Findings Of Fact Pursuant to its authority to regulate water and sewer rates, charges and rate structures embodied in Chapters 367, Florida Statutes, and 25-30, Florida Administrative Code, the Public Service Commission entered Orders numbered 16971 and 17058, which adopted specific guidelines and conditions for utilities to implement certain income tax impact charges for contributions-in-aid- of-construction ("CIAC gross-up charges"). (See Orders numbered 20409, p.3; 16971, p.2-4; and 17058). One of these conditions requires that utilities submit appropriate tariff sheets (rates and charges sheets) for the Commission's approval prior to implementation of the CIAC gross-up charge. CIAC is the payment or contribution of cash or property to a utility from a customer or entity seeking service from that utility in order to secure the provision of such services or to reserve it for a future time. The Internal Revenue Code of 1986 changed the treatment of CIAC from being non-taxable to being taxable as income. A CIAC gross-up charge is a method by which a utility can recover that tax expense, represented by the income tax assessed against collected CIAC, through approved rates and charges to customers. The amount of CIAC tax impact funds collected by a utility is not itself treated as CIAC for rate-making purposes. The Respondent, St. Johns North Utility Corp., collected gross-up charges which were not authorized by its filed and approved tariff schedules (rate schedules), and without securing the requisite approval from the Commission. (See Orders numbered 20409 and 20762). The Commission was made aware of the charging of unauthorized CIAC gross-up charges by the Utility Respondent when a developer, Fruit Cove Limited, communicated with the Commission concerning its doubts about utility service being available for one of its subdivisions, when required, from the Respondent. Fruit Cove Limited had paid CIAC gross-up charges to St. Johns. On June 3, 1988, the Commission, through its staff, contacted Mr. Joseph E. Warren, the General Manager for the Respondent, and explained the Commission's requirements regarding the requisite pre-approval of the charging of CIAC gross-up charges. Mr. Warren agreed to file a written request for authorization to implement such charges. No request was filed, despite repeated admonitions and solicitations by the Commission and its staff and a lengthy opportunity to comply. Finally, Order No. 20409 was issued by the Commission on December 5, 1988, requiring the Utility to file a written request for authorization to implement CIAC gross-up charges within thirty (30) days of that Order. A written request was not timely filed, however. The Utility finally filed its written request for approval of these charges on September 5, 1989. The accompanying tariff sheets representing such charges were ultimately filed in response to Orders numbered 16971 and 20409, and Show Cause Order No. 20762. They became effective on September 15, 1989. The Commission, through its staff, also made repeated inquiries to the Utility regarding certain service availability charges and practices, initially by letter of July 29, 1988. The Utility was allowed until August 19, 1988 to make the requested responses. The letter was addressed to Mr. Joseph Warren at the Utility's mailing address of record. The Utility, however, did not provide written responses to the comments and questions by the Commission, despite repeated assurances that it would do so. Order No. 20409, issued on December 5, 1988, required the Utility to provide the full written responses to the July 29, 1988 letter within thirty (30) days of the date of that Order. The responses were not timely made. Order No. 20762 was issued on February 17, 1989, requiring the Utility to show cause in writing on or before March 13, 1989 why it should not be fined up to $5,000.00 per day, in accordance with the Commission's penalty authority, for failure to comply with the provisions of Order No. 20409, regarding the necessity for written responses to the Commission's specified questions and the submission of a written request to implement the CIAC gross-up charges referenced above. The first item in the Commission's July 29, 1988 letter to the Utility had requested the Utility to seek approval, including submission of proposed rate tariff sheets for authorization to implement the CIAC tax impact charge referenced above. That item was responded to on September 5, 1989, more than eight months after the deadline set by Order No. 20409. The second item in the Commission's July 29, 1988 letter to the Utility had requested the Utility to provide the names and addresses of financial institutions in which gross-up charge funds were being retained. That item was responded to as requested. The third item in the Commission's July 29, 1988 letter to the Utility had requested the Utility to provide a listing of all gross-up monies received from each contributor. No response was ever provided by the Respondent. The significance of the information requested by the Commission is that it would provide identity of the individuals who were entitled to a refund of the unauthorized CIAC gross-up charges collected by the Utility, as provided in Order No. 20762. The fourth item in the Commission's July 29, 1988 letter to the Utility had requested the Utility to provide a copy of all current developer agreements. That item was responded to within the deadline set by Order No. 20409. The fifth item in the Commission's July 29, 1988 letter to the Utility had requested the Utility to file revised tariff sheets indicating the actual legal description of the Utility's certificated service territory. No response was ever provided. Order No. 20762 was ultimately issued on February 17, 1989 imposing a $5,000.00 fine on the Utility for serving outside of its authorized service area. Order No. 20409 requested the Utility to indicate to the Commission whether, with regard to the developer agreement between the Respondent and Fruit Cove Limited, the charges listed in the various paragraphs of that agreement would, upon completion of the real estate development involved, be adjusted to reflect actual utility service costs incurred. No response to that request was ever provided by the Utility. Additionally, in that Order, the Commission requested information concerning a so- called "step tank", which was referenced in paragraphs 12C and 13D of the developer agreement with Fruit Cove Limited. That request, in Order No. 20409, was never responded to. A certain fee was charged for installation of the step tank by the Utility to Fruit Cove Limited, and no response was given to the Commission's inquiry as to why that fee was omitted from the Utility's approved tariff on file with the Commission. The significance of the requested information was that the omission of the step tank installation fee from the Utility's tariff of rates and charges could cause the developer agreement to constitute a "special service availability agreement", which can only be approved in advance by the Commission. It is not a matter, approval of which has been delegated by the Commission to its staff members. The Order referenced last above also requested an explanation for why a meter installation fee, referred to in that same developer agreement, does not include a "curb stop" or a meter box. This information is significant because it is necessary in order for the Commission to determine whether the charge involved is reasonable. A cost breakdown for the meter installation, including the various hardware components and other charges, was necessary and was not provided by the Utility. Additional information concerning the area of service availability, required to be provided to the commission by Order No. 20409, included the requirement that approval be obtained from the Commission for the CIAC gross-up charge in the developer agreement with Fruit Cove Limited. As stated above, that approval was not requested in writing, as required by the Order, for more than eight months after the deadline set by that Order. By Order No. 20762, St. Johns was fined $5,000.00 for three separate violations of the statutes and rules, and the Orders enumerating them, for a total of $15,000.00. The Utility was fined for serving outside of its authorized service territory, for collecting unauthorized CIAC gross- up charges, and for failing to file its developer agreements with the Commission as required by law. The developer agreements were only submitted after repeated efforts by the Commission's staff which culminated in Order No. 20409 and which were either unresponded to or not properly responded to by the Utility. Additionally, by Order No. 21559, issued on July 17, 1989, St. Johns was fined $5,000.00 for failure to file an application for an extension of its territory as required by Order No. 20409. In the meantime, by Order No. 22342, issued on December 26, 1989, the Commission approved a transfer of the Utility's assets from St. Johns to Jacksonville Suburban Utilities Corporation ("Jacksonville Suburban"). That Order did not authorize transfer of the liabilities of the Respondent to Jacksonville Suburban. The Order specifies that St. Johns, and not Jacksonville Suburban, will remain liable for the previously imposed refund obligations and fines. Only in the event that there remained sales proceeds in excess of the certain debt of St. Johns owed to its institutional lender would funds from the Jacksonville Suburban sale be applied toward payment of the refund and fines found to be due and owing by the above-cited Orders, by way of escrow or otherwise. Any excess proceeds, absent Order No. 22342, were to be paid to St. Johns. Order No. 22342 does not make Jacksonville Suburban liable for the refund and fines at issue. It is speculative whether there will be any sales proceeds available from the sale, after payment of the debt, to be applied toward the refund and fines. The sales price was made dependent upon establishment of the Utility's "rate base" amount, to be established in that transfer proceeding at a point in time after entry of Order No. 22342. That Order, however, specifically preserves the liability of St. Johns for the refund and fines and does not provide for the extinguishment of such liability in the event that the sales proceeds prove to be insufficient to pay them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that St. Johns be assessed a penalty of $5,000.00 for knowingly and willfully failing to comply with Order No. 20409. DONE AND ENTERED this 13th day of June, 1990, in Tallahassee, Leon County, Florida. Hearings Hearings 1990. P. MICHAEL RUFF Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 14th day of June, APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1.-24. Accepted. Respondent's Proposed Findings of Fact. (Respondent filed no proposed Findings of Fact) Copies furnished to: David Schwartz, Esq. Florida Public Service Commission Legal Division 101 E. Gaines Street Tallahassee, FL 32399-0850 Joseph E. Warren, Esq. 1930 San Marco Boulevard Suite 200 Jacksonville, FL 32207 Mr. Steve Tribble Director of Records and Recording Florida Public Service Commission 101 E. Gaines Street Tallahassee, FL 32399-0850 Mr. David Swafford Executive Director Florida Public Service Commission 101 E. Gaines Street, Room 116 Tallahassee, FL 32399-0850 Susan Clark, Esq. General Counsel Florida Public Service Commission 101 E. Gaines Street, Room 212 Tallahassee, FL 32399-0850
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: The Petitioner, Anna Torres, (hereinafter "Torres") worked for the Department of Transportation as a toll collector at the Golden Glades toll plaza and was a career service employee at all times pertinent to this case. At the time of the events giving rise to this case, Torres had been employed by the Department for about eight years. Torres was authorized to be on approved leave from October 24, 1989, through November 8, 1989. Torres used that period of leave to drive from South Florida to California to visit her parents. Torres was accompanied on the trip by her roommate. Torres was expected to return to work on November 9, 1990. Torres' father had been sick for several years and during her visit his condition took a sudden turn for the worse, as a result of which it was necessary for her father to be hospitalized. Torres was very concerned about her father's medical condition and felt a need to remain in California until it could be determined whether her father was going to recover from his worsened condition. To facilitate a longer stay in California, Torres' mother offered to pay Torres' airfare from California to Florida in the event Torres could not obtain additional leave, and the roommate offered to drive the car back. On November 7, 1989, Torres placed a telephone call from her parents' home in California to the Golden Glades toll plaza. She spoke with Mildred Burham, who was, and is, the assistant manager at the Golden Glades toll plaza and the supervisor of one of the shifts. Mildred Burham was not the supervisor of Torres' shift. The essence of what Torres told Mildred Burham is that, because of a family emergency, Torres needed to stay in California for another two weeks and wanted a two week extension of her vacation. Torres also asked Mildred Burham to convey the message to Vera Hulse. 1/ Vera Hulse was, and is, the manager of the Golden Glades toll plaza. At that time, Torres did not have sufficient annual or sick leave to cover an additional absence of two weeks. During the November 7, 1989, telephone conversation, Mildred Burham told Torres that she (Burham) would "check into" the request for additional leave and would convey Torres' message to Vera Hulse. Ms. Burham did not tell Torres that the two week extension of her vacation was approved. 2/ During the November 7, 1989, telephone call, Torres did not give Ms. Burham the telephone number at her parents' house in California. Instead, she told Ms. Burham that if they needed to get in touch with her, they could call Torres' son at her home in Florida and he could give them the California telephone number. When Ms. Burham told Vera Hulse about the telephone call from Torres, something apparently got lost in the translation. The message communicated to Ms. Hulse was to the general effect that Torres had called and said that because of a family problem Torres would not be back to Florida for another two weeks. Ms. Hulse was not advised that Torres was requesting leave; only that Torres would be two weeks late getting back due to a family problem. Torres was scheduled to work on the following days: November 9, 10, 11, 14, and 15, 1989. Torres did not report for work on any of those days, nor did she have any other communication with her employer after the telephone communication of November 7, 1990, until November 20, 1989, when Torres called again. Between November 9 and November 20, 1989, Ms. Burham and Ms. Hulse called Torres' home telephone number in an effort to contact her son and obtain the telephone number where Torres was staying in California. Those efforts were unsuccessful. On November 9, 10, 11, 14, and 15, 1989, Torres was placed on unauthorized leave without pay. On November IS, 1989, the Department sent Torres a letter advising her that because she had failed to report for work and had been on unauthorized leave without pay since November 10, 1989, she was deemed to have abandoned her position and to have resigned from the Career Service.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Administration enter a final order in this case concluding that the Petitioner, Anna Torres, did not abandon her position of employment with the Department and ordering that she be reinstated to her position as a toll collector with back pay. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 27th day of June, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1990.
