The Issue Whether DHRS may compel Ronald H. Pollard to pay the maintenance fee. Whether DHRS properly determined the amount of maintenance fee.
Findings Of Fact Herman Pollard is hospitalized at Florida State Hospital, Chattahoochee, Florida, and has been since July 26, 1989. Herman is competent, but has suffered from a mental illness diagnosed as schizophrenia for many years and has been institutionalized periodically for the treatment of this disease over the years. He has spent more years with his family than he has spent being institutionalized. Herman Pollard receives monthly Social Security Disability Income (SSDI) benefits from the Social Security Administration (SSA). His father had been appointed Representative Payee by SSA to receive Herman's SSDI benefits. For several years prior to 1988, Herman Pollard lived in North Carolina. After his father died, Herman relocated to Tallahassee, Florida, and lived with his brother, Ronald Pollard, and his brother's wife. The brother's 62-year-old mother resides in another Florida city. She is unable to care for Herman, and Ronald is the only living relative able to care for Herman. Ronald was appointed Representative Payee for his brother. A Representative Payee receives and disburses Social Security benefits on behalf of a social beneficiary. A Representative Payee has a fiduciary duty under federal law to disburse the money received to pay for the actual recipient's needs and care. However, the federal law prohibits any legal action by a creditor to enforce payment of a debt by a creditor or any assignment of future benefits. A Representative Payee may be criminally prosecuted by the Federal Government for violation of his fiduciary duty. Although Ronald acceded to his father's request to take care of Herman, Ronald has not adopted Herman or been made his legal custodian or guardian. Ronald Pollard is not legally responsible for his brother's support. A Responsible Party is legally responsible for a patient's financial support. Upon moving to Tallahassee, Herman lived in an apartment with Ronald and his wife. He spent the day in an adult day care program. However, his behavior became increasingly disturbing to the other adults requiring care; and Herman had to cease his participation. Ronald's apartment provided cramped living quarters for the three of them. Ronald and his wife purchased a three-bedroom home to provide Herman with his own bedroom. Herman is unable to drive, and Ronald and his wife provide transportation for Herman for treatment and doctors' visits. Ronald informally apportions one-third of the expenses, e.g., mortgage and car payments, food, clothing, and utilities, to Herman. The $346.00 in SSDI, which Ronald received in benefits for Herman, is less than one-half of the monthly expenses of $700.00 incurred in Herman's behalf. Because of Herman's mental illness, he was determined to be in need of more specialized temporary care than was available at home and was placed in a local treatment facility. Subsequently, it was determined that a more restrictive setting was required; and Herman was involuntarily placed in the Florida State Hospital. On July 24, 1990, a Final Order was issued authorizing continued involuntary placement for Herman. In re: Herman Pollard, Case No. 90-4023(B). On October 1, 1989, DHRS provided Ronald Pollard with a Notice of Maintenance Fee, having identified Ronald as the Responsible Party. The Notice advised Ronald of monthly billings of $296.00 for Herman's stay at the Hospital. On November 27, 1989, Ronald responded with a request that the "billings be adjusted to no liability" against him. (Hearing Officer's emphasis. On March 12, 1990, DHRS' Fee Waiver Committee recommended denial of Ronald's request for a fee waiver, stating that: Discussions with appropriate staff indicate client's treatment is expected to be long term. Also, the brother's current apartment (sic) was purchased after the client was admitted. Ronald advised Ronald E. Rohan, Florida State Hospital's Accounting Supervisor and Acting Chairman of the Fee Waiver Committee, that he and his wife purchased their house before Herman was hospitalized. DHRS stipulates they did. On March 21, 1990, DHRS' District Administrator denied Ronald's request for a fee waiver. On March 29, 1990, Ronald was advised that this request had been disapproved because, "Discussions with appropriate staff indicate client's treatment is expected to be long term." On April 4, 1990, Ronald requested an administrative hearing. DHRS arrives annually at a daily charge for medical and personal services for its patients. This charge is currently $200.00 per day. The State is charged by law to assess and collect for the services which the Hospital provides. DHRS determined Herman's maintenance fee generally based upon disposable income. DHRS computes disposable income based upon Rule 10-6.020, Florida Administrative Code. Domestic expenses such as rent, automobile payments or transportation costs for Herman were not considered by DHRS because it did not consider Herman as having domestic expenses. DHRS included Herman's SSDI benefits as income and after allowing $50.00 for his personal use, set his maintenance fee at $296.00. Rule 10-6.010(19), Florida Administrative Code, excludes SSDI benefits from income. DHRS uses a combination of persuasion, threat of court action, and court action to recover payment of maintenance fees from a Responsible Party. DHRS may obtain a lien against the Responsible Party's real property in favor of DHRS pursuant to Section 402.17, Florida Statutes, and Rule 10-6.023(6), Florida Administrative Code. In this case, DHRS is treating the Representative Payee, Ronald Pollard, as a Responsible Party. On June 25, 1990, Kingsley R. Ross, an Assistant Secretary of DHRS, acknowledged that charging, assessing or collecting fees by DHRS from social security benefits may be in conflict with federal statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that DHRS assess the maintenance fee in accordance with its formula at zero; amend its records to reflect that Ronald Pollard is not liable for the treatment or debts of Herman Pollard; and cease its efforts in this matter since collection is barred by federal law DONE and ENTERED this 18 day of October, 1990, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2999 Petitioner's Proposed Findings of Fact Unnumbered paragraph numbers 1-10 are substantially adopted but reorganized and rewritten. Respondent's Proposed Findings of Fact 1-7. Adopted. Rejected, as contrary to the facts. Herman lived with Ronald, Herman had domestic expenses. Rejected. As discussed in the Conclusions of Law, Ronald is not the Responsible Party. Rejected. There has been a legal claim asserted. To the extent that these proceedings are legal actions, Petitioner and Respondent are engaged in litigating this dispute. COPIES FURNISHED: George Drumming, Jr., Esquire 317 E. Park Avenue Tallahassee, FL 32301 Gene Stephens Assistant Hospital Attorney Florida State Hospital Chattahoochee, FL 32324 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact 1. For a period of time prior to June, 1985, Petitioner, Lydia Mendez, had been providing care in her home for her father, Leoncio Hernandez, age 90, and her husband, Carmelo Mendez, age Because of this, she was enrolled in and receiving case subsidies monthly under DHRS' Home Care for the Elderly Subsidy Segment