The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Petitioner, Barbara L. Hughes, who was reemployed as a "media specialist," but who also taught a class, violated the provisions of Section 121.091, Florida Statutes (2006).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Barbara L. Hughes, is a member of FRS. She terminated DROP and retired effective June 30, 2007. Petitioner returned to work on August 14, 2007. Petitioner was paid retirement benefits and health insurance subsidy payments for August 2007. The retirement benefit for August was $1,640.23. The health insurance subsidy payment for August was $150.00. The total amount for retirement benefits and health insurance benefits was $1,790.23. To avoid a threatened penalty, she voluntarily repaid these benefits subject to her belief that she was legally entitled to them. Petitioner's retirement benefits have been inactivated since September 2007. Petitioner is currently employed and has been employed for more than 32 years as a media specialist for the Glades County School Board, teaching at Moore Haven Junior-Senior High School. The school's student population is approximately 350. Although her position title is "media specialist," her present instructional activities are mixed, i.e., she is a media specialist 71 percent of the workday and a classroom teacher 29 percent of the workday. In July 1999, Petitioner enrolled in the Florida Retirement System DROP plan. The Florida Retirement System DROP plan allows a member of the FRS to retire and accrue retirement benefits while the member continues employment. Since the member does not accrue further service credit while in DROP, the FRS considers the member retired. Petitioner terminated her DROP and retired, effective June 30, 2007. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes. Petitioner returned to employment with an annual contract with a position title, media specialist, in August 2007. This was the same position that she had been employed in when she entered and terminated DROP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Barbara L. Hughes, meets the definition of "classroom teacher" in Subsection 1012.01(2)(a), Florida Statutes, and that she is eligible for retirement payments from August 2007 to present. DONE AND ENTERED this 7th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Barbara L. Hughes c/o Norman L. Hughes Education Center of Southwest Florida, Inc. Post Office Box 183 LaBelle, Florida 33975 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether the Department of Management Services, Division of Retirement (“the Department”) should be equitably estopped from requiring Michael A. Fewless to return $541,780.03 of retirement benefits.
Findings Of Fact The following findings are based on witness testimony, exhibits, and information subject to official recognition. FRS and the Termination Requirement FRS is a qualified plan under section 401(a) of the Internal Revenue Code and has over 500,000 active pension plan members. The Department administers FRS so that it will maintain its status as a qualified pension plan under the Internal Revenue Code. Section 121.091(13), Florida Statutes (2018),1/ describes the benefits available to FRS members through the “Deferred Retirement Option Program (“DROP”): In general, and subject to this section, the Deferred Retirement Option Program, hereinafter referred to as DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the Florida Retirement System on behalf of the member, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the member shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Section 121.091 specifies that “[b]enefits may not be paid under this section unless the member has terminated employment as provided in s. 121.021(39)(a). ” Section 121.021(39)(a) generally provides that “termination” occurs when a member ceases all employment relationships with participating employers. However, “if a member is employed by any such employer within the next 6 calendar months, termination shall be deemed not to have occurred.” § 121.021(39)(a)2., Fla. Stat. Moreover, the employee and the re-employing FRS agency will be jointly and severally liable for reimbursing any retirement benefits paid to the employee. § 121.091(9)(c)3., Fla. Stat.2/ The termination requirement is essential to the FRS maintaining its status as a qualified plan under IRS regulations. As a qualified plan, taxes on FRS benefits are deferred.3/ The Department’s position is that after an entity becomes a participating employer, all new hires within covered categories are “compulsory members” of the FRS. If an entity has a local pension plan, then that entity must either close the plan before joining FRS or keep the plan open for members who exercise their right to remain in that plan. However, even if the entity chooses to keep the local plan open for current members, the local plan is closed to new members. The City of Fruitland Park, Florida (“Fruitland Park”), became an FRS employer on February 1, 2015. The mayor and commissioners of Fruitland Park passed a resolution on November 20, 2014, providing in pertinent part, that: It is hereby declared to be the policy and purpose of the City Commission of Fruitland Park, Florida that all of its General Employees and police officers, except those excluded by law, shall participate in the Florida Retirement System as authorized by Chapter 121, Florida Statutes. All General Employees and police officers shall be compulsory members of the Florida Retirement System as of the effective date of participation in the Florida Retirement System so stated therein. (emphasis added). The Department notified Fruitland Park during its enrollment into FRS that all new hires were compulsory members of FRS for covered groups. Facts Specific to the Instant Case After graduating from the Central Florida Police Academy in 1985, Mr. Fewless began working for the Orange County Sheriff’s Office (“OCSO”) as a deputy sheriff and patrolled what he describes as “the worst area of Orange County.”4/ After five years, Mr. Fewless transferred into the detective bureau in OCSO’s criminal investigations division. Mr. Fewless received a promotion to corporal two years later and returned to patrolling.5/ Mr. Fewless soon received a transfer to OCSO’s special investigation’s division and worked in the gang enforcement unit.6/ It was not long before he was promoted to sergeant and sent “back to the road.” After 10 months, OCSO asked Mr. Fewless to take over the gang enforcement unit where he was promoted to lieutenant and ultimately to captain.7/ During his tenure as a captain, Mr. Fewless was in charge of OCSO’s internal affairs unit for five or six years. Mr. Fewless concluded his nearly 30-year tenure with OCSO as the director of the Fusion Center and the Captain of the criminal intelligence section.8/ In sum, Mr. Fewless’s service with OCSO was exemplary, and he was never the subject of any disciplinary actions. Mr. Fewless entered the DROP program on June 1, 2011. As a result, he was scheduled to complete his DROP tenure and retire on May 31, 2016. On June 1, 2011, Mr. Fewless signed a standardized FRS document entitled “Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment.” That document contained the following provisions: I elect to participate in the DROP in accordance with s. 121.091(13), Florida Statutes (F.S.), as indicated below, and resign my employment on the date I terminate from the DROP. I understand that the earliest date my participation in the DROP can begin is the first date I reach normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, although I may elect to participate