The Issue The issue in this proceeding is whether Respondents should use Petitioner's entire lottery prize of $2,008.00 to pay a delinquent child support obligation of $2,371.68, pursuant to Section 24.115(4), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner has failed to comply with a previous court order compelling her to pay child support. On February 1, 1999, the Circuit Court, Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, in Case No. 93-12473, denied a motion to hold Petitioner in contempt of court. The Court did not hold Petitioner in contempt due to a claimed disability. The Court could not find that she had the ability to pay the child support obligation. The Court gave Petitioner thirty days to provide verification of disability and an inability to work. However, the court did not waive or extinguish the arrearage for child support. The Court ordered that any and all other terms and provisions which were previously ordered and not specifically addressed in the Order Denying a Motion for Contempt remained in full force and effect until further order of the Court. The previous order establishing the arrearage for child support was not nullified by the court. Petitioner still owes an arrearage for child support of $2,371.68 as of June 9, 1998. Petitioner failed to show in this proceeding that she had satisfied the arrearage. At previous circuit court hearings on August 12, 1998, and January 20, 1999, Petitioner failed to persuade the court that she had satisfied her obligation for delinquent child support. The August 12, 1998, hearing resulted in an Order on August 27, 1998, requiring Petitioner to pay $150.00 per month toward delinquent child support totaling $2,371.68 as of June 9, 1998. The January 20, 1999, hearing resulted in the Court's withholding a citation of contempt but requiring Petitioner to provide verification of disability and verification of inability to work, within 30 days from the date of the Order. The undersigned allowed Petitioner additional time to submit a late-filed exhibit consisting of an Order of the Circuit Court extinquishing Petitioner's obligation for delinquent child support. Petitioner has failed to timely file the late-filed exhibit and has not requested an extension of time in which to file the late-filed exhibit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That DOR enter a final order withholding all of Petitioner's lottery prize. DONE AND ENTERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 May, 1999. COPIES FURNISHED: Delores M. Terrell 4810 Clewis Avenue, Apartment B Tampa, Florida 33063 Chriss Walker, Esquire Department of Revenue Child Support Enforcement Post Office Box 8030 Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32399 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Sue M. Cobb, Interim Secretary Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Ken Hart, General Counsel Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301
Findings Of Fact On November 18, 1991, petitioner submitted a claim to the Department of Lottery (Lottery) on a ticket he held for the "Play 4" drawing of November 17, 1991. Such ticket reflected that petitioner had correctly selected the four numbers drawn on that date, and rendered him eligible for a prize of $5,000.00. On December 17, 1991, the Department of Health and Rehabilitative Services (DHRS) certified to the Lottery that petitioner owed $2,891.45 in Title IV-D child support arrearage. Thereafter, by letter of December 20, 1991, the Lottery advised petitioner that DHRS had advised it of such outstanding debt and that, pursuant to Section 24.115(4), Florida Statutes, it had transmitted the prize amount to the Office of the Comptroller, Department of Banking and Finance (DBF). Petitioner was further advised that DBF would notify him shortly regarding the distribution of such funds. By letter of December 31, 1991, DBF notified petitioner that it was in receipt of his prize from the Lottery and that it intended to apply $2,891.45 toward the unpaid claim for child support. Such letter also enclosed state warrant number 1437325, dated December 27, 1991, in the amount of $2,108.55 in payment of the difference between the petitioner's prize and the unpaid claim for child support, and advised petitioner of his right to request a hearing to contest such action. By letter of January 15, 1992, petitioner acknowledged receipt of DBF's letter of December 31, 1991, disputed that any such obligation was outstanding, and requested a formal hearing. At hearing, the proof demonstrated that through a series of orders rendered in the matter of In Re: The Marriage of Mary B. Black, Petitioner/Wife v. Jessie Black, Respondent/Husband, Circuit Court, Dade County, Florida, Case No. 83-11702, petitioner was directed to pay child support for his minor children, with such payments to be made to the clerk of that court. As of December 17, 1991, the date DHRS certified the debt at issue in this case to the Lottery, petitioner owed $2,891.45 in Title IV-D child support arrearage. Such debt was, however, reduced by the sum of $5.28 by the Clerk of the Circuit Court, Dade County, Florida, on January 24, 1992, to properly reflect the fees charged to administer such account. Accordingly, the proof demonstrates that DBF should apply the sum of $2,886.17 from petitioner's prize toward the unpaid claim for child support.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order which resolves the distribution of the balance of petitioner's lottery prize as follows: (1) that it pay to the Department of Health and Rehabilitative Services the sum of $2,886.17 towards satisfaction of petitioner's debt for child support, and (2) that it pay to petitioner the sum of $5.28 as the balance of his lottery prize. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of May 1992. WILLIAM J. KENDRICK 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 5th day of May 1992. COPIES FURNISHED: Jessie Black, pro se 420 Southwest 31st Street Fort Lauderdale, Florida 33312 Scott C. Wright, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Louisa Warren Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact On August 11, 1992, Petitioner submitted a claim to the Lottery based on a Play-4 ticket he held for the Lotto drawing of August 9, 1992. The ticket reflected that Petitioner was eligible for a prize of $2,500.00. On August 11, 1992, DHRS certified to the Lottery that Petitioner owed $2,187.24 in Title IV-D child support arrearage. By letter dated August 27, 1992, the Lottery notified Petitioner that DHRS had advised it of the outstanding debt and that, pursuant to Section 24.115(4), Florida Statutes, it had transmitted the prize amount to DBF. Petitioner was further advised that DBF would notify him shortly regarding the distribution of the funds. By letter dated September 4, 1992, DBF notified Petitioner that it was in receipt of his prize from the Lottery and that it intended to apply $2,187.24 of the award toward the unpaid claim for child support. Enclosed with the letter was State of Florida warrant number 0453833 in the amount of $312.76 payable to Petitioner. This warrant was payment of part of the Petitioner's lottery prize and represented the difference between the amount of the prize and the amount of child support that DHRS had certified as being due. In a letter received by DBF on September 28, 1992, Petitioner disputed that any obligation was outstanding and requested a formal hearing. The evidence presented by Respondents established that as of August 9, 1992, the date of Petitioner's lottery winnings, Petitioner owed child support in the amount of $2,187.24. These child support payments were being collected through the Clerk of the Circuit Court, in and for Dade County, Florida, pursuant to a Final Judgment of Paternity entered by Dade Circuit Judge Seymour Gelber on September 30, 1986, in Dade Circuit Court Case No. 86-23681.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance transfer to the Department of Health and Rehabilitative Services the sum of $2,187.24 in satisfaction of Petitioner's debt for child support as of August 9, 1992. DONE and ENTERED this 17th day of December, 1992, at Tallahassee, Florida. CLAUDE B. ARRINGTON 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 17th day of December, 1992. COPIES FURNISHED: Nathaniel Williams 9028 S.W. 97th Avenue, Apt. 3 Miami, Florida 33176-1966 Scott C. Wright Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louisa Warren, Esquire Department of Lottery 250 Marriot Drive Tallahassee, Florida 32399-4000 Dr. Marcia Mann, Secretary Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Ken Hart, General Counsel Department of Lottery Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Is Petitioner entitled to be exempt from disqualification to work in a position of trust or responsibility, having been declared ineligible to work in that position by virtue of offenses involving child abuse and contributing to the dependency of a minor?