program outlined in Section 410.03-410.06, Florida Statutes, and Chapter 10A-9, F.A.C. Under this program, recipients of benefits are to be visited periodically on an unannounced basis in order to insure that the requirements of the program were being met. Records of District VII reflect that on November 20, 1984, a visit of Petitioner was conducted for the normal six months review and at the time the counselor arrived at the premises, Mrs. Mendez was not at home. Mr. Mendez, Petitioner's husband, called his wife at a neighbor's residence and she arrived at home shortly thereafter. Mrs. Mendez, who had been absent from the home on two previous visits when the counselor arrived was advised again of the requirement to provide supervision and of the DHRS guidelines regarding provider absences from the home. At that point, Mrs. Mendez advised the counselor that when she was gone, it was to run brief errands and never for more than an hour or two. Most of the time when she was gone, she was visiting her daughter in the immediate neighborhood. Nonetheless, the counselor advised Mrs. Mendez, on November 20, that if she were not present on the next visit, steps would be taken to close the file and terminate the payments. When a follow-up visit was made on December 21, 1984, a month later, Mrs. Mendez was present and there was no irregularity. When the nine month review was conducted on February 28, 1985, Mrs. Mendez was not at home and the counselor was told by Mr. Mendez that she had gone to the store. The counselor at this time, Annie Wilson, returned to the premises on March 8, approximately one week later, and at that time, Mrs. Mendez was properly at home. The records also reflect that on May 15, 1985, when the yearly review visit was made, Mrs. Mendez was again not at home but at her daughter's house around the corner. When called by her husband, by phone, she returned within a few minutes. When this was reported to Mr. Brown, he determined that a formal investigation was required and consistent with this determination, he directed Henry McLaulin to investigate. Mr. McLaulin went to the Mendez home at approximately 2:00 p.m. on May 20, 1985. When he arrived, Mr. Mendez and Mr. Hernandez were alone at the house which was found to be in good condition and quite clean. Mr. Mendez also appeared clean and adequately groomed. Through an interpreter, he contended that he was in good health and had no physical complaints. Mr. Mendez appeared to be oriented as to time, place and person. His intellectual functioning and insight were adequate and when questioned by the investigator as to what actions he would take in the case of fire, Mr. Mendez indicated he would get Mr. Hernandez out of the house and request the neighbors to call the fire department because of his language problems. Mr. Hernandez, Mrs. Mendez' father was also clean and adequately groomed and was fully ambulatory. He, however, was totally disoriented as to time, place, and person, and his memory and intellectual functioning were greatly impaired, and it was clear that he needs supervision since he is unable to make decisions regarding his safety and wellbeing. After Mr. McLaulin had talked with Mr. Mendez for about 35 to 40 minutes, Mrs. Mendez returned to the house. In the case summary on his May 20th home visit, Mr. McLaulin indicated that the case plan was to assess both Mr. Mendez and Mr. Hernandez for possible neglect. He concluded that there was no evidence of neglect of Mr. Hernandez or Mr. Mendez, and no follow-up visit was required. A review of the DHRS records kept on this case reflects an entry on May 16, 1985, four days before the home visit, which reads: Mrs. Mendez was contacted by this counselor's supervisor, B. Brown. Mr. Brown explained the program requirements regarding supervision to the client in this program. He further stated that this case would be terminated due to a lack of adequate supervision to the client. Provider expressed the desire to appeal this case and may request a hearing after she receives formal notification of case closure. A letter will be written to provider regarding cancellation of the subsidy grant. In fact, even though Mr. McLaulin's report dated subsequent to this entry clearly revealed there was no evidence of neglect on May 21, 1985, Mr. Brown and Ms. Messing sent Mrs. Mendez a letter which, based on the May 16, 1985 telephone conversation, notified her that the subsidy payments she had been receiving would be cancelled effective June, 1985 on the basis of non-compliance with the Home Care for the Elderly regulations relative to providing supervision. From the above, it is clear that Mr. Brown had made up his mind to cancel the subsidy payments that Mrs. Mendez was receiving before he ever received his investigator's report and that when he did receive it, he ignored it even though it clearly indicated that the purpose and intent of the program were being fulfilled by Mrs. Mendez. Mrs. Mendez, who speaks limited English and who testified through an interpreter, indicated that she takes care of both her 88 year old husband and her 90 year old father on an income which is made up of the social security payments of the three individuals exclusively, alieunde the subsidy payment in issue here. Her father was in a nursing home for two and a half years prior to the death of her mother and during that time, she worked harder to take care of him than when he is with her. As a result, she does not want to put him in a nursing home again and does not feel that it is necessary. Mrs. Mendez was receiving $95.00 per month in subsidy payments for both her husband and her father. The three of them live alone in the house and there are times when it is necessary for her to get out of the house to buy food and run other errands such as going to the bank or post office. Admittedly, on several occasions, when the counselor came to conduct the home visits, she was not at home. Regardless, she never left the house for more than an hour or two and on most occasions when she was not present, she was visiting her daughter who lives around the corner and Mr. Mendez was able to reach her by telephone and have her home within a few moments. In fact, both Ms. Davis and Mr. McLaulin indicated that of the visits they made wherein they found Ms. Mendez absent, she always returned within a few minutes of their arrival. As was stated by Mr. McLaulin, neither Mr. Hernandez nor Mr. Mendez showed any evidence of neglect. The home kept by Mrs. Mendez was clean and in good repair and both individuals were well fed and in good health as far as Mrs. Mendez could provide.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that subsidy payments on behalf of Mr. Hernandez and Mr. Mendez be immediately restored to Mrs. Mendez and that Mrs. Mendez be reimbursed for the payments that were not received due to the improper cancellation in June, 1985. RECOMMENDED in Tallahassee, Florida this 6th day of January, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1986. COPIES FURNISHED: Mrs. Lydia Mendez 645 West 14th Street Apopka, Florida 32703 David Pingree, Secretary Department of Health and Rehabilitative Services Tallahassee, Florida 32301 1323 Winewood Boulevard Douglas Whitney, Esquire General Counsel HRS District Seven 400 West Robinson Street Orlando, Florida 32801
The Issue Whether Respondent discriminated against Petitioner on the basis of physical handicap.