Findings Of Fact Prior to May 3, 1988, Petitioner was employed by Respondent as a Regional Toll Manager and had achieved permanent status in the career service system. In December 1987, Respondent requested that the Florida Department of Administration (DOA) upgrade the position of Regional Toll Manager from pay grade 20 to pay grade 25 and to create a new position of Assistant Regional Toll Manager. Effective May 3, 1988, DOA granted Respondent's requests in part. The position of Regional Toll Manager was upgraded from pay grade 20 to pay grade Instead of creating a new position, DOA assigned the duties that an Assistant Regional Toll Manager would have performed to an existing position entitled Operations and Management Consultant I. The Operations and Management Consultant I position was assigned to pay grade 21. DOA advised Respondent that no employee was to receive an increase in pay as a result of the change in pay grade for the Regional Toll Manager position unless the employee was not receiving the minimum pay for pay grade 23. Petitioner was being paid below the minimum for pay grade 23 and was entitled to an increase in pay as of May 3, 1988. Petitioner did not receive the pay increase to which she was entitled and was underpaid between May 3, 1988 and June 17, 1988. The Operations and Management Consultant I position has less responsibility than the Regional Toll Manager position. While Respondent was in the process of trying to upgrade the Regional Toll Manager position, it learned that the Legislature intended to exempt the position of Regional Toll Manager from the career service system. In anticipation of the Legislature's action, Respondent decided, after DOA's action on May 3, 1988, to assign all existing Regional Toll Managers to the position of Operations and Management Consultant I. Effective June 17, 1988, Petitioner and the other Regional Toll Managers throughout the State were transferred to the Operations and Management Consultant I position. Respondent intended to promote Petitioner from pay grade 20 to pay grade 21. As of June 17, 1988, Petitioner received a pay increase that exceeded the minimum salary for pay grade 23. On September 7, 1988, DOA advised Respondent by letter that Petitioner had not been promoted from pay grade 20 to pay grade 21 on June 17, 1988. DOA's position was that Petitioner's pay grade had been automatically increased to pay grade 23 on May 3, 1988 and that Petitioner's transfer to a pay grade 21 position was, by definition, a demotion. DOA's letter advised Respondent that Petitioner's pay increase on June 17, 1988, violated pertinent provisions of the Florida Administrative Code and instructed Respondent to take corrective action. As of October 14, 1988, Respondent reversed the increases in pay that had gone into effect for Petitioner on June 17, 1988. All former Regional Toll Managers who had received an increase following his or her transfer to the Operations and Management Consultant I position were treated the same by DOA and by Respondent. On October 18, 1988, David S. Ferguson, Respondent's Personnel Officer, wrote a letter to Petitioner which explained the position that DOA had taken in this matter. Respondent advised Petitioner that, at DOA's instructions, it was reversing the pay increase that had gone into effect June 17, 1988, and that it would address the recovery issue with DOA and advise her after a response was received. On November 9, 1988, Mr. Ferguson wrote Petitioner a letter which clarified certain computations made in his letter to Petitioner dated October 18, 1988, and which advised Petitioner of the request Respondent was making of DOA in an effort to resolve the matter. On November 9, 1988, in a letter addressed to the Secretary of DOA, Mr. Ferguson requested that Petitioner and the other, similarly situated employees be granted a onetime lump sum increase in salary equivalent to the overpayments instead of requiring repayment from them. On December 29, 1988, DOA refused Respondent's request to resolve the matter through a onetime lump sum payment and repeated its instructions for Respondent to reclaim any overpayment. On May 17, 1989, Respondent advised Petitioner that DOA had refused its suggestion to resolve the matter and demanded repayment in the net amount of $122.61 as the overpayment received by Petitioner. The net amount owed was properly calculated by Respondent and made appropriate adjustments for the underpayments to Petitioner between May 3, 1988 and June 17, 1988. Petitioner was not prejudiced by the delay between December 29, 1988, the date DOA rejected Respondent's settlement proposal, and May 17, 1989, the date Respondent notified Petitioner of its intended final action, because the amount demanded by Respondent does not include interest or penalty. Respondent advised Petitioner that its letter of May 17, 1989, constituted notice of Respondent's intent to take final agency action. Thereafter, Petitioner made timely demand for a formal hearing of this matter and this proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which finds that Petitioner has received overpayments in the net amount of $122.61 and which requires that Respondent make arrangements with Petitioner for the repayment of the sum of $122.61 by payroll deduction or by other means agreeable to the parties. DONE AND ENTERED this 12th day of January, 1990, in Tallahassee, Leon County, 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 12th day of January, 1990. COPIES FURNISHED: Karen C. Greenawalt, pro se 2922-1B Northwest 55th Avenue Fort Lauderdale, Florida 33133 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto net Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this | a day of Quis, Us? ‘ , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 Jul 11 2009 11:41 a7/11/2889° 12:23 9549617454 PACK-SHIP&BEYOND PAGE 91/03 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GLORIA MARSHALL, Petitioner CASE NO: 08-3716 JUDGE ARRINGTON v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT. Respondent. / PETITIONER’S AMENDED NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PETITIONER, GLORIA MARSHALL, through undersigned counsel, hereby files this AMENDED PETITIONER’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE, on the following grounds: 1. Petitioner Marshall is not working for the employer since June of 2008, when she retired after a long career as an employee of the Broward County School Board. Most of the documents to be used in this petition are already in possession of Respondent and the attorney for Petitioner. 2. Petitioner patiently and conscientiously worked as an adult ed teacher from 1981 through 2005, a period of some twenty four years. EXHIBIT att Jul 11 2009 11:41 @7/11/2889 12:23 9549617454 PACK-SHIP&BEYOND PAGE 62/83 3. In view of the relationship between the Repondent and Petitioner, who has been enrolled several times in the FRS, Petitioner contends that the Respondent exercise its fiduciary duty to act in the best interests of the member by not opposing this dismissal without prejudice. 4. Petitioner contends that no prejudice to Respondent will result. 5. No expenses have been incurred thus far other than the transmission of employment records by the Respondent to undersigned counsel, and those will not change. If a plan has been proposed for the case by Respondent, that plan can be laid aside and will serve the same purpose in the future. 6. In light of the circumstances which prevail, to insist on the prosecution of this petition at this time will not serve the interests of justice. 7. Petitioner has indicated that she is unable to assist in this petition until the month of December 2009. 8, In addition, the goal sought in these proceedings is a very precious one, that is, a pension and social security fund which will influence the comfort or lack thereof of this petitioner’s last years, and is worthy of the Court’s indulgence in acknowledging this dismissal without prejudice. BASED ON THE FOREGOING recitation of facts, Petitioner files this ‘ Amended Notice of Voluntary dismissal without prejudice. Jul 11 2009 11:42 97/11/2009 12:23 9549617454 PACK-SHIP&BEYOND PAGE 43/03 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been fax-filed with the Department of Administrative Hearings and e-mailed to 850 922 6312, to Larry Dz. Scott, Esq., Asst. General counsel to DMS, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950 Eleventh day of July, 2009. LAW OFFICE OF JANE M. LETWIN Attorney for Petitioner: Florida Bar Number 990329 5426 SW 25" Avenue, Fort Lauderdale Fl 33312 Phone: 954 245 8495: Fax: 954 301 8401 E-mail; Janeletwintv@aol.com By * ou Jane M. Letwin
The Issue Whether Respondent, Sarasota County Government (County), violated section 760.10, Florida Statutes (2017),1 by discriminating against Petitioner, Lavender Suarez, based on her race (African-American) and gender (female), 1 Unless otherwise indicated, all statutory and administrative rule references are to the 2017 codifications of the Florida Statutes and Florida Administrative Code. when it terminated her employment; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner is an African-American female who started her employment as a Manager II/Fiscal Manager with the Sarasota County Area Transit (SCAT) on November 30, 2015. She remained in that position until she was asked to resign in lieu of termination on August 17, 2017. Respondent, the County, oversees SCAT. SCAT provides public transportation services within Sarasota County via a fixed route bus system. SCAT has approximately 247 employees including administrative staff, bus operators, maintenance workers, and managerial staff. Rocky Burke, a white male, was the Director of SCAT during Petitioner's employment.3 Petitioner reported directly to Mr. Burke. In addition, during the relevant time period, there were four other managers who reported to Mr. Burke: Paratransit Operations Manager Gary Speidel, Fixed Route Operations Manager Ricardo Ferris, Transit Planning Manager Chris DeAnnuntis, and Fleet Maintenance Manager Jon Russo. Except for Ms. Suarez, all the managers were white males. The County's Human Resources Procedures and Guidelines Manual (P&G) provides the following policies regarding performance issues: Chapter III: Compensation and Status * * * (c) Performance appraisals shall be conducted as follows: 3 Mr. Burke resigned on September 5, 2017, less than a month after Petitioner left the County. * * * 3. Performance Improvement Plan (PIP) A performance Improvement Plan appraisal may be conducted at any time at the discretion of the immediate supervisor. Moreover, when an employee's performance is observed as needing improvement, the supervisor should conduct a performance appraisal for the employee as soon as possible. * * * Chapter IV: Discipline 4.03 Corrective Counseling Whenever an employee's performance or conduct falls below an acceptable level, the supervisor should inform the employee promptly of the deficiency and provide counsel, instruction