The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's refusal to renew Petitioner's license.
Findings Of Fact Petitioner Linda Stewart, on behalf of Stewart Family Day Care (Petitioner), received the business’ first license to operate a family day care center for no more than 10 children on December 20, 1996. Annual renewals of the license followed until January 2002, following Stewart Family Day Care’s renewal application filed the first of that month. On January 22, 2002, Petitioner was notified that the Department of Children and Family Services (Respondent) had declined to renew Stewart Family Day Care’s license to operate as a family day care. Denial was based on Petitioner’s September 24, 2000, arrest and subsequent conviction for Driving Under the Influence of Alcohol (DUI). License denial was also based on a report made to Respondent of domestic violence (Report No. 2000-075894) in the home in which Petitioner operated the Stewart Family Day Care. An additional report, Report No. 2001-04761, which made allegations that Petitioner was intoxicated while caring for children was closed as unfounded. At the time of both occurrences for which Respondent had concerns, there were no children in the care of Petitioner Stewart with the exception of her son, who was at the time of the alleged domestic violence 16 years of age. As established by the evidence, Petitioner was not the first aggressor and did not initiate the altercation that occurred in her home when a guest, not a live-in as alleged in the report, with too much to drink became violent, hitting Petitioner. Petitioner’s son went next door at his mother’s request and called law enforcement. Following Respondent’s refusal to renew Petitioner’s license, Petitioner has become actively involved with Alcoholics Anonymous (AA). Petitioner’s sponsor in AA testified that Petitioner attends meetings and is sincere in her commitment to AA. Petitioner, it is specifically found, has effectively rebutted through clear and convincing evidence, the allegations of domestic violence upon which Respondent relied for denial of re-licensure. Additionally, the evidence convincingly establishes that the DUI offense committed by Petitioner, at night, was unrelated in any way to her day care business. Further, as established by testimony of parents at the final hearing, Petitioner enjoys their full confidence with regard to the care afforded their children. Licensure renewal has never been denied to Petitioner in the past. Additionally, she has attended, through the years, numerous seminars and short courses to compliment and increase her proficiency in the area of child care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is Recommended that a final order be entered granting renewal of Petitioner’s license to operate a day care center. DONE AND ENTERED this 4th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 R. Eric Rubio, Esquire 2407 East Bloomingdale Avenue Valrico, Florida 33594-6404 Paul Flounlacker, 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
The Issue Whether Respondent committed the offenses described in the Administrative Complaint issued by Petitioner? If so, what penalty should be imposed?
Findings Of Fact Elenor's Retirement Home (Home) is a licensed adult congregate living facility located in Miami, Florida. Eric Peavy is the owner of the Home. His wife is the Home's administrator. In November, 1989, OLC personnel visited the Home to conduct a survey to determine compliance with licensure requirements. Resident contracts on file were reviewed. Three of the contracts reviewed contained neither a refund policy of the type specified in Chapter 10A- 5, Florida Administrative Code, a bed hold policy, nor a statement as to whether the Home is affiliated with any religious organization. A previous survey conducted by OLC personnel had revealed that resident contracts on file at the Home lacked these provisions. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey. During the November, 1989, survey, an examination was also conducted of the medication records maintained at the facility. The records were incomplete. They did not contain daily, up-to-date information regarding the administration of medication to three of the Home's residents. A previous survey conducted by OLC personnel had revealed that the Home did not have complete, up-to-date records concerning the daily administration of medication to all of its residents. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey. During the November, 1989, survey, OLC personnel observed a resident who required greater care than the Home was able to provide. The resident was incapable of doing virtually anything for herself. Among other things, she needed to be administered medication. The Home, however, did not have the licensed staff to provide this service. The resident was totally incontinent. Because of her physical condition, the resident was unable to participate in any of the social activities at the Home. The same resident had been observed at the facility during an earlier survey conducted in June of that year. Although the matter of the inappropriateness of the resident's continued placement at the Home had been raised during the survey, the resident was still at the facility when OLC personnel returned to the Home in November. During the November, 1989, survey, the Home's fire drill records were inspected. There was no record of any fire drills being conducted at the facility in September or October of that year. This was not the first time that OLC personnel had found a lack of documentation concerning the conducting of monthly fire drills at the Home. Such a deficiency had been uncovered during an October, 1988, survey of the Home. The Peavys were made aware of this deficiency at that time. The Peavys were given written notice of the deficiencies found during the November, 1989, survey. OLC personnel revisited the Home in February, 1990, and discovered that all of the deficiencies found during the November, 1989, survey had been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint, imposing a civil penalty in the amount of $1,000 for these violations and giving the Home a reasonable amount of time within which to pay this penalty. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of May, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1991.