Findings Of Fact Brettell was hired by Morse in January 1998 as a licensed practical nurse. Sometime after she began working for Morse, she sustained a work-related injury. No evidence was presented to establish exactly what the injury was. Brettell claims that she was discriminated against based on a handicap, but very little evidence was presented concerning any handicap that she may have. She presented two Notices of Action/Change forms issued by the Florida Department of Labor and Employment Security, Division of Workers' Compensation, related to Brettell and issued on February 18 and April 4, 1999. The Notice of Action/Change issued on February 18, 1999, stated: Employee was placed at maximum medical improvement with a 6% permanent impairment rate effective 01/16/99. Impairment income benefits of $192.80 per week for 18 weeks, effective 01/016/99. The April 4, 1999, Notice of Action/Change, stated, "Stopping impairment income benefits. Claimant was put on temporary partial disability as of 3/15/99." Neither Notice of Action/Change indicated the nature of the impairment. At the final hearing in response to Morse's Motion to Dismiss, Brettell made the following statement: [I]t does limit me on a daily basis. I have been complaining since Day 1 almost that I am losing feeling in my hands and my arms and my fingers. I'm having problems with my knee, making it difficult for me to walk. I have cervical spine problems. Brettell did not establish that she had a disability or a handicap. On April 23, 1999, Brettell was to work as a Medication Treatment Nurse. The job duties of a Medication Treatment Nurse include pushing a medication cart and dispensing medications to the residents. When Brettell learned that she was to push the medications cart and give medications on April 23, 1999, she spoke to Leonie Whorms (Whorms), who supervised Brettell at various times, and told Whorms that it was her understanding that she had been placed on light duty and was not supposed to push the medications cart. Whorms told Brettell that she had a doctor's statement dated February 19, 1999, from Dr. Russo, one of Brettell's treating physicians, stating that Brettell could push the medications cart and pass out medications. Brettell asked for a copy of the doctor's statement, which Ms. Whorms provided. Brettell agreed the statement indicated that she could push the medication cart and dispense medications. Brettell told Whorms that she had discharged Dr. Russo within the last month and that she had a new physician, Dr. Linder. Whorms informed Brettell that she would need a notification from Dr. Linder regarding any limitations that Brettell may have. Brettell contacted Dr. Linder's office and had a report sent by facsimile transmission to Morse. Based on Whorms' understanding of the report from Dr. Linder, Brettell was not supposed to push the medication cart. After Dr. Linder's report was sent to Morse on April 23, 1999, Brettell was not required to push the medications cart. No evidence was presented to establish that between the time that Morse received the report from Dr. Russo and April 23, 1999, when the report from Dr. Linder was sent to Morse, that anyone at Morse knew Brettell had changed doctors and a new report had been issued. Brettell stated that Whorms was the only person who harrassed her on April 23, 1999. Whorms was not aware that a new doctor's report had been issued until she received Dr. Linder's report on April 23, 1999. Brettell testified that Whorms told her on April 23, 1999, that if Brettell wanted to do nothing that Morse could find her a job doing nothing. Whorms denies making the statement. Having judged the credibility of the witnesses, I find that Whorms did not make the alleged statement. Brettell claims that in November 1998, Whorms told her that if she was in so much pain that she should go on disability or retirement. Whorms claims that she told Brettell that if Brettell was in so much pain that Brettell should go to the nursing office and then clock off and go home. Having judged the credibility of the witnesses, I find that Whorms did not tell Brettell that she should go on disability or retirement. On May 5, 1999, Penny Martin (Martin), a Nursing Unit Coordinator at Morse, asked Brettell to participate in wound rounds, and Brettell agreed to do so. Wound rounds involve a medical team assessing wounds and determining treatment. The wound team, scheduled to arrive at 9:30 a.m., was late. Because the wound team was late, Brettell elected to take her break. Brettell left for her break at 9:40 a.m. While Brettell was on break, the wound team arrived to do rounds. Approximately five to ten minutes after 10:00 a.m., Brettell's supervisor, Terri Nichols (Nichols) asked where Brettell was since she was supposed to be on wound rounds. Martin told Nichols that Brettell had left for break at 9:40 a.m. and had not returned. Nichols had Brettell paged but got no response. Nichols went to look for Brettell and found her in the rose garden, where the page could not be heard. Nichols told Brettell that she was needed for wound rounds and that she was late coming back from her break. Brettell responded that she did not leave for break until 9:50 a.m. Nichols told Brettell that she was still late whether she left at 9:40 or 9:50 a.m. because she had exceeded her alloted 15-minute break. Brettell returned from her break at 10:17 a.m., taking a 37-minute break. After lunch on May 5, 1999, Nichols asked Brettell to come to Nichols' office to discuss the lengthy morning break. Brettell told Nichols that she would not go into Nichols' office alone to which Nichols replied that Whorms would also be in the office. Brettell sought to have a subordinate employee come into the office with her, and Nichols told Brettell that a subordinate employee could not accompany Brettell into the office for the conference. Brettell still would not enter the office and called a security guard. The security guard arrived. Nichols contacted Suzanne Richardson (Richardson), Vice President of Nursing Services at Morse, and Vicky Porter (Porter), Vice President of Human Resources at Morse. Richardson and Porter were in a meeting together when Richardson received the call. Nichols advised Richardson that she was having difficulty in having a conference with Brettell, because Brettell was refusing to come into her office. Nichols was advised to go to the Human Resources Department. Brettell, Nichols, and the security officer went to the Human Resources Department, where Porter asked Brettell to come into Porter's office to discuss why Brettell did not want to go into Nichols' office for a conference. Brettell refused to go into Porter's office unless the security guard accompanied her. Richardson and Porter told Brettell that the conference was not a security issue and the security officer would not be allowed in the conference. Porter explained that the Human Resources Department was supposed to be neutral ground where employees could voice their concerns and that the security officer needed to return to his assigned duties. Porter again asked Brettell to come into her office, but Brettell refused, stating that she would not go into an office in the Human Resources Department without a security guard. Having a security guard present was not an available option. Brettell asked for a few minutes to think about whether she was going to go into the office. Everyone agreed to give Brettell a few minutes to think about the situation. Brettell left the Human Resources Department and went to a nursing unit in the Edwards