and assistance to the employee. Michele Green, who oversees employee relations for the County, testified that—with the exception of theft or something extremely serious warranting immediate termination—the County makes every effort to advise employees in advance of shortcomings so they have an opportunity to improve prior to termination. The County, she explained, trains supervisors to counsel and coach their employees to help them succeed. MS. SUAREZ' JOB HISTORY AND DUTIES As SCAT's Fiscal Manager, Ms. Suarez was responsible for providing fiscal and budgetary project management, including grants analysis and oversight of federal and state financial requirements for compliance. She also managed a staff of four direct reports including Mary Goldaraz, who served as a Procurement and Contracts Coordinator; and Barbara Garrett, who served as an Information Technology (IT) professional. The unrefuted testimony establishes Mr. Burke treated Ms. Suarez differently than he treated the four white male managers. For example, Mr. Burke would come around Petitioner's desk several times a day asking what she was doing and monitoring her whereabouts; he did not do that with the other managers. Mr. Burke also had regular one-on-one meetings with the white male managers but did not have regular meetings with Ms. Suarez. If Ms. Suarez tried to meet with him, he would brush her off and tell her everything was fine. Whereas Mr. Burke sought input from the white male managers, if Ms. Suarez made a suggestion or recommendation he would dismiss it or not respond. Ms. Suarez also noted Mr. Burke allowed one of the other managers, Mr. Speidel, to belittle and berate her. Ms. Suarez testified she was afraid to go to Mr. Burke because she felt he would always take Mr. Speidel's side over hers. Ms. Goldaraz regularly heard Mr. Speidel yelling at Ms. Suarez and experienced this behavior from him herself. She felt that although this was unprofessional behavior, Mr. Burke allowed it in the workplace because he was grooming Mr. Speidel for the position of Director. At one point, Petitioner had a vacant position she needed to fill in her staff. Ms. Suarez wanted to hire a candidate who had been unanimously recommended by a selection committee. Mr. Burke refused to hire that candidate without any explanation. The candidate was an African American female. In contrast, when filling another position, the selection committee's recommended candidate had a felony conviction and other issues that became apparent after a background check. Mr. Burke told Ms. Suarez to hire that candidate despite his history. That candidate was a white male. Ms. Suarez testified about another incident where she was in her office with the door closed with a black supervisor who worked at SCAT. When Mr. Burke found out, he questioned Ms. Suarez and asked her what they were discussing. To her knowledge, he had never done that with any of the male managers who met with employees in their offices behind closed doors. Ms. Goldaraz corroborated Petitioner's testimony regarding Mr. Burke's negative attitude toward Petitioner, and women in general. Ms. Goldaraz worked next to Ms. Suarez' office and regularly witnessed the interactions between Mr. Burke and Ms. Suarez. She testified that Mr. Burke treated Ms. Suarez differently than he did the male managers. He discounted her suggestions and implemented a "good ole boy system" where he met regularly with the male managers, but not with Ms. Suarez. After Ms. Suarez was forced to resign, Ms. Goldaraz took her position. Ms. Goldaraz testified Mr. Burke was dismissive with her as well. He would not give her credit for her ideas and suggestions, but would give the male managers credit. The County put on no evidence contradicting the version of events or description of Mr. Burke's behavior credibly presented by Ms. Suarez and Ms. Goldaraz. LIBERTY PASS PROGRAM AND AUDITS Ms. Suarez also had responsibilities related to the Liberty Pass Program (Liberty Pass), which distributed 30-day transit passes for riders at discounted rates. The Liberty passes were offered by SCAT to low-income and/or homeless riders who provided appropriate documentation. The documentation to assess eligibility for Liberty Pass could be submitted at either the SCAT Administrative Office or one of 19 third-party agencies approved to distribute Liberty passes. Liberty Pass had its challenges. In May 2015, before Petitioner began working for the County, the County's Board of County Commissioners (BCC), authorized SCAT to discontinue Liberty Pass. The Federal Transit Administration required SCAT to perform a Fare Equity Analysis and SCAT hired a consultant to assess the impact of changes in the program on certain minority and low income populations. In September 2016, the County issued an audit report on SCAT's administration of Liberty Pass. The scope of this audit was from October 2014 (before Ms. Suarez was hired at the County) to June 8, 2016. The audit found there were problems with riders obtaining duplicate Liberty passes and with the third-party agencies not obtaining the necessary information before enrolling riders for the program. Eventually, SCAT eliminated the third- party distributors, and thereafter a Liberty pass could only be obtained at the SCAT headquarters or the County Health Department. According to Petitioner's yearly evaluation for 2016, given in January 2017, Mr. Burke rated her as either "Successful" or "Exceeds Expectations" in all five relevant categories. Related to Liberty Pass, the evaluation listed as accomplishments: (1) successfully completing the Liberty Pass Audit, (2) obtaining approval from the BCC in September 2016 for a "Liberty Pass Increase," and (3) collaborating with the consultant to finalize the Liberty Pass Fare Equity Analysis. Mr. Burke did not give Ms. Suarez the possible rating of "Needs Improvement," nor did he provide her with any negative or constructive comments.4 In response to the issues raised in the Liberty Pass Audit, Ms. Suarez had instructed Ms. Garrett, the IT professional on her staff, to prepare a spreadsheet to track the issuance of the Liberty passes. It is unclear whether Ms. Garrett completed the spreadsheet, but at some point Mr. Burke transferred Ms. Garrett (along with her IT position) and the spreadsheet tracking project from Ms. Suarez' oversight to Mr. Speidel. This spreadsheet was never submitted to the auditor. After the initial Liberty Pass Audit, Ms. Suarez was meeting regularly with Deborah Martin, the auditor, regarding the Liberty Pass issues, and other SCAT audits related to Bus Operations Cash Handling and Bus Pass Inventory and Reviews. At no time did Ms. Martin or anyone complain to Petitioner that she was not providing adequate information or that she was not addressing the issues for which she was responsible. There was no 4 Ms. Suarez also did not receive the other possible ratings of "Outstanding" (the highest rating), or "Unsatisfactory" (the lowest rating). evidence Ms. Martin or anyone else complained about Ms. Suarez' work on the SCAT audits. On August 15, 2017, Mr. Burke asked Ms. Suarez if she would resign from the Fiscal Manager position and take a lesser position. Ms. Suarez was surprised, and asked Mr. Burke for something specific in writing regarding her performance. Mr. Burke refused to put anything in writing. When she asked if his request was related to the audits, Mr. Burke stated it was not. Rather, he told her that other departments had lost confidence in her and he had as well. Two days later, on August 17, 2017, Mr. Burke advised Petitioner that if she did not resign she would be terminated. Under duress, Ms. Suarez signed and submitted a resignation letter that day. At the time of her forced resignation, Ms. Suarez was actively working on issues related to the audits. Ms. Goldaraz took over as the Fiscal Manager and completed the work related to the audits. Ms. Goldaraz was able to complete all the outstanding work that needed to be done. She stated there were a few standard things that needed to be finished up and she was able to do them quickly. There was nothing "major" left on the audit. Ms. Goldaraz "met with the auditors … and kind of wrapped it up. It wasn't really a huge deal." At the hearing, the County relied on an untitled spreadsheet and a follow-up audit report as grounds for Petitioner's termination.5 The spreadsheet purportedly was a list of audits, with columns for "Opportunities for Improvement," "Management Responses," and "Updated Responses." The spreadsheet had some portions highlighted. There was no explanation by the County as to who prepared the spreadsheet, whether it was accurate, whether it was the most recent version, what its purpose was, or why it was 5 The copy of the spreadsheet admitted into evidence is illegible due to its miniscule type and font. relevant. The undersigned finds the spreadsheet wholly unreliably and not credible evidence. The County also relies on a follow-up audit report issued December 2017, months after Ms. Suarez and Mr. Burke left the County's employment. Although this follow-up audit has numerous outstanding issues that remained "open," there is no proof Petitioner was responsible for the open items. Robert Lewis was the interim director of SCAT from October 2017 to January 4, 2020, coming in after Mr. Burke and Ms. Suarez had left. He did not work with either of them. Although he was aware of the audit, Mr. Lewis had no personal knowledge of SCAT operations prior to October 17, 2017. Furthermore, he had no knowledge of what had been provided to the auditor by SCAT, or how the SCAT audits were conducted. Mr. Lewis could not testify which department was responsible for the open items in the follow-up audit report, and admitted he was not aware of which manager was assigned to which open item. Mr. Lewis was not aware of what items may have been left open by the white male managers. Given there was no explanation of the December 2017 follow-up audit report, the undersigned finds it unreliable and not credible evidence. Because she was regularly meeting with the auditor, Ms. Suarez had personal knowledge of some of the open items listed in the follow-up audit report, even though she was not familiar with the report itself. The follow-up audit listed four open items and two partially open items. She was responsible for two of the items. The first dealt with managing the fare money on a daily basis. She testified she implemented a policy addressing this issue as there was not an existing policy when she was hired. The second open item for which she was responsible related to cash variances. Ms. Suarez testified she had finalized the reports reconciling the daily deposits; prior to her coming to SCAT, they were not done daily. She could not testify as to why these items remained listed as open or what had happened after her departure when Ms. Goldaraz began working with the auditors. The remaining open and partially open items related to "vault access" and "monitoring." Ms. Suarez