 15, 2017. Mr. Swezy testified Ocean Breeze complied with all the terms of the PDA, including submitting an initial $25,000 deposit within two days of full execution of the PDA and a second deposit within 30 days. The Articles of Organization for Ocean Breeze East Apartments, LLC were filed on December 19, 2017, and effective December 14, 2017. Rachael Grice, Florida Housing Multifamily Programs Manager, scored the site control portion for this RFA based on the information in the application. Mrs. Grice found that Ocean Breeze met the RFA requirements for site control. It is unnecessary, and beyond the scope of the undersigned’s jurisdiction, to make a factual or legal determination as to the enforceability of the PDA. The RFA does not mention enforceability or validity as requirements for an “Eligible Contract” for site control purposes. There is no dispute that on its face, the PDA with the Reverter Agreement satisfied the RFA’s requirements for an “Eligible Contract” listed on page 30 and 31. In fact, as of the date of the application deadline the following was true: Ocean Breeze East Apartments, LLC, was listed as the applicant for the RFA. Ocean Breeze East Apartments, LLC, was listed as the “Purchaser” on the PDA. Mr. Swezy had signature authority to bind Ocean Breeze and was listed on the Ocean Breeze application as the “Authorized Representative.” Ocean Breeze East Apartments, LLC, and Mr. Swezy were identified in the notice provision in the PDA. The Reverter Agreement, which was signed after the PDA, correctly identified the applicant entity as Ocean Breeze East Apartments, LLC. Effective December 14, 2017, Ocean Breeze was incorporated. The PDA was fully executed on December 15, 2017. HTG Heron and Channel Side have not established that the PDA was fatally flawed or that Florida Housing erred in accepting the PDA as an “eligible contract” satisfying the RFA’s site control requirement. Even if the PDA contained errors by listing “Ocean Breeze East GP, LLC” in the signature block or was prematurely signed before Ocean Breeze was effectively incorporated, the evidence at the hearing established that it was a minor irregularity waivable by Florida Housing, and that Florida Housing would have waived any such errors. If the PDA is ultimately determined to be unenforceable and site control is not established at the credit underwriting stage, Petitioners would be next in line to be selected to receive the tax credits under the terms of the RFA. The preponderance of the evidence established that Ocean Breeze’s application is eligible for funding, it received the proper scoring, and should be the intended award for Palm Beach County. HTG HERON APPLICATION Channel Side and Ocean Breeze challenge the eligibility of the HTG Heron application because they claim it fails to satisfy the RFA eligibility requirement to provide a correct address of the proposed development site. Page 18 of the RFA requires in relevant part: Indicate (1) the address number, street name, and name of city, and/or (2) the street name, closest designated intersection, and either name of city or unincorporated area of county. Ms. Button testified the purpose of the address requirement in the RFA is to allow parties, including Florida Housing, to know where the proposed development will be built and to ensure the property has access to utility and other services. In that vein, the RFA does not require the street identified in an application to be a publicly maintained street. In its application, HTG Heron provided the address of the proposed development as “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach,” along with latitudinal and longitudinal coordinates of the development location. Ryan McKinless, Multifamily Programs Senior Analyst for Florida Housing, scored the development address section for this RFA. Mr. McKinless found that HTG Heron met the requirements in the RFA for providing an address of the proposed development. Here, Channel Side and Ocean Breeze argue Florida Housing erred in accepting the “W. 17th Ct.” address provided by HTG Heron because the address does not exist. They point to the site sketch submitted by HTG Heron in support of its application which references a “W. 17th Street” (not “W. 17th Ct.”) and has “W. 17th Street” intersecting with “Congress Avenue Extension,” (not “N. Congress Ave.”). In support of this position that “W. 17th Ct.” does not exist, Ocean Breeze and Channel Side also rely on a 1975 plat and a 1999 City of Rivera Beach Ordinance. The sketches attached to HTG Heron’s application each contain the disclaimer “NOT A