The Issue Whether or not Petitioner is indebted to the State of Florida in the amount of $897.01 arising out of his receipt of overtime pay while in an "excluded position" with the Department of State.
Findings Of Fact Petitioner is currently an employee of the State of Florida, Department of State ("State"). He has been continuously employed by "State" from March 1991 to date. Petitioner has consistently received his regular salary, annual leave, sick leave, special holidays, and retirement contributions as part of his employment package as a state government employee. Petitioner was employed by the Division of Elections of "State" as an Administrative Assistant II until April 1, 1991, at which time, he was promoted to an Administrative Assistant III. Petitioner went from an "included position" to an "excluded position" upon his promotion on April 1, 1991. Employees filling "included positions" may receive overtime compensation. Employees filling "excluded positions" may only receive compensatory leave on an hour-for-hour basis for those hours worked in excess of 40 hours per week. "Compensatory leave" may be withdrawn from an employee's leave accumulation amount and utilized in the same way as annual leave for the employee's rest and relaxation or other personal purposes. Prior to Petitioner's promotion, "State's" Division of Elections had never had an employee move from an Administrative II, included position, to an Administrative III, excluded position. Neither "State's" administrative personnel nor Petitioner had any prior knowledge that upon his promotion Petitioner would/was no longer entitled to be paid money for the overtime he worked in the new position. "State's" March 27, 1991 appointment letter to Petitioner advising him of his promotion did not advise him that the promotion had the effect of moving him from an included to an excluded position for purposes of overtime pay. The April 10, 1991 Report of Personnel Action regarding Petitioner's promotion incorrectly indicated that he had moved from an Administrative II, "excluded," to an Administrative III, "excluded" position. The Department of Management Services (Management Services) is solely responsible for the designation of whether an employee is in an included or excluded position as it relates to a Report of Personnel Action. That agency's personnel were unable to explain why the April 10, 1991 Report of Personnel Action was incorrect. Due to the erroneous Report of Personnel Action, neither "State" nor Petitioner were on actual notice that Petitioner had moved from an included to an excluded position for purposes of overtime pay and that he was no longer entitled to be paid money for the overtime he worked in the excluded promotional position of Administrative Assistant III. However, all concerned had constructive notice by prior documents and designations that the Administrative Assistant II position was an "included" position. No agency deliberately misled the Petitioner concerning his promotion, and there is no evidence that he would have refused the promotion had he known of the change of status from "included" to "excluded." Petitioner's "State" supervisor who had authorized his April 1, 1991 promotion was without actual knowledge at the time of Petitioner's promotion that Petitioner had moved from an included to an excluded position for purposes of receiving overtime pay and did not advise him of his ineligibility for overtime pay after his promotion. Petitioner was paid $897.01 in overtime payments for overtime worked during April through July 1991, while in an excluded position, despite not being entitled to overtime pay after May 31, 1991 for hours worked in excess of 40 hours per week. (The May 31, 1991 date was stipulated by the parties, see appendix.) Petitioner's "State" supervisor erroneously authorized the overtime payments Petitioner received while in his excluded promotional position. The Respondent, Department of Banking and Finance's (Banking and Finance's) payroll system that is designed to detect errors such as occurred here upon receipt of an employee's authorized request for pay did not detect this error because the system was not on-line during the four months Petitioner worked and submitted authorized requests for overtime pay in the excluded promotional position. The fact that Petitioner had received overtime pay while in an excluded position was neither discovered nor conveyed to him until six months after his April 1, 1991 promotion. Banking and Finance initiated an investigation concerning the overtime payments received by Petitioner while in an excluded position after receiving an anonymous complaint on October 28, 1991. In a March 10, 1993 letter, Banking and Finance asserted that the overtime payments Petitioner received while in an excluded position constituted a monetary debt to the State of Florida which Petitioner must repay in money. Petitioner spent the $897.01 to pay bills associated with the vacation he had taken prior to his promotion. Petitioner would have been able to repay the overpayment in cash had the error been discovered after the first or second erroneous monthly overtime payments, but he was not able to repay that large an amount in cash after the third request was submitted. Petitioner's request for authorization for overtime pay after his promotion was not submitted fraudulently or mendaciously, but was submitted because neither Petitioner nor anyone in his agency ("State") understood that he was not legally entitled to overtime pay. After determining that Petitioner had received overpayments, "State" took steps to recoup the overpayments. "State" sought to work with Petitioner to alleviate this problem for which its personnel felt partially responsible. In fact, "State" permitted him to utilize one of its agency attorneys for purposes of the instant formal proceeding. Petitioner and "State", without consulting Banking and Finance, entered into a negotiated agreement by which Petitioner would remit the $897.01 in overpayments in the form of 78 annual leave hours, and on December 31, 1991, 78 hours were deducted from Petitioner's accrued annual leave balance. In calculating the repayment of the deducted 78 annual leave hours from Petitioner's annual leave balance, "State" multiplied his rate of pay at that time, with the number of annual leave hours necessary to equal the amount of the overpayments, equaling $897.01. Neither Petitioner nor any agency received a cash payment from the deduction of the 78 annual leave hours. "State" merely deducted the hours from Petitioner's annual leave balance. "State" represented to Petitioner that the deduction of an amount of annual leave hours equivalent to the overpayments would satisfy his debt to the State of Florida. However, "State" neither requested nor received written permission from the Department of Banking and Finance to enter into an agreement by which "State" could accept a non-monetary "repayment" from Petitioner. Charlene Wilson, Personnel Services Specialist, Benefits Division of Administrative Services, Department of State, testified that accrued paid leave is a dollar-for-dollar payment since each hour of annual leave represents an hour of active employment