The Issue As stated by the parties in the joint stipulation to limit issues: whether the costs of $70,455.00 associated with the Moore Haven office of Petitioner are eligible costs under the Community Services Block Grant (CSBG) administered by Respondent.
Findings Of Fact At all times material to the issues of this matter, the Petitioner was the grantee of a community services block grant. Generally, the Department enters into CSBGs for a defined period of time for defined work to be performed by the grantee. The work normally entails defined services to low income people. In this case, the COFFO was to provide personnel, materials, services, and facilities as set forth by their agreements to low income persons in Collier, Dade, Glades, Okeechobee, Polk, Hardee, Indian River, DeSoto, Highlands, Hendry, Lee, and Palm Beach Counties. At all times material to this matter, COFFO acknowledged that it is governed by applicable laws and rules related to CSBGs, including, but not limited to: The Omnibus Budget Reconciliation Act of 1981 (P.L. 97-35, as amended), 45 C.F.R. Part 96, and Chapter 9B-22, Florida Administrative Code. Rules governing CSBGs require written documentation both as to the person served and the activity or service provided to such individual. On September 14, 1995, the Department notified COFFO that an audit had determined a lack of justification for funds to continue operation of the COFFO Moore Haven field office Such notice claimed that the field work performed by an independent audit firm found "no documentation to support the expensing of CSBG funds at the Moore Haven field office." The Department invited COFFO to provide the needed documentation to support its claim for reimbursement. For the three year period at issue, COFFO was unable to provide documentation for the individuals served at the Moore Haven office. While COFFO claimed twenty-seven persons appeared at that office for service, it also maintained that such persons would have been routed to the COFFO office at Immokalee for services. Regardless, neither office produced records to verify that eligible individuals received eligible services. COFFO maintains that since it met the overall terms of its agreements, whether at the Moore Haven office or elsewhere, it should be entitled to all funds claimed. Additionally, COFFO claims that since the Department did not cite inadequate records at Moore Haven to them at an earlier time, they were unable to correct any deficiencies timely and thus avoid the issue inherent in this case. Normally, exit interviews conducted by Department staff incidental to a monitoring visit alert grantees of any deficiencies noted during the visit. In this case, Department staff attempted a monitoring visit at Moore Haven, but an exit interview was not conducted. COFFO did not have staff or anyone at the location at the time of the visit. At all times material to this case, the major programs for COFFO were implemented at its main office in Homestead and a field office at Immokalee. The office at Moore Haven did not have equipment or other resources to provide services. In the past, although not documented as to time, the Moore Haven office had been used to distribute emergency food, for job and budget counseling, and for recreation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Community Affairs enter a final order determining the costs associated with the Moore Haven office of Petitioner to be ineligible under the community services block grant program. DONE AND ENTERED this 23rd day of September, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 23rd day of September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5694 and 95-5695 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 2, 3, 5, and 9 are accepted. With regard to paragraph 1, with the clarification that it is accepted that COFFO provided services to migrant and seasonal farmworkers but could have provided services to any eligible recipient; the paragraph is otherwise accepted. The first three sentences of paragraph 4 are accepted; the remainder is rejected as contrary to the weight of the evidence or argument of law. With the clarification that forms were not maintained at the Moore Haven office demonstrating eligible services were rendered to eligible recipients, paragraph 6 is accepted. Paragraphs 7 and 8 are rejected as irrelevant or immaterial to the issue of this case, or not supported by reference to the record. The first two sentences of paragraph 10 are accepted; the remainder is rejected as contrary to the weight of credible evidence or irrelevant as stated. With regard to paragraph 11, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant or contrary to the weight of the credible evidence as stated. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Arturo Lopez Coalition of Florida Farmworker Organizations, Inc. Post Office Box 388 Homestead, Florida 33090 Pedro Narezo Coalition of Florida Farmworker Organizations, Inc. Post Office Box 388 Homestead, Florida 33090 Barbara Jo Finer Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Carol Soliz, Board Chairperson Coalition of Florida Farmworker Organizations, Inc. P.O. Box 1987 Sebring, Florida 33871-1987 James F. Murley Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
The Issue The issue presented for decision in this case is whether the Holiday Rotary Endowment Fund, Inc. (“Holiday Endowment”) is eligible for a consumer certificate of exemption as a charitable institution pursuant to Section 212.08(7)(o), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner, the Holiday Endowment, is an organization incorporated in the State of Florida as a not-for-profit corporation under Chapter 617, Florida Statutes. It was formed in October 1996 by the Holiday Rotary Club of Holiday, Florida, as a vehicle for accruing funds to contribute to the various charities supported by the Holiday Rotary Club. The Holiday Endowment is exempt from federal income tax under Section 501(a) of the Internal Revenue Code as an organization described in Section 501(c)(3), having obtained an exemption letter from the Internal Revenue Service on May 30, 1997. Larry Schalles, Treasurer of the Holiday Endowment, testified that annual fundraising achieves variable results, and that the membership of the Holiday Rotary Club seeks to attain stability in its philanthropic endeavors by placing a portion of its funds into the Holiday Endowment each year. Once the endowment is built up, the interest can be used to pay for scholarships each year, leaving the principal intact. At all times relevant to this proceeding, the sole active function of the Holiday Endowment has been to raise moneys to establish the endowment fund. All moneys raised by the Holiday Endowment are invested in the fund to provide scholarships in the future. All of the Holiday Endowment’s fund raising activities are conducted by unpaid volunteers. At all times relevant to this proceeding, the Holiday Endowment has made no expenditures of any kind. The Department denied the Holiday Endowment’s application for a certificate of exemption on the ground that the Holiday Endowment did not qualify as a charitable institution under the seven criteria set forth in Section 212.08(7)(o)2.b., Florida Statutes. In particular, the Department found that the Holiday Endowment does not expend in excess of 50% of its operational expenditures toward qualified charitable services, meaning that the provision of a charitable service is not the organization’s sole or primary function. As set forth above, the Holiday Endowment has in fact made no expenditures of any kind. The Department also found that the Holiday Endowment does not provide a reasonable percentage of services free of charge or at a substantially reduced cost to persons unable to pay for such service. The Holiday Endowment’s response is that the exemption should nonetheless be granted, because any expenditures it makes in the future will be for charitable purposes.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order denying the certificate of exemption sought by the Holiday Rotary Endowment Fund, Inc. DONE AND ENTERED this 26th day of October, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1998. COPIES FURNISHED: Larry C. Schalles, C.P.A. Treasurer, Holiday Rotary Endowment Fund, Inc. 5728 Main Street New Port Richey, Florida 34652 William B. Nickell Assistant General Counsel Department of Revenue 501 South Calhoun Street, Suite 304 Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue is whether Petitioner is eligible to apply for funding for VOCA funds for projects in Flagler and Volusia Counties.