SURVEY.” Although the sketches contain a reference to an abandonment relating to “W. 17th Ct.,” the 1999 Ordinance describing the abandonment relied on by Channel Side and Ocean Breeze was not submitted to Florida Housing. Regardless, this plat and ordinance information was not required by the RFA nor was it considered by Florida Housing in determining whether to accept the address submitted by HTG Heron for eligibility determination purposes. There was no evidence at the hearing that the “W. 17th Court” address misled Florida Housing (or anyone else) or caused confusion as to the location of HTG Heron’s proposed development. To the contrary, other information in the application supports accepting the provided address. The “Local Government Verification of Status of Site Plan Approval for Multifamily Developments” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification that Development is Consistent with Zoning and Land Use Regulations” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Electricity” form executed by an Associate Engineer from Florida Power and Light affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure” form for water and sewer services executed by a Utilities Engineer from City of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Roads” form executed by a City Engineer from the City of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification of Contribution- Grant” form executed by the Interim City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The acting director of the City of Riviera Beach, Department of Community Development confirms by letter that the property at the “2003 W. 17th Court (adjacent to North Congress Avenue)” address is located with a “Qualified Census Tract for 2017 and 2018” and attaches a diagram of that tract. Documentation from the Palm Beach County Property Appraiser’s website lists the address location as “2003 W. 17th Ct.” Given that the purpose of providing an address was fulfilled and there was no ambiguity as to the actual location of the HTG Heron’s development site, Channel Side and Ocean Breeze failed to prove that Florida Housing erred in accepting HTG Heron’s address for the purposes of eligibility. At the hearing, HTG Heron also submitted a certified copy of a 2017 map from the Palm Beach County Property Appraiser’s Office for range 43, township 42, which includes the area of the proposed development in HTG Heron’s application, and indicates there is a “W. 17th Ct.” that intersects with “N. Congress Avenue.” There was a preponderance of evidence establishing HTG Heron’s designation in its application of “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach” was not an error, and that HTG Heron’s application is eligible for funding. CHANNEL SIDE APPLICATION7/ To satisfy the Site Control requirements Channel Side submitted a Purchase and Sale Agreement that lists among the sellers an entity named “MWCP, Inc., f/k/a Blueprint Properties, Inc., a Delaware corporation whose post office address is 248 Columbia Turnpike Florham Park, NJ (‘Blueprint’)” in the initial paragraph. MWCP, Inc. (MWCP) did not exist in Florida when the Purchase and Sale Agreement was executed. The parties stipulated that the reference in the Channel Side site control documents to MWCP was erroneous and that the owner of the property for the Channel Side’s proposed development as of the application deadline was a Delaware corporation known as Blueprint Properties, Inc., which has never operated as, or been corporately related to, MWCP. Rachel Grice, Florida Housing Multifamily Programs Manager, scored the Site control portion of this RFA based on the information in the Application. Mrs. Grice found that Channel Side met the RFA requirements for Site control. The RFA does not require the listing of related names of any corporations other than the applicant or developer. Thus, the error in the Purchase and Sale Agreement does not seem to affect Channel Side’s satisfaction of any requirement of the RFA. The error is insignificant and immaterial. There was no evidence presented at the hearing that Channel Side received a competitive advantage by identifying “MWCP, Inc. f/k/a Blueprint Properties, Inc.” instead of simply “Blueprint Properties” as the seller. The slight error conferred no competitive advantage on Channel Side; its application received no more points than it was entitled to by reason of the mistake. Ms. Button reasonably testified that had Florida Housing known about the mistaken listing of MWCP as the seller, it would have waived the error as a minor irregularity. The applicant-parties failed to prove that Channel Side’s application reflecting the “wrong corporate entity” as the seller was an error affecting eligibility of Channel Side’s application, or that Florida Housing erred in accepting the Purchase and Sale Agreement as proof of site control. The mistake was, at worst, a minor, inconsequential error that was waivable. Based on the preponderance of the evidence, Channel Side’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Ocean Breeze, HTG Heron, and Channel Side eligible for funding; (2) awarding the RFA Palm Beach County funding for the Ocean Breeze proposed development; and (3) dismissing the formal written protests of HTG Heron and Channel Side. