The Issue The issue is whether Petitioner is entitled to receive survivor benefits from a joint and survivor annuity, under Option 3 of the Florida Retirement System (FRS) defined benefit plan, following the death of her spouse, Anne M. Birch, who, as an FRS member, elected Option 1 in 2012 when Florida law would not allow Ms. Birch to elect Option 3 or 4 and designate the joint annuitant as Petitioner, whom she lawfully married after electing Option 1.
Findings Of Fact Ms. Birch, who was born on September 12, 1950, and Petitioner, who was born on August 26, 1956, fell in love and began to live together in 1992. They jointly owned all significant property, including their primary residence, with a right of survivorship and were jointly liable for household expenses and debt, including the mortgage note on their primary residence. On January 31, 2001, Ms. Birch executed a will that left any remaining property to Petitioner and named her as the personal representative of the estate.1/ Ms. Birch designated Petitioner as her primary beneficiary for employee benefits that authorized such designations. On October 11, 2002, Ms. Birch and Petitioner signed an Amended Declaration of Domestic Partnership, pursuant to the Broward County Domestic Partnership Act of 1999, to register themselves as domestic partners under Broward County Ordinance 1999-18. Fully vested and having accrued substantial benefits from having worked for Broward County in an FRS-covered position for nearly 30 years, on October 23, 2012, Ms. Birch entered DROP, effective October 1, 2012. At that time, Ms. Birch elected Option 1 for the payment of her benefits, checking the "no" box in response to the question of whether she was married. As described in the Conclusions of Law, Option 1 is the maximum benefit and is payable for the life of the retiree. Ms. Birch's monthly Option 1 benefit was $3039.25. The monthly Option 3 benefit, which, as described below, is payable until the latter death of the FRS member or her surviving spouse,2/ would have been nearly $1000 less than the monthly Option 1 benefit.3/ Respondent implemented Ms. Birch's election by paying Ms. Birch's Option 1 benefits into her DROP account. In August 2013, Ms. Birch became ill with cancer. She eventually had to quit working and terminated DROP, at which point Respondent paid Ms. Birch her Option 1 benefits directly. On June 16, 2014, Ms. Birch and Petitioner were lawfully married in Massachusetts. Almost two years later, on May 24, 2016, Ms. Birch died, at which time all payments under Option 1 ended. When Ms. Birch and Petitioner registered as domestic partners in Broward County, no state allowed or recognized same- sex marriage, often pursuant to a "Defense of Marriage Act" (DOMA). Continuously since 1997, Florida law banned the allowance and recognition of same-sex marriage, even if performed in a jurisdiction where such a marriage were legal, and restricted "marriage" to a legal union between a man and a woman and "spouse" to a member of such a union. § 741.212(1) and (3); Ch. 97-268, § 1, at 4957, Laws of Fla. (Florida DOMA).4/ Massachusetts was the first state to allow and recognize same-sex marriage, effective in 2004. Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941 (Mass. 2003) (decision stayed 180 days to allow legislature to enact law consistent with the court's ruling). Three or four years after Goodridge, Ms. Birch and Petitioner visited Massachusetts, but did not exercise their right to enter into a lawful marriage at that time. A series of court decisions invalidated the federal and state DOMAs, including the Florida DOMA. On June 26, 2013, the U.S. Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), held that the federal DOMA, as applied to federal tax law, was unconstitutional. By order entered August 21, 2014, in Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014) (Brenner I), Respondent was enjoined from enforcing or applying the Florida DOMA, although the court stayed its injunction. The U.S. Supreme Court lifted the stay,5/ as reported by the district court in Brenner v. Scott¸ 2016 U.S. Dist. LEXIS 91969 (N.D. Fla. 2016) (Brenner II), in which, on March 30, 2016, the court issued a summary judgment on its injunction in Brenner I. Between Brenner I and Brenner II, on June 26, 2015, the U.S. Supreme Court held that state DOMAs were unconstitutional in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Petitioner testified that she and Ms. Birch would have been lawfully married by October 2012, when Ms. Birch retired, but for the Florida DOMA. This testimony is credited. Long prior to 2012, Ms. Birch and Petitioner organized their financial affairs as though they were lawfully married, sharing assets and liabilities equally. Petitioner testified credibly that she and Ms. Birch always "played by the rules": thus, Ms. Birch and Petitioner would have been deterred from getting married prior to Ms. Birch's retirement, such as when they were visiting Massachusetts in 2007, due to the legal futility of attempting to obtain recognition in Florida of a marriage lawfully performed elsewhere. Less persuasive is Petitioner's testimony that, in October 2012, Ms. Birch would have elected Option 3, if this option had been available to her, and it is impossible to find on this record that she would have done so. There is no evidence that Ms. Birch and Petitioner rearranged their financial affairs to achieve, to the extent possible, an Option 3 election. Household income was $1000 per month greater under Option 1 than Option 3, so life insurance on Ms. Birch or an annuity for Petitioner could have mitigated Ms. Birch's inability to choose Option 3 when she retired. Prior to retiring, Ms. Birch did not attempt to elect Option 3 in writing or orally. Even after retiring, as noted below, Ms. Birch displayed ambivalence about whether she wanted to change her election. As a named defendant in Brenner I, on April 14, 2015, Respondent responded to the injunction against its enforcement or application of the Florida DOMA by issuing Information Release #2015-184 (Release). Sent to FRS members who retired prior to January 2, 2015, and elected Option 1 or 2, the Release states: . . . FRS retirees and . . . DROP participants who were in legally-recognized same-sex marriages at the time they retired or began DROP participation and chose Option 1 or Option 2 will have an opportunity to change benefit payment options in light of . . . Brennan. These retirees will be able to change their retirement payment option from their current selection to Option 3 or Option 4 to provide a continuing monthly benefit to their spouse. The retirees impacted by this change have an effective retirement date or DROP begin date on or before January 1, 2015. The Release provides that an eligible retiree interested in a second election must contact Respondent in writing, identify the retiree's spouse, and certify that the retiree and spouse were married in a state or country that allowed same-sex marriage when the FRS member retired. The Release states that Respondent will respond with an estimate of the new benefit payment under the option that the retiree intends to select and provide the retiree with the paperwork necessary to make the second election. Available on Respondent's website,6/ the Release provides the opportunity of a second election of Option 3 or 4 to any FRS member7/ who retired prior to January 2, 2015; chose Option 1 or 2 when she retired; and was in a same-sex marriage when she retired. The Release places no limit on how far in the past the retirement took place.8/ The thrust of Petitioner's case is directed toward backdating her lawful marriage to Ms. Birch to a point prior to Ms. Birch's retirement. As noted above, the timing of the lawful marriage is a problem under the Release, which requires a lawful marriage at the time of retirement, but another problem under the Release is the fact that the Release provides to the FRS retiree, not her surviving spouse, the opportunity for a second election, nor, as discussed immediately below, is this a technical requirement that can be overcome by Petitioner's serving as a representative of Ms. Birch--the second election is extended only to living FRS retirees. The virtue of the Release for Petitioner is that it confers the opportunity of a second election without any proof that, at the time of the first election, the FRS member would have elected Option 3 or 4. If Petitioner does not rely on the Release, she must also prove that Ms. Birch would have elected Option 3 or 4, which, as noted above, she has failed to prove. By limiting the second election to the FRS retiree, the Release limits the potential of adverse selection in allowing a second election, possibly years after the first election.9/ There are three possibilities at the time of the second election: both spouses are alive, only the FRS retiree is alive, and only the surviving spouse is alive. The Release's restriction of the right to make the second election to the FRS retiree means that the second and third possibilities do not result in second elections: respectively the FRS retiree would not reduce her payment to provide an annuity to a spouse who is already deceased10/ and a surviving spouse has no right to make an election under the Release. The couple may gain a minor financial advantage by the opportunity to revisit the payment option several years after the retirement of the FRS member, so that they may be better informed of the health of each of them. But the surviving spouse would gain a significant financial advantage by the opportunity to revisit the payment option after the death of the FRS member. Shortly after Respondent issued the Release, Ms. Birch filed with Respondent a Spousal Acknowledgement Form that she had signed on May 8, 2015. This form indicates that Ms. Birch is married, but nothing else. At about the same time, though, Ms. Birch contacted Respondent by telephone to discuss the Release and any choices that she may now have under the Release. By letter dated May 26, 2015, Respondent calculated monthly benefit amounts under Options 1 through 4, but the letter warns: "Your benefit option will not be changed unless you complete and return the required forms noted in this letter" and indicate a choice of repaying in a single payment or installments the excess benefits of Option 1 over the smaller benefits paid under Option 3 or 4. The May 26 letter requires further action on Ms. Birch's part and predicates any right to a second election upon a lawful marriage at the time of retirement. The record provides no basis for finding that any of Respondent's representatives misstated the lawful-marriage condition. To the contrary, in at least one conversation with Ms. Birch, Respondent's representative insisted on verification of a lawful marriage as of October 2012. Additionally, Ms. Birch was not requesting a right to make a second election; at most, she was gathering information to prepare to decide whether to ask to change her election. By June 26, 2015, pursuant to a note documenting a telephone conversation between Ms. Birch and a representative of Respondent, Ms. Birch decided to keep Option 1 rather than make a second election of Option 3.11/ In May 2016, Ms. Birch finally made a clear attempt to change her election to Option 3. By letter dated May 12, 2016, Ms. Birch stated that she was lawfully married to Petitioner on June 12, 2012, and asked for "the change in beneficiary for my pension, due to the one time option given" in the Release. Even at this late date, Ms. Birch was not yet ready to elect Option 3 because the letter concludes: "I would like to see the breakdown of monetary options to make an informed decision." However, on May 20, 2016, during a telephone call with a representative of Respondent, Ms. Birch provided the date of birth of Petitioner and asked Respondent to expedite her request because she did not have long to live. On the same date, Ms. Birch signed an Option Selection form electing Option 3. By letter dated July 18, 2016, Respondent acknowledged the death of Ms. Birch and informed Petitioner that all pension benefits ended at that time. By letter dated September 22, 2016, Petitioner asked for reconsideration and supplied copies of various documents, the relevant provisions of which have been referenced above. By letter dated October 20, 2016, Respondent denied the request for reconsideration.