Findings Of Fact Petitioner is a non-profit corporation located in the State of Florida. Petitioner is dedicated to the training and education of persons who minister to law enforcement officers as police chaplains. The association is interfaith and interdenominational. It is not organizationally affiliated with any church and is not itself a church. It does not conduct worship services, nor require its members to conduct worship services. Moreover, Petitioner's member police chaplains are not necessarily required to be members of a religious organization. Petitioner does not control who may be selected by a law enforcement agency as a chaplain. In fact, persons acting as police chaplains can perform their duties without being a member of or consulting with Petitioner. Petitioner does not have a physical building or other structure which is used regularly for worship services or is used by any of its members to conduct regular worship services. Additionally, Petitioner did not offer or submit any competent evidence to show that it is within a larger church hierarchy or that there is some organizational nexus with various police departments or their chaplains. The association does have a voluntary ethical code for its members and does provide newsletters and documents about ethics to its members. The association also provides information to law enforcement agencies on operating a police chaplaincy and information related to selecting a police chaplain. However, no evidence was presented that Petitioner participates with or controls its members as they perform their daily duties as a chaplain. Likewise, Petitioner did not offer or submit any competent evidence to show that it "customarily" exercises any control over police chaplains or that it regularly participates in any of the "customary" activities of police chaplains. In short, Petitioner is a voluntary social organization whose various members have a common interest in the quality of ministering to law enforcement agencies. It is not an administrative office of a discreet religious hierarchy. Lacking such an affiliation, Petitioner is not entitled to a certificate of exemption.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Revenue enter a Final Order denying Petitioner's application for a consumer's certificate of exemption as a religious institution. DONE and ENTERED this 14th day of November, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER 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 14th day of November, 1996. COPIES FURNISHED: William B. Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, FL 32314-6668 David W. Derevere, Executive Director International Conference of Police Chaplains Post Office Box 5590 Destin, FL 32540-5590 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
The Issue Whether Petitioner was an employee of Respondent's at the time of the alleged unlawful employment practices described in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Joint Prehearing Stipulation and their October 13, 2008, pleading2: Petitioner is a college graduate with a communications degree. She has held a Florida life, variable annuity, and health insurance agent (2-15) license issued by the Department of Financial Services since March 8, 2005. Respondent's home office is located in Omaha, Nebraska. At all times material to the instant case, Respondent had a divisional office located at 2240 Woolbright Road, Suite 400, Boynton Beach, Florida (Boynton Beach Office) staffed by a general manager (Michael Chojnacki), a district sales manager (Ronald Green), and two secretaries (Victoria Hughes and Carolyn Mickley). Mr. Chojnacki, Mr. Green, Ms. Hughes, and Ms. Mickley were salaried employees of Respondent's paid by check issued by the home office. They enjoyed employee benefits that included vacation time; sick leave; health, vision, and dental coverage; disability and life insurance; and a retirement plan. These benefits were described in an employee handbook that were given to each of Respondent's employees. Mr. Chojnacki was responsible for overseeing the day- to-day operations of the Boynton Beach Office, including insurance application review and processing and agent recruitment. In late March 2005, Petitioner contacted Mr. Chojnacki by telephone to inquire about the possibility of her becoming an insurance agent for Respondent. Thereafter, on April 1, 2005, Petitioner went to the Boynton Beach Office and met with Mr. Chojnacki. Mr. Chojnacki talked to Petitioner about what she needed to do to become an agent for Respondent and how agents were compensated. He explained that Respondent paid its agents on a commission-only basis, based on the amount of business they produced for Respondent. During her April 1, 2005, visit to the Boynton Beach Office, Petitioner executed a Statement of Qualifications-Agent Candidate form (referenced in the parties' Stipulations of Fact 9 and 10) with which Mr. Chojnacki had provided her. The form, which sought "[j]ust basic information" about the candidate, contained the following disclaimer and acknowledgement: This is a statement of qualifications to become contracted as an agent and is not an application of employment. * * * I understand that if contracted as an agent, this document, the agent's contract, the training materials I may receive, and any other manuals and documents, are not contracts of employments. Further, if contracted with the Mutual of Omaha Insurance Company as an independent contractor, I may terminate the agent’s contract with or without cause, at any time, as may Mutual of Omaha Insurance Company. Mr. Chojnacki subsequently e-mailed Petitioner and requested that she complete a career profile test (designed to measure how Petitioner "would do in the insurance and in the sales industry"). Petitioner scored a ten out of 19 on the test, sufficient to keep her candidacy for an agent position alive. Mr. Chojnacki thus sent the Statement of Qualifications-Agent Candidate form Petitioner had executed on April 1, 2005, to the home office for processing. A background check on Petitioner was then done. The background check revealed nothing in Petitioner's past that would disqualify her from becoming an agent for Respondent. After learning that the home office had cleared her, Mr. Chojnacki gave to Petitioner for her to study various booklets Respondent had developed for its agents to educate them about its product offerings. At the beginning of each booklet was the following statement: As an independent contractor, the ultimate decision regarding your participation in these programs is yours and yours alone. Neither Mutual of Omaha nor its representatives can dictate the time or place and manner by which you sell its products and acquire the knowledge and skills necessary to effectively sell its products. Therefore, the Career Development Program is voluntary. However, due to the complexity and sophistication of the companies' products, you must be able to demonstrate a mastery of the material contained in this program to be able to offer these products to prospective clients. This program has been developed to offer a structured methodology which has proven to be a highly effective way to master the knowledge and skills to sell our products. In addition, it is our judgment that this method provides an efficient approach to achieve the required mastery and, therefore, we recommend it. Discussion and follow-up from your manager does not change the voluntary nature of your participation, but only serves to assist you in mastering the material and enables the companies to fulfill [their] public obligation to ensure that all representatives are fully trained and knowledgeable. Each booklet Mr. Chojnacki provided to Petitioner had a unique identifying serial number and included a corresponding tear-out test answer sheet with the same unique identifying serial number to be used to answer questions concerning material covered in the booklet. After reading the booklets and answering the questions posed therein, Petitioner furnished Mr. Chojnacki with her completed test answer sheets (which she had torn from the booklets). Mr. Chojnacki then faxed these answer sheets to the home office to be graded. He subsequently received an e-mail from the home office advising him that Petitioner had received passing grades on all of the tests. After receiving this e-mail, Mr. Chojnacki