Building to call her attorney. Her attorney was on the telephone with another client, so Brettell had to hold the line and wait for her lawyer to become available to speak with her. Approximately 30 minutes passed, and Brettell had not returned to the Human Resources Department or notified either Richardson or Porter of her decision. Nichols went to look for Brettell and found her in the Edwards Building using the company telephone to call her attorney. Nichols told Brettell to come back to the Human Resources Department, but Nichols refused, stating that she was on the telephone holding for her lawyer. Nichols called Richardson and told her that Brettell was refusing to hang up the telephone and come back to the Human Resources Department. Richardson and Porter came to the Edwards Building. Richardson asked Brettell if she was on a break and whether the call was for company business or personal. Brettell responded that she was not on break and that the call to her attorney was personal. Richardson told Brettell to get off the telephone, because Brettell was not authorized to use the telephone at the nursing unit for personal calls when she was not on a break. Brettell did not hang up the telephone. Richardson went to Porter and told her that Brettell was still on the telephone. Porter went to Brettell and told her that is was inappropriate for her to be using the telephone and that she was to clock out and go home. Richardson recommended that Brettell be terminated for violation of the company's policies. Brettell was terminated for insubordination and using the company telephone for personal business when not on a break, and not because of any handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Joyce Brittell's charge of discrimination. DONE AND ENTERED this 7th day of December, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2000. COPIES FURNISHED: Joyce Brettell 3743-4 Silver Lace Lane Boynton Beach, Florida 33436 Lynn G. Hawkins, Esquire Fitzgerald, Hawkins, Mayans & Cook, P.A. 515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401 Dana A. Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Agency Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Petitioner properly issued a Stop-Work Order and Second Amended Penalty Assessment against Respondent for failing to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact The Division is a component of the Department of Financial Services. It is responsible for enforcing the workers' compensation coverage requirements pursuant to section 440.107, Florida Statutes. Children's Academy is a corporation operating child care centers in Miami, Florida. Children's Academy was incorporated in 1994 and has been operating with an active status since its inception. Patrick Adeleke ("Adeleke") is the sole shareholder and president of Children's Academy. Children's Academy has seven locations. Each of the seven day care centers has its own state license and occupational license. On October 5, 2011, Petitioner's investigator, Cheryl Powell ("Powell"), visited the Children's Academy location at 151 Northwest 162 Street, Miami, Florida. At the business site, Petitioner's investigator spoke to Laquisha Lewis ("Lewis") regarding the business. Lewis provided Powell a business card during the meeting that contained the seven day care centers under Children's Academy. Subsequently, Powell visited the headquarters. Adeleke was not at the business site when Powell visited the Children's Academy headquarters. The headquarters had a marquee that indicated it was Children's Academy Preschool, Incorporated. It had children, playground equipment, and was the same colors: red, yellow, and blue as the original business site Powell had visited earlier. Powell returned to the original business site and input information about Children's Academy into the Department of Financial Services' Coverage and Compliance Automated System (CCAS). She found that Respondent lacked insurance for the payment of workers' compensation coverage. Powell discovered Children's Academy's last known coverage was canceled May 19, 2003. Additionally, Petitioner's investigator verified through the CCAS that no exemptions from workers' compensation had been issued in connection with Children's Academy. Eventually, Powell spoke to Adeleke by telephone. Adeleke informed Powell that he had 27 employees working for Children's Academy and that there was no workers' compensation insurance in place. Each of the 27 employees are employed by Children's Academy under one tax ID number. Two of the seven day care center locations (Children's Academy #1 and #3) have four or more employees and the other five day care center locations (Children's Academy #2, #4, #5, #6, and #7) have three or fewer employees. Upon confirmation that Respondent lacked workers' compensation coverage and that no exemptions were in effect, the Department issued Children's Academy a Stop-Work Order ("SWO") and served a Request of Business Records for Penalty Assessment Calculation to Children's Academy ("Request"). On October 7, 2011, Respondent obtained a certificate of insurance for workers' compensation coverage. Respondent also responded to the Request and provided the Department with some of the requested records. These business records included corporate tax returns, quarterly federal tax returns, quarterly state employer's tax returns and payroll journals. The records were forwarded to Anita Proana, Penalty Auditor for the Division for review. The records listed one employer, Children's Academy, for all the business records supplied for each of the seven day care centers. All 27 employees were being paid under one corporation, with one federal employer ID number for Children's Academy. Additionally, the amounts on the payroll journals for the 27 employees matched the amount claimed as wages on the federal tax returns for Children's Academy. After Proano reviewed the records provided, she properly calculated the worker's compensation amount Children's Academy owed in workers compensation insurance for the period of October 6, 2008, through October 5, 2011, and concluded that Respondent failed to pay workers' compensation premium of $22,111.20. After the premium was multiplied by the statutory factor of 1.5, it resulted in a penalty assessment in the amount of $33,167.75. The new calculation superseded the Amended Order and a Second Amended Order of Penalty Assessment was issued on or about July 27, 2012, reducing Respondent's penalty to $33,167.75. During the hearing, Respondent admitted not having workers' compensation coverage for his employees but contested Children's Academy being a single employer. Instead, Respondent contested that the five preschools that had three or fewer employees owed any premium because each preschool was exempt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, issue a final order affirming the Stop-Work Order and Second Amended Order of Penalty Assessment in the amount of $33,167.75 minus the payments made to date. DONE AND ENTERED this 25th day of September, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 September, 2012. COPIES FURNISHED: Alexander Brick, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 alexander.brick@myfloridacfo.com Layne Verebay, Esquire Law Office of Layne Verebay, P.A. Building B, Suite 104 7800 West Oakland Park Boulevard Sunrise, Florida 33351 lverebay@aol.com Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue The issue is whether Petitioner properly denied Respondent's request to amend or expunge FPSS Report Number 97-025819.