Recommendation It is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under Option 3 from Ms. Birch's FRS account and dismissing Petitioner's Request for Administrative Hearing. DONE AND ENTERED this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of January, 2018.
The Issue The issue is whether The Department of Financial Services properly imposed a Stop Work Order and Amended Order of Penalty Assessment pursuant to the requirements of Chapter 440, Florida Statutes.
Findings Of Fact The Division is charged with the regulation of workers' compensation insurance in the State of Florida. Respondent AFS, LLC. (AFS), is a corporation located in Jacksonville, Florida, and is involved in the construction industry, primarily framing houses. Braman Avery is the owner and manager of AFS. Lee Arsenault is a general contractor whose business is located in Jacksonville, Florida. Mr. Arsenault contracted with AFS to perform framing services at a construction site located at 1944 Copperstone Drive in Orange Park, Florida. At all times material to this proceeding, AFS maintained workers' compensation coverage for its employees through a licensed employee leasing company. AFS contracted with Greenleads Carpentry, Inc. (Greenleads) to perform work at the job site in question. Prior to subcontracting with Greenleads, Mr. Avery requested from Greenleads, among other things, a certificate of insurance showing that Greenleads had general liability coverage and workers' compensation insurance. Greenleads provided a certificate of insurance to Mr. Avery showing that Greenleads had workers' compensation coverage. The certificate of insurance contains a policy number, dollar limits, and effective and expiration dates of June 1, 2004 through June 1, 2005. Debra Cochran is office manager of Labor Finders, an employee leasing company. According to Ms. Cochran, Labor Finders' corporate office issued the certificate of insurance to Greenleads. At the time of issuance, the certificate of insurance was valid. Greenleads did not follow through on its obligations to Labor Finders in that Green Leads did not "run its workers through" Labor Finders. Consequently, Greenleads' workers were not covered by workers' compensation as indicated on the certificate of insurance. Labor Finders did not issue any document showing cancellation or voiding of the certificate of insurance previously issued. Mr. Avery relied upon the face of the certificate of insurance believing AFS to be in total compliance with statutory requirements regarding workers' compensation for subcontractors. That is, he believed that the Greenleads' workers were covered for workers' compensation as indicated on the face of the certificate of insurance. Mr. Avery was not informed by Labor Finders or Greenleads that Greenleads did not, after all, have workers' compensation coverage in place on the workers performing work under the contract between AFS and Greenleads on the worksite in question. Bobby Walton is president of Insure America and has been in the insurance business for 35 years. His company provides general liability insurance to AFS. According to Mr. Walton, Mr. Avery's reliance on Greenleads' presentation to him of a purportedly valid certificate of insurance is the industry standard. Further, Mr. Walton is of the opinion that there was no obligation on behalf of Mr. Avery to confirm coverage beyond receipt of the certificate of insurance provided by the subcontractor. That is, there is no duty on behalf of the contractor to confirm coverage beyond receipt of the certificate of insurance. Allen DiMaria is an investigator employed by the Division. His duties include investigating businesses to ensure that the employers in the state are in compliance with the requirements of the workers' compensation law and related rules. On January 5, 2005, Mr. DiMaria visited the job site in question and observed 13 workers engaged in construction activities. This visit was a random site check. Mr. DiMaria interviewed the owner of Greenleads and checked the Division's database. Mr. DiMaria determined that Greenleads did not have workers' compensation coverage. After conferring with his supervisor, Mr. DiMaria issued a stop-work order to Greenleads, along with a request for business records for the purpose of calculating a penalty for Greenleads. In response to the business records request, Greenleads submitted its check ledger along with an employee cash payment ledger, both of which were utilized in calculating a penalty for Greenleads. On January 11, 2005, Mr. DiMaria issued an Amended Order of Penalty Assessment to Greenleads for $45,623.34. Attached to the Amended Order of Penalty Assessment issued to Greenleads is a penalty worksheet with a list of names under the heading, "Employee Name", listing the