met with Petitioner "to get her ready" to become an agent. During the meeting, he again discussed with Petitioner Respondent's commission-only, production-based compensation program for agents, including the opportunities available to agents to receive bonuses in addition to their base commissions. He further informed her that, as an agent, she would be an independent contractor who "gets paid off a 1099." On April 11, 2005, Petitioner received a copy of Respondent's Agency Sales Compliance Manual (Manual), which gave an overview of the legal requirements applicable to the activities of agents in the sale of Respondent's products. On page 9 of the Manual was the following discussion regarding "Continuing Education": Mutual of Omaha encourages the professional development of producers through training and participation in industry organizations that promote ethical sales practices, as well as through the continuing education required to maintain a license. It is the policy of Mutual of Omaha to provide producers with insurance-related training, including training that qualifies for continuing education. Mutual of Omaha provides continuing education courses and makes continuing education courses available through a variety of methods. These methods include self-study courses through vendors, industry designation courses such as CLU, CFP, ChFC, LUTC and specialized training provided by Mutual of Omaha. As an independent contractor, it is your responsibility to ensure that continuing education requirements are satisfied, whether through training provided by Mutual of Omaha or independently taken training. If a license lapses or is cancelled, commission payments may be stopped until such time as the license is reinstated or a new license is obtained. Questions regarding continuing education should be directed to your Manager or the Home Office at (402)351-4949. Page 27 of the Manual contained the following advisement: In order to help ensure ethical market conduct practices, integrity and fair competition on the part of its producers, producers are prohibited from engaging in solicitation, marketing and sales practices that are illegal, unethical or contrary to the requirements established by Mutual of Omaha Insurance Company and its affiliates. At no time did Mr. Chojnacki give Petitioner a copy of Respondent's employee handbook. On April 11, 2005, Petitioner signed a W-9 (Request for Taxpayer Identification Number and Certification) form, an Internal Revenue Service (IRS) tax form that Respondent's agents are routinely given to sign. Petitioner also executed on that date Respondent's Errors and Omissions Agent Insurance Program form (referenced in the parties' Stipulations of Fact 15 and 16). The following statement appeared immediately above the signature line on the form: All agents are reminded that they are independent contractors under contract with the Company. As such, they are personally responsible for any claims, demands or lawsuits made by third parties arising from allegations of breach of contract, negligence or other wrongdoing on the part of the agent. The undersigned affirms that the foregoing is true, correct, and complete, and has read the "Enrollment Form Instructions" and understands same. On April 12, 2005, Petitioner was formally appointed as an agent for Respondent and United World Life Insurance Company, an affiliate of Respondent's. Petitioner and Mr. Chojnacki (on behalf of Respondent) signed an Agent's Contract (referred to in the parties' Stipulations of Fact 11 through 13 and 27 as the "Agent Agreement"), which had an effective date of April 27, 2005. Ms. Mickley then submitted the contract to the home office for signature. This was the only Agent's Contract that Petitioner signed. At no time did she sign another contract. Section B. of the Agent's Contract was entitled, "General Provisions," and provided, in pertinent part, as follows: Appointment. The Company [Respondent] appoints the Agent [Petitioner] to personally solicit and procure applications for Products and provide such service as may be required. This appointment is not exclusive. * * * 5. License. The Agent is responsible for securing and keeping in effect any licenses and appointments required to represent the Company. The Agent agrees not to solicit for Products unless the proper license has been obtained. * * * Section C. of the Agent's Contract described the "Agent's [d]uties" as follows: The Agent shall, in accordance with applicable Company rules: Procure Applications. Solicit and procure applications for Products. Submit Applications. Immediately submit to the Company applications procured. Collect Moneys. Collect all Moneys as trust funds and immediately turn them over to the Company without deduction. All Moneys are the property of the Company. Service Clients. Render all service incidental to the development and conservation of the Company's business which may be deemed necessary by the Company. Obtain Bond and Insurance. If requested by the Company, obtain and maintain in force: a bond covering fidelity losses; and errors and omissions insurance. The amount and nature of both must be satisfactory to the Company. Protect Proprietary Materials. Agent shall: Use Proprietary Material for authorized business purposes only. Agent is only authorized to obtain and use Proprietary Material which is necessary to perform [his or her] duties; Hold in the strictest confidence all Proprietary Material received and shall not disclose any Proprietary Material to any third party or parties without the prior written consent of the Company; Use appropriate safeguards commonly available, such as anti-virus, firewalls and encryption, to prevent use or disclosure of Proprietary Material. This shall include compliance with all existing and enacted laws and regulations; Report any incidents involving Proprietary Material to Mutual of Omaha's Field Assistance Center within 24 hours of discovery. All details of the incident should be provided so that Company can assess the scope and impact and take additional action as necessary to safeguard the information. Return any Proprietary Material received from the Company to the Company immediately upon termination of this Contract. Adequately brief [his or her] staff, if any, on the conditions documented in this Section. Follow Company Practices. Adhere to and comply with all Company practices and procedures. Act Ethically. At all times act in an ethical, competent and professional manner, including without limitation, with respect to any compensation disclosure obligations it may have governing its relationships with Clients. Comply with Laws. Comply with applicable laws and regulations. "Office [p]rivileges" were addressed in Section E. of the Agent's Contract, which provided as follows: The Company may provide for the Agent's use office facilities, supplies, clerical support and other property or services. The Company may withdraw or charge for these privileges at any time. In Section F. of the "Agent's Contract" was the following discussion regarding "[c]compensation": Attachments. The compensation of the Agent for all acts performed hereunder or otherwise during the term of this Contract, and for expenses incurred or property acquired, is specified in the Attachments. No compensation shall be payable until the Project on which compensation is claimed is actually issued. Compensation Continuance. The Company is obligated to pay compensation due under this Contract only while: this Contract is in effect; and the Agent is performing the duties specified in the Section entitled AGENT'S DUTIES; provided, however, compensation indicated as "vested" or "deferred" in the Attachments shall not be withheld pursuant to this provision. Agent's Account. Compensation payable under this Contract shall be subject to an offset for any indebtedness of the Agent to the Company and shall not be due until such indebtedness is satisfied. Such indebtedness shall include, but not be limited to: Chargeback of any compensation paid or credited to the Agent under this or any other contract, if the Moneys on which such compensation was based are not collected or are refunded by the Company; Any amount paid by the Company which, in the Company's determination, resulted from any fraud, misrepresentation or other improper conduct on the part of the Agent; Any expenses incurred