for less than 60 months. Participation in the DROP does not guarantee my employment for the DROP period. I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S. Termination requirements for elected officers are different as specified in s. 121.091(13)(b)(4), F.S. I cannot add service, change options, change my type of retirement or elect the Investment Plan after my DROP begin date. I have read and understand the DROP Accrual and Distribution information provided with this form. Mr. Fewless realized by 2015 that he was not ready to leave law enforcement. However, he was scheduled to retire from OCSO by May 31, 2016. Mr. Fewless had several friends who left OCSO as captains and took police chief positions with municipalities in Florida. Therefore, in anticipation of a lengthy job search, he began looking for such a position in approximately March of 2015. Mr. Fewless applied to become Fruitland Park’s police chief on March 26, 2015, and was offered the job in June of 2015 by Fruitland Park’s city manager, Gary LaVenia. Mr. Fewless learned from Mr. LaVenia that Fruitland Park had joined FRS and told him that he could not work within the FRS system. Mr. LaVenia then erroneously told Mr. Fewless that he would not be violating any FRS conditions (and thus forfeiting his DROP payout) because Fruitland Park had a separate city pension plan into which Mr. Fewless could be enrolled. As noted above, Fruitland Park had passed a resolution mandating that “[a]ll General Employees and police officers shall be compulsory members of the Florida Retirement System as of the effective date of participation in the Florida Retirement System. ” While Mr. Fewless was pleased with what Mr. LaVenia told him, he called an FRS hotline on July 9, 2015, in order to verify that he would not be endangering his retirement benefits by accepting the police chief position with Fruitland Park. Mr. Fewless’s question was routed to David Kent, and Mr. Fewless described how he was going to work for Fruitland Park and that Fruitland Park was an FRS employer. Mr. Kent told Mr. Fewless that he could go to work for Fruitland Park immediately without violating any FRS requirements so long as he was not enrolled into the FRS system. Instead of being an FRS enrollee, Mr. Kent stated that Mr. Fewless could enroll into Fruitland Park’s pension plan or enter a third-party contract.9/ Mr. Fewless assumed that Mr. Kent was an FRS expert and remembers that Mr. Kent sounded very confident in the information he relayed over the telephone. On July 14, 2015, Mr. Fewless filled out and signed a form entitled “Florida Retirement Systems Pension Plan Deferred Retirement Option Program (DROP) Termination Notification.” The form indicates that Mr. Fewless would be ending his employment with OCSO on August 1, 2015. In addition, the form notified Mr. Fewless of the requirements associated with receiving his accumulated DROP and monthly benefits: According to our records, your DROP termination date is 08/01/2015. You must terminate all Florida Retirement System (FRS) employment to receive your accumulated DROP benefits and begin your monthly retirement benefits. You and your employer’s authorized representative must complete this form certifying your DROP employment termination. Termination Requirement: In order to satisfy your employment termination requirement, you must terminate all employment relationships with all participating FRS employers for the first 6 calendar months after your DROP termination date. Termination requirement means you cannot remain employed or become employed with any FRS covered employer in a position covered or noncovered by retirement for the first 6 calendar months following your DROP termination date. This includes but is not limited to: part-time work, temporary work, other personal services (OPS), substitute teaching, adjunct professor or non-Division approved contractual services. Reemployment Limitation: You may return to work for a participating FRS employer during the 7th – 12th calendar months following your DROP termination date, but your monthly retirement benefit will be suspended for those months you are employed. There are no reemployment limitations after the 12th calendar month following your DROP termination date. If you fail to meet the termination requirement, you will void (cancel) your retirement and DROP participation and you must repay all retirement benefits received (including accumulated DROP benefits). If you void your retirement, your employer will be responsible for making retroactive retirement contributions and you will be awarded service credit for the period during which you were in DROP through your new employment termination date. You must apply to establish a future retirement date. Your eligibility for DROP participation will be determined by your future retirement date and you may lose your eligibility to participate in DROP.[10/] (emphasis in original). Mr. Fewless’s Reliance on the Representations Made to Him Mr. Fewless placed complete trust in the representations made during his July 9, 2015, phone call to the FRS hotline and during his discussions with Fruitland Park’s city manager. When he left OCSO and accepted the police chief position with Fruitland Park, Mr. Fewless took a $33,000.00 annual pay cut and stood to receive $70,000.00 less from his DROP payout. It is highly unlikely he would have accepted those circumstances if he did not have a good faith basis for believing he was utilizing an exception to the termination requirement. In the months preceding his departure from OCSO, Mr. Fewless’s wife was being treated for a brain tumor. Following her surgery in May of 2015 and subsequent radiation treatment, Ms. Fewless returned to work for a month or two. However, given that the retirement checks Mr. Fewless had begun to receive were roughly equivalent to what Ms. Fewless had been earning, she decided to retire in order to spend more time with their grandchildren. During this timeframe, Mr. and Ms. Fewless decided to build their “dream home,” and Ms. Fewless designed it. They used a $318,000.00 lump sum payment from FRS to significantly lower their monthly house payment. Those actions would not have been taken if Mr. Fewless had suspected that there was any uncertainty pertaining to his retirement benefits. The Department Discovers the Termination Violation In November of 2017, the Department’s Office of the Inspector General conducted an audit to assess Fruitland Park’s compliance with FRS requirements. This audit was conducted in the regular course of the Department’s business and was not initiated because of any suspicion of noncompliance. The resulting audit report contained the following findings: (a) Fruitland Park had failed to report part-time employees since joining FRS; (b) Fruitland Park had failed to report Mr. Fewless as an employee covered by FRS; (c) Mr. Fewless’s employment with Fruitland Park amounted to a violation of FRS’s reemployment provisions; and (d) Fruitland Park failed to correctly report retirees filling regularly established positions. Because he had failed to satisfy the termination requirement, the Department notified Mr. Fewless via a letter issued on August 15, 2018, that: (a) his DROP retirement had been voided; (b) his membership in FRS would be retroactively reestablished11/; and (c) he was required to repay $541,780.03 of benefits. Mr. Fewless’s Reaction to Learning That He Had Violated the Termination Requirement Mr. Fewless learned on June 25, 2018, of the Department’s determination that he was in violation of the termination requirement. He responded on July 5, 2018, by writing the following letter to the Department: On the evening of, June 25, 2018, I was notified by Mr. Gary LaVenia, the City Manager for Fruitland Park, that he was contacted by members of the State of Florida’s DMS Inspector General’s office regarding a problem with my current retirement plan. No additional information was shared during this initial telephone conversation and we scheduled a meeting for the following day. On June 26, 2018, I met with Mr. Gary LaVenia, Ms. Diane Kolcan, Human Resource Director and Ms. Jeannine Racine, the Finance Director regarding this matter. I was advised that members of the Department of the Florida Retirement System told them that I was in violation of receiving my current retirement benefits because I failed to take a six month break between my retirement with the Orange County Sheriff’s Office and joining the City of Fruitland Park. I explained to them that there must be some mistake because I am not currently enrolled in the Florida Retirement System through the City of Fruitland Park. The City enrolled me in their “City” pension plan. Mr. LaVenia agreed with me and we closed the meeting with me advising them I would do some additional research on the matter. * * * I then reached out to Mr. Chris Carmody, an attorney with the Gray/Robinson Firm, whom I worked with on legislative issues in the past. . . . I explained to him that according to the Inspector General’s report, I needed to have a six month separation between the Orange County Sheriff’s Office and the City of Fruitland Park, because both agencies participated in the Florida Retirement System. Mr. Carmody still did not feel that was a violation because I was not enrolled in the FRS Plan with the City of Fruitland Park, but rather their independent City pension plan. I felt the same way; however he wanted to continue to research the issue. A few hours later I received a telephone call from Mr. Carmody indicating the problem appears to be that the “City” participates in the FRS Pension Plan and even though I do not, I would be prohibited from working there for the six month period. After hearing this news, I immediately contacted Ms. Amy Mercer, the Executive Director of the Florida Police Chief’s Association. I explained the dilemma to her and just like the previously mentioned individuals she said “so what did you do wrong, that sounds ok to me. ” Ms. Mercer said she would reach out to the two attorneys that support the Florida Police Chief’s Association to get their opinion of the situation. The following morning, Ms. Mercer advised me that according to Attorney Leonard Dietzen my actions were in violation of the Florida Retirement Pension Plan Rules. Mr. Dietzen explained to her that I needed a six month separation from my employment with the Florida Retirement System and the City of Fruitland Park, because the City participated in the FRS Pension plan. Therefore, based on the above information [and] the realization that an innocent mistake had been made, please let me explain my actions: * * * In either June or July of 2015, I officially interviewed for the position of Police Chief for the City of Fruitland Park. . . . Approximately one week after the interviews, I was offered the position of Police Chief for the City of Fruitland Park. In July of 2015, I contacted the official FRS Hotline regarding my potential decision to join the Fruitland Park Police Department. I informed them that I was currently employed with the Orange County Sheriff’s Office and enrolled in DROP. I advised them that I was considering accepting the position of police chief with the City of Fruitland Park; however I wanted to confirm with them that I would have no issues with my retirement. I explained that the City of Fruitland Park was currently an FRS department; however they also had a separate “City” pension plan which I was going to be placed in. I wanted to confirm that this would not negatively impact my retirement benefits. I was advised that as long as I was enrolled in the “City” pension plan, I would be fine. The FRS employee also added that he heard other “new chiefs” were doing an “independent contract” with the City for a one year period, but he assured me either way would be fine. I concluded my telephone conversation and proceeded forward. I then began the employee benefits negotiations process with Mr. LaVenia. At the time of the negotiations, I realized I would be receiving my Florida Retirement check on a monthly basis and my wife was also employed as the vice-president of the Orlando Union Rescue Mission in Orlando, Florida. Therefore money was not my primary concern for this position and I surrendered my much larger salary with the Orange County Sheriff’s Office to become the Chief of Police for Fruitland Park for $70,000 per year. I officially accepted the position with the City of Fruitland Park, and informed Mr. LaVenia that I could not participate in the Florida Retirement System; however according to the FRS Hotline employee I could be placed in the city pension plan or sign a contract for a one year period. Mr. LaVenia recommended that I be placed in the city pension plan and had the appropriate paperwork completed. * * * It is important to recognize that I felt I took all the necessary steps to act within the guidelines of the Florida Retirement System. After all, I had worked for over thirty years with the Orange County Sheriff’s Office with an impeccable record and with the intent of securing a retirement package that would protect my wife and family for life. In conclusion, I feel I have been let down by the system in two very key areas regarding this matter: In July 2015, not only was I preparing for retirement and a new job; but my wife was experiencing serious medical issues that required surgery and radiation treatments for months at Shands Hospital. Although my mind was focused on her condition, I still felt it was extremely important to contact the FRS Hotline regarding my potential new position. My desire was to make sure I did not do anything that would jeopardize the retirement plan I worked for my entire career. The advice I was given by the FRS Hotline employee/professional apparently was terrible. Not only did he indicate I could go under the “City” pension plan, he further recommended that other chiefs have decided to do a “contract” with the city for a one year period to account for the separation from the FRS system. Clearly had this employee indicated by any means that the position with Fruitland Park would or possibly could jeopardize my retirement, I would have run away from this opportunity . . . * * * In July and August of 2015, while I was completing the hiring process with the City of Fruitland Park, management and/or staff should have cautioned me about the potential risk to my Florida Retirement Pension if I proceeded with the process. * * * Clearly, whoever made the decision to proceed with processing me was unaware of two things. (1) I would be violating the six month separation rule if I stopped my employment with the Orange County Sheriff’s Office on August 1, 2015 and began employment with Fruitland Park one day later on August 2, 2015. (2) The only pension plan available to new employees with the City of Fruitland Park had to be the Florida Retirement System. * * * I now understand from going through this procedure that there [was] an unintended error in how I officially retired from the Orange County Sheriff’s Office and began my employment with the Fruitland Park Police Department. It is important to mention that Sheriff Kevin Beary and Sheriff Jerry Demings chose me to command their Professional Standards Division on two separate occasions because they knew I was a man