testified she was not responsible for the vault or the security system that monitors the lock boxes and vault. Rather, these were items that were the responsibility of the maintenance and the bus operations departments, which were overseen by Mr. Ferris and Mr. Russo. Even though these two managers had open items in the follow-up audit report, they were not terminated. Ms. Suarez testified she received no indication from Mr. Burke, the auditor, or anyone else that there were problems with her handling of these open items. Prior to August 15, 2017, Mr. Burke gave her no indication he was disappointed in her performance or that she needed to improve or change. Similarly, Ms. Goldaraz' unrefuted testimony was that Ms. Suarez was totally capable as the Fiscal Manager, worked hard, and was very dedicated. There was no evidence of actual or perceived deficiencies in Ms. Suarez' performance. MR. DEANNUNTIS AS A COMPARATOR Like Petitioner, Mr. DeAnnuntis held the position of Manager II and reported to Mr. Burke. Mr. DeAnnuntis was hired at SCAT a few months before Petitioner was hired, at a similar (albeit slightly higher) salary as Petitioner. Mr. DeAnnuntis also managed a staff of three positions. Although he did not have the identical duties of Petitioner, as the Manager of Transit Planning he had similar compliance duties as he was responsible for SCAT's planning budget and compliance with federal, regional, and local transportation planning requirements. On December 29, 2016, Mr. DeAnnuntis was provided a two-page document titled "Performance Review Comments" (comments) from Mr. Burke. These comments outlined specific areas in which Mr. DeAnnuntis was to improve and suggestions as to how to make these improvements. Mr. Burke suggested that he and Mr. DeAnnuntis have daily in-person meetings. Mr. Burke also provided a list of outside resources to help Mr. DeAnnuntis. Ms. Suarez never received any similar comments from Mr. Burke. The comments document was not labeled a "Performance Improvement Plan" (PIP), nor did it set out a time frame for him to accomplish certain goals. It did not indicate that Mr. DeAnnuntis would suffer any repercussions if he did not take the advice given by Mr. Burke. As such, the undersigned does not find this document was a PIP. Rather the comments were consistent with those required by the County as described by Ms. Green and codified in P&G section 4.03 requiring supervisors counsel and coach an employee if his or her performance falls below an acceptable level. Almost three months after receiving the comments, on March 23, 2017, Mr. DeAnnuntis resigned. Unlike Ms. Suarez' forced resignation, there was no evidence Mr. DeAnnuntis was asked to resign after he was provided the comments or that his eventual resignation was in lieu of termination. Furthermore, the unrebutted evidence established no one had ever discussed poor performance or any other issues with Petitioner prior to her forced resignation. POST-RESIGNATION At the time of her forced resignation in lieu of termination, Ms. Suarez was earning a salary of approximately $71,427 a year at the County. After she left the County, Ms. Suarez immediately started applying for positions on various computer sites. While she attempted to find a permanent position, she worked for a temporary agency earning $10,557. On February 25, 2018, Ms. Suarez began permanent employment with Community Health, Inc., at a starting salary of $64,500. Her loss of earnings during the period from her forced resignation until she found this position was approximately $35,713. Ms. Suarez mitigated her damages. Subtracting out the amount she earned while temping, her interim losses total $25,156. Ms. Suarez received an annual increase a year later on February 4, 2019, raising her salary to approximately $68,275. Her annual salary for 2017 with the Respondent would have been $71,427, a difference of $6,927.18 annually for the first year (2018) and $3,152.64 annually thereafter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order: Finding the Sarasota County Government discriminated against Lavender Suarez based on her gender; Awarding Petitioner $36,550 in back pay; and Awarding reasonable attorney's fees as part of the costs. DONE AND ENTERED this 15th day of July, 2020, 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 15th day of July, 2020. COPIES FURNISHED: Dusty Firm Aker, Esquire Aker Law Firm, P.A. 240 South Pineapple Avenue, Suite 803 Sarasota, Florida 34236 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Maria D. Korn, Esquire Sarasota County Office of the County Attorney 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact The proposed site for the resource recovery unit is located on 160 acres of the northeast quarter of Section 17, Township 53 South, and Range 40 East in Dade County. This site is presently undeveloped and bordered on the east by the Dade County Northwest 58th Street landfill. The resource recovery facility as proposed consists of a three thousand (3,000) tons per day solid waste resource recovery facility and two 38.5 meggawatt steam electric generating turbines, and one 80 acre landfill. The proposed operations call for the separation of ferrous and aluminum metals and glass from combustible material. The combustible material is to be pulped, dried, and burned in four (4) boilers to produce steam for the generation of electricity. On a daily basis the resource recovery boilers will require 1.76 million gallons of water to operate the cooling towers. Cooling tower blow- down, boiler blow-down, and landfill leachate will be utilized in a hydro- pulping process to process the solid wastes prior to combustion. As a result of this waste water usage, no industrial waste water will be discharged from the site. Potable water will be supplied by the Miami Dade Water and Sewer Authority. Sanitary wastes will be treated in a sewage treatment plant on the site. The cooling water will be withdrawn from a portion of the Biscayne Aquifer contaminated by leachate from the Northwest 58th Street landfill. The South Florida Water Management District has concluded that the Biscayne Aquifer would be capable of supplying the non-potable water requirements of the proposed facility. In addition, the withdrawal of water for the facility would alleviate the impact of the leachate plume from the 58th Street landfIll, which plume of contaminated water is moving eastward to the Miami Springs wellfield. The construction of the resource recovery facility would allow the closing of the 58th Street landfill and would thereby prevent the continued production of contaminated leachate and would reduce problems of flies, rodents, and odors. The construction of the resource recovery facility will involve extensive grading, filling, and removal of vegetation on the proposed site. Due to previous drainage and development of the surrounding area, however, the site is situated in a degraded everglades habitat the hydrologic regime of which has been drastically altered and now supports relatively little wildlife. Surrounding land uses would make future restoration difficult. The destruction of the grasses, and other vegetation on the site would have little environmental impact. The resource recovery facility site is owned by Dade County and will be operated by Dade County Resource Recovery, Inc. Steam produced at the resource recovery facility will be sold to Florida Power and Light Company for the generation of electricity. Some 61 meggawatts of electricity will be generated and distributed throughout the Florida Power and Light transmission system. The electricity generated by this facility will eliminate the need for over one million barrels of imported fuel oil each year and will produce a net savings to the customers of Florida Power and Light. The resource recovery facility will utilize cyclonic collectors and high efficiency electrostatic precipitators to remove fly ash from the burning of processed refuge. Plant air will be injected into the boiler or will be passed through activated carbon filters to eliminate odors. As a result of these control measures, the resource recovery facility will comply with state and federal emission limitations and ambient air quality standards. Although the facility may contribute slightly to a violation of the Dade County Ambient Air Quality Standards, the Director of the Dade County Environmental Resources Management Board did not feel that the facility would cause a problem. The resource recovery facility would utilize the latest reasonably available control technology for the control of emissions to the atmosphere. The use of the proposed equipment will result in a very small incremental increase of sulphur dioxide and particulate matter into the ambient air. These emissions are less than the federal significant deterioration limits and the increases in air pollution levels are not expected to significantly degrade air quality in the area. The Florida Public Service Commission report of October 7, 1977, states that 62 meggawatts of electricity would enhance the reliability of Florida Power and Light's system and would displace residual fuel oil so that some benefit would be derived from construction of the facility. The Division of State Planning did not submit a report as required by Section 403.507(1)(a), Florida Statutes. The Department of Natural Resources, Game and Fresh Water Fish Commission, Department of Commerce, and South Florida Regional Planning Counsel offered comments on the facility supportive of its construction and operation. Comments and objections from the Department of Health and Rehabilitative Services, South Florida Water Management District, the Division of Archives, History and Records Management, were resolved by the provision of additional information and proposed conditions of certification. No opposition from these agencies was presented at the conclusion of the hearing. The Department of Environmental Regulation recommended certification of the Dade County Resource Recovery facility in accordance with the proposed general and special conditions of certification. The applicant has stipulated and agreed that the general and special conditions of certification, as proposed at the hearing, should be imposed if certification is granted. At the conclusion of the presentations by the parties to this proceeding, opportunity was given to the general public to comment on the application for site certification. No such individuals appeared and no comments were offered. After examining the sum and substance of the testimony and evidence offered, it appears that the construction of the resource recovery facility would provide for the closing of inadequate sanitary landfills and inadequate air polluting incinerators. Further, the operational safe guards of the proposed facility are sufficient to protect human health, wildlife and aquatic life. Finally, the construction and operation of the proposed facility will not violate state air or water pollution standards.