and, therefore, are equal. William J. Schmitt, Chief, Bureau of Payrolls, Department of Banking and Finance, testified that an employee is paid for annual leave when authorized by an agency. However, these isolated pieces of evidence are not controlling. Further testimony was provided as to the historical application of the rules of the Department of Banking and Finance and the Department of Management Services. Robert W. Henley, Labor Specialist for Management Services, and William J. Schmitt each testified to the historical application and interpretation of their respective agency rules. Each testified that, as their agencies had interpreted and applied their own rules to date, employees who are continually employed by the State of Florida may not use annual leave to repay a debt in the manner Petitioner and the Department of State chose. Prior to the December 31, 1991 deduction of the annual leave hours, Petitioner had "banked" 109.097 annual leave hours. After the deduction of 78 hours to satisfy his agreement with "State," he had only 31.097 hours remaining. It took Petitioner 12 months to build his annual leave balance back to where it was prior to the December 31, 1991 deduction. During the 1991 year, but prior to the deduction of the 78 annual leave hours, Petitioner had taken a vacation to Innsbruck, Austria utilizing his annual leave accrued to that point in time and being paid his regular salary while he was on vacation. Petitioner did not take a vacation in 1992, the year following the deduction of the 78 annual leave hours, because of the lack of sufficient accrued annual leave hours left in his balance to take the length of vacation he wanted to take. In 1992 there were still low air-fare prices for trips abroad. In 1991, Petitioner utilized 80 annual leave hours while receiving regular pay. In 1992, Petitioner utilized 18.25 annual leave hours while receiving regular pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Banking and Finance enter a final order providing as follows: That Petitioner is indebted for salary overpayments to the Department of Banking and Finance for the amount of $897.01; That Petitioner shall repay the aforesaid amount within one year from date of this order in payment amounts of not less than $100.00 each or the total remaining balance of the debt in any single payment and that failure of Petitioner to repay the full amount in the year provided shall result in the Department of Banking and Finance debiting his salary for the unpaid balance at the end of the year's grace period, and That once full payment is completed, the Department of Banking and Finance shall coordinate, to the degree possible, with all other agencies the restoration of 78 hours annual leave to Petitioner's annual leave account balance and the crediting of Petitioner with the appropriate compensatory leave hours earned after his promotional date. RECOMMENDED this 28th day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER 93-1886 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-5 Accepted in substance, but not adopted verbatim. 7-11 Accepted in substance, but not adopted verbatim. 6,12 Rejected as stated due to the legal words of art employed. See FOF 2 and 11 which more accurately conform to the record as a whole. 13-32 Not adopted verbatim. Accepted in substance except for unnecessary, subordinate or cumulative material. It is noted that PFOF 21 and 22 seem to be contradictory but were in fact stipulated as fact by the parties. Although a date of March 31 makes better sense, the hearing officer assumes that the parties' use of the May 31 date accounts for pre-earned payments of overtime delayed into a following pay period. This is not a dispositive issue and the parties' stipulation has been honored in FOF 13. 33-34 Rejected because these proposals are misleading as stated and are not dispositive. Covered in FOF 25-26. 35-36 Not adopted verbatim. Accepted in substance except for unnecessary, subordinate, or cumulative material. Rejected as stated because it contains words of art and represents a proposed conclusion of law. See Conclusions of Law. Covered only as necessary in FOF 21-23. Otherwise rejected as a proposed conclusion of law or as cumulative to the facts as found. 39-40 Rejected as conclusions of law or legal argument and as unnecessary and non-dispositive. See FOF 21-23 and Conclusions of Law. 41-49 The interspersed conclusions of law, including but not limited to the "payment" of leave hours, are rejected as such. The interspersed and footnoted legal arguments also are rejected. See FOF 28-30 Conclusions of Law. Otherwise, the proposals are accepted in substance but not adopted verbatim to avoid subordinate, cumulative and verbose material. 50 Accepted. Respondent's PFOF: 1-2 Accepted, but some unnecessary, subordinate and cumulative material has been excised. COPIES FURNISHED: Douglas D. Sunshine, Esquire Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250 Scott C. Wright, Esquire Office of the Comptroller The Capitol, Suite 1302 Tallahassee, FL 32399-0350 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 William G. Reeves Department of Banking and Finance The Capitol, Room 1302 Tallahassee, FL 32399-0350
The Issue The issue in the case is whether supplemental payments made to the Petitioner by Brevard Community College constitute creditable compensation for purposes of determining retirement benefits under the Florida Retirement System.
Findings Of Fact From 1970 until his retirement in June 1998, Brevard Community College employed Stephen J. Megregian at an executive level. The State of Florida, Division of Retirement, manages and oversees operation of the Florida Retirement System (FRS) in which Brevard Community College (BCC) participates. In June 1990, the college adopted an Employee Benefit Plan for BCC Executive Employees. The provisions of the plan covered Mr. Megregian, an executive employee. In fact, Mr. Megregian drafted the plan, which was adopted by the college's Board of Trustees. The executive benefit plan included a severance pay benefit for plan participants. The severance benefit was calculated according to a formula using the employee's daily base pay as multiplied by the sum of "benefit days." Benefit days were earned according to employment longevity. A "severance day" calculation determined the amount of severance pay a departing employee would receive. Apparently, at some point in 1994, participants in the FRS learned that the Division of Retirement would exclude some types of compensation, including severance pay, from the "creditable compensation" used to determine retirement benefits. In June 1995, the college amended the plan to provide a severance pay "opt-out" provision to plan participants. The provision entitled plan participants who were within five years of eligibility for FRS retirement benefits to "opt-out" of the severance package and instead immediately begin to receive supplemental payments. Mr. Megregian drafted the "opt-out" provision, which was adopted by the college board. The decision to "opt-out" was irrevocable. A plan participant could not change his or her mind and take the severance package once the "opt-out" decision was made. The supplemental