Findings Of Fact Petitioner has two children, M.B. and D.P. On February 11, 1993, those children were two years old and eight months old, respectively. Both children were residing with Petitioner. At that time Petitioner and the children lived in Gulf County, Florida. Around 8:00 p.m. to 9:00 p.m. on February 11, 1993, Petitioner decided to leave her apartment and go to a nearby store. At that time she left D.P. in the care of Sabina Daniels, Petitioner's step-sister, who was thirteen years old on that date. The Petitioner took M.B. to her neighbor's apartment and left that child with Dianna Harrison, an adult. However, the Gulf County Sheriff's office received a call around 10:30 p.m. on February 11, 1993, indicating that a child had been left unattended at the Pine Ridge Apartments where Petitioner resided. Officer Stacy Strickland, now a Sergeant, went to Petitioner's apartment around 10:34 p.m. and tried to get someone to answer the door to the apartment. No one answered. Consequently, Officer Strickland contacted the apartment manager who opened the door. Officer Strickland discovered D.P. standing in a baby bed. No other person was in the apartment at that time. Officer Strickland sought the assistance of other persons to help provide emergency care to the child. While waiting for that assistance, Officer Strickland remained in the apartment for fifteen to twenty minutes. When Officer Strickland and other officials departed Petitioner's apartment, they left a note for the Petitioner to call the Gulf County Sheriff's office concerning her child D.P. Petitioner called the Gulf County Sheriff's office at around 12:00 a.m., February 12, 1993. Petitioner came to the Gulf County Sheriff's office around 12:20 a.m., on February 12, 1993. At that time, Petitioner was placed under arrest for aggravated child abuse for having left D.P. unattended. Following her arrest, Officer Strickland read the Petitioner her rights under the Miranda decision, to include the right to seek counsel to aid her in confronting the charge. Although Petitioner was less than forthcoming during the hearing, concerning the disposition of the charges that arose from the incident in which D.P. had been left unattended, it is clear that Petitioner voluntarily entered a plea of guilty to child abuse and contributing to the dependency of a minor in the case of State of Florida v. Denine Pittman, in the County Court, in and for Gulf County, Florida, Number 93-133M. A judgment and sentence in that case was entered on March 3, 1993, requiring the Petitioner to serve three months' probation in which she would pay $30 per month for supervisory fees and was required to make monthly contacts with a probation officer. In addition, Petitioner was required to pay a fine in the amount of $214. It can be properly inferred that Petitioner complied with requirements in the judgment and sentence. Petitioner's assertions at hearing that she only left D.P. on the night in question for 30 minutes, that she had never been advised of her Miranda rights by Officer Strickland on February 12, 1993, and that she did not realize that she could have contested the charges through a trial are rejected. In 1995, Petitioner moved from Gulf County to Panama City, Florida. In August 1996, Petitioner was working in a child care facility in Panama City known as Phoenix Preschool. In her position she was providing direct care to children and was subjected to background screening in accordance with Chapter 435, Florida Statutes. Through the screening process Respondent discovered the disposition in Case No. 93-133M, leading to Petitioner's disqualification to work in a position of special trust with children and the contest of that determination through Petitioner's request for an exemption from that disqualification. In her testimony at hearing Petitioner expressed her desire to continue to work with children as an employee in a child care facility. The record does not reveal that Petitioner has had other circumstances involving inappropriate behavior involving her own children or claims of inappropriate behavior or treatment of other children for whom she has rendered care. On November 11, 1988, Petitioner was provided a certificate indicating the successful completion of twenty hours of child care training offered by the Department of Health and Rehabilitative Services and the Department of Education. On September 28, 1996, Petitioner received a certificate of completion of Dr. Jean Feldman's Classroom Management Workshop. The course lasted six hours. By the nature of the appearance of the certificate it is found to relate to training to assist in caring for children. On September 30, 1996, Petitioner received a certificate from the Department of Health and Rehabilitative Services and the Department of Education for completing a ten- hour course for developmentally appropriate practices for young children. On November 30, 1996, Petitioner received a certificate of completion of "Mr. Al's" course on "Music, Movement and More." This course lasted six hours. By the nature of the appearance of the certificate it is found to relate to children's issues. In 1996, in relation to her position of teacher-aide for the Phoenix Preschool, Petitioner received training from the Department of Health and Rehabilitative Services related to child care in-service. Ms. Gloria Lawrence testified at the hearing. She worked with Petitioner at the Phoenix Preschool, and found that Petitioner did a good job with children, in that Petitioner got along with children at the Preschool. Ms. Lawrence observed that Petitioner was trustworthy and responsible with those children. Ms. Lawrence's testimony is credited. Ms. Frances Frazier testified at the hearing. Ms. Frazier is a close friend of Petitioner and has known Petitioner during the course of Petitioner's life. Ms. Frazier finds the Petitioner to be reliable and responsible and to be good with children and believes that Petitioner has learned from the mistake that Petitioner made which formed the basis for Petitioner's disqualification to work in a position of special trust. Ms. Frazier has known Petitioner to baby-sit for Ms. Frazier's grandchildren. Ms. Frazier has not found the Petitioner to abuse children. The only incident that Ms. Frazier is aware of concerning the Petitioner leaving children unattended was the occasion under discussion here. Ms. Frazier's testimony is credited. In addition, Petitioner presented letters from Ms. Vanessa Fennell, Ms. Annie S. Fields, Ms. Dianna Harrison, Ms. Beverly Daniels, Ms. Charlotte L. Medley, Ms. Candy Robinson, and Pastor Shirley Jenkins concerning Petitioner's basic personality as a concerned person for children and the elderly.