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 29th day of June, 2018.
The Issue Whether Petitioner, acting on behalf of June Rosacker, is entitled, pursuant to Chapter 717, Florida Statutes, to the $37,281.25 in the Department of Banking and Finance's (Department's) Unclaimed Property Account Number 00963-1981- 00026, which was derived from the Department's sale of five $5,000.00 Florida Development Commission Sunshine Skyway Revenue Bonds, numbers 2114, 2115, 2116, 2117, and 2118, that Gulfstream Bank, N. A., had turned over to the Department as unclaimed property.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made to supplement the "Stipulated Facts" set forth in the parties' Prehearing Stipulation: June Rosacker (Mrs. Rosacker) is the widow of Richard Rosacker (Mr. Rosacker). She and her late husband were married for 38 years before he passed away on October 11, 1995. Mr. and Mrs. Rosacker lived in a residence on the premises of Floral Acres, a commercial nursery located at 109 Northeast 17th Street in Delray Beach from 1961 until 1978. It was their first marital residence. Mr. Rosacker was the Vice President of Operations of Floral Acres until 1969, when he resigned his position. Mr. Rosacker's resignation coincided with his cousin, Arthur Rosacker, Jr. (Arthur Jr.), succeeding Arthur Rosacker Sr. (Arthur Sr.), Arthur Jr.'s father and Mr. Rosacker's uncle, as President of Floral Acres. Mr. Rosacker and Arthur Jr. did not get along with each other as well as Mr. Rosacker and Arthur Sr. did. Mr. Rosacker started his own business in 1970. Arthur Sr. executed his Last Will and Testament (Arthur Sr.'s Will) in 1971. Mr. Rosacker was not named a beneficiary in Arthur Sr.'s Will. Arthur Sr. passed away on April 4, 1978. Sometime in the 1970's, Mr. Rosacker received at his and Mrs. Rosacker's Floral Acres residence correspondence from a bank, which was not Mr. and Mrs. Rosacker's "regular bank," advising Mr. Rosacker that the bank was holding $25,000.00 in "funds" in his name. 1/ Mr. Rosacker thought "the bank must have made a mistake." He had no knowledge of the "funds" which were the subject of the bank's correspondence. Mr. Rosacker went to the bank (which was located in Boca Raton) for the purpose of letting the bank know that the "funds" were not his. Upon his return, he told Mrs. Rosacker that had taken care of the matter by telling the bank "it was not his money, he didn't put any money in the bank, and he knew nothing about it." In 1981, Boca Raton-based Gulfstream Bank, N.A. 2/ (Gulfstream) reported to the Department that it was holding as unclaimed property five $5,000.00 Florida Development Commission Sunshine Skyway Revenue Bonds, numbers 2114, 2115, 2116, 2117, and 2118, (Bonds in Question) that had been left in a safe deposit box, number 3228, rented in the name of a "Richard Rosacker" whose address was not "on file" at the bank. 3/ Gulfstream's report to the Department further indicated that the "date of [the] last transaction" involving safe deposit box number 3228 was May 5, 1971. On this date, according to the report, the lessor of the box was Fort Lauderdale-based American National Bank and Trust Company (which subsequently merged with Gulfstream). The bonds were remitted to the Department, which sold them for a total of $37,281.25. At no time did either Mr. or Mrs. Rosacker rent a safe deposit box from American National Bank and Trust Company or Gulfstream. At no time did either Mr. or Mrs. Rosacker purchase Florida Development Commission Sunshine Skyway Revenue Bonds. On May 18, 1984, Mr. Rosacker executed a Declaration of Trust, which provided, in pertinent part, as follows: ARTICLE I TRUST CORPUS This Trust shall consist of the original TEN DOLLARS ($10.00) contribution and additional assets may be contributed by me or by any other person. All trust assets shall be listed on the SCHEDULE OF ASSETS attached hereto, may be comprised of