by the Company on behalf of the Agent; Any advances made by the Company to the Agent; and Any other amounts which the Agent owes the Company. The Agent, shall upon request by the Company, immediately repay in full any indebtedness. Any amount remaining unpaid shall be subject to collection by such legal means as are available to the Company. The Company shall have the right to withhold payment of any credit balance in the Agent's account for not more than 13 months after termination of this Contract to assure that funds are available to reimburse the Company for any indebtedness. Thereafter, any net credit balance shall become due and payable. "Termination" was discussed in Section H. of the Agent's Contract, which provided as follows: With Notice. The Company or the Agent shall have the right at any time to terminate this Contract, with or without cause, by written notice to the other party. Without Notice. This Contract shall be automatically terminated should the Agent fail to submit an application for a Product for a period of 180 days. Procedural Guidelines. The Company may from time to time adopt procedural guidelines applicable to agent contract terminations. Adoption of these guidelines and any failure to observe them shall neither grant any rights to the Agent, nor impose any duties upon the Company and shall not be deemed to limit the Company's rights as set forth in this Contract. Return of Material. Upon termination of this Contract, the Agent shall immediately return to the Company all: Proprietary Material, material identifying the Agent as a representative of the Company, and property owned by the Company. Forfeiture. If the Agent is notified in writing that the Agent has: Committed a fraudulent or illegal act in conjunction with any transaction under this Contract; or violated any provisions of the Section entitled LIMITATIONS or UNACCEPTABLE PRACTICES; then the Company shall not be obligated to pay any compensation otherwise payable while this Contract is effect, or after its termination. Section I. of the Agent's Contract contained "[m]iscellaneous" items, including the following: * * * 4. Determination of Issuance and Product Type. The determination to issue a Product and the type of Product to be issued shall be at the Company's sole discretion. * * * Award, Recognition and Incentive Programs. If eligible, the Agent may participate in award, recognition and incentive programs of the Company. The Agent agrees to abide by the rules of each program. The Company reserves the right to change, limit or cancel any program, rule or award at any time. In such event, the Agent may not be able to obtain certain awards. Beneficiary Designation. The Agent designates as beneficiary for payment of any benefits becoming due after the Agent's death the beneficiary specified on the signature page of this Contract or such other party or parties as the Agent may designate by written notice delivered to and acknowledged by the Company. Independent Contractor. The Agent is an independent contractor and not an employee. None of the terms of this Contract shall be construed as creating an employer-employee relationship and the Agent shall be free to exercise the Agent's own judgment as to the persons from whom the Agent will solicit and the time, place and manner and amount of such solicitation. "[T]he beneficiary specified on the signature page of [Petitioner's Agent] Contract" was her mother. Petitioner's Agent's Contract included an Interim Sales and Marketing Amendment, also effective April 27, 2005, signed by Petitioner and Mr. Chojnacki, which, on its first page, provided as follows: The Company and Agent agree to place Agent in an "Interim Sales and Marketing" status. The terms and conditions are as follows: PURPOSE The Company and Agent agree to the terms and conditions of this Amendment in order that both the Company and Agent may determine whether to continue their association under the terms of the Contract. EFFECTIVE DATE This Amendment shall become effective on the date the Contract becomes effective. TERMINATION This Amendment shall remain in effect a minimum of seven days. Thereafter, this Amendment shall automatically terminate upon: Cancellation of the Contract; Notice given from the Company to Agent; or, The acceptance of the Career Financing Plan Amendment (211) or (235). TERM If this Amendment has not been terminated in accordance with Section III of this Amendment within 90 days after the effective date of the Contract, the Contract, and all other Amendments, shall automatically terminate. MISCELLANEOUS While this Amendment is in effect, Agent is not eligible for any other compensation, except as specifically set forth in the Schedules which are a part of the Contract. The Agent's Contract and Interim Sales and Marketing Amendment that Petitioner executed are standard instruments used by Respondent in contracting with its agents. During the time that the Interim Sales and Marketing Amendment is in effect, an agent engages in "real job sampling" by observing a mentor make sales, and he or she may also make sales of his or her own. Petitioner was mentored initially (for the first seven to ten days) by Mr. Green and thereafter by Mr. Chojnacki. The Interim Sales and Marketing Amendment remained in effect until June 10, 2005, when Petitioner and Respondent executed a Career Financing Plan Amendment (as part of Petitioner's Agent's Contract). The Career Financing Plan is a three-year program devised by Respondent to help its new agents "build their business[es]." It provides for bonus payments "on top of the base commission that an agent gets," if monthly production requirements are met. An agent not wanting "to be tied to any of [these] production requirements" can decline to participate in the program. Other attachments, in addition to the Career Financing Plan Amendment, that were made a part of Petitioner's Agent's Contract, included an Agent Prospecting Amendment, a New Agent Computer Equipment Allowance Schedule, an Agent Production Bonus Schedule, and a 2005+ Deferred Compensation Schedule. The Agent Prospecting Amendment was signed by Petitioner and Mr. Chojnacki and had an effective date of June 10, 2005. It read, in pertinent part, as follows: SOURCES OF CREDIT In order to provide the Agent with prospect information, the Agent and Company agree that credits to acquire prospecting related materials and services may be accumulated in an Agent Prospecting Account. The Company may discontinue or modify the sources and amounts of credit provided by the Company upon notice to the Agent. Credits may be used only for prospecting activities authorized by the Company. Any credits which remain unused at the time the Contract or this Amendment are cancelled shall be forfeited by the Agent. NON-REFUNDABLE PARTICIPATION FEE The Agent authorizes the Company to deduct a non-refundable Participation Fee directly from compensation due the Agent in an amount and frequency as set forth in the Agent Prospecting Schedule. Company may deduct the Participation Fee up to 30 days following written notice by Agent to the Company to terminate this Agreement. The New Agent Computer Equipment Allowance Schedule provided for the receipt of, for a maximum of 12 months, "a [monthly] credit [of either $75 or $100] to help the Agent defray computer equipment and other start-up expenses incurred based on the Agent's performance." Under the schedule, if minimum monthly production requirements were not met, no credits would be received. The "purpose" of the Production Bonus was "to reward Agents based on their Manufactured Product production." The Agent Production Bonus Schedule set forth the applicable Production Bonus Rates for different levels of production over a threshold amount. The 2005+ Deferred Compensation Schedule implemented Respondent's Deferred Compensation program, pursuant to which Respondent made "contributions . . . dependent on the production that an agent ha[d] during a given calendar year." On October 19, 2005, Petitioner signed a Coventry Medicare Part D Plan Addendum form (referenced in the parties' Stipulation of Fact 31) and faxed the form to Respondent's "Sales Support" for processing. Among the form's provisions was the following: Independent Contractor. Nothing in this Addendum will be construed to create a relationship of employer-employee between Producer [Petitioner] and Coventry or Distributor [Respondent]. Producer will be free to, and is required to, exercise his/her independent judgment in performance of this Addendum and with respect to which Medicare Part D plans Producer will offer to Medicare Part D enrollees and potential enrollees based upon Producer's judgment as to the needs of such enrollee or potential enrollee. The termination of Petitioner's Agent's Contract (referenced in the parties' Stipulation of Fact 40) was accomplished by Petitioner's submitting the following letter, dated February 10, 2006, to Mr. Chojnacki: It is with deep regret that I resign as of February 10, 2006. I have to move on with my career. I want to sincerely thank you for all your help. Mr. Chojnacki responded by sending Petitioner the following letter, also dated February 10, 2006: This is to acknowledge receipt of your letter terminating your Mutual of Omaha Insurance Company Agent's Contract effective February 10, 2006. Your authorizations to represent Mutual of Omaha Insurance Company and its affiliated companies have also been cancelled effective February 10, 2006. The balances of your agent's statement may be affected by additional entries necessary to finalize pending business. You will continue to receive statements on a regular basis as in the past. As soon as the balances have stabilized, any net credit balance will be released in accordance with the provisions of Paragraph F3(c) of your contract. If your agent's statements presently reflect a debit balance or if a debit balance arises in the future, you are required to repay this amount immediately. Failure on your part to repay any debt balance will result in further action to collect debit balance. All client and prospect information, materials and supplies are the property of Mutual of Omaha Insurance Company. You are required by Paragraph H4 of your contract to return such material immediately. At no time during the period that her Agent's Contract was in effect (April 27, 2005, through February 10, 2006, hereinafter referred to as the "Contract Period") did Petitioner receive a salary or any of the employee benefits enjoyed by Mr. Chojnacki, Mr. Green, Ms. Hughes, and Ms. Mickley. Although she had Respondent-issued life and disability insurance policies, these policies were not given to her as an employee benefit. She had to pay for this coverage. On her application for the disability insurance policy she obtained from Respondent, in response to the question, "Are you Self-Employed, a Sole Proprietor, or a partner in a Partnership," she answered "yes." The only compensation Petitioner received from Respondent was in the form of commissions and other payments (including computer allowances) based solely on her production. The compensation checks she received from Respondent were prepared and signed at the Boynton Beach Office, not at Respondent's home office (where employee checks are cut). The amounts of these checks reflected deductions that were made by Respondent for items that Respondent had provided Petitioner or had paid for on her behalf, including postage, agent licenses, voicemail, errors and omissions insurance coverage, folders, business cards, and certain leads. The leads she paid for cost anywhere from ten to 25 dollars a lead. Petitioner did not have to pay for everything that she received from Respondent. Although it had a right to do so under Section E. of her Agent's Contract, Respondent did not charge Petitioner for the use of cubicle space and equipment at the Boynton Beach Office, nor for the company brochures and letterheads that were available to agents at the office. The 2005 and 2006 federal tax returns that Petitioner filed with the IRS were prepared by a Certified Public Accountant. For the 2005 tax year, on her IRS Form 1040, Petitioner reported $0 for "[w]ages, salaries, and tips" (line 7), and $7,220 in "[b]usiness income" (line 12), and she deducted from her "total income" $510 for "[o]ne-half of self- employment tax" (line 27) and $1,243 for "[s]elf-employed health insurance" (line 29). She included a Schedule C (Profit and Loss From Business-Sole Proprietorship) and a Schedule SE (Self- Employment Tax) with her IRS Form 1040. On her Schedule C, Petitioner identified her "[p]rincipal business or profession" as "[i]nsurance [a]gencies & [b]rokerages"; represented that her business address was the same as her home address (which was on her IRS Form 1040); and reported that her "[g]ross income" was $18,758 (line 7), and that she had "[c]ar and truck expenses" of $6,305 (line 9), an "[o]ffice expense" of $1,488 (line 18), and "[o]ther expenses" of $3,745 (line 27), for a total of $11,538 in business expenses (line 28). The "[o]ther expenses" she reported (on line 27) were broken down as follows: "Business Telephone"- $3,549; and license fees and dues- $196. The IRS Form 1099 that Petitioner received from Respondent for the 2005 tax year reflected that she had received $18,757.99 in "nonemployee compensation" (which matches the "rounded up" amount of "[g]ross income" Petitioner reported on the Schedule C she filed for that tax year). For the 2006 tax year, on her IRS Form 1040, Petitioner reported $0 for "[w]ages, salaries, and tips" (line 7), and "1099 MISC OTHER INCOME" of $1,615. No entry was made for "[b]usiness income" (line 12). Petitioner deducted $114 from her "total income" for "[o]ne-half of self-employment tax" (line 27). She included a Schedule SE with her IRS Form 1040. The IRS Form 1099 that Petitioner received from Respondent for the 2006 tax year reflected that she had received $1,615.43 in "nonemployee compensation" (which matches the "rounded down" amount of "1099 MISC OTHER INCOME" Petitioner reported on the IRS Form 1040 she filed for that tax year). During the Contract Period, Petitioner was not required to work out of the Boynton Beach Office or to adhere to any Respondent-imposed work schedule. Training sessions were held by Mr. Chojnacki (usually on Mondays) at the office, but attendance at these meetings was not mandatory. Agents had to be present at the office to enjoy what was referred to as "floor time," where the agent would receive incoming telephone phone calls made to the office from prospects, without having to pay for these leads. "Floor time" was a privilege that agents could turn down. Petitioner averaged approximately two to three days of "floor time" a month. As an essential part of the work she performed for Respondent, Petitioner made sales calls to prospects in the field. At Petitioner's request, Mr. Chojnacki accompanied her on approximately four sales calls during the beginning of the Contract Period. After a while, Petitioner "start[ed] going on sales calls by herself." During the Contract Period, she went on more than 40 or 50 such solo sales calls. At no time was Petitioner required to go on sales calls with Mr. Chojnacki or any other company representative, nor did she need the approval of any company representative before she could make a sales call. There were occasions, when Petitioner was out on a sales call alone, that she telephoned Mr. Chojnacki to ask him a question about a technical matter or to express her excitement about having made a sale. Petitioner, however, was never told she had to maintain telephonic contact with Mr. Chojnacki or any other company representative while on sales calls. Petitioner and the other agents were allowed to advertise Respondent's products, but any advertisement they used had to be approved by the company. Respondent had "pre-approved advertising material that[] [was] on [its] company [intranet] website." Petitioner did not have an exclusive arrangement with Respondent that prevented her from representing other insurers during the Contract Period. She was not, what is referred to in the insurance business as, a "captive agent." While associated with Respondent, Petitioner was also appointed to act as an agent on behalf of John Alden Life Insurance Company, Humana Health Insurance Company, and Humana Medical Plan, Inc. (companies that were separate and distinct from Respondent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Complaint because she was not an employee of Respondent's at the time of the alleged unlawful employment practices described in the Complaint. DONE AND ENTERED this 29th day of December, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2008.