payments were calculated based upon the "severance days" that the employee would have otherwise earned during the year. The payments were made along with the employee's salary payment. The "opt-out" plan did not require a participant to retire after the fifth year of receiving the supplemental payment. The Petitioner asserts that the creation of the "opt- out" provision was in accordance with information provided by the Division of Retirement. There is no evidence that the Division of Retirement provided any information suggesting that the "opt-out" provision would result in an increase in creditable compensation for purposes of determining FRS benefits, or that the "opt-out" provision was an acceptable method of avoiding the severance pay exclusion. There is no evidence that, prior to March of 1998, the college specifically sought any direction or advice from the Division of Retirement as to the supplemental payments made to employees under the "opt-out" provision. The evidence as to why the college did not simply increase base salaries for employees to whom supplemental payments were being made is unclear. There was testimony that the plan was designed to avoid unidentified tax consequences. There was also testimony that the supplemental plan was designed to avoid increasing some employees base salaries beyond the percentage increases awarded to other employees. There was apparently some concern as to the impact the supplemental payments would have on other college employees who were not receiving the additional funds. There is no evidence that the Petitioner performed any additional duties on the college's behalf in exchange for the supplemental payments. The Petitioner was eligible to participate in the "opt- out" plan beginning in the college's 1995-1996 fiscal year, and he elected to do so. As a result of his election, supplemental payments were made in amounts as follows: Fiscal Year 1995-1996, $7,938.46. Fiscal Year 1996-1997, $8,147.13. Fiscal Year 1997-1998, $8,395.40. On March 21, 1998, Brevard Community College requested clarification from the Division of Retirement as to how the supplemental payments would affect a plan participant's benefit. On April 30, 1998, the Division of Retirement notified the college that the supplemental payments would not be included within the calculation of creditable compensation. The Petitioner retired from his employment at Brevard Community College on June 30, 1998. The Petitioner is presently entitled to retirement benefits under the FRS. The Division calculates FRS retirement benefits based on "creditable compensation" paid to an employee during the five years in which an employee's compensation is highest. Some or all of the three years during which the Petitioner received supplemental payments are included in the calculation of his creditable compensation. The evidence fails to establish that the supplemental payments made to the Petitioner should be included within the creditable compensation upon which FRS benefits are calculated. Under the statutes and rules governing FRS benefit determinations, the supplemental payments made to the Petitioner are "bonuses" and are excluded from the "creditable compensation" calculation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the State of Florida, Division of Retirement, enter a final order finding that supplemental payments made to Stephen J. Megregian are bonus payments and are excluded from calculation of creditable compensation for FRS benefit purposes. DONE AND ENTERED this 2nd day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1999. COPIES FURNISHED: David A. Pearson, Esquire Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A. Post Office Box 2346 Orlando, Florida 32802-2346 Robert B. Button, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether the unused balance in a state employee’s flexible spending account must be forfeited as a result of her failure to file claims exhausting the account before the April 15, 2002, deadline.
Findings Of Fact The State of Florida has established a Salary Reduction Cafeteria Plan (“Plan”) for the benefit of its employees. The Plan, which is set forth in a formal written document that was most recently amended and restated as of September 20, 2000, is designed to take advantage of provisions in the Internal Revenue Code that permit the exclusion of reimbursement for various specified expenses——such as medical and dependent care costs—— from the gross income of employees who participate in a “cafeteria plan”1 that meets all the conditions prescribed under federal tax law. Simply put, the Plan allows state employees to pay for certain qualified expenses with pretax dollars by electing to have a predetermined amount deducted from each paycheck and deposited into a “flexible spending account,” out of which qualified expenses can be reimbursed, tax free, according to the terms of the Plan. Pursuant to authority granted under Section 110.161, Florida Statutes, the Florida Department of Management Services (“DMS”) operates and administers the Plan. The Division of State Group Insurance (“Division”) is designated in the Plan document as the Plan’s “Administrator.” Petitioner Elsa Lopez (“Mrs. Lopez”) is a state employee. She works as a secretary in the Office of the Public Defender for the Fifteenth Judicial Circuit, in West Palm Beach, Florida. During the “open enrollment” period2 in 1998, Mrs. Lopez elected to participate in the Plan during “plan year”3 1999, authorizing the state to reduce her salary by $2,500 over the course of the plan year, the money to be placed in a flexible spending account for the purpose of reimbursing her (with pretax dollars) for dependent care expenses. In this way, Mrs. Lopez effectively sheltered $2,500 from federal income tax. In late 1999, in order to continue paying for dependent care with pretax dollars, Mrs. Lopez again chose to participate in the Plan, authorizing the state to reduce her salary by $3,500 during plan year 2000. Mrs. Lopez made the above-described elections by signing, in each instance, an Open Enrollment Form. She signed the first of these forms on October 15, 1998, and the second on September 30, 1999. On both forms, an “employee certification” appears just above Mrs. Lopez’s signature. This certification states in pertinent part: I understand that I will forfeit any balance(s) remaining in my account(s) at the end of the Plan Year in accordance with the Internal Revenue Code Section 125. If eligible expenses are not incurred during my eligible period of participation equal to the[4] account balance and/or if claims for the expenses are not filed with the Division of State Group Insurance by the claims filing deadline date (April 15), I will forfeit any remaining balance(s). The risk of forfeiture to which the certification refers is an important condition for the favorable tax treatment accorded flexible spending accounts established under cafeteria plans. Federal law requires that, to qualify for the tax break, a cafeteria plan cannot provide for deferred compensation. See 26 U.S.C. § 125(d)(2)(A). The Internal Revenue Service has determined that plans which allow participants to carry over unused contributions from one plan year to