Findings Of Fact The federal Victims of Crime Act ("VOCA"), 42 U.S.C., Sections 10601- 10603, authorizes the granting of federal funds to individual states, including the State of Florida, for the purpose of awarding grants to eligible subgrantees who provide direct assistance to victims of crime. The U.S. Department of Justice, Office for Victims of Crime, has published guidelines for the implementation of the program. The federal guidelines provide, among other things, that the state to which federal monies are granted has sole discretion as to which programs within the state shall be awarded subgrants, so long as the eligibility criteria in the federal act are met by any subgrantee. The Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Crimes Compensation and Victim Witness Services ("the Bureau") is the agency of the State of Florida responsible for administering the VOCA subgrant program in Florida. The Petitioner, Independent Child Abuse Relief Enterprises, Inc. ("I- CARE") is an organization based in Daytona, Florida, which is devoted to providing child abuse counseling and related services. In 1988-89, I-CARE was a VOCA grant recipient. Ms. Jean Becker-Powell prepared the procedures and criteria for the 1990-91 VOCA grant program. These were published in two manuals, the Manual for Continuing Programs (Exhibit 8) and the Manual for New Programs. In addition, an application package was developed. (Exhibit 9) In late February 1990, the Bureau announced the 1990-91 VOCA grant program. On March 1, 1990, the Bureau received a letter from I-CARE requesting a VOCA Grant Manual and related application forms. (See Exhibit 1). On March 8, 1990, I-CARE received both a VOCA Grant Manual and package of application forms. The form package included the Notice of Intent for Submitting a Proposal as the first form in the package. (See Exhibits 3, 8 and 9). A schedule of pertinent deadline dates was included in the VOCA Grant Manual received by I-CARE. The schedule of deadlines included the date for the Applicant's Conference on March 22, 1990, at which Conference, questions or problems about VOCA grant application procedures could be brought to the Bureau's attention. The deadline for filing the Notice of Intent was March 29, 1990 and the deadline for filing the applications for continuing programs was April 12, 1990. At the Applicant's Conference, the Bureau was able to clarify most of the questions posed by the 50 or so potential applicants who attended the Conference. No substantive changes to the VOCA Grant Manual or forms were recommended by the attendees and the Bureau did not make any substantive revisions to the VOCA grant application requirements; and specifically, no comment or revisions were made on the Notice of Intent provisions. I-CARE did not attend the Applicant's Conference. The Notice of Intent provisions, found at Section II A-2 of the VOCA Grant Manual, state as follows: Notice of Intent to Submit a Proposal: A Notice of Intent to Submit a Proposal must be submitted by all programs intending to file a proposal or they will not be permitted to submit an application. Applicants must complete the entire form provided in the Application. The purpose of the Notice of Intent is to estimate the number of proposals and the total amount of money being requested. A Notice of Intent to Submit a Proposal does not constitute an application for VOCA funds. The Notice of Intent to Submit a Proposal must be signed by the appropriate agency representative designated to sign on behalf of the agency. The original Notice and one copy must be submitted for it to be accepted by the department. The deadline for accepting a Notice of Intent to Submit a Proposal is March 29, 1990, at 2:00 p.m. Eastern Standard Time. Notices arriving after this time will not be considered for funding and will be returned. (FAXED COPIES ARE NOT ORIGINALS AND THEREFORE WILL NOT BE ACCEPTED.) Continuation programs also requesting additional funds for an expansion program can combine the two requests on one Notice of Intent to Submit a Proposal. (See Exhibit 8 at page 10). The Executive Director of I-CARE assumed that her letter dated March 1, 1990, which requested the VOCA Grant Manual and forms, was adequate to serve as the Notice of Intent required by the VOCA Grant Manual. The previous year, a Notice of Intent had not been required. The Executive Director of I-CARE was completely unaware of the specific requirements of the Bureau's Notice of Intent provisions until after the deadline of March 29, 1990. On or before April 12, 1990, I-CARE filed applications for a continuing program in Volusia County and a new program in Flagler County. On March 30, 1990, the Bureau had not received a Notice of Intent form from I-CARE. Fearing that the Notice may have been delayed in the mail, the Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Crimes Compensation and Victim Witness Services telephoned I-CARE to inquire if I-CARE had mailed the Notice of Intent form. The Executive Director of I-CARE indicated that she had expressed her intent to participate in her original letter but had not mailed in the form. Realizing that it had not complied with the Notice of Intent requirements, I- CARE quickly prepared and faxed a copy of the Notice of Intent to the Bureau which was received at 12:41 p.m. on March 30, 1990. (See Exhibit 4). The original of this Notice was received by the Bureau on April 2, 1990, well past the March 29, 1990 deadline. The total amount of funds available for 1990-1991 VOCA grants is approximately $2.9 million. The amount requested by qualified applicants is approximately $3.4 million. More money was requested by applicants than was available. I-CARE presented no evidence that the Bureau's requirement for applicants to file a Notice of Intent is arbitrary or capricious. No evidence was presented that this requirement was not applied similarly to the other 114 applicants. To the contrary, the requirement was applied to all five applicants whose applications appeared to be late. Only one was able to show compliance with the terms of the application. Those who could not prove their applications were received by the Bureau before the deadline were rejected. There was no evidence that the Bureau's conduct involved any illegality, fraud, misconduct, or dishonesty or that its decision denying I- CARE's application was arbitrary or capricious.
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 the Respondent enter a Final Order denying the Petition of Petitioner. DONE and ENTERED this 11th day of May, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 11th day of May, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2255BID Petitioner's Proposed Findings of Fact (All paragraphs were unnumbered by Petitioner. The numbers used refers to the Hearing Officer's count of the paragraphs in order of appearance.) Paragraph 1: Adopted, except for the last sentence which is irrelevant. Paragraph 2: Adopted. Paragraph 3: Adopted with substantial rewording. Paragraph 4: The first two sentences are adopted. The third sentence is irrelevant. The fourth sentence is adopted with rewording. The fifth sentence is irrelevant. The sixth sentence is adopted. Paragraph 5 & 6: Adopted. Paragraph 7: The first sentence is irrelevant. The second sentence is adopted. The remainder is irrelevant. Paragraph 8: The first sentence is irrelevant and inaccurate as evidenced by these proceedings. The remainder is adopted. Paragraph 9: Adopted with substantial rewording. Respondent's Proposed Findings of Fact Paragraph 1-6: Adopted. Paragraph 7: Adopted and divided into two paragraphs. Paragraph 8 & 9: Adopted. Paragraph 10: Adopted in part. The second sentence is rejected as irrelevant. Paragraph 11: Adopted. Paragraph 12: Rejected as conclusion of law, and there is no evidence to support this qualified claim. Paragraph 13: Adopted in part and remainder is substantially reworded. Paragraph 14: Adopted. COPIES FURNISHED: Stephen Barron, Esq. Patrick L. Butler, Esq. Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, FL 32399-0658 J. Lester Kaney, Esq. Cobb Cole & Bell 150 Magnolia Avenue Daytona Beach, FL 32115-2491 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle East Tallahassee, FL 32399-2152
The Issue The issue in this case is whether Buford M. Arthur's rights and benefits under the City of Ocala Employees' Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund should be forfeited pursuant to Section 112.3173(3), Florida Statutes(1995).
Findings Of Fact Respondent, Buford M. Arthur, began employment with the City of Ocala Police Department (hereinafter referred to as the "Police Department") in late 1965 or 1966. Mr. Arthur terminated his employment with the Police Department in the early 1970s. Mr. Arthur was re-employed by the Police Department on January 2, 1975, and remained employed by the Police Department until his retirement. While employed by the Police Department, Mr. Arthur reached the rank of Corporal. After being re-employed by the Police Department in 1975, Mr. Arthur served as the Police Department's Forfeiture Officer. As part of his duties as Forfeiture Officer, Mr. Arthur was responsible for depositing certain funds into a Police Department Trust Fund or a trust fund of a joint task force of the Police Department and the Marion County Sheriff's Office (hereinafter referred to as the "Sheriff's Office"). Funds provided to Mr. Arthur for deposit in the Police Department Trust Fund included funds seized as evidence by, and in the custody of the Police Department. Funds provided to Mr. Arthur for deposit in the joint task force trust fund included funds seized as evidence by, and in the custody of the task force. The task force was formed by the Sheriff's Office and the Police Department pursuant to a Special Voluntary Cooperation Agreement (hereinafter referred to as the "Cooperation Agreement") between the Police Department and the Sheriff's Office. The Police Department and Sheriff's Office entered into the Cooperation Agreement pursuant to the Florida Mutual Aid Act, Chapter 23, Florida Statutes. Pursuant to the Cooperation Agreement, the Police Department and Sheriff's Office established the "Ocala-Marion County Narcotics and Vice Task Force" (hereinafter referred to as the "Task Force"). The Cooperation Agreement specified how operations of the Task Force were to be funded by the Police Department and the Sheriff's Office. The Cooperation Agreement also provided that forfeited cash and the proceeds from the sale of forfeited property, after expenses, were to be distributed 60% to the Sheriff's Office and 40% to the Police Department. All cash and forfeited property seized by the Police Department or the Task Force was held for at least sixty days. If not claimed within sixty days after the conclusion of the criminal proceedings against the individual from whom the property was seized, the seized property was sold. Cash from sales of forfeited property and seized cash held at least sixty days by the Task Force was distributed by the Fiscal Manager of the Sheriff's Office 60% to the Sheriff's Office and 40% to the Police Department. At times Mr. Arthur was responsible for such funds and cash considered forfeited to the Police Department as Forfeiture Officer. Forfeited funds received by Mr. Arthur were to be deposited into the Law Enforcement Trust Fund or the Task Force Trust Fund. On or about June 15, 1994, Mr. Arthur received $1,204.00 for deposit into the Task Force Trust Fund. Mr. Arthur admits that he took these funds. Included in the total funds Mr. Arthur received and kept were the following amounts involving the following cases and individuals: Case Number Defendant Amount 0-93-09-1974 Hanson Collins $ 20.00 S93-30856 Robert Ringold 250.00 Hanson Collins was charged with two felony counts. A Judgment was entered regarding Mr. Collins' case on January 31, 1994. Robert Ringold was charged with ten felony counts. A Judgment was entered regarding Mr. Ringold on March 14, 1994. On or about July 8, 1994, Mr. Arthur received $810.00 for deposit into the Task