The Issue Whether Petitioner’s application for a consumer certificate of exemption as a religious institution should be approved.
Findings Of Fact Petitioner is a not-for-profit corporation organized under the laws of the State of Texas and qualifies as a tax- exempt organization pursuant to Section 501(c)(3) of the United States Internal Revenue Code. Petitioner maintains an office in Dunedin, Florida. The articles of incorporation and by-laws adopted by Petitioner do not specify the purpose of EDM, nor do they indicate that EDM is formally related to any other organization(s). However, in separately published documents, Petitioner has stated that its purpose is to promote the Gospel message of Jesus Christ through evangelistic and missionary activities. EDM accomplishes its objective or purpose by conducting discussion groups, forums, panels, lectures, or other educational programs in the area of resource management and development. The seminars and educational programs sponsored and provided by Petitioner are offered in cities across the United States and serve evangelical groups and individuals. Evangelical groups participating in EDM seminars include various mission organizations, Christian colleges, and Christian schools. Participation and attendance at EDM sponsored programs are contingent on payment of the required fee to Petitioner. Although EDM provides services to a large number of organizations and individuals, Petitioner is not related to any of those organizations or individuals through a formal affiliation or as a larger hierarchy. The primary focus of EDM seminars is to assist evangelical organizations by providing such groups and individuals with training in financial and fundraising strategies. EDM believes that by effectively developing and implementing such strategies, individuals and organizations can better support and fund the work of the church. In addition to offering seminars and training institutions, EDM also develops and disseminates religious materials and training materials. Examples of topics addressed in EDM one-day seminars include: (1) “Redefining Planned Giving”; (2) “Improving Your Development Department”; “Successful Foundation Grants and Proposal Writing”; “Developing Major Donors for Major Support”; “Writing Effective Newsletters”; and “Strategic Planning for Success.” Petitioner presented testimony that it is related to an organization in California known as Little Church International, Inc. (Little Church). When EDM was first organized, Little Church made a loan to Petitioner; also, Little Church sometimes offers counsel to EDM. Beyond that, it is unclear what, if any, relationship exists between Petitioner and Little Church; what the function or purpose of Little Church is; and who the members or member organizations of Little Church are. Finally, EDM presented no competent and substantial evidence regarding the administrative functions performed by Little Church for or on behalf of Petitioner or any other organizations. Petitioner is in no way obligated to submit to the dictates of Little Church. Moreover, Little Church, is under no legal or other obligation to comply with any requirements of EDM. Although Petitioner claims that it is a member organization of Little Church, and pays a membership fee, Petitioner is unsure of the amount of that membership fee. Moreover, Petitioner established that Little Church: (1) does not direct the day-to- day activities of Petitioner and (2) has no control over Petitioner’s board of directors, officers, or budget. Petitioner acts as a fundraising conduit for an organization known as Living Ministries of South Africa (Living Ministries). There is no formal affiliation between Living Ministries and EDM. However, because Living Ministries consists only of an independent missionary and his wife, Petitioner has agreed to serve as its fiscal agent. In this capacity, EDM processes materials sent to and contributions made to Living Ministries. Petitioner charges Living Ministries a fee for providing these services. There is no formal affiliation between Petitioner and Living Ministries within a larger religious hierarchy. Petitioner has no regulatory authority over Living Ministries; does not control any of the day-to-day activities of Living Ministries; has no control over where the Living Ministries missionaries are placed; or of the contents of the services that Living Ministries provides. EDM does not regularly conduct and carry on religious services and activities. Petitioner holds religious services a few times a year. These services are conducted in conjunction with EDM sponsored seminars and training sessions and are for the exclusive benefit of individuals attending the seminars. Petitioner does not have any ownership or lease interest in any physical facility where weekly services are held for members of any faith or the general public. Rather, Petitioner’s services are held in various hotels or other facilities around the country in which its training programs and seminars are conducted. Several years ago, Petitioner set up a sub-organization called the Association of Christian Development Professionals (ACDP). Petitioner, through ACDP, currently accredits individuals who desire to have a certification from Petitioner. Individuals qualifying for such accreditation or certification are those who have completed certain courses provided by Petitioner. ACDP is not a qualified religious institution and is not within a hierarchy of institutions connected with Petitioner. Moreover, EDM does not control or otherwise participate in the day-to-day activities of the members of ACDP. Petitioner previously held a consumer certificate of exemption which expired as of October 18, 1996. In the process of reviewing the application for renewal, the Department determined that it had previously misapplied the law and that EDM did not qualify as a “religious institution” as defined in Section 212.08(7)(o)2.a., Florida Statutes. The Department determined that Petitioner: (1) was not a state, district, or other administrative office and (2) did not assist, regulate or control other organizations which were formally related to EDM within a specific larger hierarchy. The Department also determined that Petitioner does not qualify under any other category for a consumer certificate of exemption. To qualify as a religious institution, an entity must be: (a) a church, synagogue, or established physical place for worship at which nonprofit religious services and activities are regularly conducted and carried on; (b) a nonprofit corporation the sole purpose of which is to provide free transportation services to church members and attendees; (c) a state, district or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within the state or district organization; or (d) a corporation qualified as nonprofit under Section 501(c)(3) of the Internal Revenue Code, that owns or operates a Florida television station. In the instant case, Petitioner has no established physical place for worship; its sole purpose is not to provide free transportation services to church members and attendees, and it does not operate a television station. Thus, it cannot qualify under the first, second and fourth parts of the definition. Notwithstanding the Department’s determination to the contrary, Petitioner contends that it qualifies as a religious institution because it is a state, district, or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within a state or district office. Under the Department’s policy, in order to qualify as a state, district or administrative office, EDM must be a part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. This interpretation is consistent with prior agency orders and is reasonable. Petitioner is not a part of a larger organization within a hierarchy. Even assuming that Petitioner is part of a hierarchy, there are no identifiable members or organizations beneath Petitioner in the hierarchy which it assists or regulates. While EDM is engaged in laudable and worthwhile activities, it does not qualify as a religious institution for tax purposes and, therefore, is not entitled a consumer certificate of exemption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer certificate of tax exemption to Petitioner, Evangelical Development Ministries, Inc. DONE AND ENTERED this 4th day of March, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIED Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1998. COPIES FURNISHED: Rex D. Ware, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 H. Andrew Read, President Evangelical Development Ministry, Inc. 5232 Forest Lane, Number 106 Dallas, Texas 75244 Linda Lettera General Counsel 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in this case is whether Petitioner is entitled to a consumer certificate of exemption as a religious or charitable institution.