another operate to enable participants to defer the receipt of compensation——and thus do not meet the conditions for excluding contributions from income. See Prop. Treas. Reg. § 1.125-1, Q/A-7 (49 F.R. 19321, 19324, 1984 WL 139403). Consequently, employees participating in a qualified plan must timely “use or lose” their respective contributions in exchange for the benefit of paying for health and/or child care expenses5 with pretax dollars. To preserve the tax-exempt status of the Plan, DMS has promulgated rules intended to prevent the Plan from providing deferred compensation. For example, Rule 60P-6.0081(3), Florida Administrative Code, provides that nitial requests for reimbursement for expenses incurred during a participant’s period of coverage must be postmarked or received if not mailed, at the Department no later than April 15 following the prior Plan Year. DMS has also mandated that “if unused portions of the participant’s annual election remain in an account for which otherwise eligible claims are not received prior to the claims filing deadline, these funds shall be forfeited.” Rule 60P- 6.010, Florida Administrative Code (emphasis added). The term “claim filing deadline” is elsewhere defined as “April 15 following the participant’s period of eligibility.” Rule 60P- 6.006(1), Florida Administrative Code. Faithful to the foregoing rules, the Plan document prescribes a reimbursement procedure for dependent care expenses that provides in pertinent part: (a) Expenses That May Be Reimbursed. Under the Dependent Care Component, a Participant may receive reimbursement for [covered costs] incurred during the Plan Year for which an election is in force. * * * Use-It-Or-Lose-It Rule. If a Participant does not submit enough expenses to receive reimbursements for the full amount of coverage elected for a Plan Year, then the excess amount will be forfeited[.] Applying for Reimbursements. A Participant who has elected to receive dependent care benefits for a Plan Year may apply for reimbursement by submitting an application in writing to the Administrator in such form as the Administrator may prescribe, during the Plan Year but not later than by April 15 following the close of the Plan Year in which the expense arose[.] Plan § 7.5 Mrs. Lopez understood that her funds were subject to forfeiture under the “use it or lose it rule.” She also knew that the claim filing deadline for plan years 1999 and 2000 was April 15 following each respective plan year. What Mrs. Lopez did not know, she insists, is that the claim filing deadline for plan year 2001 was April 15, 2002. Mrs. Lopez chose to participate in the Plan during plan year 2001, not by submitting an Open Enrollment Form, as in previous years, but by doing nothing, which resulted, by operation of the Plan, in a “rollover election.” A rollover election occurs, pursuant to the provisions of Section 4.4(b) of the Plan document, when an existing participant fails timely to submit an Open Enrollment Form, which inaction is deemed to constitute an election of the same type of coverage as was in effect for the previous plan year. In accordance with Section 4.4(b), Mrs. Lopez was deemed to have authorized the state to deduct $3,500 from her salary for plan year 2001, such untaxed amount to be used for the reimbursement of dependent care expenses. Mrs. Lopez does not complain that the rollover election thwarted her actual intent. In fact, Mrs. Lopez desired to participate in the Plan during plan year 2001. Because she did not submit an Open Enrollment Form for plan year 2001, however, there is no document bearing Mrs. Lopez’s signature below an “employee certification” acknowledging the April 15, 2002, claim filing deadline——a date which, as just mentioned, she denies having been aware of. Mrs. Lopez goes beyond merely disclaiming knowledge of the deadline; she charges that the state misled her into believing that she could file claims for reimbursement through June of 2002. According to Mrs. Lopez, she placed a telephone call to the Division in February 2002 to request claims forms and inquire about the deadline for filing claims, which she knew from experience was approaching. The person with whom she spoke, says Mrs. Lopez, told her that claims incurred during plan year 2001 could be submitted until June 2002. Needless to say, the Division disputes Mrs. Lopez’s account of this purported conversation. However, because Mrs. Lopez has not been able to identify the person with whom she claims to have spoken, the date and time of the alleged call, or even the phone number she dialed, the Division was hard-pressed to present evidence directly refuting Mrs. Lopez’s testimony. Therefore, the Division adduced evidence concerning the routine practices and procedures of its customer service employees. This evidence persuaded the undersigned (who hereby finds) that it is highly unlikely Mrs. Lopez was informed by a customer service representative6 that the claim filing deadline was in June of 2002.7 That said, the undersigned accepts Mrs. Lopez’s testimony (and finds) that she was told about a June 2002 deadline. Resolving conflicts in the evidence, he finds that what happened, more likely than not, was that the customer service person informed Mrs. Lopez, correctly, that the claim filing run-out period lasted through the end of June 2002. (The “claim filing run-out period” is the “period during which [DMS] will accept documentation in support of claims filed within the claim filing deadline. This period will not extend beyond June 30 following the end of the prior plan year.” Rule 60P- 6.006(2), Florida Administrative Code (emphasis added). The claim filing run-out period gives a participant whose timely filed claim lacks proper documentation a little extra time to submit such documentation and thereby prevent denial of the claim. See Rule 60P-6.0081(4), Florida Administrative Code.) For reasons that cannot be determined, the customer service representative probably believed, mistakenly but not unreasonably, that Mrs. Lopez wanted to know whether additional documentation (such as the child care provider’s invoice8) relating to an already, or soon-to-be, filed claim for reimbursement could be submitted at a later date. While the customer service person most likely answered a different question than the one Mrs. Lopez meant to ask, there is no evidence that he or she acted improperly, negligently, or with the intent to deceive Mrs. Lopez. Mrs. Lopez failed to submit her claim before the April 15, 2002, deadline. This forced the Division, as the Plan’s Administrator, to declare her unused balance of $3,500 forfeited under the “use it or lose it rule.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Division enter a final order denying all claims for reimbursement of dependent care expenses incurred in plan year 2001 that Mrs. Lopez submitted after the claim filing deadline of April 15, 2002, and declaring the entire unused balance remaining in her account for that year forfeited. DONE AND ENTERED this 3rd day of June, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2003.
The Issue Whether Respondent timely filed a quarterly report as required under chapter 560, Florida Statutes (2015), or related rules.