property of any kind and character, including insurance benefits of any nature, and may be added by inter vivos or testamentary transfer, or otherwise at my demise. Any asset registered in the name of the Trust or Trustee 4/ shall be presumed to be a part of this Trust, whether such asset is listed on the SCHEDULE OF ASSETS or omitted therefrom, it being my intent to expand rather than restrict the list of assets held in this Trust. . . . ARTICLE V DISPOSITION AT SETTLOR'S DEMISE-RESIDUARY TRUST PROVISIONS If my wife, JUNE WEBB ROSACKER, survives me, I direct my Trustee to fund into "Trust B" provided under paragraph B the largest amount, if any, that can pass free of Federal estate tax under this instrument by reason of the unified credit and the state death tax credit, reduced by property passing outside this instrument which does not qualify for the marital or charitable deduction in computing Grantor's federal estate tax. The values as finally fixed for Federal estate tax purposes shall govern the funding of this Trust. The balance of my estate I give outright to my wife, June Webb Rosacker. . . . ARTICLE VI APPOINTMENT OF TRUSTEE . . . Upon my demise my wife, JUNE WEBB ROSACKER and my friend, MARVIN SALINE, shall be appointed the Trustees of all shares of this Trust. Should MARVIN SALINE be unable to serve as Trustee, my brother, HANS DONALD ROSACKER shall be appointed Trustee. . . . Should neither of the foregoing be able to serve as Trustee with my spouse then she shall appoint as Trustee a corporate fiduciary. The "Declaration of Trust's" "Schedule of Assets" was left blank. On September 23, 1988, Mr. Rosacker executed an Amendment to Trust Agreement, which provided, in pertinent part, as follows: I hereby amend Article VI, Paragraph A to provide that if my spouse cannot serve as Trustee, then my daughters, JANICE and ELLEN, shall serve as Trustees, or either shall serve as sole trustee if one cannot serve. I then amend Paragraph B to appoint my spouse and my daughters, JANICE and ELLEN, (or either if one cannot serve) as Co-Trustees at my demise. I therefore revoke all reference to MARVIN SALINE and HANS DONALD ROSACKER as potential Trustees, . . . . On May 18, 1984, the same day he executed the Declaration of Trust, Mr. Rosacker also executed a Last Will and Testament, which provided, in pertinent part, as follows: ARTICLE III I give to my beloved wife, JUNE WEBB ROSACKER, in fee, all clothing, jewelry, household goods, personal effects, automobiles and other tangible personal property not otherwise specifically bequeathed by Will, Codicil or Separate Writing, except cash on hand, owned by me at the time of my death. . . . ARTICLE V All the rest, residue and remainder of the property which I may own at the time of my death, real, personal and mixed, tangible and intangible, of whatsoever nature and wheresoever situated, including all property which I may acquire or become entitled to after the execution of this Will, . . . , I bequeath and devise to the Trustee of that Trust Agreement executed by me on , 1984, said assets to be held IN TRUST as part of the Trust Estate as that term is used in said Trust Agreement as further amended at time prior to my death. . . . ARTICLE VI I hereby appoint my wife, JUNE WEBB ROSACKER, to be my Personal Representative of this my Last Will and Testament. . . . Fred Goodman is a Florida-licensed private investigator who does business as Eyes and Ears Investigative Services. He has been "involved in abandoned property matters" for the past nine years. In February of 1994, Mr. Goodman visited Mr. and Mrs. Rosacker at their home in Oveido, Florida, to seek authorization to file a claim with the Department, on behalf of Mr. Rosacker, to recover the proceeds of the sale of the Bonds in Question. Mr. Rosacker declined to give Mr. Goodman such authorization. He told Mr. Goodman that, although he believed that the bonds "were put in the bank for him by his uncle," Arthur Sr., "it was a situation in which he was not going to be able to prove that he owned the funds" and that therefore it would be a "waste of time" for him to pursue the matter. Following Mr. Rosacker's death in 1995, Mr. Goodman entered into an agreement with Mrs. Rosacker in which Mrs. Rosacker agreed to "appoint Eyes and Ears Investigative Services . . . an irrevocable Limited Power of Attorney to proceed on [her] behalf in accordance with [the recovery of the $37,281.25 in assets described in the agreement]; [and] to perform any and all acts, including but not limited to the execution of any and all documents, for and on behalf of [her], as