Findings Of Fact Petitioner has submitted seven (7) exceptions to the Hearing Officer's Findings of Fact in the Recommended Order. Exceptions 1, and 3 through 6 filed by Petitioner are rejected. Exception 2 is accepted to the extent it states that Petitioner does not hold worship services. The remainder of this exception is rejected. Exception 7 is rejected, except for the first sentence which indicates that the date of purchase of the vehicle was 1995, not 1993. Petitioner's First Exception-- Finding of Fact No. 1: Petitioner's statements as to how Petitioner was advertised are not relevant and, therefore, are rejected. Petitioner's Second Exception-- Finding of Fact No. 2: Accepted that Petitioner does not have worship services. This determination has been made by the Hearing Officer's Findings of Fact. See Findings of Fact No. 2 and 3. The remainder of this exception is rejected as being irrelevant. Petitioner's Third Exceptions-- Finding of Fact No. 3: The Hearing Officer's Finding of Fact, Paragraph 3 of the Proposed Recommended Order, that Christian-Muslim Church of God (ALLAH) is not part of any established religion is supported by substantial competent evidence. Thus, Petitioner's exception to this finding is rejected. The statement that Petitioner's founder will write a "Consolidated Moral Bible" is not relevant, and is therefore rejected. The Hearing Officer's finding that Petitioner has generalized plans to establish regular religious services, but has not yet done so, is supported by substantial competent evidence. Therefore, Petitioner's exception to this finding is rejected. The statement as to how assemblies of the church will be organized by Petitioner in the future is not relevant, and is therefore rejected. Petitioner's Fourth Exceptions- Finding of Fact No. 4: Petitioner's statements as to where Petitioner's funds are deposited is not relevant, and therefore is rejected. Petitioner's statements as to the type of donations its founder, Mr. Savas, personally makes are not relevant and, therefore, are rejected. The Hearing Officer found that Petitioner does not qualify as a "religious institution" under s212.08(7)(o) 2.a., Florida Statutes. The Hearing Officer's finding is supported by substantial competent evidence. Thus, Petitioner's exception to this finding is rejected. Petitioner's statement as to why Petitioner needs the sales tax exemption is not relevant and, therefore, is rejected. Petitioner's Fifth Exceptions-- Finding of Fact No. 5: The Hearing Officer found that Petitioner is not registered as, or classified as, any type of legal entity. The Hearing Officer also found that the Petitioner is not a church or charitable institution as those terms are defined under s212.08(7), Florida Statutes for purposes of sales tax exemption. The Hearing Officer's findings are supported by the record and by substantial competent evidence. The remainder of Petitioner's exceptions are not material. Therefore, all of Petitioner's exceptions to Paragraph 5 are hereby rejected. Petitioner's Sixth Exception-- Finding of Fact No. 6: The Hearing Officer found that Petitioner is not registered as, or classified as, any type of legal entity and that Petitioner does not qualify as a "charitable institution" pursuant to s 212.08(7)(o)2.b., Florida Statutes. These findings are supported by substantial competent evidence. Therefore, Petitioner's exception to this paragraph is rejected. Petitioner's Seventh Exceptions-- Finding of Fact No. 7: Accepted that Petitioner's founder purchased his car in 1995, and applied for a consumer's certificate of exemption at that time. The statements as to the beliefs of Petitioner's founder are irrelevant or immaterial, and are rejected accordingly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order denying a consumer certificate of tax exemption to Petitioner, the Christian-Muslim Church of God (Allah). DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 18th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4076 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. 1. - 11. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ruth Ann Smith, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 John Savas 1416 Hill Drive Largo, Florida 34640 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Conclusions Having reviewed the Administrative Complaint dated February 12, 2010, attached hereto and incorporated herein (Exhibit 1) , and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Exhibit 2) with the parties to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. Respondent shall pay, within thirty (30) days of the date of rendition of this Order, an administrative fine in the sum of nine thousand three hundred seventy-five dollars ($9,375.00). Respondent Filed October 1, 2010 2:46 PM Division of Admintstrative Hearings. shall also pay a survey fee of six thousand dollars ($6,000.00) in accord with the provisions of law. 3. Checks should be made payable to the “Agency for Health Care Administration.” The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. The Respondent’s request for an Administrative proceeding is hereby withdrawn. 6. Each party shall bear its own costs and attorney’s fees. 7. The above-styled case is hereby closed. DONE and ORDERED this o2/4ay of Mepllinke! 2010, in Tallahassee, Leon County, Florida. hs Dudek, Aer Lactary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Anna Small, Esq. Broad and Cassel P.O. Drawer 11300 Tallahassee, FL 32302 (U.S. Mail) Thomas J. Walsh II, Senior Attorney Agency for Health Care Admin. 525 Mirror Lake Drive N. #330H St. Petersburg, Florida 33701 (Interoffice Mail) Jan Mills Agency for Health Care Admin. 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Admin. Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 (Interoffice Mail) ‘CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the 30” day of Seite —ee , 2010. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue Does Petitioner qualify for a consumer's certificate of exemption as a "church" as defined in Rule 12A-1.001(3)(c), Florida Administrative Code, or as a "religious institution" as defined in Section 212.08(7)(o) 2.a., Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Friends Housing and Care, Inc. (Petitioner), is a non-profit corporation exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code. Petitioner has filed under the fictitious name statute and is doing business under the name Woodmere at Jacarande. Petitioner's Amended Articles of Incorporation dated October 25, 1996, state Petitioner's purposes as follows: To provide elderly families, elderly persons, and handicapped persons housing and related facilities and services specially designed to meet the physical, social, psychological, economic and spiritual needs of the aged and contribute to their health, financial security, happiness and usefulness in longer living. To plan, construct, operate, maintain, and improve housing and related facilities and services for elderly families and elderly persons. To acquire by gift or purchase, hold, sell, convey, assign, mortgage, or lease any property, real or personal, necessary or incident to the provisions of housing and related facilities and services for elderly families and elderly persons. To borrow money and issue evidence of indebtedness in furtherance of any or all of the objects of its business; and to secure loans by mortgage, pledge, deed or trust, or other lien. To engage in any kind of activity, and enter into, perform and carry out