of integrity and would always “do the right thing.” I had no intent to skirt the system and/or do anything unethical. I can assure you nobody raised a red flag over this position prior to this incident; and I would have immediately stopped my efforts had I been aware of this rule. Mr. Fewless’s Current Situation While working as Fruitland Park’s police chief, Mr. Fewless’s salary and retirement benefits totaled $12,000.00 a month. In order to avoid accumulating more penalties, Mr. Fewless retired from his police chief position with Fruitland Park on August 31, 2018. Mr. Fewless has not received any FRS benefits since September 1, 2018. There was a three-month period when he was receiving no money. Mr. Fewless has been employed by the Groveland Police Department since March 4, 2019. Mr. Fewless describes his current financial situation as “dire” and says he and his wife are “wiped out.” They may need to sell their “dream house,” and they borrowed $30,000.00 from their daughter in order to litigate the instant case. In addition, the contractor who built the Fewless’s dream home failed to pay subcontractors for $93,000.00 of work. While the Department notes that Mr. Fewless stands to receive a higher monthly benefit, he disputes that he is somehow in a better position: No, I am not in a better position. The $542,000 that will be taken away from me because of what clearly could have been handled with one phone call from a representative of FRS – the difference in pay between my former retirement salary and my new retirement salary based on the recalculations will go from $6,000 to $7,000 a month. That means in order for me to recoup the $542,000 that the state was referring to, I would have to work 542 months. I don’t think I’ll live that much longer, No. 1. And No. 2, that doesn’t take into consideration interest and everything else that was part of that, if that makes sense. Mr. Fewless has filed a lawsuit against Fruitland Park. Ultimate Findings of Fact12/ Mr. Fewless’s testimony about his July 9, 2015, phone call to the FRS hotline is more credible than Mr. Kent’s. Mr. Fewless’s descriptions of that phone call are very consistent, and the Department has not directed the undersigned to any instances in which an account of that phone call by Mr. Fewless differed from his testimony or his July 5, 2018, letter to the Department.13/ This finding is also based on Mr. Fewless’s demeanor during the final hearing. Moreover, Mr. Fewless was not attempting to “game the system.” Given Mr. Fewless’s exceptional record of public service, it is very unlikely that he would knowingly and intentionally attempt to engage in “double dipping” by violating the termination requirement. It is equally unlikely that Mr. Kent can accurately remember what he told Mr. Fewless during a single phone call on July 9, 2015. Rather than questioning Mr. Kent’s veracity, the undersigned is simply questioning his ability to recall the content of a single phone call that appears to have been unremarkable.14/ It is also difficult to believe that Mr. Fewless would accept the police chief position with Fruitland Park and build an expensive “dream house” after being told by Mr. Kent that he would be violating the termination requirement.15/ Mr. Fewless’s reliance on Mr. Kent’s statement was entirely reasonable given that the arrangement described by Mr. LaVenia sounded like an imminently plausible exception to the termination requirement. Mr. Fewless’s subsequent actions in reliance of that statement were extremely detrimental to himself and his family. Finally, the circumstances of the instant case are analogous to other cases in which appellate courts have held that the enhanced requirements for estopping the government had been satisfied. In other words, Mr. Kent’s misrepresentation amounted to more than mere negligence, the Department’s proposed action would result in a serious injustice, and the public interest would not be unduly harmed by Mr. Fewless retaining the retirement benefits he earned through his public service with OCSO.
Conclusions For Petitioner: Ryan Joshua Andrews, Esquire Brian O. Finnerty, Esquire Johana E. Nieves, Esquire The Law Offices of Steven R. Andrews, P.A. 822 North Monroe Street Tallahassee, Florida 32303 For Respondent: Thomas E. Wright, Esquire Sean W. Gillis, Esquire Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order rescinding its proposed action that Michael A. Fewless’s FRS DROP retirement be voided and that he be required to repay all retirement benefits as provided in Florida Administrative Code Rule 60S- 4.012. DONE AND ENTERED this 18th day of July, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 18th day of July, 2019.
The Issue Whether Petitioner was properly denied mortgage assistance through Florida Housing Finance Corporation's ("Florida Housing") Hardest-Hit Fund Elderly Mortgage Assistance ("ELMORE") program based on a conviction for fraud allegedly in connection with a real estate transaction.
Findings Of Fact The Parties Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes, to promote the public welfare by administering the governmental function of financing or refinancing housing. For purposes of this proceeding, Florida Housing is an agency of the State of Florida. Florida Housing is also considered the state's housing finance agency which means Florida Housing, at times, conducts business as if it were a financial institution. Florida Housing administers the Hardest-Hit Fund, using funds appropriated by the United States Congress through the Emergency Economic Stabilization Act to help stabilize housing markets and prevent foreclosures. The Hardest-Hit Fund comes directly to Florida Housing from the United States Treasury through a Housing Finance Agency ("HFA") Participation Agreement. The ELMORE program is one of the programs created under the umbrella of the Hardest-Hit Fund. The ELMORE program is designed to assist senior homeowners in Florida who are facing foreclosure due to the inability to pay property charges such as property taxes, homeowners insurance, and homeowners or condo association dues after the homeowner was paid all of the equity under a reverse mortgage. The HFA agreement is a summary guideline for the ELMORE program and its general requirements. The stated goal of the program is to help senior homeowners remain in their homes. The Summary Guidelines include certain borrower eligibility criteria, property/loan eligibility criteria, and program exclusions, among other guidelines. The program exclusions reference the "Dodd-Frank exclusion for having been convicted of a mortgage-related felony in the past ten years." The Dodd-Frank Act exclusion for criminal applicants is codified 12 U.S.C. § 5220b, and states in part: (d) Prevention of qualification for criminal applicants (1) In general No person shall be eligible to begin receiving assistance from the Making Home Affordable Program authorized under the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5201 et seq.), or any other mortgage assistance program authorized or funded by that Act, on or after 60 days after July 21, 2010, if such person, in connection with a mortgage or real estate transaction, has been convicted, within the last 10 years, of any one of the following: Felony larceny, theft, fraud, or forgery. Money laundering. Tax evasion. On or about February 27, 2017, Betty Baldwin, Power of Attorney for Tolz, submitted an application for mortgage assistance through Florida Housing's Hardest-Hit Fund for ELMORE benefits. On or about May 11, 2017, the application was denied. On or about November 8, 2018, Tolz submitted another application for mortgage