names of the employees and amounts paid to each employee. During the investigation of Greenleads, Mr. DiMaria determined that Greenleads was performing subcontracting work for Respondent. This led to the Division's investigation of AFS. Mr. DiMaria spoke to Mr. Avery and determined that AFS paid remuneration to Greenleads for work performed at the worksite. He checked the Division's data base system and found no workers' compensation coverage for AFS. He determined that AFS had secured workers' compensation coverage through Southeast Personnel Services, Inc. (SPLI), also a licensed employee leasing company. However, the policy with SPLI did not cover the employees of Greenleads performing work at the job site. Mr. DiMaria requested business records from Mr. Avery. Mr. Avery fully complied with this request. He examined AFS' check registry and certificates of insurance from AFS. Other than the situation involving Greenleads on this worksite, Mr. DiMaria found AFS to be in complete compliance. On January 10, 2005, after consulting with his supervisor, Robert Lambert, Mr. DiMaria issued a Stop Work Order to AFS. A Stop Work Order issued by the Division requires the recipient to cease operations on a job site because the recipient is believed to be not in compliance with the workers' compensation law. The Stop Work Order issued by Mr. DiMaria was site specific to the work site in question. Based upon the records provided by Mr. Avery, Mr. DiMaria calculated a fine. Penalties are calculated by determining the premium amount the employer would have paid based on his or her Florida payroll and multiplying by a factor of 1.5. Mr. DiMaria's calculation of the fine imposed on AFS was based solely on the Greenleads' employees not having workers' compensation coverage. On February 16, 2005, Mr. DiMaria issued an Amended Order of Penalty in the amount of $45,643.87, the identical amount imposed upon Greenleads. A penalty worksheet was attached to the Amended Order of Penalty Assessment. The penalty worksheet is identical to the penalty worksheet attached to Greenleads' penalty assessment, with the exception of the business name at the top of the worksheet and the Division's case number. Greenleads partially paid the penalty by entering into a penalty payment agreement with the Division. Greenleads then received an Order of Conditional Release. Similarly, AFS entered into a penalty payment agreement with the Division and received an Order of Conditional Release on February 16, 2005. Moreover, AFS terminated its contract with Greenleads. Lee Arsenault is the general contractor involved in the work site in question. AFS was the sole framing contractor on this project, which Mr. Arsenault described as a "pretty significant project." He has hired AFS to perform framing services over the years. However, because the Stop Work Order was issued to AFS, Mr. Arsenault had to hire another company to complete the framing work on the project. Mr. Avery estimates economic losses to AFS as a result of losing this job to be approximately $150,000, in addition to the fine. Mr. Arsenault, Ms. Cochran, as well as the Division's investigator, Mr. DiMaria, all agree with Mr. Walton's opinion, that it is customary practice in the construction industry for a contractor who is subcontracting work to rely on the face of an insurance certificate provided by a subcontractor. Robert Lambert is a workers' compensation district supervisor for the Division. When asked under what authority the Division may impose a penalty on both Greenleads and AFS for the same infraction, he replied that it was based on the Division's policy and its interpretation of Sections 440.02, 440.10, and 440.107, Florida Statutes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Division of Workers' Compensation rescind the Amended Order of Penalty Assessment issued February 16, 2005, and the Stop Work Order issued to Petitioner on January 10, 2005. DONE AND ENTERED this 26th day of August, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 26th day of August, 2005. Endnote 1/ While this Recommended Order does not rely upon the case cited by Respondent in its Notice of Supplemental Authority, Respondent was entitled to file it. COPIES FURNISHED: Colin M. Roopnarine, Esquire Douglas D. Dolin, Esquire Department of Financial Services Division of Workers' Compensation East Gaines Street Tallahassee, Florida 32399 Mark K. Eckels, ESquire Boyd & Jenerette, P.A. North Hogan Street, Suite 400 Jacksonville, Florida 32202 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether the Florida Commission on Human Relations should grant the Petition for Relief alleging that the Respondent discriminated against the Petitioner on the basis of his marital status, in violation of Section 760.10, Fla. Stat. (1995).