Recommendation It is therefore recommended that the proposed site be found and held to be in conformity with existing land use plans and zoning ordinances in effect as of this date, and it is further recommended that the responsible zoning or planning authorities be restrained from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site. DONE AND ENTERED this 22nd day of November, 1977, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Copies furnished to all parties
The Issue Whether Irene Lieberman is entitled to attorney fees and costs from Lorenzar Brown, as provided in Section 112.317(8), Florida Statutes, and if so, the amount.
Findings Of Fact At all times relevant to this proceeding, Ilene Lieberman (Lieberman) served as mayor of the City of Lauderhill, Florida (City). The City and Broward County entered into an agreement (Grant) in January, 1992, for a Self-Help Home Ownership and Repair Program in the amount of $117,500, which provided for funding and administration of Community Development Block Grant (CDBG) projects. Pursuant to the Grant, the City would be reimbursed for allowable project expenses. On July 13, 1992, the City Commission passed Ordinance No. 92-161, which approved budget adjustment BA 92-86 for the transfer of $123,000 from various budget accounts to establish the budget for the CDBG program. When entering the CDBG budget into the City's computer system, the data entry operator made some coding errors. Budget adjustment BA-92-86 showed that $22,500 was to be budgeted for account number 3110. However, when it was keyed into the computer system, the $22,500 was coded to account number 3121, which was the account for the City Attorney's hourly charges. No funds were entered as budgeted for account number 3110. Budget adjustment BA-92-86 showed that $25,000 was to be budgeted for account number 3122. However, when keying the entry, the data entry operator entered $25,500 instead of the $25,000. Lorenzar Brown (Brown), the Respondent, obtained a copy of the City Expenditure Status Report for July, 1992 (July Expenditure Report). The report reflected the errors that were made when the budget information was placed in the computer system. The report indicated that there were no expenditures made from account number 3121, the account for the City Attorney hourly charges. In July or August, 1992, Brown talked to Marcia Berkely, who was the City Planner, concerning whether CDBG funds were being used to pay City Attorney fees. Ms. Berkely advised Brown that the CDBG funds were not being used to pay the City Attorney. Brown did not show Ms. Berkely the July Expenditure Report. On August 31, 1992, Brown made a presentation to the City Commission, expressing his "concerns about the present taxpayer's dollars being expended to pay fees to the city attorney of the City of Lauderhill." Brown referenced the City's July Expenditure Report, stating, "In reviewing the monthly expenditure report for July, there was a number of other accounts budgeted to the city attorney." In particular Brown was concerned about CDBG funds being used for City Attorney's fees. Brown stated: This last month an additional $40,000.00 of Community Development Block Grant was recom- mended by the Mayor and approved by the City Commission to be used for city attorney fees. This also passed by the Ordinance 92-161. The community, especially the taxpayers, request that the City Commission look into or investigate the action of the Mayor, on the part of the Mayor in recommending that the City Commission use Block Grant Funds for the city attorney fees contrary to the contract approved by the Commission by Resolution 91-83 which was passed on July 13th, 1992. Brown's presentation was made during the communications from the public portion of the City Commission meeting. According to the policy of the City Commission, the Mayor and City Commission members are not allowed to respond to comments made during this portion of the meeting. Comments from the public officials are made during communications from the public officials portion of the meeting. Lieberman asked the Vice Chair of the City Commission to allow her to respond to Brown's presentation immediately after Brown concluded but she was not allowed to do so. Brown was unable to stay for the comments from the public officials because he had to pick up his daughter. He apologized to the Commission and told them that he had to leave. During the comments from public officials, Lieberman explained the purpose of the Community Development Block Grant Program. She stated that $40,000 was not used for City Attorney fees but that the CDBG budget did include a line item for "legal matters that are incident to home ownership." She invited the public to spend time with her and Marcia Berkely to discuss the attorney fees issue. By memorandum dated September 8, 1992, Brown advised the City Commission that he had not received a response from the Mayor's office concerning his request made on August 31, 1992, that the City Commission "investigate the propriety of the Mayor's office in recommending that the City Commission use BLOCK GRANT FUNDS for the City's Attorney fees. (92-161)." Brown did not reference the July Expenditure Report. By letter dated September 16, 1992, Richard J. Kaplan (Kaplan), Commission Vice Chair, advised Brown that the Mayor had responded to Brown's comments at the City Commission meeting on August 31, 1992, and attached a copy of the minutes of the meeting. Kaplan additionally told Brown that he had checked the ordinances cited by Brown and found that one was in error. By memorandum dated September 16, 1992, Kaplan forwarded a copy of Brown's September 8 correspondence to Lieberman and requested that she respond to Brown in writing. By letter to Kaplan dated September 21, 1992, Brown stated that he had reviewed the ordinances and the information submitted to Kaplan, that they were correct and that if the City Commission failed to investigate his allegations, that "the concern (sic) residents of Lauderhill will be compelled to file a complaint with the Ethics Commission and or the Bar Association." Brown did not reference the July Expenditure Report. Lieberman responded to Brown by letter dated September 29, 1992. She attached a copy of the budget for the CDBG program, budget adjustment request BA 92-86, Ordinance 92-161, and a portion of the transcript of the August 31, 1992, City Commission meeting. She advised that there had been no misappropriation of City funds and that according to the budget adjustment $5,500 was coming from the City Attorney's budget to the CDBG budget as matching funds from the City for the program. The budget adjustment contained a $25,000 line item for legal services for closing costs, and included the $5,500 from the City Attorney's budget. She invited Brown to contact her directly if he had any further questions. She did not review the July Expenditure Report in the preparation of her response. Brown never contacted Lieberman after the August 31 City Commission meeting to resolve any questions that he may have had. Based on prior dealings with her, he felt that she made him feel small and little and that she embarrassed and belittled him at City Commission meetings; therefore he did not feel comfortable directly asking her questions concerning the attorney fees issue. Brown never asked anyone in the City's finance department, including Donald Giancoli, the Director of Finance, Assistant City Administrator for the City, to explain the differences between budget adjustment 92-86 and the July Expenditure Report. On October 3, 1992, Brown executed Commission on Ethics Complaint No. 92-157 against Lieberman, alleging that she had violated Section 112.313(6), Florida Statutes, in that she "breached the public trust by solicitation in recommending that the City Commission Board use Community Block Grant funds for the City Attorney fees." On November 12, 1992, Brown executed an amendment to Complaint No. 92-157, enclosing additional information, which included a copy of the July Expenditure Report. Prior to filing the Complaint, Brown spoke with Theresa Gillis, the Director of the Community Development Division of Broward County. She administered the Community Development Block Grant Programs for the County including the Grant to the City of Lauderhill. He told her that the City had violated the terms of the Grant by getting reimbursed for attorney's fees. He did not reference the July Expenditure Report. Ms. Gillis checked the reimbursements made to the City and found that the City had not violated their obligations under the CDBG Program. If she had been aware of the July Expenditure Report showing funds being budgeted to the City Attorney account, she would have been concerned and asked the City for an explanation. On December 7, 1992, the Executive Director of the Florida Commission on Ethics issued a Recommendation of Legal Insufficiency, stating that the allegations in Complaint No. 92-157 were legally insufficient to indicate a possible violation of Section 112.313(6), Florida Statutes. On February 2, 1993, the Chairman of the Commission on Ethics filed a Public Report and Order Dismissing Complaint, stating that on January 28, 1993, the Commission on Ethics voted to adopt the Executive Director's legal sufficiency analysis and to dismiss Complaint No. 92-157. On January 19, 1993, Brown filed a complaint with The Florida Bar against Lieberman. The complaint stemmed from remarks Lieberman made at a December 7, 1992 City Commission meeting. The Florida Bar declined to pursue the matter, determining that his complaint did not reveal any violations of the Rules Regulating Attorneys. On February 18, 1993, Brown filed a lawsuit against Lieberman, alleging that she had defamed him in the December 7, 1992 meeting. During the January 25, 1993, City Commission meeting, Brown publicly stated that he would personally support a recall petition against Lieberman. He took this position due to Lieberman's comments against him at the December 7, 1992, meeting. Around the time that Lieberman first became mayor in 1988, she and Brown had some discusssions concerning a citation which he had received from the code enforcement board for failure to pay for garbage service at his premises. Brown was very angry and accused Lieberman of violating his constitutional rights. At a City Commission meeting in approximately September, 1992 while Lieberman was responding to a question, Brown told the gentleman seated next to him that she was lying. Brown's voice was loud enough that it was heard twenty feet away by Richard Korte, the Director for Code Enforcement for the City. After Brown filed the complaint against Lieberman, City Attorney Richard Michelson represented Lieberman as Mayor in his role as City Attorney. The City paid for these services out of the City Attorney's monthly $3,500 retainer. The total number of hours provided by the City Attorney relating to Brown's complaint and the instant fee proceeding was 23.1 hours. After Brown's complaint was dismissed, Samuel Goren was retained to represent the Mayor. Mr. Goren filed the instant fee petition. The total number of hours for Mr. Goren's law firm was 16.2 hours. After the fee petition was filed, Stuart Michelson (no relation to Richard Michelson) was retained to represent the Mayor. The total number of hours for Stuart Michelson through November 18, 1993 was 33.675. The total number of hours spent in hearing by Stuart Michelson was 17.5 hours, which included closing argument by telephone conference. Stuart Michelson spent one hour in taking the deposition of Thomas Bradley. Stuart Michelson's law clerk provided 5.45 hours of services. Each of the attorneys providing services in representing Lieberman in the complaint by Brown and in the fee petition charged the City at $125 per hour. The services of the law clerk were billed at $50 per hour. The City paid for the services provided through November 18, 1993. Jeffery Pheterson, who was qualified as an expert on attorney's fees issues, opined that based on the rates customarily charged locally the rate of $125 per hour is a modest, reasonable rate for the services provided by the attorneys. He also opined that the rate of $50 per hour for paralegal services was also a reasonable rate for the services provided. At the final hearing, counsel for Brown stipulated that the rates for Stuart Michelson and Samuel Goren were reasonable. The rates of $125 per hour for attorney services and $50 for paralegal services are reasonable rates for similar services in the community. Mr. Pheterson opined that the 23.1 hours of service provided by Richard Michelson, City Attorney, the 16.2 hours of service provided by Samuel Goren's firm, the 33.675 hours provided by Stuart Michelson and the 5.45 hours provided by Stuart Michelson's law clerk were reasonable. The hours of service provided by the above attorneys and law clerk through November 18, 1993, were reasonable. Additionally, the 17.5 hours spent by Stuart Michelson at the final hearing is reasonable and the one hour spent in taking the deposition of Thomas Bradley was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Ilene Lieberman's Verified Petition for Attorney's Fees and Costs. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1180EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent Lieberman's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Accepted. Paragraphs 3-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. Paragraphs 27-29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts actually found. Paragraph 31-33: Accepted in substance. Paragraphs 34-35: Rejected as constituting argument. Paragraphs 36-37 Accepted in substance. 10 Paragraph 38: Rejected as constituting argument. Paragraphs 39-40: Rejected as constituting recitation of testimony. Paragraph 41: Rejected as constituting argument. Paragraph 42: Rejected as subordinate to the facts actually found. Paragraph 43: Rejected as constituting recitation of testimony. Paragraph 44: Accepted in substance. Paragraph 45: Rejected as subordinate to the facts actually found. Paragraphs 46-47: Accepted in substance. Paragraph 48: The first sentence is rejected as not supported by the greater weight of the evidence. The second sentence is accepted to the extent that he filed the complaint because his concerns were not answered but rejected to the extent that it states that he filed the complaint a day or two after he received Lieberman's letter. Paragraph 49: Rejected as not supported by the greater weight of the evidence. Brown knew that the July Expenditure Report showed funds being budgeted from the CDBG program to the City Attorney. The second sentence is rejected as subordinate to the facts actually found. Paragraphs 50-51: Rejected as subordinate to the facts actually found. Paragraphs 52-55: Accepted in substance. Paragraph 56: Accepted in substance to the extent that Brown never told Lieberman personally that the expenditure report showed money going to the City Attorney, but rejected to the extent that he never referenced the expenditure report in her presence because he did at the August 31, 1992, City Commission meeting. Paragraph 57: Rejected as subordinate to the facts actually found. Paragraph 58: Rejected as cumulative. Paragraphs 59-69: Accepted in substance. Paragraphs 70-71: Rejected as constituting argument. Paragraphs 72-73: Rejected as mere recitation of testimony. Paragraphs 74-75: Accepted in substance. Paragraphs 76-77: Rejected as mere recitation of testimony. Paragraph 78: Accepted in substance to the extent that he refers to the ordinance but not as to the expenditure report. Lieberman did not address the expenditure report which Brown referenced in the August 31 meeting. Paragraph 79: Rejected as subordinate to the facts actually found. Paragraphs 80-81: Accepted in substance. Paragraphs 82-88: Rejected as constituting argument. Paragraph 89: Rejected as subordinate to the facts actually found. Paragraphs 90-92: Rejected as constituting argument. Paragraph 93: Accepted in substance to the extent that there was a posting error. Paragraphs 94-95: Rejected as constituting argument. Paragraph 96: Accepted in substance. Paragraph 97: Rejected as not supported by the greater weight of the evidence. Paragraph 98: Accepted in substance. Paragraph 99: Rejected as subordinate to the facts actually found. Paragraphs 100-102: Rejected as constituting argument. Complainant Brown's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: The first sentence is accepted in substance. The second sentence is accepted to the extent that the responses did not make any reference to the July Expenditure Report which Brown brought up during his presentation at the August 31, 1992, City Commission meeting. The third sentence is accepted in substance to the extent that Brown let Kaplan know that he was not satisfied with the responses. Paragraphs 5-6: Rejected as subordinate to the facts actually found. Paragraph 7: The first sentence is accepted to the extent that Brown had a copy of the Expenditure Status Report prior to the August 31, 1992, City Commission meeting and rejected as not supported by the greater weight of the evidence that Brown received the document from the City's finance department. The evidence is not clear how Brown received the document. The last sentence is accepted in substance. Paragraphs 8-10: Accepted in substance. Paragraph 11: The first and third sentences are accepted in substance. The second sentence is accepted in substance except that the July Expenditure Report was not attached to the original complaint but to an amendment to the complaint. Paragraph 12: Accepted in substance to the extent that Lieberman personally did not expend funds or was obligated to pay the attorney's fees. Paragraph 13: Rejected to the extent that his services were included in his retainer fee. Paragraph 14: Accepted in substance. COPIES FURNISHED: Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517 Bay Harbor Islands, Florida 33154 Anthony J. Titone, Esquire 7471 West Oakland Park Blvd., Suite 110 Ft. Lauderdale, Florida 33319 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709
The Issue The issue in this case is whether Petitioner proved that Respondent violated chapter 440, Florida Statutes (2014),1/ by failing to secure the payment of workers' compensation coverage as alleged in the Stop-Work Order and Amended Order of Penalty Assessment.
Findings Of Fact The undersigned makes the following findings of material and relevant facts: The Parties Petitioner is the state agency responsible for enforcing the requirement in chapter 440 that employers in the state of Florida secure the payment of workers' compensation insurance benefits covering their employees. Perez Concrete is a subcontractor/corporation registered to do business in Florida. Its principal business address is 6632 Willow Street, Mount Dora, Florida. Intervenor, KC Curb, is a contractor/corporation registered to do business in Florida. Its principal business address is 4975 Patch Road, Orlando, Florida. A representative of the FFVA Mutual Insurance Company (FFVA) testified. FFVA is a mutual insurance company in Florida which provides, among other things, workers' compensation insurance coverage. The witness was an underwriting supervisor. In general, workers' compensation policies go through a yearly review and renewal process handled by the underwriter. KC Curb had been a client of FFVA since 2006. Perez Concrete has never been a client of FFVA, and Perez Concrete is not a named insured on the workers' compensation insurance policy held by KC Curb from 2013 through 2015. There have been occasions when KC Curb picks up employees of subcontractors and includes them in its self-audits. Under those circumstances, KC Curb pays the premium for those particular subcontractor employees. If KC Curb pays a premium that includes the payroll for a subcontractor's employee, his or her workers' compensation benefits are covered by the KC Curb workers' compensation policy. FFVA performs an audit each year on all of the workers' compensation policies it writes. The final audit is performed, in part, to determine the final premium due on the account for that year. During a final audit, FFVA reviews any payroll paid to subcontractors. If those subcontractors did not have a certificate of insurance, then FFVA would include the payroll paid to that subcontractor to calculate the final premium due from the general contractor. If FFVA identified that there were certain subcontractor employees during the audit that worked for Perez Concrete, who were doing work on the subcontract with KC Curb, the premium would be calculated based upon those additional Perez Concrete employees. As a result, those Perez Concrete employees would be covered under the KC Curb workers' compensation insurance policy and entitled to benefits if injured on the job. KC Curb's final premium would be based on the final yearly audit including any subcontractor employees of Perez Concrete. The subcontractor employees would be covered for any injuries on the job that might have occurred during the year audited. The premium ultimately charged to the general contractor is based solely on the payroll, and not on named employees. KC Curb also does a monthly self-audit which only includes its payroll. The company makes a monthly premium payment based on what is shown in its monthly audit. If KC Curb picks up or includes an employee of a subcontractor on its monthly self-audit and reports pay going to that person, then that subcontractor employee is covered for workers' compensation benefits. When end-of-the-year audits are performed, the reports provided by KC Curb contains names of its own employees or a description of employees. This report would list the employees of KC Curb, but it would not list the employees of any subcontractors, only the amount of payroll for those subcontractors. The owner of Perez Concrete is Agustin Osorio, who testified. Perez Concrete builds concrete sidewalks, driveways, curbs, and inlets. It also does the framing and finishes the concrete. Perez Concrete had a workers' compensation insurance policy providing benefit to its employees in place from August 2013 through April 2015, with Madison Insurance Company. See, generally, Resp. Exhs. B-D. Perez Concrete's policy was canceled for late payments on April 10, 2015. Apparently, Perez Concrete was late with two payments, and the Madison Insurance Company canceled Perez Concrete's workers' compensation policy. Perez Concrete had two employees, in addition to Osorio, in July 2015, when it was first visited by Petitioner's compliance investigator, Stephanie Scarton. Scarton stopped by while the employees were performing a small sidewalk finished job in Rockledge, Florida, for KC Curb. During this first meeting, Osorio told Scarton that the KC Curb's workers' compensation policy "was covering me." Osorio testified that she responded "everything was all right." Upon questioning by the undersigned, Osorio clarified that the first visit of the investigator was in the middle of July 2015 at a work location in Rockledge, Florida. After discussing his operations and telling the investigator about the KC Curb policy coverage, she left. Osorio testified that Scarton called KC Curb that same day to confirm his comments, and then she told him that everything was "all right." Osorio testified that the same investigator