may be required in order to effect the recovery and disbursement of said assets to Eyes and Ears Investigative Services Escrow Account." The agreement provided that, "for full compensation of its Services," Eyes and Ears Investigative Services would be "assigned a fee of 30% [of] said assets." Although it has been almost six years since Mr. Rosacker has passed away, his Last Will and Testament has not yet been probated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order rejecting Petitioner's claim that Mrs. Rosacker is entitled to the proceeds of the Bonds in Question. DONE AND ENTERED this 4th day of October, 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 4th day of October, 2001.
Findings Of Fact The Department of Health, Board of Pharmacy, pursuant to Chapter 465.004, Florida Statutes, has authority to adopt rules pursuant to Sections 120.536(1) and 120.54, Florida Statutes, and to implement the provisions of Chapter 465, Florida Statutes, conferring duties upon the Board. At all times material hereto, Albert F. Williams was the holder of pharmacist license No. 0008425 issued by the State of Florida, Board of Pharmacy, and was also licensed as a consulting pharmacist.1 At all times material hereto, Stich Pharmacy, d/b/a Skycrest Pharmacy (Skycrest) was the holder of Pharmacy license No. 0012143, issued in 1950 by the State of Florida, Board of Pharmacy, for operation of a community pharmacy.2 By reference, the six statements of facts above listed in the preliminary statement and stipulated to by the Petitioner and Respondent are incorporated herein. At all times material hereto, Albert F. Williams was the sole owner of Skycrest Pharmacy and was employed by Skycrest as its prescription department manager. As pharmacy manager, Albert Williams knew from previous experience that he was the person responsible for compliance by all Skycrest employees, including pharmacist, trainees, pharmacist-technicians, and delivery person, with Florida Statutes, administrative rules, and federal regulations governing pharmacy and pharmaceuticals in the operation of a community pharmacy business servicing both institutional and public clients, to include, but not limited to, maintaining all drug records and providing for the security of the prescription department. At all times material hereto, Skycrest, a community pharmacy, filled and refilled prescriptions received from nursing homes, refilled prescriptions received from Assisted Living Facilities (hereinafter ALFs) and refilled prescriptions received from the general public as walk-in clients. At all times material hereto, Skycrest accepted the return of previously dispensed pharmaceuticals contained in vials and contained in cassettes, from numerous nursing homes, from numerous ALFs, and from persons who represented themselves to Skycrest employees as "family" or "caretakers" of persons residing in various nursing homes or residing in various ALFs. At all times material hereto, Skycrest took back cassettes containing previously dispensed inpatient medications. Skycrest redispensed medications and returned both previously dispensed medications and redispensed medications in cassettes to residents in nursing homes and ALFs. The prescription labels on the bottom of incoming cassettes were not changed to reflect redispensing of additional medications prior to those cassettes being redelivered to the respective nursing homes and ALFs. At all times material hereto, Skycrest employed a driver, who every seventh or eighth day, picked up Opus system3 cassettes from various nursing homes and ALFs. These cassettes were returned to Skycrest, whereupon empty and partially used unit dose compartments would be refilled with redispensed medications. Redispensed and unused previously dispensed medications were then returned to the respective nursing homes and ALFs in the refilled and redispensed Opus system cassettes. At all times, material hereto, Albert Williams, admittedly directed the business of the Skycrest pharmacy department to accept "returned previously dispensed mediations, not given to patients nor paid for by the nursing homes or ALFs, because such medications are owned by Skycrest; that additional redispensed medications were also owned by Skycrest until nursing homes and ALFs made monthly payment for the medications given to their patients, and that all payments to Skycrest from various nursing homes and ALFs were to be computed from and based upon the Medical Administration Records4 (herein after MAR) maintained by Skycrest and maintained at each nursing home and each ALF serviced by