Force Trust Fund. Mr. Arthur admits that he took these funds. Included in the total funds Mr. Arthur received and kept were the following amounts involving the following case and individual: Case Number Defendant Amount S93-23897 Richard Bursey 50.00 Richard Bursey was charged with three felony counts. A Judgment was entered regarding Mr. Bursey on April 11, 1994. On or about January 20, 1995, Mr. Arthur received $1,267.00 for deposit into the Task Force Trust Fund. Mr. Arthur admitted that he took these funds. Included in the total funds Mr. Arthur received and kept were the following amounts involving the following cases and individuals: Case Number Defendant Amount S94-18809 Teresa Martin $ 60.00 S94-18838 David Lane 20.00 Teresa Martin was charged with two felony counts. A Judgment was entered regarding Ms. Martin on September 13, 1994. David Lane was charged with four felony counts. A Judgment was entered regarding Mr. Lane on July 28, 1994. The funds seized from Hanson Collins, Robert Ringold, Richard Bursey, Teresa Martin, and David Lane were turned over to Mr. Arthur, an employee of the Police Department, more than sixty days after Judgments were entered in their cases. The Police Department was ultimately entitled to receive 40% of these funds. Mr. Arthur began taking funds meant for deposit into the Law Enforcement Trust Fund in June of 1994 and continued to do so through approximately January of 1995. Mr. Arthur admits that he took approximately $3,200.00 to $5,000.00. On February 29, 1996, Mr. Arthur retired from the Police Department. After his retirement, Mr. Arthur began receiving retirement benefits from the City of Ocala Employee's Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund. Mr. Arthur continues to receives benefits from these public retirement plans. After retiring from the Police Department Mr. Arthur was charged with Grand Theft. This charge arose as the result of Mr. Arthur's theft of funds entrusted to him for deposit into the Task Force Trust Fund. By letter dated October 22, 1996, the Chairman of Board of the City of Ocala Police Officers' Supplemental Pension Fund provided Mr. Arthur with a copy of Section 112.3173, Florida Statutes. Mr. Arthur discussed the letter and the statute with his attorney, James Reich. The evidence failed to prove that any representative of the City or the Boards discussed Section 112.3173, Florida Statutes, with Mr. Arthur or gave him any assurances that he would not be subject to its provisions if he entered a plea of nolo contendere to the charges against him. On January 29, 1997, Mr. Arthur signed a Waiver of Rights and Agreement to Enter Plea. Mr. Arthur agreed to enter a plea of nolo contendere to the change of Grand Theft upon certain terms set out in the agreement. In particular, the agreement provided, in relevant part, that adjudication would be withheld; that Mr. Arthur would be sentenced to two years probation; that he would pay court costs; and that he would make restitution to the City of Ocala Employees' Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund. On January 29, 1997, Mr. Arthur entered a plea of nolo contendere consistent with the Waiver of Rights and Agreement to Enter Plea. Mr. Arthur's plea and the terms of the agreement to enter plea were accepted by the Court. Petitioner's Exhibits 3 and 4. Mr. Arthur made restitution in the amount of $11,825.95, although Mr. Arthur asserts that he did not take more than $3,200.00 to $5,000.00. Mr. Arthur is married to Intervenor, Rosemary Arthur. They were married November 20, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Boards of Trustees of the City of Ocala Employees' Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund finding that Buford M. Arthur has forfeited all rights and benefits under the City of Ocala Employees' Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund and dismissing the petitions of Buford M. Arthur and Rosemary Arthur. DONE AND ENTERED this 30th day of October, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1997. COPIES FURNISHED: William H. Phelan, Jr., Esquire Bond, Arnett and Phelan, P.A. Post Office Box 2405 Ocala, Florida 34478-2405 Leonard H. Klatt, Esquire POE and KLATT 7753 Southwest State Road 200 Ocala, Florida 34476-7049 H. Lee Dehner, Esquire Christiansen and Dehner, P.A. 2975 Bee Ridge Road, Suite C Sarasota, Florida 34239
The Issue The issue in this case is whether Petitioner is entitled to receive supplemental compensation under the Firefighters Supplemental Compensation Program.
Findings Of Fact At all material times, Petitioner has been employed as a firefighter with the City of Deland Fire Department. By submitting course transcripts on September 18 and 20, 1989, Petitioner applied to the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance for additional compensation under the Firefighter Supplemental Compensation Program. The course transcripts were from Brevard Community College and Valencia Community College. The Brevard transcript showed that, over a four-year period ending September 13, 1989, Petitioner had earned 69 semester credit hours, for which he was awarded an associate in arts degree in August, 1988. (All credit hours reported below are semester credit hours.) The courses for which Petitioner earned credits at Brevard are as follows (three credit hours for each course unless indicated otherwise in parentheses): general psychology, general chemistry I and II, general chemistry lab I and II (each 1), engineering graphics (4), college algebra, weight training (1), communications I and II, stage band (1), archery (1), fundamentals of speech communication, swimming (1), college trigonometry, first aid and safety (2), organic chemistry I and II, organic chemistry lab I and II (each 1), academic/career planning, U.S. history I and II, oceanography, introduction to physical geology, cardiopulmonary resuscitation (1), tennis (1), survey of American literature, contemporary humanities of the 20th century, and--following the receipt of the degree-- developmental psychology. After earning his associate in arts degree, petitioner took ten credit hours at Valencia Community College during the second session of the 1988-89 school year. The courses and their credit hours are: fundamentals of emergency medical technology (4), fundamentals of emergency medical technology practice (3), and emergency medical technician clinical practicum (3) By notice dated October 18, 1989, the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance informed Petitioner that the information that he had submitted for entry into the Supplemental Compensation Program was not acceptable. The notice explains that Petitioner "does not have 18 hours fire science within degree transcript." The notice advises at the bottom: "When you have all of the appropriate paperwork properly filled out, please resubmit." By letter dated November 8, 1989, Frederick C. Stark, Chief of the Bureau of Fire Standards and Training, informed Petitioner that his transcripts failed to disclose a "major study concentration area" to qualify for supplemental compensation. The letter quotes Rule 4A-37.071(2), Florida Administrative Code: The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically identified in Rule 4A-37.073 are considered by the Division to be readily identifiable and applicable as fire-related. The letter advises Petitioner of his right to a hearing. Following some communications from Petitioner, Mr. Stark wrote another letter to Petitioner dated November 27, 1989. The letter states in its entirety: After further review of your transcript from Valencia Junior College, may I suggest that you take the necessary courses needed to get an Emergency Medical Technology degree. I feel that this would be the best way to go since you already have courses in this area. If I can be of any further assistance please call me at [number omitted]. Petitioner re-enrolled in Brevard Community College for the second semester starting January 8, 1990. He completed a three-credit hour course in statistics and a two-credit hour course in medical terminology. He also received credit, through a CLEP examination, for four credit hours in general biology. On June 18, 1990, Petitioner resubmitted the transcript materials showing the additional coursework at Brevard Community College. By letter dated July 10, 1990, Mr. Stark informed Petitioner that his application for entry into the Firefighters Supplemental Compensation Program had been denied for noncompliance with Section 633.382, Florida Statutes, and Chapter 4A-37, Florida Administrative Code. The letter quotes Rule 4A-37.085(2) as follows: "To be eligible to receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following requirements must be met: Possess an eligible Associate or Bachelors Degree." Prior to advising of a right to a hearing, the letter concludes: "it has been determined that your Degree is not readily identifiable and applicable as fire-related, per Rule 4A- 37.084. By letter dated July 17, 1990, to the Bureau of Fire Standards and Training, Petitioner requested a formal administrative hearing. The letter states that Petitioner had at least 18 semester hours readily identifiable and applicable as fire-related. In the July 17 letter, Petitioner asserts that he had called Mr. Stark prior to taking the additional courses and had been told that he needed only six additional semester hours, because he had 12 semester hours in approved courses. The letter claims that Mr. Stark had approved specific courses prior to Petitioner's taking them and had said it was unnecessary to confirm anything in writing. Petitioner complains in the letter that he was only lately told that he could meet the 18 semester-hour requirement only by earning a new associate degree. To earn an associate in arts or associate in science degree from Brevard Community College, a student must satisfy various requirements, such as completing a "prescribed course of study which includes at least 64 semester hours of credit," according to the college catalog. The associate in arts degree offers no opportunity to declare a major. 1/ The associate in science degree offers various majors. The associate in science technical program offers a major in fire technology that is designed to "qualify fire personnel for career advancement." The coursework described in this program represents strong evidence of the kind of courses that are fire- related. The coursework for the associate in science degree with a major in fire technology requires, among other things, the following courses and credit hours: two English courses (3 each), one physical science course (3), one chemistry course (3), one algebra course (3), two government courses (3 each), one human relations course (3), and two physical education courses (1 each). Although Petitioner did not take the identical courses required for the associate in science degree with a major in fire technology, he took comparable courses that, in each case, were more difficult than those required for the associate in science degree. The courses that Petitioner took that correspond in subject matter and credit hours to the Brevard requirements for a major in fire technology are: general psychology (3), general chemistry I (3), college algebra (3), communications I (3), fundamentals of speech communication (3), weight training and swimming (2), and U.S. history I and II (6). Other fire-related courses are first aid and safety (2) and cardiopulmonary resuscitation (1). Petitioner thus earned, prior to receiving his associate in arts degree, 26 hours in courses that are readily identifiable and applicable as fire-related. Valencia Community College is similar to Brevard Community College in offering no majors within the associate in arts degree. Valencia's associate in science degree with a major in fire science requires the following courses and credit hours: composition (3), U.S. government (3), psychology in business and industry (3), business math (3), fundamentals of speech (3), technical communication (3), introduction to general chemistry (4), introduction to sociology (3), and humanities (3). when measured against the requirements of Valencia Community College for a major in fire science, in terms of subject matter and credit hours, Petitioner earned a total of 25 or 28 credit hours in fire-related courses. Adding the first aid and cardiopulmonary resuscitation courses, Petitioner earned, in this comparison to the Valencia requirements, between 28 and 31 credit hours in courses that are clearly fire-related and within a major study concentration area that is fire-related. Neither an associate nor bachelor degree is required for Petitioner's present job as a firefighter. His job responsibilities include preventing and extinguishing fires, maintaining firefighting equipment, and conducting life support activities. His specific responsibilities include raising and climbing ladders, using chemical extinguishers, performing rescue activities, conducting fire education, performing life-support activities, and attending training courses to learn more about fire prevention and protection.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance, Division of State Fire Marshall, issue an amended final order determining that Petitioner is eligible to receive supplemental compensation of $50 monthly commencing no later than the first full calendar month following the date of the initial final order entered in this case. RECOMMENDED this 11th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Attorney Lisa S. Santucci Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Peter T. Campbell, III 445 Clarewood Boulevard Titusville, FL 32796
