The Issue Whether the Petitioner is entitled to either a refund of employee contributions to the Florida State and County Officers' and Employees' Retirement System ("SCOERS") made from August 26, 1966, through June 3, 1974, or service credit toward retirement for this period of time.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the administration of the Florida Retirement System ("FRS"). § 121.025, Fla. Stat. (2004). Ms. Johnson has been employed by Jackson Memorial Hospital since February 1985, and she is an active member of the FRS. Ms. Johnson was also employed by Jackson Memorial Hospital from August 26, 1966, through June 3, 1974, and was a member of the SCOERS during that time. Under the SCOERS, both members and employers paid contributions into the system. Members of the SCOERS could request a refund of employee contributions into the system upon termination of employment.2 When Ms. Johnson terminated her employment at Jackson Memorial Hospital in June 1974, she completed a Division of Retirement Request for Refund card, in which she requested a refund of her contributions to the SCOERS. Ms. Johnson signed the Request for Refund Card, which directs that the refund be sent to the 17th Floor of the Dade County Courthouse, which was the address for the Miami-Dade County Finance Department. Ms. Johnson was an employee of Miami-Dade County when she worked for Jackson Memorial Hospital from 1966 until 1974. At the time Ms. Johnson terminated her employment in 1974, refund checks for employees of Miami-Dade County were sent to Miami-Dade County rather than to the employee, and all Request for Refund cards completed by Miami-Dade County employees had typed on the cards the Dade County Courthouse address of Miami- Dade County's Finance Department. Included on the Request for Refund card signed by Ms. Johnson was a statement that, by requesting a refund of contributions to the SCOERS, she waived the right to any retirement service credit for the time period covered by the refund. The normal business practice of the Division of Retirement is, and was at the times material to these proceedings, to notify the Comptroller's office to send the refund requested by a SCOERS member to the address indicated on the Request for Refund card. The normal business practice of the Division of Retirement is, and was at the times material to these proceedings, to affix to the Request for Refund card labels provided by the Comptroller's office confirming that refund checks were mailed to the member requesting the refund. The labels attached to Ms. Johnson's Request for Refund card indicate that two refund payments were sent by the Comptroller on Ms. Johnson's behalf to the address shown on the Request for Refund card: One, in the amount of $2,150.29, was sent on July 19, 1974, and one, in the amount of $242.18, was sent on January 31, 1975.3 Although Ms. Johnson claims that she did not receive any refund of her employee contributions to the SCOERS, she did not contact the Division of Retirement regarding the refund until August 2003, when she telephoned the Division of Retirement and stated that she had never received the 1974 refund. Because Ms. Johnson is an active member of the FRS, she is entitled to purchase the retirement service credit she accumulated between 1966 and 1974.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the request of Delores F. Johnson for a formal administrative hearing. DONE AND ENTERED this 22nd day of September, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 22nd day of September, 2004.
The Issue Whether the Department's proposed amendment of Rule 38F- 7.020, Florida Administrative Code, constitutes an invalid exercise of its delegated legislative authority under Section 120.52(8), Florida Statutes, [1996 Supp.], or whether the authority specified in the proposed rule is sufficient for the Department to adopt the proposed rule?
Findings Of Fact The Florida Society of Anesthesiologists is a voluntary, nonprofit association comprised of individual members, each of whom is licensed in the State of Florida to practice medicine. Petitioner, Robert A. Guskiewicz, M.D., is a licensed medical doctor in the State of Florida specializing in anesthesia. Pursuant to Section 440.13(12), Florida Statutes, a three-member panel is charged with the responsibility of determining the schedules of maximum reimbursement for physician treatment of workers' compensation patients. In March 1996, the three-member panel convened and adopted a resource-based relative value scale ("RBRVS") reimbursement system, which, on or about January 3, 1997, the Department published notice of its intent to embody in proposed Rule 38F-7.020, in Vol. 23, No. 1 of the Florida Administrative Law Weekly. A copy is attached and incorporated herein by reference. The proposed Rule lists Sections 440.13(7), 440.13(8), 440.13(11), 440.13(12), 440.13(13), 440.13(14), and 440.591, Florida Statutes, as specific authority. The proposed Rule implements Sections 440.13(6), 440.13(7), 440.13(8), 440.13(11), 440.13(12), 440.13(13), and 440.13(14), Florida Statutes. There are no other facts necessary for determination of the matter.