Skycrest." At all times material hereto, Skycrest received and accepted controlled substance medications in vials brought in by "caretakers" and/or "family" members of residents living in nursing homes and ALFs; took controlled substance medications from returned vials, added controlled substance medication to the returned controlled substance medication taken from the vials and thereafter redispensed controlled substance medication in the Opus system cassettes to licensed nursing homes and licensed ALFs. Mr. Alfred Williams, as pharmacy manager of Skycrest, operated the pharmacy on his belief that the law provided that Skycrest could take back medications, and those medications previously dispensed but not ingested could be redispensed. Mr. Williams acted on his belief that the law was written because many pharmacies were taking back previously dispensed medications and redispensing, and that the law was aimed to help reduce the burden of expense on patients' families. Mr. Williamss admitted that he does not know whether or not the law upon which he operated Skycrest and relied upon applied to institutional pharmacies only and not to community pharmacies servicing ALFs and nursing homes. Petitioner does not contest the fact that the Board of Pharmacy has approved the Opus cassette system as an acceptable closed unit dose system when employed in accordance with applicable rules. The expiration dates for medications found in Skycrest pharmacy are written on the containers in which the pharmacy received the medication from a pharmaceutical wholesaler. At all times material hereto, Skycrest would accept vials of outdated, returned controlled medication and would keep those vials for an undetermined length of time in a box for disposal; or should a customer or caretaker come back and ask for his/her vials, they were returned to those customers. Mr. Alfred Williams did not keep a separate record of the date each vial was returned to the pharmacy; to ascertain a return date Mr. Williams would refer to Skycrest's copy of the MARs. At all times material hereto, Mr. Alfred Williams knew that when dispensing controlled substance medications, the dispensing pharmacist must instruct the recipient of the controlled substance that if it is not used by the patient, that it has to be destroyed at that location. The returned vials of dated controlled medication would be kept by Skycrest for a year after return for either use by the customer or ultimate disposal by Skycrest. Mr. Alfred William admitted that the destruction of controlled substance medications at the patient's location did not occur in the Opus unit dose system which he, as manager of Skycrest pharmacy department, instituted and continued in the exchange every seven days, resulting in returned controlled substance medication ending up in possession of Skycrest pharmacy department after having been redispensed. Mr. Williams' response to allegation (b) of the complaint, was that his pharmacy, following the accepted standard of practice in the pharmacy profession, when confronted with prescriptions without dates, would call the prescribing physician's office to confirm missing dates (and other needed information, if any) and the information provided was entered into Skycrest's computer system. With "missing date" information from the face of the prescription, but contained in Skycrest's computer system, compliance with the purpose and intent of the rule is accomplished. On or about March 31, 1998, agency employees, William Herbert, investigator; Wayne Rowe, investigator trainee; and Dennis Force, photographer, conducted an unannounced inspection of Skycrest pharmacy. During the investigation, the investigators made observations of vials containing legend medications and controlled substance medications on active dispensing shelves. Petitioner's Exhibit No. 4 contains the name of the medication, prescription number and dispensed date of cassettes with Skycrest pharmacy labels; medication in vials from various Walgreen pharmacies, medication in cassettes with labels from other than Skycrest pharmacy, and unit dose pre- packaged medications from various pharmacies. Exhibit No. 5 is comprised of photos of cassettes containing medications assigned to various ALFs with each ALF's name taped on the bottom of each active shelf. Exhibit No. 6 is comprised of two original prescriptions and one prescription from Dental Emergency Room, PA,. Based on experience as an agency field investigator, William Herbert professed familiarity with pharmacy licensing requirements and with Chapters 499 and Chapter 893, Florida