The Issue The issue in this case is whether petitioner's application for certification as an independent support coordinator should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, petitioner, John Mark McClanahan, challenges a decision by respondent, Department of Health and Rehabilitative Services (HRS), which denies his request for certification as an independent support coordinator. If his request is approved, petitioner would be authorized to work with eligible developmentally disabled persons who are at risk of institutionalization and assist those persons in obtaining services that are needed to avoid institutionalization. These services are a part of the Home and Community-Based Waiver Services of the Medicaid program. The program is more commonly known as the Medicaid-Waiver program since HRS was required to obtain a waiver from the federal government in order to provide these services. Prior to 1995, organizations could be certified by HRS as independent support coordinators and employ qualified individuals under their certification without those employees having to be certified. Pursuant to recent changes in the federal law, however, which HRS must observe, individuals must now obtain certifications and can no longer work under the umbrella of their employer's certification. A certification is valid for a one year period, and it must be renewed by the holder each year thereafter. In order to receive federal Medicaid funds for services provided by support coordinators, HRS was required to submit a plan to the federal Health Care Financing Administration (HCFA) for its approval. Under the plan, HRS is required to ensure that all providers of support coordinator services meet certain federal "assurances." One such assurance requires that the health and welfare of the recipients of those services will be protected. A failure to adhere to such assurances may jeopardize HRS's right to federal funding. It can be reasonably inferred from the evidence that petitioner is aware of these requirements. Beginning in March 1994, petitioner was employed as an independent support coordinator by Independent Choice Management, Inc. (ICM), a Fort Walton Beach, Florida firm that has held a certification since 1993. Its president is Margo Keeler. In that position, petitioner worked out of his Tallahassee home and provided support coordinator services to approximately thirty-four developmentally disabled clients. As a result of an HRS audit of petitioner's records, and what Keeler perceived to be noted deficiencies in petitioner's performance, petitioner was terminated from his position with ICM effective August 24, 1995. In September 1995, he initiated this proceeding by seeking a certification in his own name. After reviewing petitioner's application, HRS determined that the application should be denied. Its reasons are found in a letter to petitioner dated January 3, 1996, which reads as follows: In response to your letter which we received on December 22, 1995, and in accordance with our letter to you dated November 28, 1995, the decision not to certify you were (sic) based on the following: Your inadequate performance as a support coordinator which necessitated your termination by your previous employer; Monitoring done by this department which reflected numerous non-compliance of standards; Complaints from consumer and providers of other services. The factors noted above would also prevent us from approving certification in other areas of the Developmental Services Home and Community Based Waiver. When a new support coordinator or entity begins working with HRS clients, HRS normally "monitors" that person or entity within the first ninety days. Such a review was made of ICM within the first three months after it was certified. In addition, a monitoring or recertification process of all certified coordinators (and its individual employees) is conducted by HRS each year. This process involves a review of client files, whose main ingredient is a support plan, which details the services to be provided the client. An integral part of the support plan is the cost plan, which contains a budget allocated to each client for the purpose of needed services. HRS undertook an annual recertification audit of ICM's files in early May 1995. As a part of that audit, it also reviewed a random sampling of petitioner's client files. Of the four client files initially examined from petitioner's case load, all had incomplete support plans, that is, they were not completed by the due date. By law, such plans must be completed within 365 days from the date the last plan was completed. Since this was a "major" issue as far as HRS was concerned, it proceeded to review all of petitioner's files. During the more comprehensive audit, HRS discovered that around twenty- five out of thirty-four support plans maintained by petitioner had not been completed on a timely basis. Although petitioner took the position that a support plan for a particular month could be completed by the last day of the month and still be considered timely, this view was contrary to ICM instructions and HRS policy. Also, the audit revealed that out of twelve cost plans missing from ICM's central records, ten were from petitioner's files. Thus, it is fair to say that the majority of problems related to petitioner's client files. A follow-up audit of petitioner's files was conducted by HRS on August 10, 1995, to resolve the issues raised in the earlier audit. Although HRS found the support plans to be current, several cost plans had not been submitted to HRS, and several files had no case notes since April 1995. Case notes should be completed by the end of each month. Besides the above noted deficiencies, HRS also received a complaint from a parent of one of petitioner's clients. The substance of the complaint is hearsay in nature, and thus no findings have been made with respect to its substance. The receipt of the complaint, however, was one more factor in HRS's decision not to certify petitioner. At hearing, petitioner contended that he had difficulty in obtaining information from Keeler regarding how to maintain and complete certain forms. The evidence shows, however, that before beginning his duties with ICM, petitioner was given training in all aspects of recordkeeping. More specifically, he received at least four training sessions in April 1994. He also received at least one refresher course later that year. Besides his training courses, petitioner received a number of memoranda from Keeler throughout the year regarding recordkeeping requirements. For example, on November 30, 1994, Keeler advised petitioner by memorandum of the "importance of completing ISP's (individual support plans) on or before their due date," that "overdue ISP's will no longer be tolerated," and that they must be "completed in a timely manner." Memoranda of similar import were sent by Keeler to petitioner on September 27 and December 4, 1994, and July 10, 1995. Finally, according to Keeler, the two regularly discussed the subject of recordkeeping by telephone. Petitioner disputes the number of times he allegedly spoke with Keeler by telephone, but it is fair to infer that he had sufficient training and backup support to properly maintain his files, and that Keeler was available by telephone to answer any questions he might have. Petitioner further contended that HRS "pressured" Keeler into terminating his services with ICM. In this regard, Keeler was never told by HRS that she must terminate petitioner, but she acknowledges that HRS "alluded" to the fact that it would be "in her best interest" if petitioner was terminated. The real motivation in terminating petitioner, however, was because of the numerous deficiencies found in the audit, most of which were those of petitioner. Because of this, Keeler firmly believed that ICM's certification would be "in jeopardy" if petitioner remained as an employee. Petitioner further contends that certain HRS employees, and especially a management review specialist who conducted the audits and reviewed his application, were biased in some measure against him. However, the evidence does not support this contention. On this issue, the record shows that of some thirty certified support coordinators within HRS District II during the time period when petitioner was employed, at least four were decertified by HRS for deficiencies and a number of others declined to seek renewal of their certifications for various reasons. As to recordkeeping, petitioner conceded that paperwork was his "weak" point, but he contended that HRS should have monitored him more frequently, such as every two months, so that it could provide a continuing source of constructive advice, and give him more opportunity during the year to correct any noted deficiencies. While more audits might have been desirable, due to a lack of resources, and no statutory or rule mandate to perform audits more frequently than it does, HRS satisfied its audit responsibility by twice monitoring ICM in 1995. In summary, the greater weight of evidence supports a finding that, due to performance deficiencies, petitioner was terminated as a support coordinator by his previous employer, ICM, and an audit of his clients' files reflected "numerous (incidents of) non-compliance (with federally mandated) standards." Since a complete and accurate central record is essential to the health and welfare of the clients, a failure by petitioner to maintain the same adversely affects HRS's ability to ensure that the health and welfare of the recipients of program services will be protected. There is, however, insufficient competent evidence to support the charge that his conduct with clients endangered their health and welfare. Given these findings, the application should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying petitioner's application for certification as an independent support coordinator. DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 John Mark McClanahan 2117 Queenswood Drive Tallahassee, Florida 32303 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Tommy E. Roberts, Jr., Esquire Post Office Box 15884 Tallahassee, Florida 32317
The Issue Whether the Health Care Cost Containment Board correctly determined the amount of the Public Medical Assistance Trust Fund assessments for the period April 1, 1986, through March 31, 1987, and the period April 1, 1987, through December 31, 1987, attributable to the operation of the Petitioner?