The Issue Whether Respondent is subject to a civil penalty for alleged violation of Section 400.424(3)(a), Florida Statutes, and Rule 58A-5, Florida Administrative Code, through failure to provide a timely prorated refund following the death of a resident of Respondent’s facility.
Findings Of Fact Petitioner is the agency responsible for the licensing and regulation of assisted living facilities, and, in this case, specifically “Holly Hill Care Center” in Holly Hill, Florida. Holly Hill Care Center is operated by a corporation owned by Harry Hartman, President, and Mr. Hartman’s wife. Pursuant to a complaint, Ernest H. Cartwright, a health care evaluator employed by Petitioner, conducted an investigation on November 20, 1997, of Respondent’s facility. The complaint, alleging that a timely prorated refund had not been made to a beneficiary following death of a resident, was confirmed. Beatrice Raverini moved into Holly Hill Care Center on August 24, 1997, and died on September 1, 1997. Her personal belongings were removed from her room on September 8, 1997. While the policy of the facility is to process refunds on the first day of the month following termination, an error in communication occurred between the onsite administrator and the facility’s bookkeeper who is located off-site. As a consequence, the refund was not mailed on October 1, 1997. A refund check was prepared and mailed on or about November 1, 1997, and deposited by Mrs. Raverini’s beneficiary on November 14, 1997, in Canada. Approximately 53 days elapsed before the refund was made. Section 400.424(3)(a), Florida Statutes, requires that the refund occur within 45 days or less. The refund check processed and mailed by Respondent erroneously refunded 958 dollars instead of 616 dollars. Since the room was not vacated of personal belongings until September 8, 1997, the refund should have been calculated from that date instead of the date of September 1, 1997. Respondent refunded 342 dollars in excess of what was owed to the beneficiary.
The Issue The issue in this case is whether Willie Mae Miles is entitled to retirement credit for the period beginning March 1952 through August 1976 when she was employed at the Jackson Memorial Hospital in Miami, Florida (the "Hospital"). There is no dispute that Willie Mae Miles was employed at the Hospital during that time period. However, the Department of Administration (the "Department") contends that Ms. Miles received a refund of her employee retirement contributions of $5,475.39 in May 1977. Therefore, the Department contends that Respondent is not entitled to credit for that period of service. Ms. Miles claims that she did not apply for or receive a refund of retirement contributions. She also claims that she would only have accepted a lump sum refund if it included her contributions and the county and state contributions with interest. Since no such sum was received, she claims she is entitled to retirement credit for her employment at the hospital.
Findings Of Fact While Mrs. Miles has handled her case up to and including the hearing since she dispensed with the services of her attorney, her testimony and the nature of the exhibits indicate that she did not fully comprehend the meaning and intent of the documents that she signed requesting a refund of her retirement contributions and mistakenly believed that she still had funds in the Retirement Trust Fund from which a retirement benefit would be paid later upon her retirement. Her belief was erroneous. Under the State and County Officers and Employees' Retirement System (SCOERS), an employee and the employing agency each paid retirement contributions into the Retirement Trust Fund, and these contributions were credited to the employee's retirement account. Eventually, when the employee retired, the retirement benefit was paid from the total contributions paid into the Trust Fund, including investment earnings of the Fund. However, if the employee terminated employment before retirement, he could legally receive only a return of his personal contributions paid in and not the retirement contributions paid in by his employing agency. Mrs. Miles believed she was due and had a right to her own paid-in contributions, as well as the contributions paid in for her by her employing agency, and since she had received a refund of only a portion (her portion) of her retirement contributions, there were monies (retirement contributions made by her employer) still on deposit with the Division of Retirement that would provide for her retirement. Mrs. Miles did not understand that the return of her personal contributions would end any entitlement or vested right on her part to a future retirement benefit under the SCOERS. It is also evident from her testimony that no one with her employing agency advised her of this fact and that none of the information received from the Division of Retirement made this clear to her. The "Request for Refund" card stated the effect of a refund of personal contributions, but Mrs. Miles did not understand the instructions on the refund card. In April, 1989, the Division received an inquiry from Mrs. Miles advising that she was applying for her retirement benefits. This is further evidence that she believed she still had an active retirement account with the State of Florida. It is concluded that Mrs. Miles never had any actual intent to relinquish her right to apply for and receive a retirement benefit under the SCOERS.