Findings Of Fact OFR is the state agency responsible for the administration and enforcement of chapter 560, related to licensing of money services businesses, a term that includes money transmitter services, and the rules promulgated thereunder. Respondent is a money services business and has license number FT30800590. Respondent operates as a check casher, and is located at 3220 Sydney Dover Road, Dover, Florida. Every Florida licensed check casher is required to submit quarterly reports to OFR in a format which includes information specified by rule. See § 560.118(2), Fla. Stat. The due date for a check casher to have filed its money services business quarterly report for the quarter ending December 31, 2014, was February 16, 2015. OFR sent a reminder to Respondent within ten days following December 31, 2014, to file the quarterly report. OFR sent seven additional e-mails before the deadline advising Respondent to file the quarterly report within the deadline. On March 6, 2015, Respondent filed the quarterly report in the proper format; however, it was 18 days after the applicable filing deadline. OFR determined that Respondent’s late filing of the quarterly report is a “Class A” violation pursuant to rule 69V- 560.1000(39) and (150). OFR determined the appropriate penalty to be a $1,000 fine. Mr. Grosmaire’s testimony on the basis of OFR’s imposition of the $1,000 fine is credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Office of Financial Regulation enter a final order imposing an administrative fine of $1,000. DONE AND ENTERED this 19th day of July, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2016. COPIES FURNISHED: Amjad J. Hijaz Mexican American Grocery 1105 Spurwood Court Brandon, Florida 33511 (eServed) William Michael Oglo, Esquire Office of Financial Regulation Fletcher Building, Suite 550 200 East Gaines Street Tallahassee, Florida 32399-0376 (eServed) Eric O. Husby, Esquire 2001 West Cleveland Street Tampa, Florida 33606 (eServed) Drew J. Breakspear, Commissioner Office of Financial Regulation 200 East Gaines Street Tallahassee, Florida 32399-0350 (eServed) Colin M. Roopnarine, General Counsel Office of Financial Regulation The Fletcher Building, Suite 118 200 East Gaines Street Tallahassee, Florida 32399-0370 (eServed)
The Issue Whether Respondents violated Sections 475.25(1)(e), (k), Florida Statutes, and Chapter 61J2-14, Florida Administrative Code.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division), is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 475, Florida Statutes. Respondent, Lynda J. Lobsitz (Lobsitz), is and was at all material times to this proceeding licensed as a real estate broker in accordance with Chapter 475, Florida Statutes, having been issued license number 0377747. Respondent, Jaclo, Inc. (Jaclo), is and was at all times material to this proceeding, a licensed real estate brokerage corporation, having been issued license number 0275422. During May 1997, the Division conducted an office inspection and escrow audit of Respondents' real estate office. On the day of the audit, Respondents maintained an escrow account for rental security deposits, which account had an adjusted trust liability of $85,300.89.1 The adjusted bank balance was $85,185.22, resulting in a shortage of $115.67. Respondents prepared bank reconciliation reports for January, February, March, and April 1997 for the rental security deposit account and for the rental escrow account. Attached to each of the reports was the monthly bank statement for the account and period covered in the bank reconciliation report. The bank statements identified the name of the bank, the name of the account, the account number, the account balances and dates. A list of outstanding checks, identifying the outstanding checks by date and number, was attached to each report. The dates used to reconcile the balances were not included in the bank reconciliation reports. For the January 1997 bank reconciliation report for the rental rents deposits account, there was a difference of $7,616.25. Respondents stated on the report that $7,630.00 was for a check which was returned for endorsement. The report further stated that $13.75 had not been located. For the February 1997 bank reconciliation report for the rental rents deposits account, there was a difference of $1,756.75. The report contained an explanation for the difference and the corrective action taken. For the March 1997 bank reconciliation report for the rental rents deposits account, there was a difference of $500 which was explained with the corrective action noted. For the bank reconciliation report for January 1997 for the rental security deposit and account, there was an overage of $531.33. The report stated that the amount had not been located. For the bank reconciliation for the rental security deposit and account for February, 1997, there was an overage of $2,234.33. The report explained that $1,700 was a bank error deposit; $3.00 was sales tax which was to be transferred to rents account; and the remaining $531.33 could not be located. For the bank reconciliation for the rental security deposit and account for March 1997, there was an overage of $31.33. The explanation and corrective action stated on the report was "Bank wire to incorrect account Mushlin will transfer from rents accounts. $531.33 have not located." For the bank reconciliation report dated April 1997 for the rental security account, there was an overage of $531.33 with the explanation of "Have not located difference."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondents violated Sections 475.25(1)(e), Florida Statutes, issuing a reprimand for the Respondents, requiring that Respondent Jaclo, Inc., pay an administrative fine of $100, and requiring that Respondent Lynda J. Lobsitz take a seven-hour broker management course. DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1998.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Health and Rehabilitative Services enter a final order correcting the annual leave account of Robert J. Braun by reducing his annual leave balance by 125 hours in accordance with its 1983 audit of the account. RECOMMENDED this 21st day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of January, 1985.
The Issue Whether the Petitioner owes sales and use tax (plus interest and penalties) for charges made to its catering customers for the labor of waiters serving complete meals before December 7, 1987.
Findings Of Fact During the period, May 1, 1984 through September 30, 1984, Gourmet To Go did not charge its customers sales tax for labor provided by waiters serving full meals that it catered. Gourmet To Go treated the waiters as subcontractors, and shows charges for waiters on its bill as "Sub Contract Services." During the period May 1, 1984 through December 7, 1987, Gourmet To Go collected sales tax on the services of waiters when the food served was canapes, sandwiches, hors d'oeuvres or party tidbits. Gourmet To Go commonly served both full meals and party tidbits as part of its catering business. The Department of Revenue audited the accounts of Gourmet To Go by reviewing gross receipts, and subtracting any exempt sales Gourmet To Go reported to the Department on form DR- 15. This is the audit method ordinarily used by the Department. The invoices of Gourmet To Go show that it did not charge its clients sales tax upon amounts shown on invoices for labor of waiters serving dinners. The agreed amount due for the period from May 1, 1984 through April 30, 1987, if Gourmet To Go is liable for the taxes is as follows: Tax $6,335.67 Penalty $1,583.92 Interest computed through the date of the hearing, June 23, 1989 - $2,733.50 TOTAL $10,650.09 For the period May 1, 1987 through April 30, 1987, the amount due if Gourmet To Go is liable for the sales tax is: Tax $1,214.70 Penalty $303.67 Interest the date computed through of the hearing, June 23, 1989 - $241.11 TOTAL $1,759.48 Interest would continue to accrue on any unpaid amounts due through the date payment is made.