visited again on August 19, 2015. That day, she gave him the Stop-Work Order. Osorio testified that it was during the August 19, 2015, visit that she changed her previous response and said that Perez Concrete was not covered under the KC Curb policy. As the owner, Osorio had a valid exemption for himself from workers' compensation coverage from January 2014 through January 2016. Resp. Exh. E. Osorio had a conversation with "Robin" from KC Curb (date not specified). When he asked her whether Perez Concrete was covered, she told him that his company would be covered under KC Curb's workers' compensation policy. Osorio testified that Perez Concrete pays KC Curb seven percent of the weekly revenue derived from working for KC Curb, in order to be included on KC Curbs workers' compensation policy. Perez Concrete pays an additional one percent to KC Curb to be included on its general liability insurance policy. Perez Concrete had bought its own workers' compensation policy in 2013 and in 2014. Resp. Exhs. B-D. When Perez Concrete's policy was canceled by Madison Insurance Company on April 10, 2015, Osorio contacted KC Curb about the insurance. Osorio understood that by doing so, he had secured the payment of workers' compensation insurance coverage for his employees. When Osorio contacted the KC Curb representatives, he told them that he wanted to continue working with them and asked them about the insurance coverage. Petitioner's compliance investigator, Scarton, testified. She has held that position since approximately April 2013. She conducts random site visits to verify that companies have workers' compensation coverage. She conducts approximately 80 compliance investigations per month. On July 6, 2015, she conducted a random visit at a construction site where concrete work was being performed by Perez Concrete. She spoke with Osorio who told her that he did not have workers' compensation insurance coverage, but that he was covered through another company. In checking her CCAS automated data system, she confirmed that Perez Concrete did not carry its own workers' compensation policy.2/ After speaking with Osorio and getting his explanation, she contacted KC Curb and spoke with Robin Sempier. She was informed that KC Curb paid the workers' compensation coverage for Perez Concrete. Sempier told the investigator that KC Curb was allowed to proceed in that fashion with its subcontractors under an arrangement from a previous compliance case handled by Petitioner.3/ After speaking with Sempier about Perez Concrete's situation, Scarton contacted her supervisor, Robert Serrone. He directed her to refer the case involving Perez Concrete to Petitioner's fraud unit and to let them handle the investigation. Scarton's next involvement was in August 2015, when she was contacted by her supervisor and directed to issue a stop-work order to Perez Concrete. She obtained the Stop-Work Order, and served it on Perez Concrete on August 19, 2015. Petitioner also served Perez Concrete with a business records request. Perez Concrete did not comply with the request, nor did it submit any business records to Petitioner. Upon inquiry by the undersigned, the parties stipulated on the record that the appropriate amount of the penalty would be $11,902.20, should a violation be proven. The investigator asked the KC Curb representative to send her documentation confirming that KC Curb pays the workers' compensation coverage for Perez Concrete. The investigator opined on cross-examination that the employees of Perez Concrete were not covered by KC Curb. Scarton concluded that "in accordance with the investigations that we conduct, Perez Concrete would need to carry the coverage." Tr., p. 139, line 7. She later stated that on July 6, 2015, she could not confirm insurance coverage "one way or another." Tr., p. 140, lines 6 and 13. Professor Joseph W. Little of Gainesville, Florida, was called to testify as an expert on behalf of Perez Concrete and KC Curb. He is currently employed as an adjunct faculty member at the University of Florida, College of Law. He is also Professor of Law Emeritus at the University of Florida, College of Law. He had been employed as a professor at the University of Florida, College of Law, since 1967, teaching workers' compensation law. Little is unquestionably an expert in the field of Workers' Compensation Law. Little also authored the legal hornbook entitled "Workers' Compensation," a publication of the West Publishing Company. Little reviewed the facts of the case by reviewing the documentation provided by counsel who retained him. This included the Stop-Work Order, the petition, an amended petition, motions, and orders issued in the case. He also studied the applicable statutes and administrative rules of Petitioner as well as decisional law that he felt was relevant.4/ Little testified, and the undersigned considered, that he was not aware of any decisional law in the state of Florida interpreting the word "secure" to mean "buy" or "must buy," so long as there was an agreement between the subcontractor and the prime contractor that one or the other would purchase the insurance. Tr., p. 180, line 4. Little testified that the concept of the "statutory employer" found in chapter 440 has remained in place and steady throughout the history of the statute. He pointed out other relevant statutes in chapter 440 that needed to be read in pari materia with one another. An insurance agent from Bouchard Insurance, John Manis, also testified. Bouchard Insurance is a commercial insurance agency which sells workers' compensation insurance. Bouchard Insurance represents FFVA and sells workers' compensation insurance as an agent for that company. Manis had worked on the KC Curb account since 2005. He is familiar with how KC Curb and FFVA conduct their workers' compensation business together, including the payment of premiums. When a workers' compensation policy is written, the business will give its payrolls to the agent who determines the class codes that are applied and used in the policy. At the end of each year, an audit is conducted on those payrolls to determine whether or not the business owes money to FFVA, or if a refund from FFVA is in order. Some companies, like KC Curb, do a monthly audit--during which they input their payroll and are told what premium is due for the month. When a subcontractor of KC Curb declines or fails to obtain its own insurance policy, the subcontractor's employee becomes "like an employee of KC Curb," and FFVA will charge KC Curb for those employees, as if they were its own. The names of actual subcontractor employees are provided at audit time, not during the year. Apparently, this is a common practice in the industry. The office manager for KC Curb is Sempier. She testified that KC Curb is a concrete curb construction company that has been in business for 22 years in the Orlando area. It performs concrete construction services using a combination of in- house crews and subcontractors. One of Sempier's duties is to monitor subcontractor compliance with the Workers' Compensation Laws. She characterized KC Curb as being "very on top of that." Subcontractors are required to provide KC Curb with certificates of insurance before they start any work. Subcontractors are required to produce a certificate of workers' compensation insurance, or they go under the KC Curb policy as an uninsured subcontractor. Although KC Curb requires subcontractors to get their own insurance because this is much less expensive, some of them cannot or do not secure their own, so KC Curb secures it. The subcontractor is back-charged for this coverage. In monthly workers' compensation self-audits, Sempier includes a sheet that shows payroll for KC Curb's uninsured contractors and its own employees. Those numbers are combined together along with other clerical classes and the insurance premium payment is calculated. Tr., p. 221, line 3. Although not required by the FFVA, KC Curb includes payroll numbers for its uninsured subcontractors in each monthly self-audit. Tr., p. 221, line 11. Respondent's Exhibit J, entitled "Self-Reported Payroll," was explained by the witness. The document, prepared and issued by KC Curb for 2015, includes an entry reflecting the total payroll paid each month for KC Curb. This included both KC Curb's own W-2 employees and employees of subcontractors. Tr., p. 227, line 19. The second page of Respondent's Exhibit J (with information regarding other subcontractors redacted) shows that the payroll for employees of Perez Concrete was included beginning April 2, 2015. Tr., p. 224, line 16. Respondent's Exhibit J indicates, bottom right, the number of employees that were picked up from Perez Concrete.5/ Monthly premiums are paid by KC Curb instantaneously "on-line" and are based on the total payroll numbers listed in Respondent's Exhibit J, beginning with page 2. The payment comes directly out a KC Curb's checking account. Sempier testified that once payment was made, all employees included in the payroll amounts are covered by KC Curb's workers' compensation policy, including the Perez Concrete employee number listed. Tr., p. 224, line 23, and p. 253, line 14. See Resp. Ex. J, p. 2, bottom right. Work orders are received from the subcontractors for KC Curb. Those work orders are supposed to list the names of the subcontractor's employees. In this manner, KC Curb is able to determine how many employees are going to be covered by insurance for a particular subcontractor. When KC Curb was informed that the policy of insurance for Perez Concrete had been canceled, KC Curb called Perez Concrete's insurance agent to get the exact date of cancellation. When Perez Concrete's workers' compensation insurance cancellation was confirmed, KC Curb notified Perez Concrete in writing that it needed to promptly provide new certificates of insurance. See Resp. Exh. H. Perez Concrete was likewise notified in writing of KC Curb's requirements for "KC Curb to provide Workers' Compensation Insurance for your Company." See Resp. Exh. I. Osorio testified that Perez Concrete chose to have KC Curb secure the insurance for Perez Concrete after April 10, 2015, and he signed Respondent's Exhibit I agreeing to follow the guidelines for workers' compensation insurance. Thereafter, KC Curb began to pick up and include Perez Concrete's employees on its monthly self-audits. Likewise, it started to pay a premium amount for insurance which included payroll related to Perez Concrete's employees. Sempier was contacted by Petitioner's investigator, Scarton. When she informed the investigator that KC Curb was compliant with the law and was following a procedure previously permitted, the investigator called back that same day and asked for her to get something from her agent verifying that Perez Concrete was covered. Sempier testified that she promptly obtained a letter from KC Curb's insurance confirming coverage for Perez Concrete and thought she attached it with her email back to the investigator. Tr., p. 256, line 18. She subsequently learned that she attached the wrong document to the email, and the investigator did not receive the confirmation letter.6/ The evidence indicated that in the year 2015, KC Curb provided workers' compensation insurance coverage as a "statutory employer" for the employees of approximately seven of its subcontractors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Financial Services, Division of Workers' Compensation, issue a final order withdrawing or dismissing the proposed penalty and finding that Respondent was in compliance with the statute during the relevant period of time. DONE AND ENTERED this 5th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 5th day of April, 2016.