Recommendation It is RECOMMENDED that the Petitioner not be credited with any creditable service under the provisions of Chapter 121, Florida Statutes, for the period from March 1952 to May 1977. DONE and ORDERED this 30 day of March 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 30 day of March 1990. APPENDIX TO RECOMMENDED ORDER 89-4834 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the proposed findings of fact submitted by the Respondent in this case. Petitioner's submittal was a mixture of argument, conclusions and facts which have been carefully considered in the preparation of this Recommended Order. However, specific ruling on proposed findings of fact by the Petitioner is not possible given the format of her proposal. Rulings on Respondent's Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. The first sentence is adopted in substance in Findings of Fact 5. The remainder of the proposal is rejected as unnecessary. Subordinate to Findings of Fact 7. Adopted in substance in Findings of Fact 8 and 10. Adopted in substance in Findings of Fact 11 and 12. Adopted in substance in Findings of Fact 14 and 16. COPIES FURNISHED: Willie Mae Miles 10220 S.W. 170th Terrace Miami, Florida 33157 Larry Scott, Esquire Division Attorney Office of General Counsel Department of Administration Room 440 Carlton Building Tallahassee, Florida 32399-1550 Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact Certain hospital equipment ("Equipment") was sold in 1973 and 1974 by Hospital Contract Consultants ("Vendor") to F & E Community Developers and Jackson Realty Builders (hereinafter referred to as "Purchasers") who simultaneously leased the Equipment to Petitioner. These companies are located in Indiana. At the time of purchase, Florida sales tax ("Tax") was paid by the Purchasers and on or about March 18, 1974, the tax was remitted to the State of Florida by the Vendor. However, the Tax was paid in the name of Medical Facilities Equipment Company, a subsidiary of Vendor. In 1976, the Department of Revenue audited Petitioner and on or about April 26, 1976 assessed a tax on purchases and rental of the Equipment. On or about April 26, 1976, petitioner agreed to pay the amount of the assessment on the purchases and rentals which included the Equipment, in monthly installments of approximately Ten Thousand and no/100 Dollars ($10,000.00) each and subsequently paid such amount of assessment with the last monthly installment paid on or about November 26, 1976. On or about December, 1976, the Department of Revenue, State of Florida, checked its records and could not find the Vendor registered to file and pay sales tax with the State of Florida. Petitioner then looked to the State of Indiana for a tax refund. On or about January 4, 1977, Petitioner filed for a refund of sales tax from the State of Florida in the amount of Thirty Five Thousand One Hundred Four and 02/100 Dollars ($35,104.02). This amount was the sales tax paid to and remitted by various vendors for certain other equipment purchased in 1973 and 1974 and simultaneously leased. The amount of this refund request was granted and paid. Relying upon the facts expressed in paragraph 4 heretofore, Petitioner on or about June 2, 1977 filed with the Department of Revenue of the State of Indiana for the refund of the Tax. On or about June 7, 1979, the Department of Revenue of Indiana determined that the Vendor was registered in the State of Florida as Medical Facilities Equipment Company and therefore Petitioner should obtain the refund of the Tax form the State of Florida. So advised, Petitioner then filed the request for amended refund, which is the subject of this lawsuit, on July 16, 1979 in the amount of Seventeen Thousand Two Hundred Sixteen and 28/100 Dollars ($17,216.28). This request for refund was denied by Respondent, Office of the Comptroller, on the basis of the three year statute of non-claim set forth in section 215.26, Florida Statutes. Purchasers have assigned all rights, title and interest in sales and use tax refunds to Petitioner. During the audit of Petitioner in 1976 the lease arrangement on the equipment apparently came to light and Petitioner was advised sales tax was due on the rentals paid for the equipment. This resulted in an assessment against Petitioner of some $80,000 which was paid at the rate of $10,000 per month, with the last installment in November, 1976. The auditor advised Petitioner that a refund of sales tax on the purchase of this equipment was payable and he checked the Department's records for those companies registered as dealers in Florida. These records disclosed that sales taxes on the sale of some of this rental equipment had been remitted by the sellers of the equipment but Hospital Contract Consultants was not registered. Petitioner was advised to claim a refund of this sales tax from Indiana, the State of domicile of Hospital Contract Consultants. By letter on March 18, 1974, Amedco Inc., the parent company of wholly owned Hospital Contract Consultants, Inc. had advised the Florida Department of Revenue that Medical Facilities Equipment Company, another subsidiary, would report under ID No. 78-23-20785-79 which had previously been assigned to Hospital Contract Consultants Inc. which had erroneously applied for this registration. (Exhibit 2) Not stated in that letter but contained in Indiana Department of Revenue letter of April 18, 1979 was the information that the name of Hospital Contract Consultants had been changed to Medical Facilities Equipment Company. The request for the refund of some $17,000 submitted to Indiana in 1976 was finally denied in 1979 after research by the Indiana Department of Revenue showed the sales tax had been paid to Florida and not to Indiana.