Findings Of Fact Liberty Intermediate Care Facility ("LICF" or "Liberty ICF") is a residential facility which provides care, shelter, and sustenance to developmentally disabled adults. From time to time, certain residents at Liberty ICF require "one-on-one" supervision. In that circumstance, one staff member is assigned to look after only one resident. The staff member must maintain eye contact with the resident and must keep the resident within arm's reach at all times. During March 1997, Respondent provided direct care to developmentally disabled adult residents at Liberty ICF in her capacity as a Direct Care Instructor. On March 6, 1997, Respondent was assigned one-on-one supervision of M.H., a developmentally disabled adult resident of the LICF. M.H. was known to leave the facility and to commit acts of physical self-abuse, such as head banging, if he was not carefully monitored. M.H. suffers from mental limitations which substantially restrict his ability to perform the normal activities of daily living. At the time of this assignment, Respondent was aware of M.H.'s propensities. At around 3:00 p.m. on the afternoon of March 6, 1997, as Respondent was performing this supervision, M.H. was asleep on his bed, while Respondent was sitting on the chair next to the bed. When M.H. awoke, Respondent gave him some gummy bears. M.H. then accepted the gummy bears, went to the window, and stared outside. Respondent then sat down in the chair beside the bed and went to sleep. While Respondent was sleeping M.H. left the room and exited the building. Another staff member observed M.H.'s departure. Behavioral Program Specialist Cathy Buchanon entered M.H.'s room, woke Respondent, and asked her where M.H. was. Respondent stated that she did not know where he was. Respondent and Ms. Buchanan left the building and found M.H. in the parking lot.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order retaining as confirmed the report of adult neglect naming Respondent as perpetrator. DONE AND ENTERED this 21st day of November, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 T. R. (address of record) Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are (1) whether Florida Administrative Code Rules 67-48.002(95) and 67-60.010(3) are invalid exercises of delegated legislative authority; and (2) whether certain statements in Request for Application 2016-113 (RFA-113) issued by Respondent, Florida Housing Finance Corporation (Florida Housing or agency), are unlawful unadopted rules in violation of section 120.54(1)(a), Florida Statutes (2016).
Findings Of Fact The Parties Florida Housing is a public corporation created pursuant to section 420.504. One of its responsibilities is to award low-income housing tax credits, which developers use to finance the construction of affordable housing. Tax credits are made available to states annually by the United States Treasury Department and are then awarded pursuant to a competitive cycle that starts with Florida Housing's issuance of an RFA. This proceeding concerns RFA-113. Petitioners ARD and Madison are developers of affordable housing units and submit applications for tax credits. Law and Wolf are principals of a developer of affordable housing units. Berkshire, Hawthorne, and Southwick are limited partnerships that have submitted applications for tax credits. All Petitioners intend to submit applications in response to RFA-113 and will be subject to rule chapters 67-48 and 67-60. Intervenors Heritage and HTG are developers of affordable housing who intend to file applications pursuant to RFA-113. Background On October 28, 2016, Florida Housing published on its website proposed solicitation RFA-113, a 121-page document inviting applications for the award of up to $14,669,052.00 in housing tax credits for the development of affordable, multifamily housing located in Broward, Duval, Hillsborough, Orange, Palm Beach, and Pinellas Counties. After Petitioners gave notice of their intent to challenge RFA-113, Florida Housing attempted to resolve the dispute by modifying the solicitation on November 13, 2016. The modification did not resolve the dispute. On November 14, 2016, Petitioners timely filed with DOAH two Petitions, each challenging rules 67-48.002(95) and 67-60.010(3) and various statements in RFA-113. On the same date, they filed with Florida Housing two petitions challenging certain specifications in the solicitation. Although the Petitions include allegations that two existing rules are invalid, Petitioners' main concern appears to be directed at various provisions in RFA-113 that they assert limit their ability to be awarded tax credits. These contentions are addressed separately below. C. Rule 67-48.002(95) The federal Low-Income Housing Credit Program is governed by 26 U.S.C.S. § 42 (section 42). The program allocates annually federal income tax credits to states on a per capita basis to help facilitate private development of affordable low-income housing. As the housing credit agency for the State of Florida, Florida Housing has the authority to administer various federal and state affordable housing programs, including the Low-Income Housing Credit Program. See § 420.5099(1), Fla. Stat. Section 42(m)(l)(A)(i) requires each state that administers low-income housing credits to adopt a QAP, which identifies the selection criteria used for distributing the housing credits. To comply with this requirement, rule 67-48.002(95) adopts and incorporates by reference the 2016 QAP. The rule reads as follows: (95) "QAP" or "Qualified Allocation Plan" means, with respect to the HC [Housing Credit] program, the 2016 Qualified Allocation Plan which is adopted and incorporated herein by reference, effective upon the approval by the Governor of the State of Florida, pursuant to Section 42(m)(1)(B) of the IRC and sets forth the selection criteria and the preferences of the Corporation for Developments which will receive Housing Credits. The QAP is available on the Corporation's Website under the Multifamily Programs link or by contacting the Housing Credit Program at 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32301-1329, or from http://flrules.org/Gateway/reference/asp?No= Ref-07355. The 2016 QAP is a five-page document that replaces the 2015 QAP and generally describes the process for allocating 2017 housing credits. In summary, it identifies Florida Housing as the housing credit agency for the State, lists the federally- mandated preferences and selection criteria to be used when allocating housing credits, describes in brief terms the competitive solicitation process, describes the process for awarding competitive and noncompetitive housing credits, and describes the procedures for monitoring and reporting a project's noncompliance with IRC requirements. Section 42(m)(1)(C) lists ten selection criteria that must be incorporated into the QAP. To comply with this requirement, section I.B. of the 2016 QAP provides that the following selection criteria will be considered when determining the allocation of housing credits: project location; housing needs characteristics; project characteristics including housing as part of a community revitalization plan; sponsor characteristics; tenant populations with special housing needs; public housing waiting lists; tenant populations of individuals with children; projects intended for eventual tenant ownership; energy efficiency of the projects; and historic nature of project. These criteria are identical to those listed in section 42(m)(1)(C) and are intended to provide general guidance for the entire housing credit program, and not just RFA-113. Other than the ten criteria, the IRC requires no further detail regarding the selection criteria. However, more specific guidance is found in the individual RFAs, tailored to each type of solicitation. Since late 2013, when the RFA solicitation process began, around 15 to 20 RFAs have been issued annually. Petitioners assert the QAP violates the IRC by not listing the RFA criteria. However, neither the Department of Housing and Urban Development nor the Internal Revenue Service has ever told Florida Housing that the QAP does not comply with the IRC or other applicable federal regulations. The rule cites section 420.507 as Florida Housing's rulemaking authority. That statute has 49 