Recommendation Upon consideration of the fact finding and conclusions of law reached, it is RECOMMENDED that a final order be entered which grants Petitioner an exemption from disqualification to be employed in a position of special trust to work with children. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Denine Pittman Apartment D43 801 West 13th Street Panama City, Florida 32401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues for determination are: (1) whether Petitioner owes overdue child support arrears; and (2) whether Respondent is authorized to levy Petitioner’s bank account at the MacDill Federal Credit Union, Tampa, Florida, and apply the funds to reduce or satisfy Petitioner’s past due child support obligation.
Findings Of Fact On April 21, 1994, a circuit court judge in the Circuit Court, in and for Duval County, Florida (Circuit Court), issued Final Judgment determining paternity and establishing support in Case No. 94-929-FM, in the case of Loquita D. Taylor and the State of Florida, Department of Health and Rehabilitative Services vs. Donald L. Baldwin. The Final Judgment established that Petitioner was the legal parent of Ashley Marie Taylor, born March 25, 1993, and that Petitioner owed to the State of Florida $1337.00 in public assistance. The Final Judgment ordered Petitioner to pay $35.00 per week child support through the court support depository. In October 1998, Petitioner made one lump sum payment of $3,983.85 towards his child support. At the hearing held December 2, 1998, in Case No. 94-929-FM, the court-appointed Hearing Officer held Petitioner “in willful indirect contempt of this Court for failure to pay child support as ordered while having the ability to pay.” Based on the child support payment records of the court depository, the court-appointed Hearing Officer found Petitioner was “in arrears in Court ordered child support in the amount of $5,858.15 through the payment due December 2, 1998.” On December 14, 1998, the Circuit Court adopted the Recommendations of its Hearing Officer as its order. In paragraph 12 of those Recommendations, which became order of the Circuit Court, the Circuit Court suspended enforcement of Petitioner’s ongoing child support, so long as the minor child received Social Security on behalf of Petitioner, but ordered Petitioner “to pay $140.00 per month towards the arrearages.” The Mandatory Addendum to the December 14, 1998, Circuit Court Order on Motion for Contempt instructed Petitioner to “immediately notify” the Clerk of the Court and the Department of Revenue, Office of Child Support Enforcement “in writing, of any change of residence or employment. Failure to receive notice of a future hearing because of a party’s failure to comply with this requirement will not be a defense. . . ." (emphasis in original) In 1999, according to the records of the Clerk of the Court, Petitioner made only two payments, for a combined total of $560.00, towards his December 2, 1998, arrears of $5,858.15. These two payments brought his outstanding arrears to $5,298.15. Petitioner made his last child support payment towards the arrears on May 7, 1999. To collect the unpaid arrearages, the Department sent a Notice to Freeze to the MacDill Federal Credit Union in Tampa, Florida, on August 3, 2000. In the notice, which was sent by certified mail, the Department advised the MacDill Federal Credit Union that Petitioner had a past due and/or overdue child-support obligation of $5,289.15 as of August 3, 2000. Moreover, the Department directed the bank not to transfer, dispose of, or return any credits, debts, or other personal property owned by or owed to Petitioner. On August 7, 2000, the MacDill Federal Credit Union verified that it had frozen the savings account identified as belonging to Petitioner. Petitioner had $2,814.41 in his savings account. On August 10, 2000, the Department sent a Notice of Intent to Levy by certified mail to Petitioner at his last known address. That notice provided in pertinent part the following: You are hereby notified that pursuant to Section 409.25656, Florida Statutes, the Department of Revenue intends to levy on credits, or personal property belonging to the obligor named above [Petitioner], or debts owed to the obligor. The property consists of liquid assets and is in the control of MACDILL FCU. This action is taken for nonpayment of child support by the obligor in the amount of $5,289.151 as of 08/03/2000. You are hereby notified that you may contest the agency’s action to levy on the above referenced property. You may do so by either filing an action in Circuit Court or by requesting an administrative hearing. If you wish to request an administrative hearing, you must file your petition for hearing, in writing, in accordance with the Notice of Rights attached to this Notice. If you elect to file an action in Circuit Court, your complaint must be filed with the Clerk of Court within twenty-one (21) days of your receipt of this notice. . . . You may NOT request both an administrative hearing and a hearing in circuit court. * * * NOTICE TO A NONOBLIGOR JOINT OWNER: If you claim you have an equal right to all of the money levied upon in a joint account, these hearing rights apply to you. (Emphasis in original.) Attached to the Notice of Intent to Levy were a Notice of Rights form that detailed the due process rights as provided for in Section 409.25656, Florida Statutes and a copy of Rules 28-106.201 and 28-106.301, Florida Administrative Code. On or about August 21, 2000, Petitioner timely filed an initial Petition for Formal Hearing (Petition), which requested a “formal hearing concerning the Notice of Intent to Levy.” On or about August 21, 2000, the Department issued and sent a Notice of Extension of Freeze to the MacDill Federal Credit Union. The notice advised the bank that Petitioner had “filed an action in the circuit court or under Chapter 120, Florida Statutes, to contest the Department of Revenue’s intention to levy upon assets as specified in the Notice of Freeze.” The Department further directed the MacDill Federal Credit Union not to transfer, dispose, or return any credits, debts or other personal property owned/controlled by Petitioner and in the bank’s possession and control. Finally, the Notice of Extension of Freeze stated that the Notice remained effective “until final resolution of the circuit court or Chapter 120 action, and the Department issued a Notice of Levy or a Notice of Full or Partial Release of Freeze.” The Department dismissed the initial Petition without prejudice because it was not in substantial compliance with either Rule 28-106.201 or, alternatively, Rule 28-106.301, Florida Administrative Code, and allowed Petitioner an opportunity to file an amended petition. Petitioner timely filed an amended Petition (Amended Petition), which was in substantial compliance with the