Findings Of Fact The Respondent, Shaker Lakes Apartments Company d/b/a Seasons of Tampa, Limited, is a property management company whose principal place of business is in Cuyahoga County, Ohio. The Respondent owns real property or conducts business in Florida and has 15 or more employees. The Petitioner, Jerry Dolinger, was hired by the Respondent on or about August 14, 1989, as a maintenance supervisor at a starting pay of $12,000 a year. On or about May 1, 1991, the Petitioner was promoted to district manager at an annual salary of $20,541.57 ($395.03 per week), plus hospitalization benefits and the use of a company car. By the end of 1992, the Petitioner was demoted to maintenance supervisor, but his salary and benefits remained the same. The Petitioner's wife, Karen Dolinger, also was employed by the Respondent, as property manager for Seasons of Tampa, Limited. On or about April 1, 1993, the Petitioner's wife resigned due to disputes with and conduct of the Respondent's vice-president of operations, Jacqueline McCullough. Upon her resignation, she distributed a letter to all residents of the apartment complex giving the residents information concerning the change in property management and the names, addresses and telephone numbers of the Respondent's management personnel in Ohio. The Respondent did not wish to have the names, addresses and telephone numbers of the Respondent's management personnel in Ohio given to the tenants at Seasons of Tampa. The Respondent wished to have those individuals remain unknown to the tenants so all tenant complaints and similar issues would have to be resolved locally through the property manager and district manager. On or about April 2, 1993, Jacquelyn McCullough telephoned the Petitioner and asked whether he had any knowledge of his wife's letter to the tenants. The Petitioner denied any knowledge and in fact had no such knowledge. She asked if the Petitioner also intended to resign, and the Petitioner answered that he did not. Later on April 2, 1993, the Respondent terminated the Petitioner's employment. One of the reasons given for the termination--an alleged temporary staff reduction--was a pretext. (Within days of the Petitioner's termination, the Respondent hired someone to take the Petitioner's place as maintenance supervisor.) The other reason--alleged insubordination and disloyalty--was based on the Respondent's belief that the Petitioner knew about and participated in the letter to the tenants. But the only basis for this belief was the Petitioner's marital status. Since there was no evidence to support the Respondent's belief, the basis of the Petitioner's termination was his marital status. The Petitioner was unable to find reemployment until approximately June 11, 1993. However, his new employment was at a salary of only $17,000 a year, a reduction of $68.11 a week. The Petitioner suffered this reduction in salary until November 5, 1993, when he obtain employment at a salary higher than what he earned with the Respondent, together with hospitalization benefits and the use of a company car, for a total of salary loss during this period of $1,430.31. The Petitioner's loss of use of the Respondent's company car from April 2 through November 5, 1993, cost him monetary damages of $295 a month for replacement transportation, or approximately $2,100. (The Affidavit of Petitioner's damages incorrectly multiplies the monthly expense by 31 weeks, resulting in an incorrect alleged total loss of $9,145.) In order to redeem the second mortgage on the Petitioner's home, which went into default as a result of the loss of the Petitioner's salary, the Petitioner and his wife had to refinance, at a cost of $2,033.02. The Petitioner also claims damages due to the loss of life and health and hospitalization insurance from April 2 through November 5, 1993. But the Petitioner's testimony was that he could not afford to replace those insurance coverages, and there was not evidence that he suffered any out-of-pocket uninsured expenses that would have been covered by them. The Petitioner also claims damages for the loss of $3,775 worth of personal items sold to pay necessary living expenses for the period from April 2 through November 5, 1993. But those sums already are accounted for in loss of salary and would result in a double recovery if added to the loss of salary. Based on the Affidavit of Plaintiff's Attorney's Fees, a reasonable attorney fee in this case is $6,492.50. Based on the Certificate of Costs, reasonable costs to be taxed to the Respondent in this case is $178.42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order: finding the Respondent guilty of illegal discrimination on the basis of the Petitioner's marital status; and (2) requiring that the Respondent pay the Petitioner a total of $9,692.03, together with legal interest from November 5, 1993, plus $6,492.50 as a reasonable attorney fee, together with legal interest from May 1, 1996, as affirmative relief from the effects of the illegal practice. DONE and ENTERED this 6th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5381 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the Petitioner's proposed findings of fact: Conclusion of law. 2.-5. Accepted and incorporated to the extent not conclusion of law, subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Annual salary rejected as inconsistent with the Affidavit of Petitioner's Damages; otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted but subordinate and unnecessary. 11.-15. Accepted and incorporated. 16. Accepted but subordinate and unnecessary. 17.