subsections that identify the various powers necessary for Florida Housing to carry out and effectuate the provisions of the law. Pertinent to this dispute is subsection (12), a general grant of authority for Florida Housing "[t]o make rules necessary to carry out the purposes of [part V, chapter 420]," which governs the various low-income housing programs administered by the agency. The rule cites section 420.5099(1) as the law being implemented. That provision designates Florida Housing as the housing credit agency for the state, along with its "responsibility and authority to establish procedures necessary for proper allocation and distribution of low-income housing tax credits and [to] exercise all powers necessary to administer the allocation of such credits." While consistency with section 42 is required in order to satisfy federal requirements, the IRC is not the law being implemented. Petitioners allege the rule exceeds the agency's grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) and (c), Fla. Stat. In short, they contend that other than the generic selection criteria required by section 42(m)(1)(C), the QAP fails to include the other selection criteria in RFA-113 that are used during the competitive process. D. Rule 67-60.010(3) Petitioners also challenge rule 67-60.010(3). The entire rule, entitled "Funding Preferences," reads as follows: In connection with any competitive solicitation, where all other competitive elements are equal, the Corporation may establish a preference for developers and general contractors who demonstrate the highest rate of Florida job creation in the development and construction of affordable housing. In any competitive solicitation, the Corporation may prescribe a priority to fund affordable housing projects in the Florida Keys Area of Critical State Concern and the City of Key West Area of Critical State Concern where, due to challenging environmental, land use, transportation, workforce, and economic factors, it is extremely difficult to successfully finance, develop, and construct affordable housing. The Corporation may establish other funding priorities as deemed appropriate for a competitive program or solicitation. The rule cites section 420.507(12) as the source of rulemaking authority. That statute is a general grant of authority allowing Florida Housing to adopt rules necessary to carry out the purposes of part V, chapter 420, which includes the issuance of tax credits under the Low-Income Housing Credit Program. The rule cites sections 420.507(47), (48), and (49), 420.5087, 420.5089(2), and 420.5099 as the laws being implemented. In their totality, those provisions authorize Florida Housing to adopt rules and procedures for allocating housing credits and loans for programs that it administers pursuant to chapter 420. One authorized procedure is the authority to use RFAs when awarding low-income housing tax credits. See § 420.507(48), Fla. Stat. On the faulty premise that RFA-113 derives its authority from subsection (3) of the rule, rather than statutory law, Petitioners argue that Florida Housing is allocating low- income housing tax credits in a manner that violates section 42 and chapter 420. They contend authority is delegated by the RFA to local governments to choose which developer will receive local funding, thus giving that developer more preferential treatment in the selection process. By doing so, Petitioners assert subsection (3) violates section 120.52(8)(d) by failing to establish adequate standards for agency decisions and vesting unbridled discretion in the agency. As the record shows, the authority to allocate tax credits is not derived from a rule. The source of authority is a statute. Subsection (3) simply informs readers that, besides the statutorily-mandated procedures spelled out in subsections (1) and (2), other types of funding priorities or preferences may be enacted at some future time by the legislature. As these changes occur, the reader is told that specific rules will be adopted to implement those changes. Agency Statements The allegations concerning unadopted rules, all in the RFA, are somewhat confusing. In their PFO, Petitioners request that a final order be entered determining "the policies that make up virtually all of RFA 2016-113 are invalid non-rule policies." Pet'r PFO, p. 23. In paragraph 38 of the PFO, they make reference to RFA pages 2, 13, 20, 22, 40-45, 53-54, 62-63, 67-68, 72, and 110, but elsewhere provide the actual text of only six statements and a brief description of a few others. In the parties' Joint Stipulation, Petitioners assert only that "RFA 2016-113 contains numerous provisions that are invalid exercises of non-rule policy and are without a basis in or are contrary to the law implemented." Jt. Stip., p. 2, § B.1. No statements are identified or described. As detailed in endnote 1, however, their initial Petitions identify the text of some statements and provide a brief description of others, along with the page number on which they are found.1/ Only these statements will be addressed. Petitioners contend that Florida Housing must immediately discontinue all reliance upon them, stop the solicitation process, and issue a new RFA. It is unnecessary to recite each statement in full in order to resolve this dispute. An RFA is issued for each solicitation involving low- income housing credits. Before posting an RFA, Florida Housing typically conducts workshops and posts on-line information to inform prospective applicants of all requirements and any new provisions. By reading the RFA, each prospective applicant is placed on equal footing with the others. RFA-113 consists of six sections: Introduction; Definitions; Procedures and Provisions; Information to be Provided in Application; Evaluation Process; and Award Process. The definitions and funding selection criteria being challenged are found in sections Two and Four, respectively. A lengthy Exhibit A is attached to RFA-113, which includes various forms, instructions, and the like. The evidence shows that RFAs in the low-income rental housing program are not always the same, as they vary depending on such things as the type of project, size of the county, applicable selection criteria, proximity of other developments, program being implemented, demographics being served, and economic conditions in the area. Also, changes in the substantive law or federal regulations require a modification of an RFA's terms and conditions from time to time. For example, RFA-113 contains new criteria used by Florida Housing for the very first time. In short, RFA-113 is tailored to a very narrow class of persons in the six-county area who seek tax credits to build affordable low-income rental property in that area. The selection criteria in RFA-113 are not cast in stone and some are subject to discretionary application. And applicants can achieve points in different ways. During the review process, evaluators have the discretion to either waive or enforce irregularities, depending on how they characterize the irregularity. It is fair to assume from the record that different members of the evaluation committee might assign a different score to the same section of an application. Is Rulemaking Impracticable? Petitioners contend that Florida Housing must adopt by rule the detailed selection criteria, preferences, and definitions contained in every RFA. These terms and conditions change from cycle to cycle and would require Florida Housing to engage in repetitive rulemaking each year, which more than likely would unduly delay the solicitation process. Assuming arguendo the statements are a rule, which they are not, under the circumstances presented here, it is not reasonable to adopt by rule precise or detailed principles, criteria, or standards for every solicitation. See § 120.54(1)(a)2.a., Fla. Stat. Attorney's Fees and Costs As a condition precedent to seeking an award of attorney's fees and costs against an agency for having an illegal unadopted rule, the person bringing the challenge must give the agency 30 days' notice before filing a petition under section 120.56(4), which notice must inform the agency that the disputed statement might constitute an unadopted rule. See § 120.595(4)(b), Fla. Stat. The parties have stipulated that Petitioners failed to provide this notice.