assistance from the ELMORE program. On December 5, 2018, Florida Housing's Director of Homeownership Programs, David Westcott, issued a letter with an ineligibility determination to Tolz, which included a Notice of Rights.1/ Mr. Westcott is ultimately responsible for the final eligibility determinations on Hardest-Hit Fund mortgage assistance applications. The Denial of ELMORE Program Benefits Mr. Westcott denied Tolz's application for ELMORE program funds because she had, what Mr. Westcott determined to be, a disqualifying felony conviction in connection with a real estate transaction in violation of the Dodd-Frank Act provision. Mr. Westcott testified that pursuant to the HFA agreement with the United States Treasury, Florida Housing is prohibited from using ELMORE funds to assist applicants that have a disqualifying Dodd-Frank Act conviction. During the period of 2003 through 2010, Tolz used her position as a fiduciary in the role of bankruptcy trustee, receiver, and personal representative to misappropriate millions of dollars from bankruptcy estates, receiverships, and other matters, by writing or causing the writing of unauthorized checks from a variety of fiduciary accounts which contained funds she was appointed to safeguard. Tolz then used the misappropriated money for her own benefit and to conceal her previous misappropriations by restoring the balances of other fiduciary accounts from which she had previously taken funds in a Ponzi scheme framework. To conceal this theft, Tolz falsified documents and used a fictitious bank account. On or about December 12, 2011, Tolz was convicted in Broward County Circuit Court of grand theft in the first degree. Tolz was convicted on or about July 27, 2011, in the United States District Court for the Southern District of Florida of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. To secure a plea deal and in order to bolster her claim that her sentence should be reduced from the federal guidelines, prior to sentencing, Tolz surrendered five real estate properties, which she owned, to the United States government. The value of these properties was then used to offset and lessen Tolz's restitution obligation to her victims. Tolz understood that these properties would not be accepted to satisfy her restitution obligation unless they were purchased, mortgaged, or improved with the assets of her victims. In the federal criminal case, Tolz executed a Factual Basis Supporting Change of Plea ("Factual Basis") on or about April 15, 2011. Tolz agreed not to contest the information in the Factual Basis. Further, Tolz agreed that it provided a sufficient factual basis for her plea of guilty in the case, and had the case proceeded to trial, that the United States would have proven the facts beyond a reasonable doubt. Paragraph 11 of the Factual basis states: MARIKA TOLZ, directly or indirectly, utilized funds obtained through the fraudulent scheme to purchase, maintain and improve real properties, including, but not limited to the following real properties: 2344 North Federal Highway, Hollywood, Florida; 1804 Sherman Street, Hollywood, Florida; 704 SE 3rd Avenue, Hallandale, Florida; 815 SW 30th Street, Ft. Lauderdale, Florida; and 3031 North Ocean Blvd, Apartment 403, Fort Lauderdale, Florida 33308. In making the ineligibility determination on Tolz's application for ELMORE program funds, Mr. Westcott determined that Tolz's conviction was in connection with a real estate transaction because Tolz agreed in the Factual Basis that she used funds obtained through the fraud to "purchase, maintain and improve real properties." Florida Housing determined that Tolz's conviction disqualified her from receiving mortgage assistance from the ELMORE program because: As part of the Hardest-Hit Fund, the ELMORE program funds are authorized by the Emergency Economic Stabilization Act of 2008; Tolz was convicted of the enumerated offense of a "fraud;" The conviction occurred on or about July 21, 2011, which is within the last ten years; and The conviction was in connection with a real estate transaction because Tolz used funds obtained through the fraud to "purchase, maintain and improve real properties." "In Connection With" A Mortgage or Real Estate Transaction Tolz contends that her crimes were not "in connection with a mortgage or real estate transaction." At both her sentencing hearing in federal court and at the final hearing in this proceeding, Tolz stated that she owned these surrendered properties for 30 or 40 years. Tolz now argues that because she owned these properties well before the fraud of which she was convicted occurred, no mortgage or real estate transaction was involved in the crime and, therefore, she should not be disqualified from ELMORE benefits. Tolz now claims she surrendered these properties to facilitate the forfeiture on the advice of counsel, that she was heavily medicated at the time of sentencing, and that the prosecutor and the court knew that these properties were not associated with her underlying crimes. Tolz admitted at final hearing that she surrendered these properties to do an end-run around the system to reduce the more than two million dollars she owed in restitution. However, in that same sentencing hearing, the prosecutor representing the United States stated "I'll also indicate, although it's clear from the record, that notwithstanding the picture that she's somehow a pauper, or was a pauper, the fact of the matter is the forfeiture properties indicated in the forfeiture which she agreed to were her properties, at least partially paid for by the offense."2/ An impartial reading of the sentencing transcript demonstrates that during sentencing the United States believed that the properties involved in the criminal forfeiture were, in part, paid for by the crime for which Petitioner was convicted. The undersigned finds the facts, as offered by Tolz in her 2011 "Factual Basis" offered in support of a sentence reduction and reduction of her restitution obligation, to be more credible than her denial at final hearing that these properties were not purchased, improved, or maintained with the funds from her crimes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing enter a final order dismissing Petitioner's Amended Petition. DONE AND ENTERED this 30th day of April, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 30th day of April, 2019.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1981, Edgewater Development Associates, Ltd. applied for a development order for the Edgewater Beach Condominium project (the project), a development of regional impact (DRI) for a 15.4 acre parcel of property located in Walton County between County Road 2378 and the Gulf of Mexico. On June 8, 1982, respondent, Walton County (County), issued resolution 82-12 (the original development order) authorizing the development of the project. Although not then required by law to do so, but consistent with its policy for all DRI orders, the County included within Section 6 of the original development order the following provision regarding an expiration date: The development order shall remain in effect for a period of ten years or until the development is complete and all certificates of occupancy are issued by Walton County, whichever occurs first, provided that upon application by the developer, the county may extend the duration of the development order. Therefore, without an extension, the original development order was scheduled to expire on June 8, 1992. The project was originally authorized to include six phases with 476 condominium units and associated recreational facilities. When completed, the 476 units were to be