-23. Accepted and incorporated to the extent not subordinate or unnecessary. Amount of loss rejected as not proven by the evidence; "mental anguish, loss of dignity, and other intangible injuries" rejected as not relevant in this proceeding; otherwise, accepted and incorporated. Accepted and incorporated. COPIES FURNISHED: David E. Davis, Esquire 620 E. Twiggs Street, Suite 305 Tampa, Florida 33602-3929 Jacqueline McCullough Vice President Shaker Lakes Apartments Company 1422 Euclid Avenue, Suite 1146 Cleveland, Ohio 44115-1951 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue This case arises from a contract entered into by the Department of Health and Rehabilitative Services and the Coalition for Progress, Inc., pursuant to which the Coalition was to provide certain services for a period of 12 months for a total contract amount of $200,000.00. At the request of the Coalition the contract was shortened to cover only an 11-month period. At the same time that DHRS shortened the period of the contract, DHRS also reduced the total amount payable under the contract by one-twelfth of the original contract amount and arrived at a new contract amount of $183,333.37. In its petition in this case the Coalition asserts that it incurred reimbursable expenses in the amount of $8,434.21 over and above the revised total contract amount of $183,333.37. DHRS has refused to pay the additional $8,434.21 claimed by the Coalition. The Coalition claims that it is entitled to the additional amount of $8,434.21 because it provided services in excess of the services it was required to provide under the contract and because even if this additional amount is paid, the total amount paid under the contract will not exceed the original contract amount of $200,000.00.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits admitted into evidence, I make the following findings of fact: During June of 1982 the Department of Health and Rehabilitative Services entered into a contract with the Coalition for Progress, Inc., pursuant to which the Coalition was to provide certain services specified in the contract for a period of time beginning on July 1, 1982, and ending on June 30, 1983. The contract was a "cost reimbursement" contract pursuant to which the Coalition would be reimbursed for certain authorized expenditures it incurred in the course of fulfilling its obligations under the contract. The contract also provided that the maximum amount payable to the Coalition during the one-year period of the contract would not exceed $200,000.00. The contract also contained a provision reading as follows: This contract may be terminated by either party upon no less than thirty (30) days' notice without cause; notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery. The contract also contained a provision reading as follows: Reimbursement shall be made in monthly amounts requested on the invoice submitted by the Provider in quintuplicate provided that reimbursement is requested for items in the approved contract budget referenced in attachment 2 and that the charges on the invoice are accompanied by appropriate documentation. The Provider must submit the final invoice for payment to the Department no more than forty-five (45) days after the contract ends or is terminated; and if the Provider fails to do so, all right to payment is forfeited, and the Department will not honor any requests submitted after the aforesaid contract ends. Any payment due under the terms of this contract may be withheld until all evaluation and financial reports due from the Provider, and necessary adjustments there to, have been approved by the Department. Although the Coalition did a satisfactory job of performing its service obligations under the contract, the Coalition had difficulty staying within its authorized budget and also began to experience cash flow problems. Because of these cash flow problems, the officers of the Coalition decided it would be in the best interest of the Coalition to seek to terminate the contract on May 31 1983 rather than on June 30, 1983, as provided in the original contract. Accordingly, on April 29, 1983, the Executive Vice President of the Coalition hand delivered a letter to the Department of Health and Rehabilitative Services requesting that the Coalition be permitted to terminate the contract one month early. On May 2, 1983, the Department of Health and Rehabilitative Services hand delivered to the Coalition a letter acknowledging receipt of the request for early termination and advising the Coalition that the Department of Health and Rehabilitative Services was agreeable to the early termination. The DHRS letter of May 2, 1983, also advised the Coalition: However, since the REACT II contract will have only been effective for a period of eleven (11) months, the maximum amount reimbursable for the time period July 1, 1982 through May 31, 1983, will be $183,333.37. Expenditures above this amount will not be reimbursed. Upon not hearing from the Coalition following the letter of May 2, 1933, the Department of Health and Rehabilitative Services sent another letter to the Coalition on May 24, 1983, which included the following: Having had no response to our May 2, 1983, correspondence, this letter is to confirm that your contract will terminate, at your request, May 31, 1983. As you (sic) stated in our May 2, 1983 letter, the maximum reimbursable amount for July 1, 1982 through May 31, 1983 is $183,333.37. Expenditures above this amount will not be reimbursed. The Coalition terminated the contract effective May 31, 1983, and did not provide any services under the contract after that date. The Coalition presented its last invoice for cost reimbursement under the contract during July of 1983. The DHRS employees who reviewed the invoice submitted in July of 1983 rejected it for two reasons: (a) the invoice included a request for reimbursement for unapproved expenses (accrued vacation leave) and (b) payment of the full amount of the invoice submitted in July of 1983 would have resulted in total payments under the contract in excess of the revised contract total of $183,333.37. The invoice was returned to the Coalition and on August 10, 1983, the Coalition submitted a corrected invoice in the amount of $12,493.59. DHRS paid the corrected invoice