Statutes, regarding controlled substance and adulterated pharmaceuticals and medicines. His uncontroverted testimony was that only three ALFs in Pasco, Pinellas, and Hernando counties are licensed to have on-site pharmacies and a consulting pharmacist, which permits resident patients of those facilities to return scheduled medications back to the dispensing on-site pharmacy for redispensing.5 Skycrest, a community licensed pharmacy, is limited in its business to dispensing medications to patients on a carry- out basis and can dispense to patients who are housed in short- term or long-term facilities only when each prescription is patient specific. The ALFs and nursing homes, which were serviced by Skycrest via redispensing medication through the Opus unit dose closed system did not have a class I nor II institutional pharmacy license. Accordingly, neither resident patients of those not-licensed-institutions nor the institutions themselves were authorized by statute to return unused medications to non- resident pharmacies, including Skycrest, for redispensing. Notwithstanding the classification of licensure held, institutional class I or class II, neither the nursing homes nor the ALFs are permitted to return controlled substance medication to a dispensing pharmacy for destruction under existing US Drug Enforcement Agency (DEA) rules. Mr. Williams testified that the DEA 222 form is in triplicate. He explained that the one copy taken from his pharmacy by the investigator was incomplete because the controlled substance ordered from the pharmaceutical distributor (one copy sent with order) had not been either shipped by the distributor and/or received by Skycrest at that time. The testimony was that when controlled substances are ordered from distributors one copy of the DEA 222 accompanies that order. Second, when controlled substances are received from distributors, the recipient pharmacy completes the remaining two copies by inserting the date shipment received, source, kind, and quality of materials received. One completed copy of the DEA 222 form is returned to the distributor, and one completed copy is attached to the order and retained by the pharmacy as required by the rule. No evidence was introduced by Petitioner to contradict or challenge Mr. Williams' testimony regarding this system of dating DEA 222 form. Skycrest accepted returned vials containing controlled substance medications and cassettes containing controlled substance and legend medications from non-institutional licensed ALFs and non-institutional licensed nursing homes neither of which had an on-site pharmacy or employed a licensed consulting pharmacist manager.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Pharmacy, enter a final order of dismissal with prejudice the complaint herein filed against Mr. Albert F. Williams, Registered Pharmacist. It is further recommended that the Board of Pharmacy, order Mr. Albert F. Williams to forthwith surrender Pharmacy license no. 0012143 issued to Stich Enterprises, Inc., d/b/a Skycrest Pharmacy as stipulated by the parties. DONE AND ENTERED this 9th day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 9th day of January, 2001.
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. iN . DONE AND ORDERED on this |3 day of MAK | , 2010, in Tallahassee, Florida. be Thomas W. Arnold, Secret: Agency for Health Care Administration Agency for Health Care Administration v. Humanitary Pharmacy, Inc. Final Order — Page 1 of 3 Filed April 15, 2010 3:03 PM Division of Administrative Hearings. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Bernard M. Cassidy, Esquire Bemard Cassidy, P.A. One East Broward Boulevard, Suite 1410 Fort Lauderdale, Florida 33301 Telephone: (954) 764-6430 Facsimile: (954) 764-6448 (Via U.S. Mail) Justin M. Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Kim Kellum, Chief Medicaid Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Tracie L. Hardin, Esquire ; Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Ken Yon, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Peter Williams, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Iinteroffice Mail) Florida Department of Health License No.: PH0020034 (Via Email Only) Agency for Health Care Administration vy. Humanitary Pharmacy, Inc. Final Order — Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to —h— the above named addressees by U.S. Mail, or the method designated, on this the ae) day of Ayal , 2010. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Agency for Health Care Administration y. Humanitary Pharmacy, Inc. Final Order — Page 3 of 3