Rules. On or about November 2, 2000, the Department referred the matter to the Division of Administrative Hearings to conduct the hearing. Petitioner submitted as a late-filed exhibit a Billing Statement, dated March 7, 2001, and a Pay Stub from the Social Security Administration concerning benefits of $1,664.00 paid in error to Petitioner and requesting repayment in full either “right away” or by “smaller amount monthly over a longer period of time.” The Payment Stub that accompanied the Billing Statement indicated that the overpayment could be repaid by check, by money order, or by MasterCard, Visa, or Discover. The statement from MacDill Federal Credit Union for October 1, 2000, through December 31, 2000, supplied by Petitioner indicates that he had a savings account balance of $2,862.22. Petitioner's uncontroverted testimony was that he is totally disabled, and his sole income is from Social Security. Petitioner asserted all the money in the account was from Social Security payments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Revenue enter a final order that (1) levies such funds as available in Petitioner's savings account at the MacDill Federal Credit Union up to the amount of his arrears; (2) applies the funds to reduce Petitioner's past due child support obligation; and (3) credits Petitioner for said payment. DONE AND ENTERED this 3rd day of May, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2001.
Findings Of Fact On September 13, 1985, respondent, Bernard Gross, was found in contempt of the Circuit Court in and for Dade County, Florida, for failing to comply with previous orders of the court to provide child support. According to the order rendered by the court, Gross was in arrears in the amount of $4,650 as of September 4, 1985. A copy of the order has been received into evidence as petitioner's exhibit 2. By letter dated October 24, 1985 petitioner, Department of Health and Rehabilitative Services (HRS), through its contractor, the Office of the State Attorney, advised Gross that it intended to intercept his federal income tax refund, if any, to satisfy the past-due child support. According to the letter, the past due amount was then $4,425. Gross was further advised he could request an administrative hearing to contest this action no later than November 25, 1985. However, the agency's letter was not postmarked until November 26, 1985, or after the point of entry had expired, and was not received by Gross until December 6, 1985. The letter further erroneously identified the amount due as an "AFDC" claim, which meant the person due the support payments was receiving assistance under the federal Aid to Families with Dependent Children program. This was incorrect. Gross was given an informal meeting with HRS personnel on January 29, 1986, for an undisclosed purpose. However, later HRS correspondence implies it was for the purpose of allowing Gross to attempt to get HRS to reconsider its earlier decision to intercept his income tax refund. When this effort was apparently unsuccessful, HRS, through its contractor, issued a Notice of Right to Hearing in Non-AFDC Cases on March 3, 1986, offering Gross an opportunity for a formal hearing. The notice made reference to the earlier court order dated September 13, 1985, and stated the arrearage due was greater than $500, the support was owed to or on behalf of a minor child, and it was more than three months past due. Gross thereafter timely requested a formal hearing. The clerk of the Circuit Court in and for Dade County maintains a central depository which has an account history for each person paying child and spousal support. According to the computer printout on Gross' account, Gross owed $4,650 as of September 4, 1985, but it decreased to $4,255 as of December 25, 1985. The amount is subject to change each week since the printout indicates Gross must pay $85 per week in child support. The printout has been received into evidence as petitioner's exhibit 1. Gross did not challenge or contest the accuracy of the numbers contained in the document. At final hearing petitioner ore tenus amended its request to claim only $4,255. That amount is the last amount shown on Gross' payment record, and is the balance due as of December 25, 1985. This date was selected by petitioner's counsel since it represents the most current data on respondent's account. Gross' former wife confirmed that Gross owed her more than $4,000 as of the end of 1985, but could not state the precise amount owed. Federal regulations (45 CFR 303.72) govern the conditions under which a federal income tax refund may be intercepted in a non-AFDC case to offset past- due support owed by the taxpayer. As is pertinent here, they require that the taxpayer owe support to or on behalf of a minor child and that it be not less than $500. Regulations also require that the agency substantiate the delinquent amount with a copy of the "court order, or an order of an administrative process established under State law, for support and maintenance of a child, or of a child and the parent with whom the child is living," "a copy of the payment record," or if no payment record exists, "an affidavit signed by the custodial parent attesting to the amount of support owed." In this regard, petitioner tendered into evidence a copy of the September 13, 1985 court order, a certified copy of the clerk of the circuit court's payment record, and offered the testimony of Gross' former wife, the latter in an effort to establish the amount owed her as of the end of 1985. Through his own testimony, and the submission of respondent's composite exhibit 1, Gross contended that various errors occurred in the administrative process that culminated in the final hearing. First, he cited the agency's failure to send its October 24, 1985 letter until November 26, or after the original point of entry had expired. He also pointed out that this notice was dated only fifty days after the court order, and that a minimum of ninety days is required by law. He further contended he had no opportunity prior to hearing to question the amount of past-due support allegedly owed. Finally, he pointed out that the court order of September 13 refers to an arrearage of $4,650, the proposed agency action on March 3 relies upon an arrearage of $4,450, and at hearing petitioner claimed the past due amount was $4,255. He did not deny that he owed the above amounts, but contended the agency was bound to seek only the amount shown in the court order, and by later changing the amount allegedly due, HRS has invalidated its claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered certifying a claim to the Secretary of the Treasury in the amount of $4,255 against respondent's federal income tax refund, if any. DONE and ORDERED this 23rd day of October 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of October 1986.