on August 11, 1983. From the time of the DHRS letter of May 2, 1983, which advised the Coalition that early termination of the contract would result in a reduction of the total amount of funds available under the contract, until the time that the Coalition submitted and was paid for its final invoice in August of 1983, the Coalition did not reply to the DHRS letters informing the Coalition that the contract amount would be reduced by one-twelfth. Specifically, during that period of time the Coalition did not express any protest or objection to the revision of the total amount of funds available under the shortened contract period. Further, the Coalition did not present any invoices for reimbursement after the corrected invoice which was presented on August 10, 1983, and paid on August 11, 1983. Although premature termination of contracts for services entered into with DHRS are not very frequent, they have happened before. In the past it has been the consistent policy of DHRS, when dealing with early termination of cost reimbursable contracts for services for a specified period of time, to reduce the total amount of funds available under the contract in direct proportion to the reduction in the period of the contract period. Such service contracts are usually annual contracts and when the contracts are terminated sooner than the expiration of the full year for which services have been contracted, it has been the consistent policy of DHRS to reduce the total amount of funds which were available under the annual contract by one-twelfth of the original total for each month during which services are not provided. The funds which are allocated to the local districts of the Department of Health and Rehabilitative Services for the purpose of funding contracts such as that entered into with the Coalition are allocated subject to the condition that any such funds which are not spent must be returned to the state offices of the Department of Health and Rehabilitative Services for allocation to other programs. In reliance upon the Coalition's apparent acceptance of the reduction in the total amount of funds available under the contract and further reliance upon the Coalition's submission of a corrected final invoice during the month of August in 1983, the District Eleven office of the Department of Health and Rehabilitative Services returned the unspent portion of the funds which had been allocated to the contract with the Coalition to the state office of the Department of Health and Rehabilitative Services for reallocation to other programs. Accordingly, District Eleven of the Department of Health and Rehabilitative Services no longer has any funds in its budget with which to make any further payments under the contract with the Coalition. 2/
Recommendation Based upon all of the foregoing I recommend that the Department of Health and Rehabilitative Services enter a Final Order denying the Coalition's claim for $8,434.21. DONE AND ORDERED this 10th day of August, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1984.
The Issue The issue to be decided in this proceeding is whether the Reimbursement Dispute Dismissal issued by Respondent, Department of Financial Services, Division of Workers’ Compensation (the “Department”), should be reversed due to equitable tolling or some other recognized excuse for untimely submission of the reimbursement dispute.
Findings Of Fact Petitioner is a business operating in Daytona Beach, Florida. The nature of Petitioner’s business was not made part of the record. In approximately June 2017, Petitioner submitted a claim to the Department, claiming payment for certain (undisclosed) services or expenditures. The Department issued an Explanation of Bill Review (“EOBR”) in response to Petitioner’s claim. The EOBR set forth the amount of reimbursement the Department would allow for Petitioner’s claim. The EOBR was received by Petitioner on July 10, 2017. Upon receipt of the EOBR, Petitioner had 45 days, i.e., until August 24, 2017, to challenge the Department’s determination of the reimbursement amount. Not satisfied that the amount allowed by the Department was correct, Petitioner challenged the determination by submitting a Petition for Resolution of Reimbursement Dispute (the “Petition”) on DFS Form 3160-0023. The Petition was signed on August 8, 2017. However, Petitioner did not immediately submit the Petition on that date, despite being aware of the 45-day time limit for submitting such forms for relief. Petitioner did not mail the Petition until August 25, 2017, one day after the deadline for doing so. The Certified Mail Receipt for Petitioner’s mailing is clear and unambiguous, clearly showing the date. Petitioner did not present any evidence as to factors which might excuse the late filing of its Petition. The only reasons cited were that Petitioner was awaiting information from two claims management services, Sedgwick and Foresight, before submitting its Petition. Petitioner, through its witness at final hearing, admitted its error in failing to timely file the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, Department of Financial Services, Division of Workers’ Compensation, enter a Final Order upholding its Reimbursement Dispute Dismissal. DONE AND ENTERED this 11th day of January, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 11th day of January, 2018. COPIES FURNISHED: Taylor Anderson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Barbara T. Hernandez East Coast Surgery Center 1871 LPGA Boulevard Daytona Beach, Florida 32117 (eServed) Thomas Nemecek, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact On February 15, 1977, Petitioner was employed by the City of Clearwater as a full-time firefighter. He became certified as a firefighter on April 21, 1977, and was issued certificate number 5374. After receiving an associate's degree from St. Petersburg Junior College, Petitioner became eligible to receive firefighters' supplemental