Findings Of Fact These findings of fact were stipulated to by the parties. Golden Glades Regional Medical Center, formerly known as Miami General Hospital, is a 352-bed acute-care hospital located at 17300 NW 7th Avenue, Miami, Dade County, Florida. It holds HRS license 2288 and has been assigned HCCB number 10-0222. Its fiscal year is the calendar year. It has been owned by Golden Glades Regional Medical Center, Ltd., a Florida Limited partnership, since December of 1987. As of January 1, 1986, and for sometime prior to that, the hospital was known as Miami General Hospital and operated with a fiscal year ending March 31. On August 15, 1986, the HCCB certified to HRS that 1.5 percent of the $40,101,199 net annual operating revenue of Miami General Hospital for its fiscal year ending March 31, 1986, was $601,517.98. (Hospital Exhibit 1) As of January 1, 1987, the owner of Miami General Hospital was Miami General Hospital, Inc. (The majority shareholder of Miami General Hospital, Inc., was International Medical Centers, Inc., ("IMC"). Miguel Recarey, Jr., was president of IMC). (HX 2, 3, 4, 5, 6 and 9) Under subsection (7) of Section 407.05, Fla. Stat., and HCCB Fla. Admin. Code Rule 10N-1.004(3)(a), an audited actual report for fiscal year ending March 31, 1987 (hereafter "the 1987 audited actual report") was due within 120 days of that date; i.e., on or about July 31, 1987. However, on May 14, 1987, prior to the date the foregoing report was required to be filed, IMC was placed in receivership by the Florida Department of Insurance in Leon County Circuit Court Case No. 87-1456. On June 2, 1987, HRS was notified by Miami General Hospital that the hospital was in receivership. (HX 7) On June 18, 1987, an involuntary petition for bankruptcy was filed in the United States Bankruptcy Court for the Southern District of Florida, in Case No. 87-2131, "In re: Miami General Hospital". The Bankruptcy Order (HX authorizing the sale of the hospital found as follows: The hospital has been operating with losses of about $1,000,000 per month for sometime. The hospital was without funds to operate other than monies supplied from IMC (which itself had been placed in receivership) or use of cash collateral as to which First American Bank and Trust claimed a secured lien. On June 29, 1987, the HCCB was notified by Miami General Hospital that Miami General Hospital had been placed in receivership May 14, 1987, and that it was placed in bankruptcy June 18, 1987. (HX 8) On June 29, 1987, Miami General Hospital timely requested an extension of time to complete or provide the 1987 HCCB prior year report contending that the receivership and bankruptcy placed the hospital in a position where it was not able to complete its financial statements. In addition, the HCCB was notified by Miami General Hospital that the hospital did not have authority to retain an accounting firm to provide audited financial statements. (HX 8) (On July 24, 1987, the HCCB granted that extension request and advised the hospital that the report should be filed no later than 60 days following the Bankruptcy Court's approval of the hiring of an accounting firm to perform the audit.) (HX 13) In the meantime, on July 9, 1987, the assets of Miami General Hospital were sold by the trustee, free and clear of all claims, to First American Bank and Trust Company (FABT). (HX 10, 11) On August 4, 1987, the HCCB was notified by Miami General Hospital that the Bankruptcy Court had instructed the hospital's management team to file all reports and audits and that a copy of the HCCB's letter of July 24, 1987, would be saved for the new owners to keep on file. (HX 14) The letter of August 4, 1987, was not acknowledged by the HCCB. On or about August 8, 1987, an application for change of ownership of the hospital's license was received by HRS. That application reflected a change of ownership date of July 9, 1987, and indicated G. H. Corporation of Miami, c/o First American Bank and Trust - Legal Counsel, as owner of the hospital. (HX 12) On August 25, 1987, a bill of sale and trustee's deed, was executed from the trustee to G. H. Corporation of Miami, a Florida corporation. (HX 15, 16, 17) On August 25, 1987, license 2232 was issued by HRS to G. H. Corporation of Miami, d/b/a Miami General Hospital. (HX 18) Under HRS licensure laws and HCCB rules, a change of ownership occurred. On September 1, 1987, C & S Health Corp. submitted an application to HRS for change of ownership of the hospital reflecting a date of change of ownership of October 26, 1987. (HX 19) On September 4, 1987, a 1987 prior year report for Miami General Hospital was submitted by G. H. Corporation to the HCCB. (HX 20) The report was prepared using unaudited data. Receipt of that report was acknowledged September 16, 1987, by the HCCB (HX 21), but the report was deemed incomplete by the HCCB because it lacked audited financial statements, and a complete report, including audited financial statements, was requested. On September 28, 1987 the HCCB was notified that G. H. Corporation of Miami owned the land and buildings comprising Miami General Hospital as of August 25, 1987. (HX 22) The HCCB acknowledged this change of ownership November 17, 1987. (HX 23, 24) By special warranty deed dated December 5, 1987 (HX 25), ownership of the hospital was transferred from G. H. Corporation of Miami to Golden Glades Regional Medical Center, Ltd., which is the current owner of the facility. On December 7, 1987, Golden Glades Regional Medical Center, Ltd., filed a hospital license application with HRS. (HX 26) On December 8 and 10, 1987, the HCCB was notified that Golden Glades Regional Medical Center, Ltd., purchased Miami General Hospital on December 9, 1987 and in HX 28, that it desired to change its fiscal year to that of the calendar year. (HX 27, 28) On December 10, 1987, license 2277 was issued to Golden Glades Regional Medical Center, Ltd., d/b/a Miami General Hospital. (HX 29) On December 16, 1987, Golden Glades Regional Medical Center, Ltd., through counsel, advised the HCCB that, while wishing to comply with all applicable rules and regulations, literal compliance may be difficult due to the prior bankruptcy. The hospital also delayed changing its fiscal year. (HX 30) On December 23, 1987, the HCCB was provided with further explanations regarding the 1987 audited financial statements. By correspondence dated December 23, 1987, the HCCB was notified, "by way of further explanation, on May 14, 1987 Miami General Hospital was placed under State receivership by the Department of Insurance, and the Department operated the Hospital until it was sold to First American Bank and Trust (FABT) on June 18, 1987. FABT operated the hospital until it was sold to Golden Glades Regional Medical Center, Ltd. on December 9, 1987. The deed was recorded on December 11, 197. Because of the wrongdoing of the former owners that led to the State control, subsequent bankruptcy sale and criminal convictions of several of the former owners of the Hospital, the filing of audited financial statements is impossible. The new owners of the Hospital are totally unrelated to its former owners". 1/ (HX 31) On December 10, 1987, HRS license 2285 was issued to Golden Glades Regional Medical Center, Ltd. (HX 32) On March 3, 1988, the HCCB was notified that the hospital had been the subject of bankruptcy and that several of its former owners (IMC) had been prosecuted for matters relating to the operation of care services. (HX 35) aa. On April 14, 1988, Golden Glades Regional Medical Center, Ltd., through counsel, requested a waiver of the requirement to file an audited actual report for the hospital's fiscal year 1987, which, in this case, involves the period from about December 6, 1987, to December 31, 1987. (HX 36) bb. On May 13, 1988, the hospital objected to being assessed based on data supplied by Miami General Hospital for that hospital's 1986 fiscal year and notified the HCCB of the several changes of ownership of the hospital during the calendar year 1987. (HX 37) cc. On February 13, 1989, the HCCB was again requested to address assessments on Golden Glades Regional Medical Center. (HX 38) dd. On February 14, 1989, the HCCB was notified of approval by Medicare of the change in the hospital's fiscal year and the unsuccessful negotiations to sell the hospital to Jackson Memorial. (HX 39) ee. On March 14, 1989, HCCB certified to HRS that Golden Glades Regional Medical Center (hereafter, "Golden Glades") had not submitted a prior year actual report for fiscal year ending March 31, 1988, and therefore HCCB certified that the 1987 net revenue of Golden Glades was that shown by Miami General Hospital's most recent prior year report, which was for March 31, 1986. (HX 40) ff. On October 19, 1989, HCCB certified that Golden Glades had not submitted a prior year report for the fiscal year ending December 31, 1987, but certified to HRS that for purposes of assessments, 1.5 percent of $40,101.189 (the net revenue in Miami General Hospital's March 31, 1986 report) was $601,518. (HX 50) gg. On November 17, 1989, HCCB notified HRS that Golden Glades Regional Medical Center had filed financial statements for the year ended December 31, 1988, however, the audit was not finalized. (HX 51) Net revenue in the financial statements for the year ended December 31, 1988, was $10,599,690. One and a half percent of that amount is $158,995. The notification of November 17 was not a certification by the HCCB. Golden Glades Regional Medical Center, Ltd., is a limited partnership. Its general partner is CNS. Collection and disbursement of Public Medical Assistance Trust Fund monies pursuant to Section 395.101(2), Florida Statutes, is the responsibility of the Department of Health and Rehabilitative Services and not the Respondent. The Department of Health and Rehabilitative Services was not a party to these proceedings. The Respondent is only responsible for calculating the amount of a hospital's Public Medical Assistance Trust Fund assessment and certifying the amount of the assessment to the Department of Health and Rehabilitative Services. The Respondent used the audited actual data for the fiscal year ending March 31, 1986, in calculating the Public Medical Assistance Trust Fund assessment of the Petitioner for the period of April 1, 1986, through March 31, 1987, and the period of April 1, 1987, through December 31, 1987. The Respondent is required by Section 395.101(2), Florida Statutes, to certify the Public Medical Assistance Trust Fund assessment of a hospital within six months after the end of the hospital's fiscal year. No exception is provided for changes in ownership of the hospital. A change in ownership does not affect the Respondent's responsibilities under Section 395.101(2), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued dismissing, with prejudice, the Petitioner's Petitions in these cases. DONE and ENTERED this 31st day of May, 1990, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Community Health Charities of Florida (CHC), is entitled to an award of attorney's fees and costs as a "prevailing small business party" pursuant to Section 57.111, Florida Statutes (2008), by being a prevailing small business party in the underlying case of Community Health Charities of Florida, et. al v. Florida Department of Management Services, DOAH Case No. 07-3547, Recommended Order February 29, 2008; Final Order May 29, 2008. Also, at issue is whether the Respondent Agency's actions, with regard to the underlying case, were substantially justified or whether special circumstances exist which would render an award of attorney's fees and costs unjust.