The Issue Whether an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, as a surviving spouse, is entitled to a continuing benefit from the Florida Retirement System (FRS) based on the retirement account of her deceased husband, George S. Bohler. More specifically, it must be determined whether the forgery of the spousal acknowledgement form renders the member's election of the "Option 1" retirement benefit payment, which precludes a survivor's benefit for his spouse, invalid and void.
Findings Of Fact George Bohler, the FRS member at issue, was employed, at times pertinent, as a Professor of Economics at Florida Community College in Jacksonville. The College is an FRS employer and Mr. Bohler was a member of the FRS retirement system. The Division of Retirement is an administrative agency charged with regulation and operation of the Florida retirement system, including calculation of and determination of entitlement to retirement benefits, under various options and member circumstances. On March 22, 1999, Mr. Bohler filed a completed Florida Retirement System Application for service retirement and the Deferred Retirement Option Program (DROP). This was accomplished through his filing of "Form DP-11." The Form provides a retiree with information pertaining to four options by which his retirement benefits may be paid. One full page of that form provides an explanation of each option. Mr. Bohler selected Option 1, a retirement benefit pay-out plan which provides the highest monthly benefit. The Option 1 selection provides that this highest monthly benefit is payable for the lifetime of the retiree only. Upon his death, the benefit would stop and his beneficiary, here his spouse, the Petitioner, would receive only a refund of any contributions the member might have paid into the FRS which exceeds the amount he had received in benefits. Option 1 provides no continuing or survivor benefit to a beneficiary or surviving spouse. The DP-11 Form filed with the retirement application contained an apparent spousal acknowledgement purportedly signed by Deborah T. Bohler, the spouse of member George Bohler. It appears to acknowledge that the member had elected either Option 1 or Option 2, which provide no survivor/spouse benefit. The DP-11 Form indicated to the Division that the member was married. The parties have stipulated, however, that the Petitioner's signature on the FRS application for service retirement and the DROP program was actually forged. George Bohler, the member, was an FRS member from August 19, 1968, to March 31, 2005. He received FRS retirement benefits based upon the above-referenced application from the Division from April 1, 2000, to October 31, 2007. The Form DP-11 contained a statement to the effect that the retiree member understood that he could not add additional service, change options, or change his type of retirement once his retirement became final. Mr. Bohler began participation in the DROP program on April 1, 2000. Thereafter, his last date of employment was March 31, 2005, and he passed away on October 18, 2007. He received FRS benefits from April 1, 2000, until October 31, 2007. For 28 years, until his death on that date, Mr. Bohler was legally married to the Petitioner, Deborah Bohler, during which time they were never separated or divorced. On March 10, 1999, Mr. Bohler executed the FRS Application for Service Retirement and the DROP program. He had his signature notarized as required for that form. Joint Exhibit 1, in evidence. Mr. Bohler designated the Petitioner as his primary beneficiary on the DROP Application. He elected to begin participation in the DROP program as of April 1, 2000, and to retire from state employment effective March 31, 2005, which he did. There are four options which an FRS member may select for his or her retirement benefits to be paid to the member or to the survivors/beneficiaries. Mr. Bohler selected "Option 1" on his DROP Application form. This results in a significantly higher retirement monthly benefit than does Options 3 or 4, which have survivorship rights. The acknowledgement section on the DROP Application form requires that a member's spouse be notified and must acknowledge a member's selection of Option 1 or Option 2 by signing that DROP Application form, so that the FRS is thus informed that the spouse made a knowing, intelligent waiver of survivorship rights to benefits. The spousal acknowledgement provision or section does not require that the member's spouse's signature be notarized. The form also does not require a member to swear under oath that the spouse was notified. The parties have stipulated that the Petitioner's apparent signature shown on Mr. Bohler's retirement application form was forged. The Petitioner had no knowledge that her name had been placed on the form by some other person, nor did she have any knowledge that Mr. Bohler had selected Option 1 prior to his death. The Petitioner first learned that her husband had selected Option 1 when she contacted the Respondent, after his death, to request that his retirement benefits now be paid to her. She believed that she was entitled to survivorship benefits. Her husband never informed her that he had selected a retirement option which would not pay her survivorship benefits, nor had they discussed the matter before or since his retirement. In their marital and family relationship, the Bohlers had divided certain duties in such a way that Mr. Bohler, the FRS member at issue, handled all financial matters himself. The Petitioner, Mrs. Bohler, dealt with any tax issues or filings the couple was required to make during the years of their marriage. The Petitioner is a certified public accountant. The Petitioner was simply aware that her husband received retirement benefits, and knew the amount of them, but did not know that they represented benefits for Option 1 rather than Option 3 or 4. The Petitioner's signature on the spousal acknowledgment section of the DROP Application form is stipulated to have been forged. The fact of the forgery, and the Petitioner's un-refuted testimony, establishes that she was never notified, nor did she ever acknowledge that her husband had selected Option 1. She was not aware that an attempt to waive or extinguish her survivor's benefits had been made. She believed, during his lifetime, that she was to be accorded survivor benefits. Testimony presented by the Respondent shows that the Respondent Division will not accept a retirement application form, or process it, if a member fails to complete the spousal acknowledgement section or, alternatively, to submit a signed statement explaining why that section is left blank, or the signature of the spouse has not been obtained. The fact that the Division will not accept a retirement or DROP Application form or process the related benefits if the acknowledgement section is unsigned or blank establishes the mandatory nature of the requirement that a spouse acknowledge a member's election to receive benefits under an option which would preclude a spouse's survivorship benefits. The acknowledgement is thus not an optional requirement. In fact, the legislature clearly placed that requirement in the statute, Section 121.091(6)(a), Florida Statutes, as a mandatory requirement so a spouse would know of any such attempt to waive the spouse's survivorship rights and benefits. It is an acknowledgement that the spouse has a vested or property right in such benefits, which must be knowingly and intelligently waived. The Statute says, in fact, that the spouse of any member "shall be notified of and shall acknowledge any such election." Therefore, obtaining a spouse's signature is not the only desired result set forth by the legislature (and under the rule adopted pursuant thereto) because it requires actual notification of the spouse, not merely the obtaining of a spouse's signature, whether genuine or forged. Actual notification is what must be accomplished. The required notification and indeed the obtaining of the Petitioner's signature was not accomplished in the facts of this case. In light of these facts, the act of declaring and accomplishing retired status, and selection of the related benefit option, was never completed. The Option selection was obviously a nullity and void ab initio because the mandatory condition precedent never was accomplished by the member.