Recommendation It is RECOMMENDED that a Final Order be entered by the Department of Revenue finding Gourmet To Go, Inc. liable for sales tax on charges to its customers for services of waiters at dinners it catered during the period May 1, 1984, through April 30, 1988, with penalties and interest through the date of payment. DONE and ENTERED this 5th day of September, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1989. APPENDIX TO THE FINAL ORDER IN DOAH CASE NO. 88-6367 Rulings on Proposals Made By The Petitioner, Gourmet To Go, Inc. The substance of all facts proposed by Gourmet To Go, Inc. have been included in the Recommended Order. COPIES FURNISHED: Larry V. Bishins, Esquire 4548 North Federal Highway Ft. Lauderdale, FL 33308 Lealand L. McCharen, Esquire Assistant Attorney General The Capitol Building Tallahassee, FL 32399-1050 William D. Moore, General Counsel Department of Revenue 203 Carlton Building Tallahassee, FL 32399-0100 Katie D. Tucker, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact The Department is an agency of the executive branch of the State of Florida. Mr. Crowell, prior to February, 1990, was employed as a career service employee of the Department for approximately 19 years. Mr. Crowell has worked for the State of Florida for approximately 24 years. Immediately prior to and during part of February, 1990, Mr. Crowell was employed as a Community Assistance Consultant with the Department's Community Development Block Grant Program (hereinafter referred to as the "Grant Program"). Wanda A. Jones, Planning Manager of the Grant Program, was Mr. Crowell's immediate supervisor at all times relevant to this proceeding. The Department has incorporated the provisions of Rule 22A-8.011, Florida Administrative Code, governing the use of leave, in the Department's Policies and Procedures No. 1109.01. Pursuant to Policies and Procedures No. 1109.01, Department employees are required to notify their supervisor of any illness and obtain approval of the use of annual leave. Mr. Crowell was counseled by Ms. Jones in January or February, 1989, concerning his failure to obtain authorization for use of sick leave each day that Mr. Crowell was sick. Ms. Jones also explained this requirement at two or three staff meetings. Mr. Crowell was aware of the Department's requirements concerning the use of leave. Mr. Crowell was required to travel as a part of his employment. Mr. Crowell traveled an average of two times per month. Mr. Crowell submitted an Authorization to Incur Travel Expense dated December 7, 1989 (hereinafter referred to as the "December 7, 1989, Request"), to the Department requesting authorization to travel on State business on December 13, 14 and 15, 1989. The December 7, 1989, Request was approved by the Department. Mr. Crowell indicated in the December 7, 1989, Request that "[p]ersonal car will be used for entire trip." Mr. Crowell did not own a motor vehicle during the period of time at issue in this proceeding. Mr. Crowell intended to rent an automobile, pay the rental charges himself and claim reimbursement only for mileage incurred in travel on State business. Mr. Crowell had been issued a Budget Rent-A-Car (hereinafter referred to as "Budget"), credit card by the Department on October 6, 1989. Mr. Crowell signed a Department form at the time the Budget credit card was issued acknowledging the following: that on the date above I received the above-described credit card; that I, by my signature hereon have acknowledged that I understand all policies and procedures governing the use of said card; and that I have been advised that abuse of the use of this card may result in dismissal from employment with this Department and possible prosecution under the laws of Florida. On December 13, 1989, Mr. Crowell rented an automobile from Budget. Mr. Crowell was given a Lincoln Town Car (hereinafter referred to as the "Lincoln") because of the unavailability of a smaller automobile. Mr. Crowell signed a rental agreement (hereinafter referred to as the "Rental Agreement") for the Lincoln indicating that the rental fees were to be charged to the Department through the Budget credit card issued by the Department to Mr. Crowell. Pursuant to the Rental Agreement, Mr. Crowell was to rent the Lincoln for approximately three weeks, turning it in on January 3, 1990. The Rental Agreement listed the costs of renting the Lincoln for an hour, a day, a week or a month. Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses dated December 19, 1989, to the Department for authorized travel on December 12-15, 1989. Mr. Crowell indicated that a "[p]ersonal car was used for entire trip" and he claimed reimbursement of $107.00 for mileage driven. During early January, 1990, Mr. Crowell went to a Budget office with the intent of returning the Lincoln he had rented on December 13, 1989. Mr. Crowell was told that he owed close to $600.00. Mr. Crowell had thought that he would owe approximately $375.00 and, therefore, had not brought enough money to pay the total rental charge. Mr. Crowell left without paying the rental charge or returning the Lincoln. On December 28, 1990, Mr. Crowell submitted three separate Authorization to Incur Travel Expense forms to the Department seeking approval of travel for State business in January and February, 1990. On the three forms "pov" was noted. Mr. Crowell used "pov" as an abbreviation for "privately owned vehicle." Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses to the Department for two authorized trips for January, 1990. Mr. Crowell indicated that a "pov was used" on one of the vouchers and he claimed reimbursement for mileage driven on both forms. Mr. Crowell used the Lincoln he had rented on December 13, 1989, for the January, 1990, trips he was reimbursed for. Sometime during January, 1990, the Tallahassee branch manager of Budget, Russell Kennedy, became concerned that Mr. Crowell was late returning the Lincoln. Therefore, Mr. Kennedy contacted Mr. Crowell and inquired about when he intended to return the Lincoln. Mr. Crowell indicated that he would return the Lincoln on February 1, 1990. On January 30, 1990, the Department's personnel director, Mark Helms, was informed by the Director of the Housing and Community Development Division, the Division in which Mr. Crowell was employed, that he had been notified that Mr. Crowell had rented the Lincoln with his Department-issued credit card and that the Lincoln had not been returned or paid for. Mr. Helms contacted Mr. Kennedy. Mr. Kennedy informed Mr. Helms that Budget considered the Department to be liable for the rental of the Lincoln. Mr. Kennedy indicated that Mr. Crowell had agreed to return the Lincoln on February 1, 1990. Mr. Crowell did not return the Lincoln on February 1, 1990. Mr. Helms spoke with Mr. Kennedy on Monday, February 5, 1990, and was informed that Mr. Crowell had not returned the Lincoln. Mr. Helms informed the Division Director. On February 5, 1990, Ms. Jones was told by the Division Director to meet with Mr. Crowell and instruct him to resolve the problem he had created by renting the Lincoln with the Department-issued Budget credit card. Ms. Jones met with Mr. Crowell at approximately 3:00 p.m., Monday, February 5, 