Findings Of Fact This cause arose upon the filing of a motion or petition for attorney's fees and costs on July 22, 2008, by the Petitioners, CHC and the Charities (the American Liver Foundation, Cystic Fibrosis Foundation, Crohn's and Colitis Foundation, Prevent Blindness Florida, Children's Tumor Foundation, March of Dimes, Lupus Foundation of America, Florida Chapter, Florida Hospices and Palliative Care, Hemophilia Foundation of Greater Florida, National Parkinson Foundation, American Diabetes Association, Leukemia and Lymphoma Society, American Lung Association, ALS Association, Alzheimer's Association, Juvenile Diabetes Research Foundation, Arthritis Foundation, Florida SIDS Alliance, Sickle Cell Disease Association of Florida, Easter Seals Florida, St. Jude Children's Research Hospital, Muscular Dystrophy Association, Nami Florida, National Kidney Foundation, National Multiple Sclerosis Foundation, Huntington's Disease Society of America, and Association for Retarded Citizens). This attorney fee and cost motion was filed in connection with the above Charities having received distribution of undesignated contributions from the 2006 Florida State Employees' Charitable Campaign (FSECC). The Charities made application for the funds and then contested the initial decision of the Steering Committee charged with determining distribution of undesignated contributions (by fiscal agent area). Ultimately, after obtaining a Writ of Mandamus from the First District Court of Appeal, requiring an administrative proceeding and hearing before the Division of Administrative Hearings on the contested claims, the Charities received additional distribution of undesignated contributions. Those additional distributions represent an additional benefit the Charities received upon the entry of the Recommended Order and the Final Order in the underlying proceeding. Therefore, one Petitioner, CHC, in the motion for attorney's fees and costs asserts that it is thus a prevailing party and a small business for purposes of Section 57.111, Florida Statutes, and is entitled to an award of attorney's fees and costs. The Respondent is an Agency of the State of Florida with authority to establish an maintain the FSECC.1/ It administers the decision-making process involving distribution of undesignated funds and issued the Final Order in the original proceeding. The attorney fee and cost proceeding was initially assigned to Administrative Law Judge Charles Adams. Thereafter the case was re-assigned to Administrative Law Judge T. Kent Wetherell, II. He issued an Order, sua sponte, on July 29, 2008, instructing the Petitioners to show cause why the case should not be held in abeyance pending disposition of the appeal of the Final Order in Community Health Charities of Florida v. State of Florida, Department of Management Services, 1D08-3126, the appeal before the First District Court of Appeal. The Petitioners filed a response to the Order to Show Cause stating, in essence, that the issues preserved for appeal involved discreet claims under Section 120.56(4), Florida Statutes. The parties agreed that the portions of the Final Order in the underlying proceeding which granted undesignated fund distributions to the Charities were separable, and not the subject of the appeal to the First District Court of Appeal in the above-cited case. The parties thus stipulated that the case could proceed on the matter of fees and costs, notwithstanding the pending appeal. An Order was entered by Judge Wetherell on August 11, 2008, based upon the responses to the Order to Show Cause. The Order references the parties' agreement that the case could go forward notwithstanding the pending appeal of the Final Order in the underlying case and then, significantly, Judge Wetherell made the following finding: "a closer review of the motion [the motion seeking the award of attorney's fees and costs] reflects that the only Petitioner alleged to be a prevailing small business party entitled to an award of fees under that statute [Section 57.111, Florida Statutes] is Community Health Charities of Florida." Judge Wetherell thereupon proceeded to order that the case style be amended to identify Community Health Charities of Florida (CHC), as the "only Petitioner in this fee case." The Petitioner, CHC, is a Florida non-profit corporation that employs less than 25 full-time employees and has a net worth of less than two million dollars. It is a "federation" under the FSECC Act. A "federation" is defined as an umbrella agency that supplies "common fund raising, administrative and management services to . . . charitable constituent member organizations. . . ." Fla. Admin. Code R. 60L-39.0015(1)(j). Federations were required to file with the Committee (the Steering Committee) a Direct Local Certification Form, describing the direct services that each member charity provided in the various fiscal agent areas. In this capacity, the Petitioner CHC represented 27 member charities in the 2006 charitable campaign. Charitable organizations that provide "direct services in a local fiscal agent's area" are entitled to receive "the same percentage of undesignated funds as the percentage of designated funds they receive." § 110.181(2)(e), Fla. Stat. (2006). CHC is not a provider of services or direct services. Therefore, it, itself, did not receive any undesignated funds. The charitable organizations named above, are the entities which received undesignated funds related to direct services they provided in local fiscal agents' areas. Some received them through the initial decision of the subject Steering Committee, and some after the underlying administrative proceeding was litigated through Final Order. On February 28, 2007, the Steering Committee, under the Respondent's auspices, conducted a public meeting in which it found the charities named above provided direct services in 18 percent of the fiscal agent areas in which they had applied. The Committee therefore denied Charities their share of undesignated funds in the remaining fiscal agent areas. That Committee decision was announced by memorandum of March 12, 2007, which provided the Petitioners with a point of entry to dispute the initial decision in an administrative proceeding. On March 30, 2007, the Petitioners filed an Amended Petition which alleged that they had provided direct services in all the fiscal agent areas in which they applied for undesignated funds, and identified alleged deficiencies in the Committee's decision-making process. That Amended Petition was ultimately referred to the Division of Administrative Hearings for conduct of a formal proceeding, by Order of the First District Court of Appeal, requiring the Agency to refer the Amended Petition to the Division of Administrative Hearings. With the Amended Petition pending before the Division of Administrative Hearings, the Steering Committee called an unscheduled meeting on September 10, 2007, to further address the Petitioners' claims and re-visit the earlier decision denying some applications for undesignated funds. Thereafter, the Respondent changed its initial decision by increasing the percentages of fiscal agent areas where direct services were provided and undesignated funds awarded to the Petitioners, the Charities, as a result of the September 10, 2007, meeting. This percentage thus increased from 18 percent to 77 percent as a result of "additional review of material provided by Petitioners." The Respondent Agency ultimately rendered a Final Order that adopted the decision of the Statewide Steering Committee, approving 77 percent of the Petitioners' previous submittals, as well as the finding of the Administrative Law Judge with regard to the three additional member charities. The Respondent had maintained in the original proceeding that the Committee must limit its consideration to the Direct Local Certification Form. The Petitioners, on the other hand, argued that they were entitled to a de novo review of the Agency action before the Division of Administrative Hearings. Reserving ruling on that matter, Judge Adams permitted the Petitioners, at the Final Hearing, to introduce additional evidence of direct services provided in those fiscal agent areas in which their applications had been denied by the Committee. The issue of direct services was considered de novo before the Division. The judge considered not only the direct local services certification form, but also supporting evidence of direct services introduced by the Petitioners at the Final Hearing. On considering that evidence, the Administrative Law Judge found that three additional member charities, not previously approved by the Committee, had provided direct services, which entitled them to receive undesignated funds. The Final Order entered by the Respondent Agency adopted the Administrative Law Judge's ruling. No exceptions were filed to that Recommended Order, thus the Agency waived its appellate rights with respect to any issue it might have raised, and the Charities prevailed as to the relief they