The Issue Should Petitioner discipline Respondent for failure to make certain disclosures and to maintain certain accounting practices for the benefit of unit owners at Palisades Condominiums, Phase I, called for in Chapter 718, Florida Statutes, and Rule 61B-22, Florida Administrative Code.
Findings Of Fact Palisades Condominium, Phase I, is a forty-four (44) unit condominium located at 6901 North Lagoon Drive, Panama City Beach, Florida. The condominium is subject to Petitioner's regulatory authority set forth in Chapter 718, Florida Statutes, and related rules within the Florida Administrative Code. Among Petitioner's regulatory opportunities, directed to the condominium, is the establishment of requirements for annual financial reports and annual budgets. Respondent is charged with the responsibility for operating and managing the Palisades Condominium, Phase I, to include compliance with Chapter 718, Florida Statutes, and related rules in the Florida Administrative Code, that address annual financial reports and annual budgets. This case arose on the basis of an investigation performed by the Petitioner in accordance with Section 718.501, Florida Statutes, pursuant to complaints received by the Petitioner concerning activities by Respondent in conducting the affairs of the Palisades Condominium, Phase I. This investigation led to the disciplinary action taken pursuant to the Notice to Show Cause in Case No. 96-0510-CC-16440. The investigation opened on May 10, 1996, and was concluded by the investigator on August 5, 1996. To resolve the issues framed by the Notice to Show Cause, Petitioner examined documents maintained by the Respondent that relate to annual financial reports and annual budgets of common expenses in the years in question. Pursuant to the by-laws of the Respondent, the fiscal year for the organization is the calendar year. The documents maintained by Respondent depicting the annual financial reports in the years 1993, 1994, and 1995 fail to disclose the beginning balance for each reserve account, fail to reflect the amount of money added to each reserve account, fail to describe the amount removed from each reserve account, and fail to describe the ending balance in each reserve account for the years in question. Moreover, during the years 1993, 1994, and 1995, the documents maintained by the Respondent, in reference to financial reporting, fail to describe the manner in which reserve items were estimated, the dates the estimates were last made, the association's policy for allocating reserve fund interest and whether reserves had been waived during those years. 9. In the years 1992, 1993, 1994, 1995, and 1996, Respondent's proposed annual budgets failed to set forth each reserve account as a separate item, failed to show the estimated life of the reserves, failed to disclose the estimated replacement cost of the reserves, and failed to estimate the remaining useful life for the reserves. Additionally, the proposed annual budgets in the years in question did not separate the current balance in each reserve account as of the date the proposed budget was prepared. Finally, during the years 1994, 1995, and 1996, the annual budgets prepared by Respondent did not disclose the beginning and ending dates of the period covered by the budgets. Although unit owners of the Palisades Condominium, Phase I, voted in September, 1996, to waive the requirement for reserves, the proposed annual budget for 1996 does not reflect that decision.
Recommendation Upon consideration of the facts found and the conclusions of law reached, its is, RECOMMENDED: That a Final Order be entered which imposes a civil penalty in the amount of $500.00. That amount shall be remitted by certified check payable to the Division of Florida Land Sales, Condominiums, and Mobile Home Trust Fund, at 1940 North Monroe Street, Tallahassee, Florida 32399-1007, to be delivered by United States Certified Mail, Return Receipt Requested, within thirty (30) days of the entry of the Final Order. DONE AND ENTERED this 27th day of March, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 27th day of March, 1998. COPIES FURNISHED: Theresa M. Bender, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Underwood Palisades Owners Association, Inc. 6901 North Lagoon Drive, No. 48 Panama City Beach, Florida 32408 Linda Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Robert H. Ellzey, Jr., Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