contracts of any kind, necessary or in connection with, or incidental to the accomplishment of any one or more of the nonprofit purposes of the corporation. To conduct educational or scientific research on a non-profit basis and to cooperate with foundations, educational institutions, and research centers in promoting same, with the aim of increasing knowledge and enhancing life in our society. To foster and encourage spiritual life and bring the human spirit into intimate relation with the Divine Spirit, to provide definite, organized opportunity for the development of spiritual values and for the renewal of our strength in accordance with generally accepted faith and practice of the Religious Society of Friends. Note 1 of Petitioner's audited financial statements containing the independent auditor's report dated January 8, 1997, states that Petitioner ". . .was created by Friends (Quakers) to plan and develop a Not-for-Profit Condominium Retirement Community in Florida to meet the needs of Friends and others who wish to retire or live in a Quaker-sponsored retirement community in Florida. " Note 3 to the same financial statements indicates that Petitioner's operations have been devoted to raising capital, obtaining financing, purchasing land and beginning construction on the planned retirement community. As reflected in the unaudited financial statement dated April 30, 1997, of the total reflected year-to-date expenses of $820,681: $299,548 went to architectural fees; $71,985 was spent for engineering fees; $84,265 was spent for pre-construction management fees; and $40,331 went to advertising. Only $200 was directed to worship expenses. Neither the audited financial statements nor any of the notes thereto indicate that Petitioner is engaged in any religious activities or worship services. Petitioner's retirement community will comprise 32.7 acres, with a 3.7 acre easement. There will be about 700 condominiums constructed on this acreage. Currently, it is anticipated that the first condominiums will be available for occupancy sometime in 1999. Thus, currently there are no residents residing at the Petitioner's retirement community. Petitioner will be constructing an 80,000 square foot commons building which will contain an "auditorium chapel" consisting of approximately 5,500 square feet. This building has not been constructed. The "auditorium chapel" will be used for "religious purposes and multiple-purposes." It is anticipated that both silent and program services of the Friends (Quaker) faith will be held in the chapel. Other religious faiths would also be included. There will also be located within the commons building a 6,000 square foot dining facility, 4,000 square foot library, a gift shop, beauty and barber shops, post office, banking facility, game rooms, and lounge area. Petitioner sells its condominiums to members of the general public of retirement age, regardless of their religious affiliation or even if they have no religious affiliation. Purchasers do not have to be members of the Friends (Quaker) faith. In fact, the retirement community will be a "non- denominational community." The price of the condominiums ranges from about $82,000 for a one-bedroom (676 square foot) unit, to well over $200,000 for a large (2100 square foot) unit. In addition to the sales price, Petitioner will charge its residents a monthly condominium fee to cover maintenance. An activity or club fee will also be charged by Petitioner to cover residents' social activities and transportation costs. If a resident needs medical attention, Petitioner will provide the care and bill the resident's insurance company for the cost of the care. Several witnesses testified that the meetings held at Petitioner's location were held under the name "Woodmere Friends Fellowship," while other witnesses testified that the meetings held at Petitioner's location were held under the name "Woodmere Fellowship." The newspaper advertisements or other published advertisements advertising meetings at Petitioner's location did not refer to "Woodmere Friends Fellowship" or "Woodmere Fellowship." An advertisement appearing in "Quaker Life" in June 1997, indicated that "All Friends Fellowship" was located at Woodmere at Jacaranda. A newsletter from Petitioner dated January 1997, stated that "Friends Inter-Faith Fellowship" was begun at Woodmere Information Center and that several prospective residents from the Venice/Englewood area had "voiced interest in having a meeting in this area. Presently, these meetings are being held every Sunday evening at 6:30 p.m." Additionally, this newsletter stated that these meetings were consistent with Petitioner's federally-recognized religious affiliation. However, Petitioner is never identified as a church or religious institution in this newsletter. By letter dated February 17, 1997, William R. Martin, Petitioner's Chairman, advised the Department that "[o]ur Worship group is being identified as the Woodmere All Friends Fellowship." In an advertisement dated February 1, 1997, Woodmere at Jacaranda, a Quaker-sponsored, resident-owned retirement community, invites interested people to attend a fellowship hour at 6:00 p.m. the first and third Sunday of each month. This advertisement does not refer to Petitioner as a church or religious institution. The bulletins, advertisements, newsletters, and other evidence submitted by the Petitioner do not refer to Petitioner as a church or religious institution. The hours of operation posted on the doors to Petitioner's premises indicate that Petitioner is open Monday through Friday from 9:00 a.m. to 5:30 p.m., and Saturday from 9:00 a.m. to 1:00 p.m. There were no hours listed for Sunday. Additionally, there was nothing to indicate that worship service or religious activities were being conducted by Petitioner on its premises. Although there are meetings being held at Petitioner's location where religious services or activities are being conducted on a somewhat regular basis, there is insufficient evidence to show that Petitioner is responsible for, and conducting, those religious services or activities. Petitioner's sole purpose is not to provide free transportation services to church members, their families, and other church attendees. Petitioner is not a state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. Petitioner does not own or operate a Florida television station whose programs are of a religious nature. Petitioner does not provide regular religious services to Florida state prisoners. Friends Housing and Care, Inc., d/b/a Woodmere at Jacaranda is a Quaker-sponsored, resident-owned, retirement community whose primary function is the development and marketing of a retirement community to members of the general public, regardless of religious affiliation. Petitioner intends to use its sales tax exemption primarily to purchase building materials, including those building materials for the condominiums which it produces for sale to the general public, regardless of their religious affiliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's application for sales tax exemption. DONE AND ENTERED this 25th day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1998. COPIES FURNISHED: Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lattera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Nick Roknich, Esquire Dunlap, Moran, Roknich, and Gibson, P.A. 1819 Main Street, Suite 700 Sarasota, Florida 34236 Ruth Ann Smith, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