sought in the Amended Petition. In their affidavits filed with the Motion for Attorney's Fees and Costs on July 22, 2008, the attorneys Byrne and Hawkins, for the above-named Petitioners, stated that they were "retained" by those Petitioners, meaning all the above- named charities and also the Petitioner CHC. In the affidavits they stated that those Petitioners "incurred" the attorney's fees and costs to which the affidavits relate. As stated above, the attorney's fee Motion was filed and joined-in by all the above-named charities and CHC. The Petitioners in the underlying case, which was appealed to the First District Court of Appeal, were all the above-named charities and CHC. Nonetheless, the Petitioner CHC took the position at the hearing in this proceeding that an agreement or understanding existed with the affiliate charities, whereby CHC would bear the attorney's fees and costs on behalf of all the affiliate charities. CHC has an agreement concerning how revenue it receives is shared with its national office and member charities. CHC pays its national office a percentage of revenue. It sends money to the national office and the national office also sends an allocation of funds to CHC. CHC is a member of the Arlington, Virginia-based Community Health Charities of America. For the fiscal year beginning July 1, 2006, CHC withheld 25 percent of charitable donations from Florida employees to its affiliated charities as its fee. This is the maximum amount authorized by Florida law in order for it to participate in the FSECC. § 110.181(1)(h)1., Fla. Stat. (2006). In the 2006 campaign at issue, CHC did not file an application in its own name to the Steering Committee for receipt of undesignated funds. As Ms. Cooper testified "we did not apply." CHC received no allocation or award of undesignated funds either in the initial Steering Committee consideration process or as a result of the underlying proceeding through the Agency's Final Order. All the undesignated fund distributions were made to the charities themselves, who were the entities who filed applications to the Steering Committee seeking receipt of undesignated funds. The Steering Committee, which made the initial decisions about distribution of undesignated funds is composed of appointed volunteers. The members of the committee are not compensated and do not have support staff to assist them in their fact-finding review of applications concerning receipt of undesignated funds. The committee members personally review all applications. Review of the applications takes many hours by each member of the committee, much more time than is spent in actual committee meetings. The combined net worth and number of employees of some or all of the Charities, was not established. It was not established that the net worth of one or more of the charities filing this Motion for Attorney's Fees and participating as Petitioners in the underlying case, is less than two million dollars, nor that one or more of them have less than 25 employees. The legislature appropriated $17,000.00 dollars to DMS to administer the FSECC for 2006. Substantially more than that appropriated sum has been expended by DMS to administer the campaign. DMS has no insurance coverage which would pay attorney's fees and costs if they were awarded. DMS is also subject to at least a four percent budget "hold back" for the current fiscal year and is contemplating laying off employees in January 2009, due to budget reductions. If DMS is ordered to pay attorney's fees and costs to CHC, DMS will bill the fiscal agent, United Way, for payment of those amounts from the FSECC charitable contributions. Contrary to the situation with the Petitioner Charities, who made the original filing of the Amended Petition in the underlying case and were named as parties in the filing of the Motion for Attorney's Fees at issue in this case, CHC did offer evidence that its net worth was less than two million dollars and that it had less than 25 employees. Thus, it established this threshold for being considered a small business party. It is also true, however, that the Recommended Order from the Administrative Law Judge and the Final Order from the Agency in the underlying proceeding specifically make no mention of CHC as a prevailing party and award nothing of benefit to CHC, as opposed to the other actual charities, who filed the subject applications.
The Issue The issue for determination is whether Petitioner is eligible for a consumer certificate of exemption pursuant to Subsection 212.08(7)(o), Florida Statutes.
Findings Of Fact On January 31, 1994, the National Council of La Raza (Petitioner) filed an application with the Department of Revenue (Respondent) for a consumer certificate of exemption as a charitable organization. Petitioner indicated, among other things, on its application that it was a social welfare organization. Petitioner filed the application in anticipation of bringing its annual conference to Miami Beach, Florida in July 1994. 1/ Petitioner is a private, nonprofit organization which was incorporated in 1968 in Arizona. Petitioner's national headquarters is in Washington, D.C. and it has offices in Arizona, California, Illinois, and Texas. Article III of Petitioner's second amended articles of incorporation provides in pertinent part that one of its purposes is to "operate exclusively for charitable and educational purposes, including, but not limited to improvement of the condition of the Mexican American poor, and the under privileged." Article III of the amended articles of incorporation further provides in pertinent part that in carrying-out its purpose it would "conduct research and inquiry of the problems and issues that confront, with local variations and particular effects, the Chicano communities"; "promote meetings, conferences, seminars, discussions and other forms of group communication and analysis of the same among those engaged in organizational activity"; "provide technical assistance to affiliated barrio/community development organizations and to encourage, promote and facilitate mutual aid and assistance among them in order to strengthen each of them through the moral, technical and material resources of all"; "encourage and assist the development of the moral, technical and material resources of the barrios and colonias"; and "organize, exist and function as a charitable, non-profit, non-political 501(c)(3) tax-exempt organization." Also, Article III of the amended articles of incorporation provides in pertinent part that its priorities are to "serve as the national advocate and mobilizer of resources and support for barrio/community development programs"; and "deliver program support and technical assistance services to barrio/community development programs in [named] priority areas." Consistent with the purposes in Petitioner's amended articles of incorporation, Petitioner provides in its publicly disseminated literature that it provides its services through four major types of initiatives: (a) "capacity-building assistance to support and strengthen Hispanic community-based organizations"; (b) "applied research, public policy analysis, and advocacy on behalf of the entire Hispanic community, designed to influence public policies and programs"; (c) "public information efforts to provide accurate information and positive images of Hispanics in the mainstream and Hispanic media"; and (d) "special catalytic efforts which use the [Petitioner] structure and reputation to create other entities or projects important to the Hispanic community". On or about May 1, 1968, Petitioner received a federal income tax exemption from the Internal Revenue Service as an organization described in Section 501(c)(3) of the Internal Revenue Code. Petitioner's organizational classifications under Section 501(c)(3) were charitable, educational and scientific. Petitioner's Section 501(c)(3) federal income tax exemption was effective at the time of its application with Respondent for a consumer certificate of exemption. Petitioner has been granted sales tax exemption by Washington, D.C., Michigan, Texas, and the city of Los Angeles, California. Petitioner's organizational structure consists of a Board of Directors, Office of the President, Office of Finance, Office of Administration, Office of Research Advocacy and Legislation, Office of Technical Assistance and Constituency Support, Office of Institutional Development, and Office of Development and Special Events. As to the Office of Research Advocacy and Legislation (ORAL), it is responsible for conducting research and analysis of issues which have been identified by Petitioner's Board of Directors and affiliates as having a primary importance to the Hispanic community. ORAL, through its Policy Analysis Center, conducts studies and research on immigration, education, housing, poverty, welfare, census, and national farm workers issues. Also, ORAL engages in a limited amount of lobbying on behalf of the Hispanic community. ORAL's services are mainly educational. The services include providing information and pamphlets on immigration and civil rights and producing a national radio program on immigration issues. The services are delivered primarily through brochures and pamphlets which are distributed without charge to Petitioner's affiliates and certain groups and organizations. Other groups and organizations are charged a fee depending upon what the group or organization is. ORAL's services are provided to a disadvantaged Hispanic population. As to the Office of Technical Assistance and Constituency Support (TACS), it is responsible for interfacing with both Petitioner's affiliates and its branch offices to directly provide services to the disadvantaged Hispanic community. Most of TACS' assistance focuses on resource development, program operations, and management or governance needs, in addition to addressing critical community needs through national emphasis programs operated in cooperation with Petitioner's affiliates. Also, TACS provides capacity-building assistance to the staff and board members of Hispanic community-based organizations through staff and board training and on-site assistance. As to the Office of Institutional Development (OID), it is responsible for conducting research on issues new to Petitioner and directing Petitioner's services to the