1990. Ms. Jones informed Mr. Crowell that the Department was concerned that he had rented the Lincoln using the Budget credit card issued to him by the Department because of the Department's potential liability for the rental. Ms. Jones informed Mr. Crowell that he had to resolve the problem he had created with Budget immediately. She suggested that, although she could not tell him how to use his leave time, he should consider taking time to take care of the matter. Mr. Crowell left the meeting and returned shortly thereafter with his time sheet. Mr. Crowell requested that Ms. Jones approve annual leave from 3:30 p.m. to 5:00 p.m., February 5, 1990, and all day Tuesday, February 6, 1990. Ms. Jones approved Mr. Crowell's request. Mr. Crowell left work at approximately 3:30 p.m., February 5, 1990. Mr. Crowell did not return to work on February 6, 1990. On Wednesday, February 7, 1990, and Thursday, February 8, 1990, Mr. Crowell spoke by telephone to an employee of the Department that worked in another section and got the employee to leave a "Post-It" note on his door both days indicating "O.C./SL". Mr. Crowell did not report to work on February 7 or 8, 1990. Ms. Jones treated Mr. Crowell as having used sick leave for these two days. On February 8, 1990, Ms. Jones sent a letter to Mr. Crowell informing him that his failure to resolve the matter with Budget was a serious disciplinary matter. Ms. Jones did not attempt to telephone Mr. Crowell because he did not have a telephone. Ms. Jones did, however, telephone Cheryl Jamison, whom Ms. Jones believed to be Mr. Crowell's daughter-in-law. Ms. Jones left a message on an answering machine to have Mr. Crowell call her immediately. On Friday, February 9, 1990, and Monday, February 12, 1990, through Thursday, February 15, 1990, Mr. Crowell did not come to work, call in sick or otherwise inform the Department of the reason for his absence or obtain approval for his absence. Mr. Crowell has not returned to work at the Department since February 5, 1990. At the formal hearing Mr. Crowell testified that he did not inform Ms. Jones that he would not be at work on February 9, 1990, or thereafter because she had instructed him to not come back until he resolved the problem with Budget over the rental of the Lincoln. This testimony is inconsistent with Ms. Jones' testimony and Mr. Crowell's actions on February 5, 1990, and February 7 and 8, 1990. If Mr. Crowell had in fact been instructed not to return until he resolved the Budget problem and that he did not have to worry about following established procedures for absences, Mr. Crowell would not have gotten approval for annual leave for February 5 and 6, 1990, or informed the Department that he would not be at work on February 7 and 8, 1990, because he was sick. On February 12, 1990, Ms. Jones telephoned and spoke with Nathan Crowell, Mr. Crowell's son. Ms. Jones indicated that she needed to speak with Mr. Crowell. She was told that Mr. Crowell had been told that she was trying to contact him. Mr. Crowell received the letter sent by Ms. Jones on February 8, 1990. Mr. Crowell was also aware that Ms. Jones had called his son's telephone number attempting to get in touch with him. Mr. Crowell made no effort, however, to respond to Ms. Jones. The Division Director was informed by Ms. Jones on February 15, 1990, that Mr. Crowell had been absent for five days without authorization. The same day Mr. Helms received a memorandum from the Division Director recommending that Mr. Crowell be treated as having abandoned his employment with the Department. Mr. Helms prepared a letter for the Secretary's signature informing Mr. Crowell that the Department was treating Mr. Crowell that he had abandoned his position. At the time that the Department decided to treat Mr. Crowell as having abandoned his position, the Department was aware of efforts by Budget to contact Mr. Crowell and obtain a return of the Lincoln. Budget had sent a certified letter to Mr. Crowell on February 7, 1990, informing Mr. Crowell that criminal charges would be brought against him if he did not return the Lincoln. The return receipt was returned on February 13, 1990, signed by Mr. Crowell. Mr. Crowell still did not return the Lincoln. Mr. Kennedy had also driven by Mr. Crowell's residence several times during early February, 1990, looking for the Lincoln. The Lincoln was not found. The letter from the Secretary was sent to Mr. Crowell by certified mail, return receipt requested, on February 15, 1990. Mr. Crowell received the letter on February 22, 1990. Mr. Crowell returned the Lincoln to Budget on Sunday, February 18, 1990. Mr. Crowell did not pay for the rental of the Lincoln at that time. On February 27, 1990, Mr. Crowell telephoned Mr. Helms. This was his first contact with the Department since February 5, 1990. Mr. Crowell did not indicate that he had not abandoned his position or offer any explanation. Mr. Crowell merely asked Mr. Helms about continued insurance coverage and the payment for his accrued sick and annual leave. Mr. Crowell sent a letter to the Department of Administration dated March 6, 1990, contesting the Department's determination that he had abandoned his employment. On March 7, 1990, Mr. Crowell met with Mr. Helms and Barbara Jo Finer, a Department Senior Attorney. Mr. Crowell discussed payment of the Budget rental charges he had incurred with the payment he was to receive for his unused annual leave as a result of his termination of employment. Budget was paid the rental charges incurred by Mr. Crowell for use of the Lincoln on April 16, 1990. Budget was paid $1,734.03 of Mr. Crowell's payment from the State of Florida for his unused leave. In addition to the inconsistencies in Mr. Crowell's testimony described in Finding of Fact 29, Mr. Crowell evidenced a lack of credibility while testifying on two other matters. First, Mr. Crowell testified at the formal hearing that he did not receive a telephone call from a representative of Budget. This testimony is contrary to Mr. Crowell's testimony during his deposition taken on June 18, 1990. Secondly, Mr. Crowell testified that he was not notified that his deposition was available to read until 5:00 p.m., Thursday, July 5, 1990. This testimony was contradicted by the office manager of Accurate Stenotype Reporters, the firm which had the deposition prepared.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order concluding that Oscar Crowell abandoned his position of employment with the Department and dismissing the petition in this case with prejudice. DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 28th day of September, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Crowell's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Page I: 1st Paragraph 32. 2nd Paragraph Hereby accepted. 3rd Paragraph Not supported by the weight of the evidence. Page II: Not supported by the weight of the evidence. The first sentence is accepted. The rest of the paragraph is not supported by the weight of the evidence. The first sentence is accepted. The rest of the paragraph is not supported by the weight of the evidence. Page III: 1st paragraph Hereby accepted. Although the Department did take the position that it was not liable for the total rental charge incurred by Mr. Crowell for use of the Lincoln, Budget was taking the position that the Department was liable. Therefore, there remained a potential liability which the Department was concerned with. 2nd paragraph Not supported by the weight of the evidence. 