Findings Of Fact Petitioner Petitioner, Lee Ann Flagg, is a 22-year-old resident of Tallahassee, Leon County, Florida. Since 1991, she has received Aid to Families with Dependent Children (AFDC) benefits for her 22-month-old son. Petitioner wants to learn a marketable skill, so she can obtain a job and stop receiving AFDC. Based on the information in Petitioner's AFDC case file, her total income was her AFDC grant of $241 per month. Petitioner is exempt from Job Opportunities and Basic Skills (JOBS) program due to the age of her child. On May 26, 1992, Petitioner volunteered for Project Independence (PI). On June 5, 1992, Petitioner attended PI orientation at which she stated her desire to attend school in the fall of 1992. At all times material hereto, Petitioner met PI target group criteria in that she is under the age of 24 and had not been employed for the past 12 months. On July 28, 1992, Petitioner requested child care assistance from Respondent. She advised her PI case manager that the lack of child care was a barrier to her being self-sufficient and that she needed child care to attend school in the fall of 1992. In July 1992, Petitioner's case manager informed Petitioner that, due to the child care freeze, Respondent could not provide her with child care and placed Petitioner in "limited contact." During the time in "limited contact," Petitioner provided monthly attendance verification to her PI worker until February 1993. In August 1992, Petitioner enrolled in business classes at Lively Area Vocational Technical School (Lively) in Tallahassee, Leon County, Florida. Needing child care assistance, Petitioner's parents assisted her with child care temporarily. In February 1993, because Respondent could not provide Petitioner with child care, she requested disenrollment from the PI program. However, Petitioner can re-enroll in the PI program at any time. Petitioner continues to attend classes at Lively. But, due to her inability to obtain child care services from Respondent, she has been forced to reduce her classes. Additionally, Petitioner has taken a part-time clerical job at below poverty wages, for which she receives child care. Because of the child care freeze, Petitioner cannot receive child care assistance from Respondent for education and training activities. Background The Aid to Families with Dependent Children (AFDC) Program is a joint federal-state assistance program authorized by Title IV-A of the Social Security Act, 42 U.S.C. Section 602. The AFDC program is administered by states under the supervision of the Federal Department of Health and Human Services. A "Job Opportunities and Basic Skills" (JOBS) program must be developed by each state participating in the AFDC program. The purpose of the JOBS program is to provide training, education and work opportunities for AFDC recipients, pursuant to the Family Support Act of 1988, that will help avoid long-term public assistance dependency. Supervision of the JOBS program and contracting for the provision of support services, such as child care, is the responsibility of the state agency administering the AFDC program (referred to as the IV-A agency). In Florida, Respondent is the IV-A agency, and the Department of Labor and Employment Security administers the JOBS program. Florida's JOBS program is called Project Independence (PI). The criteria governing PI is found in Section 409.029, Florida Statutes, the Florida Employment Opportunity Act. For PI purposes, all AFDC recipients are either exempt or nonexempt from participating in PI and are either target group or non-target group members. Exempt recipients are persons who have barriers to participating in PI, such as having young children or being disabled, based on federally defined exemption criteria. These recipients are not required to participate in PI, but may volunteer to participate. Nonexempt recipients are persons who do not meet the federal exemption criteria and are referred to as mandatory. These recipients may be referred to PI by their Respondent caseworker, and if referred, they are required to participate in PI as a condition of receiving AFDC, so long as resources are available. Conversely, if resources are not available, a nonexempt referred recipient is not required to participate in PI, but may volunteer to participate in PI. Furthermore, even if a nonexempt recipient is not referred to PI, such recipient may volunteer to participate in PI. Target group members are AFDC recipients who, based on certain characteristics such as work history or number of years already on AFDC, are likely to become long-term public assistance recipients. Non-target group members are AFDC recipients who do not meet target group criteria. Both target group members and non-target group members may be either exempt or nonexempt. Caseload Prioritization Rule Participation requirements for AFDC recipients in PI is set forth in Section 409.029, Florida Statutes, the Florida Employment Opportunity Act. In April 1992, Respondent promulgated Rule 10C-32.002 AFDC Employment and Training Program, Florida Administrative Code, implementing Section 409.029, Florida Statutes. Section (4) of Rule 10C-32.002, referred to as the caseload prioritization rule, sets forth Respondent's PI caseload prioritization procedures, implementing Subsection 409.029(9)(c), Florida Statutes. Subsection 409.029(9)(c) states: (9) PARTICIPATION REQUIREMENTS (c) All exempt and nonexempt AFDC recipients who do not meet target group criteria shall be permitted to volunteer. Nonexempt AFDC recipients who meet target group criteria shall be required to participate in the pro- gram. Exempt AFDC recipients who meet target group criteria shall be permitted to volun- teer. If the department lacks resources to provide the services necessary for participa- tion under this section, nonexempt AFDC recip- ients who do not meet the target group crit- eria shall be required to participate in in- itial job search if they are approved for ini- tial job search, but shall be deferred from further participation after completing up to 3 weeks of job search activities. If the department continues to lack resources to pro- vide the services necessary for participation under this section, nonexempt recipients who do not meet target group criteria and who are not approved for initial job search shall also be deferred from further participation after completing orientation. If deferring such recipients from mandatory participation does not alleviate budget constraints on ser- vices, the department shall defer nonexempt AFDC recipients who do not meet target group criteria from mandatory participation and may also defer participants who meet target group criteria from mandatory participation so long as the department is meeting federal particip- ation rates and target group expenditure re- quirements. If the department cannot, after making a good faith effort, meet federal part- icipation rates and target group expenditure requirements by deferring nonexempt target group AFDC recipients from participation, the