located within a horseshoe-shaped building, with an east and west wing connected at the top of the horseshoe by a lobby area. Phases I and II, consisting of 175 units, were completed by 1984 but phases III through VI have never been constructed. Petitioner, Edgewater Beach Condominium Association, Inc. (EBOA or petitioner), is a Florida condominium association and the owner of phases I and II. On June 8, 1987, Edgewater Development Associates, Ltd. lost by foreclosure the approximately seven acres upon which the remaining four phases of the project were to be constructed. On July 10, 1987, EAB Realty of Florida, Inc. acquired title to that property. However, it never developed any of the remaining four phases. In May 1992, title to the property was transferred to respondent, KPM, Ltd. (KPM), and one of the KPM partners, Kero Investments, Inc. (Kero). KPM now owns the entire parcel. In early May 1992, or approximately a month before the original development order was to expire, representatives of KPM asked the County's assistant administrator with responsibility for planning and zoning about extending that order. They were told that they merely had to ask the Commission for such an extension. Relying on these instructions, KPM appeared before the County Commission on May 26, 1992, requesting that the termination date of the original development order be extended for thirty-five months. The Commission granted the request and voted to allow the extension. Shortly thereafter, however, KPM and the County were informed by intervenor, Department of Community Affairs (DCA), that the action by the County on May 26, 1992, was ineffective because it failed to comply with all of the requirements of Section 380.06, Florida Statutes. KPM was told that in order to extend a DRI development order termination date, it must file a formal notice of proposed change with the County, and the County would then give public notice of the hearing at which the change was to be considered. Until these procedures were followed, no further development could occur once the expiration date had passed. On June 5, 1992, KPM filed with the County a formal notice of proposed change requesting that the build-out date and expiration date of the original development order be extended to May 8, 1995. Thereafter, the DCA informed the County and KPM that, after June 8, 1992, the right to develop the property covered by the original development order had expired. It also advised them that further development of the property would have to be preceded by further DRI review, namely, either a notice of proposed change or formal abandonment. Petitioner received the same information when it inquired about the possibility of constructing an addition to phases I and II. In light of this advice, on July 17, 1992, KPM's counsel withdrew its application for extension and stated that he understood that the withdrawal caused the original development order to expire as of June 8, 1992. KPM then selected the notice of proposed change option because it felt that the DRI development order had value and that the abandonment procedure was basically the same as that required for a notice of proposed change. Had not KPM received this advice from DCA, it could have built up to 35 units per acre on the property, without any height restriction, under the local comprehensive plan then in effect. On September 28, 1992, KPM submitted another notice of proposed change in which it requested that the build-out dates and the termination date for phases III through VI be extended until January 1, 1999. On December 7, 1992, KPM revised its notice of proposed change to request certain changes in the project's configuration, including replacing the condominiums in phase III with townhouses and reducing the number of units in that phase from 42 to 19. The County treated the notice of proposed change as a presumptive substantial deviation to the original development order under Section 380.06(19)(e)3., Florida Statutes. In other words, the proposed changes were presumed by statute to create additional regional or state impacts so as to require further DRI review. However, that presumption could be rebutted by evidence submitted at a public hearing before the local government. Kero was the record owner of the portion of the property covered by the September 1992 notice of proposed change. This included a beachfront parcel of approximately 50 feet by 400 feet on the eastern boundary of the undeveloped portion of the DRI and a parking lot. Kero was fully aware of the requested changes and authorized Albert Paris, the owner of one of the other KPM partners, to file the application. On January 26, 1993, the County adopted the amended development order in issue here (resolution 93-2), which approved the extension of build-out and termination dates and the change in phase III configuration requested by KPM. In doing so, the County determined that, based on certain conditions placed in the amended development order, the amendment to the original development order was not a substantial deviation and thus it required no further DRI review. The DCA concurred in this determination. The amended development order requires, however, that before construction of phases IV through VI may commence, KPM must submit additional information to the County for approval and for another amendment to the DRI development order pursuant to Section 380.06(19), Florida Statutes. Contending that the amended development order was invalid, petitioner filed an amended petition on April 1, 1993. As clarified by the parties in the prehearing stipulation, petitioner cites three broad grounds for invalidating that order: (a) the original development order was constructively abandoned and therefore could not be amended, (b) the right to request an amendment of the original development order did not transfer to KPM, a successor owner to the original developer, and (c) the County did not have authority to revive the original development order and extend its termination date. In its proposed recommended order, however, petitioner addresses only the third issue, that is, whether the County had authority to revive an expired development order. By failing to address the remaining claims, the undersigned assumes that petitioner has abandoned these contentions. Nonetheless, and for the sake of providing a complete factual and legal record in the event of an appeal, the undersigned will discuss the other two issues. Standing In its amended petition, as clarified by the court's opinion in Edgewater Beach Owners Association, Inc. v. Board of County Commissioners of Walton County, Florida, 645 So.2d 541 (Fla. 1st DCA 1994), petitioner contends it has standing as an affected land owner to challenge the amended development order because its retention pond would be affected by the development. In other words, petitioner alleges that "the 'intensity' of the use of the retention pond would increase beyond its current use under KPM's plan." Under the original stormwater plans for the project, a 10,000 square foot wet retention pond designed to capture stormwater runoff was constructed that straddles what is now the boundary between petitioner's and KPM's property. Approximately 3,000 square feet of the pond are located on KPM property. The pond was intended to serve all six phases of the project. Assuming KPM develops its property, and the surface stormwater from that development is released into the wet retention pond, the pond will be impacted. However, KPM intends to utilize a stormwater design for phase III that provides for the retention of 100 percent of its stormwater on its own property. A retaining