compensation benefits on July 1, 1981. After receiving a bachelor's degree from Eckerd College, Petitioner became eligible to receive additional firefighters' supplemental compensation benefits on May 1, 1984. Until July 2, 1986, Petitioner received his supplemental compensation benefits according to the appropriate level. On July 2, 1986, a hearing was held before the City of Clearwater Pension Advisory Committee as to whether Petitioner was entitled to a job- connected disability pension for injuries that he received in firefighting related activity. Following a finding by the Clearwater Pension Advisory Committee that Petitioner was entitled to the disability, the City of Clearwater forwarded to Respondent a Notice of Ineligibility for Supplemental Compensation Benefits, reflecting an ineligibility date for Petitioner of July 2, 1986. Based upon the Notice of Ineligibility, as well as the fact that Petitioner had received a disability that could not be corrected to the satisfaction of the Respondent, Respondent voided Petitioner's certification as a firefighter and terminated his supplemental compensation benefits as of July 2, 1986. Petitioner elected a retirement plan option offered by the City of Clearwater under which he extended his termination of employment date by the amount of time due him for vacation, holiday pay, and one-half of his accrued sick leave. By utilizing the vacation and sick leave time to which he was entitled, Petitioner extended his termination of employment date to October 8, 1987. Between July 2, 1986 and October 8, 1987 Petitioner occupied the status of an employee on vacation or on sick leave, i.e., he was on leave with pay. He received a paycheck at the same time that other employees of the City of Clearwater received theirs, and his paycheck carried the same deductions that other employees would have in their checks. It is uncontroverted that although Petitioner received his disability on July 2, 1986, Petitioner has received compensation from the City of Clearwater on an uninterrupted basis encompassing the period from July 2, 1986 through October 8, 1987 for duties that he performed as a full-time firefighter for the City of Clearwater Fire Departments his employing agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating Petitioner's supplemental compensation benefits from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith. DONE and RECOMMENDED this 23rd day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Fredric S. Zinober, Esquire Village Office Park, Suite 107 2475 Enterprise Road Clearwater, Florida 33575 Lisa S. Santucci, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 =================================================================
The Issue The dispute in this case arises out of Respondent's attempt to collect alleged salary overpayments from Petitioner, a former state employee who allegedly continued to be paid wages after resigning her position with Respondent.
Findings Of Fact Having determined, for the reasons set forth below, that the Department lacks subject matter jurisdiction to adjudicate the instant claim for "money had and received" against its former employee, the undersigned declines to make findings of fact, as such would be a nullity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing this administrative proceeding for lack of subject matter jurisdiction. DONE AND ENTERED this 4th day of November, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2005.
The Issue The issue in this matter is whether Respondent has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2015).1/
Findings Of Fact The Fund is a public retirement system as defined by Florida law. The Fund is charged with administering and managing a pension plan for employees of the City of Tampa (the “City”). Respondent was most recently employed by the City beginning on October 31, 2005. Respondent worked as a Fleet Mechanic Supervisor I for the City’s Logistics and Asset Management/Fleet Management department. The City terminated Respondent on January 21, 2015, based on theft of City property. By reason of his employment with the City, Respondent was enrolled in the pension plan administered by the Fund. After six years of employment, Respondent vested in the pension plan. According to the Notice of Disciplinary Action, dated January 21, 2015, the City terminated Respondent based on his admission to stealing certain property belonging to the City. On January 5, 2015, Respondent was interviewed by the Tampa Police Department (“TPD”) as part of an investigation into stolen property. During this interview, Respondent confessed to stealing a set of tires owned by the City and installing them on his personal vehicle. After the City learned of Respondent’s admission to the theft of City property, the City terminated Respondent’s employment. Kimberley Marple, an Employee Relations Specialist Supervisor for the City, testified on behalf of the City and explained that the City maintains a zero tolerance policy for removal of or taking City property for personal use. Consequently, when the City learned of Respondent’s admission to TPD, he was fired. Based on the evidence and testimony presented at the final hearing, the preponderance of the evidence establishes that the City terminated Respondent’s employment by reason of his admission to theft of City property. Therefore, the Fund met its burden of proving a legal basis under section 112.3173 for Respondent’s forfeiture of all rights and benefits to the Fund’s pension plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order finding that Respondent, Mario Perez, was a public employee who, by reason of his admitted commission of a “specified offense” under section 112.3173(2)(e), forfeited all rights and benefits in the pension plan administered by the Fund. DONE AND ENTERED this 23rd day of August, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 23rd day of August, 2017.