department may limit service to AFDC recip- ients who meet target group criteria and may mandate the participation of those target group members who are non-target-group volun- teers only after the department has attempted to conserve its resources under the proce- dures established in this section. (Emphasis added.) Rule 10C-32.002(4) states: Effective October 1, 1991, the Florida Employment Opportunity Act, F.S. 409.029, was revised to allow the department to prioritize and disenroll participants based on target groups and assessment status where funds are insufficient to serve all partici- pants. Caseloads may be reduced to allow for sufficient case management when they exceed a staff/client ratio of 1:150. Staff/client ratios for the teen parent caseload should not exceed 1:100. Each district will init- iate case load disenrollment procedures as needed. Case managers must identify three cate- gories of participants in their caseloads: Priority One, exempt volunteers; Priority Two, mandatory target group participants; and Priority Three, mandatory non-target group participants. When caseloads exceed a staff/client ratio of 1:150, all Priority Three cases, mandatory non-target participants, will be offered an opportunity to continue partici- pation or disenroll. Priority Three participants who wish to continue in the program must be allowed to do so and will be placed in Priority One category. Priority Three participants who do not wish to continue in the program should be disenrolled after Orientation, and Job Search if the participant meets the criteria for Initial Job Search. To reach or main- tain the 1:150 staff/client ratio, new mand- atory non-target referrals may be disen- rolled after Orientation, and Job Search, if applicable, if they do not wish to continue to participate. If the staff/client ratio remains above 1:150 after disenrollment of Priority Three cases, then all Priority Two, mandatory tar- get groups may be allowed the opportunity to disenroll from the program after Orientation, and Job Search, if applicable. Information about disenrollment and re- entry into the program must be provided, verbally and in writing, to each participant being given these opportunities. This infor- mation must include: A participant who is given the opport- unity to disenroll will not be sanctioned, nor will disenrollment affect the AFDC grant amount. An individual who disenrolls may re- enroll in the program at a later date by con- tacting the local AFDC employment and train- ing office. An individual who disenrolls and becomes employed may be eligible for child care dur- ing the hours of employment and should con- tact the AFDC employment and training case manager. A participant who is given the opport- unity to disenroll and chooses to continue participating in the AFDC employment and training program can do so. A participant who does not meet an exemp- tion from program participation and who chooses to remain in the program although given the opportunity to disenroll can be sanctioned for failure to complete assigned activities. A participant who does not meet an exemp- tion from program participation and chooses to disenroll may be required to re-enter the program at a future date. Failure to do so without good cause will cause a sanction to be imposed. Support Services will be terminated for a participant who chooses to disenroll unless the individual is employed. If new referrals are not sufficient to maintain the staff/client ratio of 1:150, disenrolled cases should be identified for program re-entry. Program re-entry will be based on continuing eligibility for AFDC, priority group status, and length of time since disenrollment. The first individual disenrolled from the highest priority group will be re-enrolled first, etc. If the state fails to meet the feder- ally required expenditure rate for target groups, participation in the program may be limited to and required for target group members. (Emphasis added) The caseload prioritization rule only applies in situations in which PI staff/client ratio exceeds 1:150; staff meaning case manager. Respondent contends that Subsection 409.029(9)(c), Florida Statutes, was needed for the determination as to when PI's resources were sufficient to provide services to clients. In the caseload prioritization rule, Respondent interprets the statutory phrase "lacks resources" as the point at which the staff/client ratio exceeds 1:150. Respondent's districts meet this "limited resources" point when the staff/client ratio exceeds 1:150. The factors considered in the measuring stick used by Respondent to determine the limited resources were staff allocations and staff availability to provide services. Child care was not included, since it was, and is, a support service as interpreted by Respondent from Subsection 409.029(7), Florida Statutes. At the time Subsection 409.029(9)(c) was passed by the Florida Legislature, the staff/client ratio exceeded 1:400 and 1:500 in some of Respondent's districts. Respondent determined that a ratio exceeding 1:150 prevented a case manager from providing the services needed for clients, i.e., spending the amount of time needed, and that the lack of time, translating into the lack of services needed, could affect Respondent's PI federal funding. Respondent contends that the caseload prioritization rule was necessary for the administration of Subsection 409.029(9)(c). The rule in Respondent's view provided and clarified the procedures to be used for the disenrollment of clients to reduce caseloads. Respondent further contends that the caseload prioritization rule was necessary for the proper administration of Subsection 409.029(7), Florida Statutes, which Respondent interprets as applicable to the offering of child care services. According to Respondent, the rule gave Respondent the ability to identify specific reasons to defer individuals from participation in the PI program. On July 10, 1992, Respondent's caseload prioritization procedures were issued statewide and were generally applicable to all PI participants in Respondent's districts. Notwithstanding, because the staff/client ratio did not exceed 1:150 in Respondent's District 2, the procedure was not utilized in District 2. The caseload prioritization procedures were not invoked prior to instituting the child care freeze in Respondent's District 2. Child Care Freeze For the 1992-93 fiscal year, the Florida Legislature failed to appropriate sufficient funds to meet the needs of PI child care in Respondent's District 2. Subsequently, again, for the 1993-94 fiscal year, the Legislature did not appropriate sufficient funds. On July 10, 1992, Respondent issued a memorandum, effective that same date, freezing child care in Respondent's District 2 only for new enrollments of AFDC recipients who wished to participate (volunteers) in PI education and training activities and who needed child care in order to participate. The challenged child care freeze policy purports to be as follows: Due to the large over annualization we are projecting for