wall built along the edge of the pond would prevent any surface water runoff from KPM's development from entering the pond. Since surface water now flows into the pond from KPM's property in its undeveloped state, the retaining wall plan will not increase, and will probably decrease, the volume of water currently entering the pond. Notwithstanding this reduction in surface water runoff, petitioner contends that the development proposed on KPM property will influence the ground water flow into the retention pond. More specifically, it argues that in light of the geophysical characteristics of the property, some of the water which percolates from KPM's retention ponds will flow underground and impact the function of petitioner's retention pond. There will, of course, be a lateral exchange of water between KPM's and petitioner's property. In other words, in the same way that petitioner would be affected by KPM, KPM would also be affected by petitioner. This exchange of water is uncontrollable and also occurs between petitioner's property and all other adjacent properties. However, there is no evidence of record as to whether KPM's development would have any discernable effect on the water table. That is to say, there is no evidence to support a finding that, beyond the lateral exchange of water that now occurs, the proposed development would have a measurable impact on the water table. Even petitioner's own expert conceded as much. Given these considerations, it is found that the intensity of the use of petitioner's retention pond will not increase beyond its current use under KPM's plan. Therefore, petitioner is not an affected land owner and thus it lacks standing to bring this action. Was the Original Development Order Constructively Abandoned? In the prehearing stipulation, petitioner argues that the original developer constructively abandoned the original development order. According to petitioner, this occurred either through foreclosure of the original developer's interests or through actions or omissions by KPM. The DCA does not recognize constructive abandonment as a concept applicable to DRI development orders. Indeed, the only mechanism for abandoning a DRI development order is the procedure set forth in Rule 9J-2.0251, Florida Adminstrative Code. KPM made no attempt to initiate the abandonment procedures specified in the rule. There is insufficient evidence to establish that KPM evinced an intent to abandon development of its property. Rather, the evidence establishes that KPM considered the original development order to be valuable and took affirmative steps to assure its viability. While it is true that the prior owner of the property did go bankrupt, even petitioner's expert recognized that bankruptcy alone could not be deemed to constitute an abandonment of a DRI development order. As to the contention that KPM had no right to seek the changes approved by the County since it was not the original developer of the project, the evidence establishes that almost all DRIs in Florida have been sold subsequent to the issuance of their original DRI development orders. The DCA regards a DRI development order as incidental to the land itself, with the rights and obligations of the development order transferring to subsequent purchasers when title is transferred. In other words, a DRI development order runs with the land. Therefore, as the successor in title to the land, KPM had the right to seek changes approved by the County. Can An Expired Development Order be Revived? Petitioner further contends that a local government has no authority to revive a DRI development order after it has expired. In this case, the County issued an amended development order on January 26, 1993, or almost six months after the original development order had expired. The build-out date in a development order is the date by which the developer is to have completed the vertical structures. This date is important for assessing impacts such as public capacity (e. g., water, sewer and transporation). If a build-out date is missed, there may no longer be adequate public capacity to accommodate the proposed development. A termination date is the date at which the development order expires. Until 1985, there was no requirement in chapter 380 that a DRI development order include an expiration date. The expiration date is typically set at two to five years after the build-out date. This date provides a local government with the specific point in time at which it can determine whether the proposed development is still compatible with the community. The local government must determine whether an extension of the development order would create additional regional or state impacts, and if not, whether the extension should be granted. If the proposed change creates additional regional impacts, it constitutes a substantial deviation which must undergo additional DRI review. Even if the local government determines that the extension of a development order, after expiration, will not create additional regional or state impacts, the local government has the authority to deny such an extension. On the other hand, the DCA has only one decision with respect to termination date extensions - - whether such an extension will create additional regional or state impacts. Consequently, the DCA regards the extension of a termination date as largely a local decision. Since at least 1987, or well before the expiration of the original development order, the DCA has advised local governments and DRI developers that expired DRI development orders could be revived by the local government based on local considerations, such as whether the development is still compatible with the surrounding community. This interpretation of the statute was not shown to be clearly erroneous or unreasonable. Petitioner's expert disagreed with the above interpretation since he opined that permitting a local government to revive an expired development order would defeat efforts to plan for the future and hamper the ability of adjacent local governments to implement their plans of development. While this view may have some justification from a planning perspective, the DCA's interpretation of the DRI statutes is also reasonable. The amended development order in issue approved both an extension of the termination date and an extension of build-out dates. The DCA determined that the changes actually approved would not create additional regional or state impacts. Petitioner has not challenged this determination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission issue a final order dismissing the amended petition of Edgewater Beach Owners Association, Inc. DONE AND ENTERED this 26th day of July, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 26th day of July, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner: Partially accepted in finding of fact 13. Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Covered in the preliminary statement. 5-6. Partially accepted in finding of fact 1. 7-8. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 2. 12. Rejected as being unnecessary. 13-14. Partially accepted in finding of fact 3. 15-18. Partially accepted in finding of fact 4. 19. Rejected as being unnecessary. 20-21. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. 24-25. Partially accepted in finding of fact 10. Partially accepted in finding of fact 13. Rejected as being unnecessary. Partially accepted in finding of fact 12. Rejected as being unnecessary. 30-41. Partially accepted in findings of fact 15-19. 42-45. Rejected as being unnecessary. 46-61. Partially accepted in findings of fact 24-31. Respondents: 1. Partially accepted in findings of fact 1 and 3. 