3rd paragraph Not supported by the weight of the evidence. 4th paragraph Not supported by the weight of the evidence. 5th paragraph (including part of this paragraph which appears on page IV) Not supported by the weight of the evidence. Page IV: 1st full paragraph Not relevant to this proceeding and not supported by the weight of the evidence. 2nd paragraph The first sentence is not supported by the weight of the evidence. Even if Ms. Jones had told Mr. Crowell to resolve the problem before returning to work, it was unreasonable for Mr. Crowell to not return to work for almost two weeks without obtaining authorization for such an extended absence. The rest of the proposed findings of fact are not supported by the weight of the evidence. 3rd paragraph Not supported by the weight of the evidence. Not relevant or supported by the weight of the evidence. (including part of this paragraph which appears on page V) Not supported by the weight of the evidence. Page V: st paragraph Hereby accepted. nd paragraph The weight of the evidence failed to prove that Mr. Crowell was directed to leave and not return. The rest of this paragraph has been accepted in Finding of Fact 26. rd paragraph Not supported by the weight of the evidence. th paragraph Not supported by the weight of the evidence and argument. Page VI: 1st paragraph Not supported by the weight of the evidence. 2nd paragraph Not supported by the weight of the evidence. 3rd paragraph The first sentence is hereby accepted. The rest of the proposed findings of fact are not supported by the weight of the evidence. 4th paragraph 2. Except for the first sentence, these proposed findings of fact are not supported by the weight of the evidence. 5th paragraph This paragraph is Mr. Crowell's recommendation and not a finding of fact. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2, 27 and 32. 2 1-2. 3 4. 4 3. 5 7. 6 Hereby accepted. 7 5. 8 6. 9 Hereby accepted. 10 12, 23-24. 11 24. 26. The last four sentences are not relevant to this proceeding. The Department treated Mr. Crowell as having taken sick leave on February 7 and 8, 1990. The Department did not treat Mr. Crowell as being absent without authorization on those days. Hereby accepted. 14-15 27. 16 30. 17-18 28. 19 31. 20 Hereby accepted. 21 36. 22 32 and 34. The first two sentences are hereby accepted. The rest of this proposed finding of fact is not relevant to this proceeding. Mr. Crowell requested a formal hearing to contest the Department's decision by letter dated March 6, 1990. His failure to discuss the matter after that date, therefore, does not support a conclusion that Mr. Crowell was abandoning his employment. 38. The last sentence is not relevant to this proceeding for the same reasons the last part of proposed finding of fact 23 is not relevant. See 29. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. It is not clear what Mr. Crowell meant. See 5. Hereby accepted. Subparagraph (b) does not support a conclusion that Mr. Crowell abandoned his position. 29 12. 30 20. 31 23. 32 33. 33-34 33. 35 12, 14, 17-18 and 35. 36 Hereby accepted. 37-44 and 47 Mr. Crowell did make the statements referred to in these proposed findings of fact and they are not consistent. As the trier of fact, I do not find that Mr. Crowell's credibility was called into question by these inconsistencies. 45-46 40. COPIES FURNISHED: Oscar Crowell 1038 Preston Street Tallahassee, Florida 32304 G. Steven Pfeiffer General Counsel Barbara Jo Finer Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399
The Issue At issue in this proceeding is whether Petitioner, an employee of the Department of Children and Family Services (the Department), was overpaid in the amount of $1,671.29 and should be required to repay that amount to the Department.
Findings Of Fact Petitioner is a career-service employee of Respondent and was initially employed on September 18, 1992. In a letter dated March 13, 2001, Petitioner was informed that a salary overpayment occurred on the supplemental payroll of February 22, 2000. Two warrants were inadvertently issued on that day for $847.57 and $823.72 totaling $1,671.29. The overpayment resulted because the Department made a series of administrative errors. The reason for the overpayment was communicated to Petitioner. Petitioner's pay was remitted to her bank account electronically. She received a written explanation of her pay each time she was paid. However, Petitioner was not monitoring her bank account closely and did not realize she had been overpaid. Currently, Petitioner's rate of pay is $963.36 bi-weekly. Ms. Henderson prepared a certified letter dated February 28, 2001, notifying Petitioner of the overpayments. The letter stated that Petitioner had received $1,671.29 in gross overpayments for the supplemental payroll dated February 22, 2000. The letter was not picked up by Petitioner and was, therefore, returned to the Department. Subsequently, Ms. Henderson prepared a letter dated March 13, 2001, notifying Petitioner of the overpayment. The letter indicated the overpayment would be deducted from her next two pay checks. Petitioner received the second letter. By letter dated March 15, 2001, Petitioner objected to the payroll deductions since the amount of the deductions would leave her with a little more than $100. The amount left to Petitioner would be below minimum wage. A meeting was arranged between Petitioner, Allean Lovett, Human Resources Manager, and Linda Ricke, Personnel Services Specialist, with the Department to discuss, inter alia, a schedule for repayment. The meeting took place on April 9, 2001, however, was not concluded and was to be continued, by mutual agreement, to April 13, 2001. Petitioner informed Mrs. Lovett on April 12, 2001, that she did not want to continue with their scheduled meeting and would prefer to have the matter determined through the administrative hearing process. At the hearing, Petitioner did not dispute the amount of the gross overpayment. Petitioner testified that she would be able to repay the money at a rate of $25 to $50 per pay period. She could not afford any greater amount due to her living and medical expenses. The repayment schedule of $50 per pay period is reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent repay $50 per pay period to the Department of Children and Family Services beginning with the pay period immediately following entry of a final order in this case and continuing each pay period thereafter until the overpayment is repaid. DONE AND ENTERED this 25th day of October, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2001. COPIES FURNISHED: Leslie Scott Jean-Bart, Esquire Farah and Farah, P.A. 1845 University Boulevard, North Jacksonville, Florida 32211 Craig A. Gibbs, Esquire Law Office of Craig Gibbs 1200 Riverplace Boulevard Suite 810 Jacksonville, Florida 32207 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32211 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