FY 92-93 in Service I, Ser- vice II and Family Support Act child care services, I am directing you to immediately freeze new enrollments except for entitled groups (TCC and AFDC Employed) and the high- est at-risk group (Priority 1 in Service I). We will closely monitor utilization and let you know as soon as spending is within bud- get limits. This freeze applies to new enrollments only. Children currently in care should continue to receive services as appropriate. Respondent instituted the child care freeze because of projected annualized budget deficits; that is, Respondent annualized its current PI child care expenditures and projected a budgetary deficit if expenditures increased beyond what was currently spent. The child care freeze did not affect Transitional Child Care (TCC) recipients and AFDC recipients who work. Transitional Child Care is child care for former AFDC recipients who lost their AFDC eligibility due to earned income and who meet other federal requirements. TCC and AFDC employed individuals are guaranteed child care. Also, the child care freeze did not affect those individuals who Respondent requires to participate in PI. Respondent's District 2 is divided into two districts: Subdistrict 2A and Subdistrict 2B. Subdistrict 2A is comprised of Bay, Calhoun, Franklin, Gulf, Holmes, Jackson and Washington counties. Subdistrict 2B is comprised of Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla counties. Child care services are provided through contract with central agencies. Two child care provider agencies serve Respondent's District 2: Big Bend Child Care, serving Subdistrict 2B and Early Childhood Services, serving Subdistrict 2A. PI child care monies are split between the two provider agencies. Due to the child care freeze, from July 10, 1992, no AFDC recipient in Subdistricts 2A and 2B, who needed child care for education and training, received it. However, on January 19, 1993, child care slots became available in Subdistrict 2A with Early Childhood Services. On January 19, 1993, Early Childhood Services had 318 children of AFDC recipients on a waiting list. Only 35 slots became available. On March 15, 1993, Respondent allowed Early Childhood Services to provide child care services on a "one-in one-out" basis--equal number of child care slots filled as are vacated. As of January 1993, in Respondent's District 2, 542 children of AFDC recipients were waiting to receive child care services. Approximately 70 of the children, all residing in Subdistrict 2A, have been placed since January 19, 1993. For the offering of child care services, Respondent looks to both Subsection 409.029(7), Florida Statutes, and Rule 10C-32.002(10)(b)2, Florida Administrative Code, for guidance as to what action to take when child care resources are limited. Respondent contends that Subsection 409.029(7) is applicable to child care services. Subsection 409.027(7) includes child care services as a support service and provides that child care services "shall be provided according to federal law to the extent funds are available." Rule 10C- 32.002(10)(b)2 provides that a PI participant, meeting the requirements for a deferred status and not required to participate, "will be placed in limited contact status" due to the "temporary unavailability of support services." In August 1992, Respondent conferred with the regional office of the federal agency overseeing the AFDC program, regarding the subject of guaranteeing child care to AFDC recipients as it relates to availability of funds. Respondent and the federal agency agreed to certain principles on the subject, which included the following: "To the degree resources are available" is acceptable as a factor in limiting participa- tion in a program component when child care is a determining factor (other than AFDC-emp- loyed and TCC). The state may determine the criteria for those required and/or allowed to participate in the program as long as the state meets the federal participation rate and target group expenditure requirements. [W]hen a state finds itself without sufficient resources, including child care resources, it may place individuals on a waiting list. Before placing an individual on a waiting list, the individual will be given an opportunity to make provisions for her own child care, or other services, in order to remain in the program. [W]ith the exception of AFDC-employed and TCC, the guarantee of child care to both JOBS and non-JOBS participants is directly tied to the conditions under which the participant is required or allowed to participate. One clear and explicit condition is the extent to which state resources permit such partic pation. Respondent interprets Florida law, as it relates to budgeting, that the law requires Respondent not to exceed its budget. To stay within its budget, Respondent instituted the child care freeze instead of the other available options which would involve the disenrollment of children already in care, including the entitled groups. The child care freeze required Respondent to constantly be aware of the status of the child care budget (on a monthly basis) due to its constant fluctuation. Also, in administering the child care freeze, Respondent interprets the federal law and Subsection 409.029(9)(c), Florida Statutes, to state that it is not required to provide child care to volunteers of the PI program. But, even with this interpretation, volunteers for the PI program are not denied participation in the PI program during child care constraints. An individual who does not need child care, or even one who does need child care but can provide it through other means can volunteer for participation in the PI program. No child care will be provided, but the participants can receive other services associated with the PI program. The child care freeze was never promulgated pursuant to Section 120.54, Florida Statutes.
The Issue Whether Petitioner's Federal Income Tax refund should be intercepted by Respondent?
Findings Of Fact On August 17, 1984, the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered an order finding Petitioner to be in arrears in child support payments in the amount of $6,400.49. As of July 21, 1988, Petitioner was in arrears in his child support payments in the amount of $6,954.52. Petitioner does not dispute that he is in arrears in his child support payments, but argues that Respondent should not take the entire refund, but should only take one-half.
Recommendation Therefore, based upon the foregoing, it is RECOMMENDED that Respondent issue a final order affirming the determination that Petitioner owes past-due support. DONE and ORDERED this 24th day of August, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Johnny E. Matthews 4435 Kenndle Road Jacksonville, Florida 32208 Warren J. Schulman, Esquire 331 East Union Street, Suite 1 Jacksonville, Florida 32202 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Amended School Board Policy 2262 is an invalid exercise of delegated legislative authority under section 120.52(8), Florida Statutes (2013)1/.