2. Partially accepted in finding of fact 3. 3. Partially accepted in finding of fact 4. 4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6-7. Partially accepted in finding of fact 6. 8. Partially accepted in finding of fact 7. 9-10. Partially accepted in finding of fact 8. 11. Partially accepted in finding of fact 9. 12. Partially accepted in finding of fact 10. 13. Partially accepted in finding of fact 12. 14. Partially accepted in finding of fact 13. 15. Partially accepted in finding of fact 14. 16-24. Partially accepted in findings of fact 15-19. 25-28. Partially accepted in findings of fact 20-22. 29-32. Partially accepted in finding of fact 23. 33-42. Partially accepted in findings of fact 24-31. Intervenor: Rejected as being unnecessary. Partially accepted in findings of fact 1 and 3. 3-4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Covered in preliminary statement. 7-8. Partially accepted in finding of fact 2. 9-11. Partially accepted in finding of fact 6. 12. Partially accepted in finding of fact 7. 13. Partially accepted in finding of fact 11. 14. Partially accepted in finding of fact 25. 15. Partially accepted in finding of fact 26. 16. Partially accepted in finding of fact 11. 17. Partially accepted in finding of fact 8. 18-19. Partially accepted in finding of fact 10. 20. Partially accepted in finding of fact 13. 21. Partially accepted in finding of fact 29. Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant to a resolution of the issues, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert B. Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 1601 The Capitol Tallahassee, Florida 32399-0001 Richard H. Powell, Esquire P. O. Drawer 2167 Fort Walton Beach, Florida 32549-2167 Steven K. Hall, Esquire 1234 Airport Road, Suite 106 Destin, Florida 32541 David A. Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301-2600 George Ralph Miller, Esquire P. O. Box 687 DeFuniak Springs, Florida 32433-0687 Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire P. O. Drawer 190 Tallahassee, Florida 32302-0190 David L. Jordon, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Petitioner owns and operates an ACLF in Tampa, Florida, and has been continuously licensed by the Respondent as an ACLF since at least 1984. The Administrator, President and major stockholder of Petitioner is Ruby Byrd. On or about October 9, 1987, Petitioner applied for license renewal, and the Respondent requested additional information by letter dated October 15, 1987. According to Respondent's witness, John C. Morton, the Petitioner's license expired on December 25, 1987. However, the Department sent letters purporting to deny Petitioner's renewal on March 28 and May 12, 1988, which both state that Petitioner's license expired on March 25, 1988. This discrepancy between the testimony offered by Respondent and the Respondent's letters of denial is unexplained, and no finding can therefore be made as to when the Petitioner's most recent license did, in fact, expire. ACLF licenses are issued for a period of one year, and must be renewed annually. The sole specific reason for renewal denial set forth in the Respondent's March 28, 1988, letter is the Petitioner's "failure to provide proof of business liability insurance and proof of surety bond coverage." The Respondent's May 12, 1988, letter specifically deleted this reason as a basis for renewal denial, and superseded the previous letter by setting forth three reasons for denial. First, it is alleged that Ruby Byrd was arrested for grand theft from a former resident of the ACLF and was awaiting trial. Second, it is alleged that the facility lacks the financial ability to operate. Third, it is alleged that the facility has committed multiple and repeated violations as evidence by surveys and follow-up visits from 1985 through 1987. The only witness called as a representative of Respondent testified that he did not make a recommendation regarding Petitioner's license renewal application. The parties have stipulated that Ruby Byrd was found not guilty of the charge of grand theft. Competent substantial evidence was not presented to support the charge that Petitioner lacked the financial ability to operate. This ACLF has been in operation since at least 1984, and the evidence did not show the facility's failure to meet any of its financial obligations. Evidence produced by the Respondent was unclear in its distinction between Ruby Byrd, individually, and the corporate Petitioner in this case. The parties stipulated that representatives of the Respondent found what they believed to be violations which are enumerated in survey deficiency reports prepared in 1985 through 1987. The evidence establishes that all deficiencies noted in reports prepared in 1987 had been either corrected, administratively deleted, or the time for corrective action had not arrived by the time of hearing. Survey reports prepared prior to 1987 predominately indicate corrective action taken prior to 1987. In any event, these reports which precede the license year for which renewal is at issue in this case, are irrelevant, as is a report of a survey conducted subsequent to the Respondent's May 12, 1988 letter. The Petitioner operated under a conditional license issued by Respondent from March 26, 1988 until September 25, 1988. There is no evidence that Respondent issued any conditional license or otherwise responded to Petitioner's renewal application for the period between December 25, 1987 and March 26, 1988, assuming testimony at hearing is correct and this license expired on December 25, 1987. Similarly, there is no evidence that the Respondent has issued a conditional license, or otherwise responded to the Petitioner's renewal request for the period of September 25, 1988 until the date of hearing, which period of time would be relevant regardless whether the Petitioner's license expired in December, 1987, or March, 1988. According to the Respondent's witness, Petitioner's facility does not present any danger to the public health, safety and welfare. The Respondent does proceed against licensed ACLFs, and seek to administratively suspend or revoke their licenses during a period of licensure.
Recommendation Based upon the foregoing, it is recommended that the Respondent issue a Final Order approving the Petitioner's application for renewal of its ACLF license at issue in this case. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of November, 1988. DONALD D. CONN 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 30th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3036 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted and Rejected in part in Finding of Fact 3. Adopted and Rejected in part in Findings of Fact 2 and 7. Adopted in Finding of Fact 4. Rejected as unnecessary. Adopted in part in Finding of Fact 6, but otherwise Rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a conclusion of law and not a finding of fact. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected in Finding of Fact 2 Adopted in part in Finding of Fact 2. 4-5 Rejected as irrelevant since the Respondent has the burden of proof in this case as discussed in the conclusions of law. 6-9 Rejected in Finding of Fact 6, and otherwise as irrelevant. Rejected as irrelevant and as not supported by competent substantial evidence. Rejected in Finding of Fact 5. COPIES FURNISHED: William Park, Esquire 8001 North Dale Mabry Building 601, Suite B Tampa, Florida 33614 Edward Haman, Esquire Office of Licensure and Certification 7827 North Dale Mabry Tampa, Florida 33614 Sam Power, Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