Hispanic community. OID coordinates, on the national level, Petitioner's new programs (program models) in education, health education, the elderly and leadership development, as well as projects involving Europe. OID implements the new programs through Petitioner's affiliates. For example, in the 1980's AIDS became a new concern for the Hispanic community and was assigned to OID. A national toll-free AIDS hot line was established by OID and maintained in its office. The hot line is advertised through various media communications, Petitioner's affiliates, and community- based organizations. Additionally, funding has been provided through OID to two (2) Florida affiliates, Centro Campesino Farmworkers Center, Inc., and the Hispanic Alliance. The funding was provided through OID's leadership initiatives to a coordinating council for the purpose of distributing post-hurricane relief to farmworkers in Florida. The offices of ORAL, TACS, and OID have under their responsibility mission activities and core activities. Core activities involve issues which are identified by Petitioner's board and its affiliate organizations as being at the core of Petitioner's existence, such as civil rights enforcement and immigration issues. These activities are not necessarily funded by a particular government contract or grant from a private foundation or corporation. Mission activities consist of activities which are important in supporting the mission of Petitioner, but are not currently funded by a particular government contract or grant from a private foundation or corporation. These activities relate to administrative functions engaged in by ORAL, TACS, and OID to support Petitioner's operations and are funded with internal funds. The offices of ORAL, TACS and OID work interdependently. A problem is identified in the Hispanic community by Petitioner and/or its affiliates and assigned to ORAL or OID; ORAL or OID conducts research and develops programs to address the problem; and TACS delivers the program services to the disadvantaged Hispanic community, working with affiliates and community-based organizations to implement the programs. A program called Project EXCEL (Excellence in Community Educational Leadership) is an educational program developed by Petitioner. The problem of illiteracy and low graduation rates was identified. Research was conducted on the problem and the program, Project EXCEL, was developed. Petitioner implemented the program through its on-site staff who had oversight responsibility and who evaluated the program and actually worked with the clients to assist in the program's evaluation; whereas, the actual direct educational services were delivered to the clients by persons working for the organizations. Project EXCEL was implemented at public schools, day care centers, and churches. Petitioner secured and provided the funding for the community-based organizations to run demonstration sites for Project EXCEL. Two Florida organizations received assistance from Petitioner regarding Project EXCEL. Centro Campesino Farmworkers Center, Inc., which holds a sales tax exemption from Respondent, utilized the Project EXCEL curriculum developed by Petitioner in providing after-school services to children of migrant farmworkers. Also, the Coalition of Florida Farmworkers Organizations, Inc., which holds a sales tax exemption from Respondent, received a grant to implement Project EXCEL and Petitioner provided a curriculum and some of its staff to assist the Coalition of Florida Farmworkers in working with the children. Both the Centro Campesino Farmworkers and the Coalition of Florida Farmworkers pay annual dues to Petitioner as affiliates. They have received from Petitioner pass-through funds as subgrants. Petitioner does not engage in direct fund raising to support the organizations. Pass-through funding is funding distributed through Petitioner to its affiliates or other outside organizations through subgrants. The funds are received by Petitioner from grants for which Petitioner applies. For both the Centro Campesino Farmworkers and the Coalition of Florida Farmworkers, Petitioner has not provided volunteers to run any of the organizations' programs or provide the organizations' services at the local level. Furthermore, Petitioner does not control, govern, or administer any of the Centro Compesino Farmworkers' or the Coalition of Florida Farmworkers' services or activities at the local level. In another instance, Petitioner identified housing problems for the Hispanic community regarding ownership, quality and availability. Research showed that, for Hispanics, there existed a low rate of home ownership, substandard housing, and discrimination. Petitioner secured funding to build low income housing and commercial developments in low income neighborhoods; at times, providing pre-development costs or professional services such as engineers and architects. As with Centro Campensino Farmworkers and the Coalition of Florida Farmworkers, Petitioner does not provide volunteers to work for its affiliate organizations at the local level (Petitioner's staff are paid employees), Petitioner does not engage in direct fund raising to support its affiliate organizations, and Petitioner does not control, govern, or administer any of the services at the local level. Also, ORAL, TACS, and OID have worked interdependently in developing programs in the health field. AIDS public service announcements have been produced by Petitioner. An AIDS national toll-free hot line is operated by Petitioner, with professional staff manning the phones to provide information to AIDS patients and others and with the costs being borne by Petitioner. As to the Office of Development and Special Effects (ODSE), it is responsible for fund raising, proposal writing, receipt of grants, Petitioner's future endowment or capital campaign. ODSE's primary responsibility is the operation of Petitioner's annual conference and Congressional awards dinner. The annual conference is held in different locations and the awards dinner is held in Washington, D.C. The annual conference is attended by thousands of participants from across the United States to discuss topics and issues relevant to the Hispanic community. Affiliates which attend pay a registration fee. Usually offered at the conference are workshops, seminars, an art show, job fair, silent auction, and an exhibit hall where corporations and governmental agencies can promote themselves. Except for the meal events, all the other activities are open to the public at no charge. As part of the conference, Petitioner sponsors a Youth Leadership Program in which the expenses are paid for 25 to 30 youths (tenth to twelfth graders), who are disadvantaged and at-risk and from various parts of the country, to attend the conference. A similar program is sponsored by Petitioner for college students. Additionally, Petitioner sponsors a one day event for area disadvantaged district school students. Petitioner's 1994 annual conference was held at Miami Beach, Florida on July 17 - 20, 1994. Petitioner provided or sponsored all of its usual activities or programs, except for a job fair. In addition, Petitioner sponsored a senior citizens day for the disadvantaged elderly. The registration fee for affiliates was $150. Petitioner's Office of Finance is responsible for the fiscal management of all internal matters and the financial practices of Petitioner. Petitioner reflects its fiscal financial picture on two documents. As a Section 501(c)(3) organization, Petitioner files federal tax returns, known as Forms 990, on a yearly basis. Additionally, Petitioner has audited financial statements prepared annually. Among other things, Form 990 reflects Petitioner's expenses found on its audited financial statements, but in greater detail. Petitioner's fiscal year is from October 1st to September 30th of each year. Expenditures associated with Petitioner's Board of Directors, Office of the President, Office of Finance, and Office of Administration are general administrative expenses. These expenditures fall within the category of supporting activities on Petitioner's audited financial statements. For the fiscal year October 1, 1992 to September 30, 1993, Petitioner's total expenditures were $5,581,316. Of this total of expenditures, $4,407,194 represented expenses for program services, per the category on Form 990, of which $126,250 represented pass-through funds to subgrantees; of which over $2.6 million represented compensation of officers and directors, etc., other salaries and wages, pension plan contributions, other employee benefits, payroll taxes, and conferences, conventions and meetings 2/ ; and of which $57,421 represented legislative advocacy. Also, of the total expenditures, $1,174,122 represented expenses for supporting activities, of which $976,044 represented general administration; and of which $198,078 represented fund raising which is money expended in writing proposals to fund Petitioner's programs. For the fiscal year October 1, 1991, through September 30, 1992, Petitioner's total expenditures were $5,150,084.00. Of this total of expenditures, $3,982,552 represented expenses for program services, including $172,620 for pass-through funds to subgrantees, over $2.3 million for compensation of officers and directors, other salaries and wages, pension plan contributions, other employee benefits, payroll taxes, and conferences, conventions and meetings, and $54,410 for legislative advocacy. Also, of the total expenditures, $1,167,532 represented expenses for supporting services, including $978,557 for general administration, and $188,975 for fund raising. Even though Petitioner claims to have 182 affiliates, only 162 affiliates were identified. Petitioner actively works with 120 of the 162 identified affiliates. Nine of the affiliates hold certificates of exemption issued by Respondent. Because of the minimal descriptions provided by Petitioner of the affiliates, only a small minority could be determined to provide services for free or at a substantially reduced cost.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order DENYING the National Council of La Raza a consumer certificate of exemption. DONE AND ENTERED this 8th day of February, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 8th day of February, 1996.