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 RECOMMENDED that a final order be entered by the State of Florida, Department of Management Services, Division of Retirement, awarding the Petitioner retirement benefits based upon her status as a surviving spouse and joint annuitant, in the manner described above, adjusted to reflect re-calculation and recoupment of overpayment based upon the amount of benefits already paid from the subject retirement account pursuant to Option 1. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 10th day of November, 2009. COPIES FURNISHED: Elizabeth Regina Stevens, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32327 T. A. Delegal, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The central issue for determination is whether the Petitioner is entitled to retirement benefits which she claims as surviving spouse. Although she does not provide evidence that her husband earned sufficient creditable service to vest in the system, Petitioner claims entitlement based on two alternate theories: that approximately 480 hours of sick leave accrued at the time of her husband's death should be added to his creditable service to meet the ten-year requirement; and her husband should have been eligible for disability retirement prior to his death, but was prevented by his employer from making a timely application.
Findings Of Fact Robert L. Carruthers was a member of the Florida Retirement System (FRS) at the time of his death on May 26, 1988. His membership commenced on September 13, 1979, when he was employed by the Brevard County District School Board. On June 30, 1980, he transferred to the Orange County District School Board and remained in that employment until his death. Joy Ruth Carruthers is the surviving spouse of Robert L. Carruthers. During his employment with the two school boards, Mr. Carruthers earned 8.75 years of creditable service in the FRS. Mrs. Carruthers is unaware of any other employment which might be credited as service. The Division of Retirement has no information of other employment which might be credited as service in the FRS. As the result of a complaint by Carol Stearns, the mother of Joy Carruthers, Robert Carruthers was placed on "relief of duty, with full pay and benefits" as of February 18, 1988, by the Orange County School Board. Prior to that time he had worked as an ROTC instructor at Evans High school. He was on the "relief" status at the time of his death. Sometime in late February 1988, Robert Carruthers became paralyzed from the waist down, and could not walk, as the result of a progressive illness. He had formerly walked with a cane. He had worked at the school up through the day he was given his "relief from duty" papers. Mrs. Carruthers claims that when he was placed on relief status, her husband was forbidden to go anywhere near the school or school board offices and was thus prevented from filing an application for retirement disability benefits. No witness substantiated that claim, and the letter from Dennis Reussow, Assistant to the Superintendent for Employee Relations and Administrative Services, to Mr. Carruthers states, ". . . . During this time you are directed to remain away from the Evans High School campus and to avoid contact with students assigned to the school. . . ." (Petitioner's exhibit #4.) This prohibition appears to be limited to the school and would not include the administrative offices. In early May the school board received a statement from Robert Carruthers' doctor that he would not be able to return to work indefinitely. Shortly thereafter, John B. Hawco, the Orange County School Board Administrator for Employee Relations, went to Carruthers' home with insurance forms. They were able to communicate and Carruthers signed some forms. It is not clear from the record whether a disability retirement application was completed on that occasion, but at some point a scribbled, illegible signature for Robert Carruthers was obtained on an FRS application for disability retirement. The application is dated May 25, 1988. The employer's statement of disability attached to the application was completed by John B. Hawco on May 26, 1988. When he completed the form, John Hawco did not know that Robert Carruthers had died the same day. The application form was date-stamped at the Division of Retirement on May 31, 1988. The employer's statement of disability is stamped June 6, 1988. (Petitioner's composite exhibit #3.)
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter its Final Order denying Petitioner's request for benefits. DONE and ORDERED this 28th day of June, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989. COPIES FURNISHED: Joy R. Carruthers Post Office Box 680-151 Orlando, Florida 32858 Stanley M. Danek, Esquire Office of General Counsel 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner's application for disability retirement benefits should be reinstated.
Findings Of Fact Petitioner Edna Shepherd is a member of the Florida Retirement System. In September 2001, Ms. Shepherd submitted an application for disability retirement benefits to the Division of Retirement. The application was not complete and several documents were needed to process the application. By letter dated September 27, 2001, the Division wrote Ms. Shepherd acknowledging receipt of the disability application and requesting additional information. Enclosed with the letter were two blank FR-13b forms (Physician's Statement Forms), which were necessary to complete the application. Petitioner did not respond to the September 27, 2001, letter, so the Division mailed another request on October 29, 2001. Again two blank FR-13bs were included with the letter. On November 29, 2001, the Division mailed a third request for information to Petitioner. Blank forms were also included with this letter. By letter dated January 3, 2002, the Division mailed a fourth request to Ms. Shepherd again requesting information necessary to complete her application for disability retirement benefits. After the Division did not receive a response to its previous letters mailed to Petitioner, it sent a letter dated February 4, 2002, by certified mail to Ms. Shepherd advising her that she had 21 days from the date of the letter to submit the necessary information or her application would be cancelled. Finally, after more than six months since submission of her application, the Division sent a letter dated March 25, 2002, by certified mail to Ms. Shepherd notifying her that her disability application was cancelled and giving her 21 days to request a hearing. She did receive this letter and this timely appeal followed. Petitioner's attorney made two submissions to the Division dated September 14, 2001, and February 22, 2002; however, they did not contain the requested physician statements. As of the hearing, the requested physician statements still had not been supplied to the Division. The applicant is responsible for ensuring the Division receives the information necessary to process an application for disability retirement benefits.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Retirement issue a Final Order denying the request of Petitioner Edna M. Shepherd to reinstate her disability retirement application. DONE AND ENTERED this 18th day of September, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2002. COPIES FURNISHED: Leon M. Boyajan, II, Esquire 2303 West Highway 44 Inverness, Florida 34453-3809 Thomas E. Wright, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