Findings Of Fact At all times material hereto, Edward P. Skiff has been the owner and operator of Petitioner Skiff's Workingman's Nursery. For 28 years the nursery was located on State Road 7 (US 441), one of the busiest traffic arteries in Broward County. In 1981, Respondent Department of Transportation first contacted Skiff to advise him that he would be required to relocate his business due to the construction of I-595, the Port Everglades Expressway. In 1985 Respondent purchased the property on which Skiff's Workingman's Nursery was located and ordered Skiff to vacate the property by January 1, 1986. Between 1981 and 1985 Skiff searched for a comparable piece of property on which to operate a retail nursery in Broward County. As requested by the Respondent, Skiff submitted to the Department a list of six properties he was considering, only 2 or 3 of which were platted. There is no indication that Department employees objected to any of sites under consideration. Skiff closed on his new site located on Hillsboro Boulevard in Broward County in 1985. At the time, that site was not yet platted, and Skiff was required by Broward County to plat the property. Prior to his purchase of the site, no mention was made of impact fees by the Department or anyone else. Skiff began processing his application for plat approval with Broward County. During the processing, he was advised that he would be required to pay impact fees to Broward County for the relocation site, a requirement that had been imposed by Broward County for any site within that county and not just for the relocation site selected by Skiff. The Department of Transportation knew at the time that impact fees had been imposed for any development in Broward County so that relocating businesses would be required to pay such fees. When Skiff was several months into the platting process with Broward County he was further advised that his relocation site had been annexed by the City of Coconut Creek, Broward County, Florida. Accordingly, Skiff became obligated to pay impact fees assessed by the City of Coconut Creek in addition to the impact fees assessed by Broward County. Skiff was required to pay to Broward County transportation impact fees as a condition precedent to recording the plat for Skiff's Workingman's Nursery. He was also required to pay to the City of Coconut Creek water, sewer, and street connection charges as a condition precedent to obtaining a building permit and a certificate of occupancy. Skiff paid to Broward County, in order to record his plat, impact fees in the amount of $32,887.00. Skiff also paid to the City of Coconut Creek water and wastewater impact fees in the amount of $4,499.20 and sewage and street connection charges in the amount of $24,634.00. None of the connection fees paid to the City of Coconut Creek involved bringing the utilities from the right-of-way to a building or improvement upon Skiff's property. The impact fees imposed by the City of Coconut Creek and by Broward County were necessary and reasonable. The fees were derived according to a specific formula which has a correlation to estimated usage, and they were not arbitrary numbers. Likewise, the mandatory sewage connection charges were both reasonable and necessary and involved the construction of a lift station required by the City of Coconut Creek. When Skiff submitted to Respondent his claim for reimbursement of the impact fees paid by him to Broward County and the City of Coconut Creek, Respondent preliminarily denied that claim reasoning that operating expenses of a business are not reimbursable under the Department's relocation assistance program. The Department never considered whether an impact fee is reimbursable as a license, permit, or certification required of a displaced person at the replacement location. The sole basis for the Department's denial was a memorandum written by an employee of the United States Department of Transportation Federal Highway Administration in a different case which did not address the question of whether an impact fee qualifies as a reimbursable permit, license, or certification required by a governmental entity prior to the creation of a new business. At the time that Respondent denied Skiff's claim for reimbursement of impact fees, the district relocation administrator believed those fees to be reimbursable. However, the state relocation administrator who was new to her job, who could not define the term "operating expense of a business," who was unaware of the regulations qualifying permits and licenses and certifications as expenses eligible for reimbursement, and who did not consider whether the impact fees were eligible under those provisions, denied the claim. Her successor also believed the claim to be reimbursable. There are no definitional guidelines as to the terms "operating expense", "license, permit or certification", or any of the other terms relevant to these proceedings, contained in either the Code of Federal Regulations or in the Florida Department of Transportation guidelines. Accordingly, those terms must be given their common, everyday meaning. An impact fee is a developmental permit fee, i.e., a one-time fee mandated by a governmental entity which must be paid prior to that governmental entity's permitting development; it is a charge which allows a new or relocating business to start conducting business activities at a new location. An impact fee is therefore a start-up cost and not an operating expense since an operating expense is an ongoing cost of doing business for an existing business. The Department's decision-making personnel who testified in this proceeding all agree that the term "operating expense" assumes that a business is in operation. The Department has failed to consider whether impact fees are reimbursable under the proper criteria. In preparation for its move to the relocation site, Skiff's Workingman's Nursery paid professional consultant's fees (architectural and engineering) in the amount of $14,915.85 for site planning and site preparation planning for the a nursery. Skiff submitted his claim for reimbursement for design services to Respondent. Although the district relocation administrator believed those costs to be reimbursable under the specific provision allowing reimbursement for professional services related to the move of personal property, the claim was denied by the state relocation administrator who was new to her job and who stated that nurseries were excluded, without identifying where in the law such an exclusion was written. While the Department was considering Skiff's claims for reimbursement for impact fees and design services, it conducted its own survey of nurseries asking those nurseries for information pertaining to relocation of a nursery, asking specifically about eligible move costs and necessary land and soil preparations if a nursery had to be relocated to virgin land. Responses received by the Department indicated the importance of site location, plant layout, and soil considerations required by both the plants and customers of the nursery and the importance of paying impact fees. There is no evidence that the information the Department gleaned from its own survey was considered in determining whether the payment of impact fees by a nursery and whether the payment of professional design services by a nursery were reasonable and necessary expenses incurred by a displaced nursery required by the government to relocate to a new site. The Department took the position that although nurseries were an exclusion from the provision that businesses were entitled to be reimbursed for professional services attendant to relocation, an exception to the exclusion could be granted based upon appropriate documentation. It concluded, however, that Skiff's had not submitted the appropriate documentation. Yet it failed to advise Skiff as to what documentation would be appropriate and failed to request any additional documentation. After Skiff's plat was recorded, he filed an application with Broward County to modify that plat in order to provide access to the nursery from Hillsboro Boulevard, the main thoroughfare, rather than requiring customers to gain access to the nursery from the back of the nursery off a side street. Access from Hillsboro Boulevard was approved, and Skiff paid $7,500.00 to construct a traffic turn lane from Hillsboro Boulevard onto the nursery property. The first claim for reimbursement for that cost which would give Skiff's Workingman's Nursery access to a major thoroughfare comparable to the major thoroughfare from which it had been displaced by the Department was made during the course of the final hearing in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered: Granting Petitioner's claim for reimbursement for water and wastewater impact fees imposed by the City of Coconut Creek in the amount of $4,499.20; Granting Petitioner's claim for reimbursement for transportation impact fees imposed by Broward County in the amount of $32,887.00; Granting Petitioner's claim for reimbursement for sewage and street connection charges imposed by the City of Coconut Creek in the amount of $24,634.00; Granting Petitioner's claim for reimbursement for professional consultant's fees for design services in the amount of $14,915.85; and Denying without prejudice Petitioner's claim for reimbursement for the cost of constructing a traffic turn lane in the amount of $7,500.00 which was not properly a part of this proceeding. DONE and RECOMMENDED this 28th day of November, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 28th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1652 The first unnumbered paragraph of Petitioner's proposed findings of fact has been rejected as being unnecessary for determination of the issues herein. Petitioner's second through sixth unnumbered paragraphs of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1-3 have been rejected as not being supported in their entirety by the weight of the evidence in this cause. COPIES FURNISHED: Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 J. Philip Landsman, Esquire Emily Tracey, Esquire Broward Financial Centre 500 East Broward Boulevard Suite 1850 Fort Lauderdale, Florida 33394 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32301 Thomas H. Bateman III, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32301 =================================================================
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1] HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Stuart M. Lerner, Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this \ gs day of Qc , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ELLEN GLANZBERG, Petitioner, v. CASE NO. 09-2458 DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Respondent. / PETITIONER’S NOTICE OF WITHDRAWAL OF PETITION Petitioner, ELLEN GLANZBERG, through undersigned Counsel, hereby files this Petitioner’s Notice of Withdrawal of her Petition without prejudice. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on JuLY 21%, 2009, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified in the attached service list via transmission of Notice of Electronic Filing generated by CM/ECF and via e-mail to Larry D. Scott, Esq., Asst. Gen’] Counsel, DMS, Division of Retirement, 4050 Esplanade Way, Suite 160, Tallahassee, FL 32399- 0950. : By: s/Jane Letwin, Esq, FLA.BAR NO. 990329 Law Office of Jane M. Letwin Attorney for Plaintiffs 5426 SW 25" Avenue, Fort Lauderdale FL 33312 Tel: 954 297 4057; Fax: 954 301 8401 EXHIBIT Filed July 21, 2009 8:00 AM Division of Administrative Hearings. man SERVICE LIST Marylin Batista-McNamara, Esq. Office of the School Board Attorney 600 SE Third Avenue, 11" Floor Fort Lauderdale Fl 33301