Findings Of Fact The School Board has the constitutional duty to operate, control and supervise the public schools within Collier County, Florida. Art. IX, § 4(b), Fla. Const. (2014); see also § 1001.32, Fla. Stat. Sports Club is a private, non-profit Florida corporation, whose principal business activity is providing before and after school child care. Sports Club is located in Collier County, and offers its child care services at its own private facilities, as well as at certain District elementary schools. Parents Rock is a private, non-profit Florida corporation formed on June 24, 2013, for the purpose of representing parents’ interests in education, and advocating for legislation, regulations, and government programs that improve parents’ rights and choices in local education. Parents Rock’s membership consists of approximately 700 individuals, mostly parents of children attending schools in the District. A substantial number of these parents use the child care programs located at the District facilities. Moreover, a substantial number of Parents Rock’s members routinely attend School Board meetings and advocate for parental involvement in their children’s education and issues of importance, like the District’s child care program. Amended School Board Policy 2262, which is part of the School Board’s Bylaws and Policies, is titled: Before and After School Child Care. The challenged policy contains paragraphs lettered “A through L” which provides for the following issues: Parents and the community being given an opportunity to make recommendations concerning the operation and funding of child care programs prior to the approval by the School District; Child care programs and services being available to students both prior to and after the school day; Child care programs having an emphasis on providing educational opportunities and “variety of activities that promote the social, intellectual, and physical development of children in the program[;]” Adequate attention being given to the child care programs having an environment that meets the needs and well-being of the children, ensuring the children’s safety, security, that the children are clothed, fed, and “hav[ing] an opportunity for a variety of social, intellectual, and physical activities[;]” Vendors or other organization contracted to provide the child care programs having adequate liability insurance, and “maintaining appropriate adult-child ratios, provide quality child care, and in general, complying with the procedures established by the State and the District[;]” Notifying parents and families about the child care programs and procedures for enrollment; Continuing program assessments by staff, participating parents, and other stakeholders during the course of the child care program; Fees for the child care services being applied only to those schools involved in vendor run or school based programs; Recognizing that a parent may notify the child care providers of the parent’s preference that a child receiving either additional physical or academic activities, and “every reasonable effort shall be made to accommodate the request[;]” Parents, whose children participate in the child care programs, giving “feedback concerning the program” and requiring that the District’s manager of after school child care consider the information; A procedure for surveying and collecting information from parents evaluating the child care programs; and Providing that “[a]ny terms, conditions, or issues enumerated in the District’s RFQ 115-4113 [sic], whether express or implied, related to this policy, are hereby adopted and incorporated by reference in the policy during the duration of RFQ 115-4113 including any renewal period provided for in said RFQ.” Amended School Board Policy 2262 then states that to “implement this policy, the Superintendent will develop and/or revise administrative procedures consistent with the RFP/RFQ process relative to child care service.” The School Board wholly adopted School Age Child Care Services, RFQ #115-4/13 (RFQ), into its Policy. Consequently, a short explanation of the RFQ is required here. In the RFQ, the District sought to qualify child care providers to operate child care programs at the District’s elementary schools. The RFQ that was released by the District, on May 2, 2013, provided for: uniform fees for all program services;2/ no credit for fees paid, if a child was unable to use the child care program due to an absence;3/ a $10.00 surcharge on each registered student that a private vendor provided financial assistance to attend the after school program;4/ and standards and criteria for the child care programs that required the programs to be staffed by certified teachers.5/ Finally, and importantly, the RFQ allowed elementary school principals to decide whether or not to offer child care through private providers or for the school to operate its own “in-house” child care program.6/ Sports Club participated in the RFQ process, and was identified as a qualified provider. Based on its approval as a qualified provider, Sports Club was given an opportunity to present its services to the District’s elementary school principals in a webinar. Following the presentation, on May 29, 2013, five elementary school principals chose Sports Club as child care provider for their schools. However, Sports Club was not chosen as a provider for six other elementary schools that it had previously served under a contract with the District. In some instances, like Veterans Memorial Elementary School, the principal had decided to operate an “in-house” program, rather than selecting Sports Club. After the selection process, Sports Club informed parents about the impending changes, and asked the parents to contact the School Board if they wanted to keep Sports Club as a child care provider. The School Board was to ratify the elementary school principals’ decisions at a June 11, 2013, School Board meeting. Many parents, on learning about the RFQ’s terms and that Sports Club would no longer be providing child care at their child’s elementary school, became extremely upset. A particular concern was the District’s decision not to seek any parental involvement in the formulation of the RFQ and provisions setting the uniform fees, which increased the child care costs for the parents. On June 3, 2013, the RFQ became the subject of an unadopted rule challenge brought by a parent. Rather than proceeding to a final hearing, the School Board elected to initiate rulemaking concerning the unadopted rule challenge on September 13, 2013. In the initial Notice of rulemaking, the School Board specifically stated that although a proposed text of the rule was not available, the RFQ’s provisions regarding fees and program content would serve as a reference point. During the rulemaking workshops on October 16, 2013, and November 13, 2013, the District’s rule proposals amended certain provisions within the RFQ. Specifically, the proposals amended the RFQ’s terms concerning the amount of the uniform fees to be charged;7/ the granting of credits in the limited instance when a child has a medical excuse for not attending the after school child care;8/ setting out a parental survey for assessing the child care programs;9/ and reducing the fee paid by private providers for using the District’s facilities during the summer months.10/ The School Board at its December 10, 2013, meeting, enacted Amended School Board Policy 2262, which incorporated the RFQ completely into the policy in paragraph “L.” On its face, the School Board’s language in paragraph “L” is not clear as to which version of the RFQ was incorporated. However, the testimony and attachments to the Amended School Board Policy show that the School Board’s reference is referring to the RFQ, as the School Board had amended it during the rulemaking process. Amended School Board Policy 2262, with the RFQ’s terms setting out the uniform fees and program criteria, only applies to child care programs located at the District’s elementary schools. Amended School Board Policy 2262 has no application for child care services off-site. The facts here show that Sports Club owns its own facility, and provides transportation to the Sports Club’s private facility for students from some of the elementary schools that elected to provide “in-house” services. Parents sign a permission form, and Sports Club’s bus transports the child from the elementary school to Sports Club’s facility. At its private facility, Sports Club is free to offer child care programs at rates that it decides are appropriate, without any regard to the challenged rule. Sports Club’s claimed economic losses are the result of its decision to participate in the RFQ process, not the challenged rule. Sports Club was selected as a child care provider under the RFQ at the June 11, 2013, School Board meeting, and Sports Club subsequently entered into a contract with the District to provide child care services under the RFQ, on August 16, 2013. These events occurred months before the School Board adopted the challenged rule here at its December 10, 2013, meeting. Moreover, the undersigned found that Mr. Brettholtz credibly testified that the financial records provided by Sports Club did not follow accepted accounting practices, and could not be used to support Sports Club’s claimed economic losses.
