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LARRY TIMM vs FLORIDA POWER AND LIGHT COMPANY, 91-002755 (1991)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida May 07, 1991 Number: 91-002755 Latest Update: May 29, 1992

The Issue The issue presented is the amount of money Petitioner owes Respondent as a result of unmetered electrical consumption.

Findings Of Fact On September 21, 1989, Debra K. Zaleuke, a current diversion investigator for Respondent, received an anonymous telephone call advising that Petitioner had been bragging about his illegal underground tap located somewhere on Petitioner's 10-acre property. She went to that property located at 2943 "B" Road, Loxahatchee, Florida. When she arrived at the trailer located at that address, she could hear that the air conditioning unit was operating. She shut off the main breaker, but the air conditioning system continued to run. She returned to the property on September 22, 1989. Petitioner was there on that occasion. When he saw her, he ran inside his trailer and shut off the air conditioning. She asked him to turn the air conditioning system back on, and he advised her that it had just "burned up." Zaleuke pulled the electric meter and used a Wiggins tester, which showed amperage still being pulled through the meter can. She summoned a crew with a Dimatel underground fault locator, and they started digging. Petitioner told them that they "would not be able to find it." They continued digging and eventually found the underground location of the illegal tap. The tap went directly to an above ground breaker system so the tap could be turned off and on at will. Petitioner's electrical service was discontinued that day. The illegal underground tap was taken to Florida Power & Light Company's evidence room. The meter which was removed from Petitioner's property was subsequently tested and found to be operating properly. Petitioner has been the customer of record since 1981. In August, 1987, the house located on the property burned, along with Petitioner's electric meter. In August of 1987, Florida Power & Light Company set a new meter at Petitioner's property. Even after Petitioner's home burned down, Petitioner continued to consume electricity at that address. He testified that he used electrical tools and ran water pumps for irrigation purposes even while tearing down the burned structure that had once been his residence. The property also has on it a structure where Petitioner houses his helicopter. Eventually, a trailer was moved onto the property, in which trailer Petitioner resided at the time that Florida Power & Light discontinued electrical service to him. Since a new meter was installed in August of 1987, and since Petitioner's electric bill during the month of September, 1987, dropped to "0" even though Petitioner was using, by his own admission, electrical equipment at the time, Zaleuke chose the month of September, 1987, as the starting date for recomputing the backbilling to be rendered to Petitioner for his unauthorized and unmetered electrical consumption. Using the seasonal average method approved by the Florida Public Service Commission, she estimated the energy consumed through the illegal underground tap. She also computed the amount of expense Florida Power & Light Company had incurred in locating and terminating the illegal condition. Florida Power & Light Company rendered to Petitioner its backbilling in the amount of $3,856.28 representing the unauthorized, unmetered consumption of electricity from September, 1987, to September, 1989, together with its investigative costs. Petitioner has continued to refuse to pay the bill rendered to him, and his electrical service at that address remains disconnected. Zaleuke's calculations for both unmetered electrical consumption and investigative costs are reasonable, and the billing rendered to Petitioner is reasonable. Florida Power & Light Company has notified Petitioner of the conditions required for the restoration of service to his property. Those conditions are as follows: (1), Petitioner will provide a meter can on a pole anywhere on his property outside of a three-foot diameter from the existing yard pole; (2), Florida Power & Light Company will provide an overhead service drop to the meter can at no charge; and (3), Petitioner will pay whatever the Public Service Commission deems Petitioner's final bill to be. These conditions are reasonable.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner owes Florida Power & Light Company the backbilled amount of $3,856.28. DONE and ENTERED this 2nd day of December, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 2nd day of December, 1991. APPENDIX TO RECOMMENDED ORDER Respondent's proposed findings of fact numbered 1-4, 6-10, and 12-15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5 and 11 have been rejected as being unnecessary. Respondent's proposed findings of fact numbered 16-19 have been rejected as not constituting findings of fact but rather as constituting statements of Petitioner's position which position is not supported by the weight of any credible evidence. COPIES FURNISHED: Steve Tribble, Director of Records and Recording Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 David Swafford, Executive Director Public Service Commission 101 East Gaines Street, Room 116 Tallahassee, Florida 32399-085 Rob Vandiver, General Counsel Public Service Commission 101 East Gaines Street, Room 212 Tallahassee, Florida 32399-0850 K. Crandal McDougall, Esquire Florida Power & Light Company P.O. Box 029100 Miami, Florida 33102-9100 Martha Carter Brown, Esquire Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0870 Larry Timm P.O. Box 494 Loxahatchee, Florida 33470 Larry Timm 2943 "B" Road Loxahatchee, Florida 33470

Florida Laws (1) 120.57 Florida Administrative Code (2) 25-6.10425-6.105
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EMERALD COAST UTILITIES AUTHORITY vs TADAREL S. PAGE, 18-003309 (2018)
Division of Administrative Hearings, Florida Filed:Pensacola, Florida Jun. 27, 2018 Number: 18-003309 Latest Update: Oct. 23, 2018

The Issue Whether Respondent committed the violations alleged in the agency action letter dated June 21, 2018.

Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Page as the utility service worker in the patch services division (“the patch crew”). Mr. Page acknowledged on October 10, 2016, that a copy of the Manual was made available to him. The patch crew normally works from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. The patch crew also receives two 15-minute breaks each day. Mr. Page would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. The patch crew would use one or more of those vehicles to complete the day’s assignments and return them to the Sturdevant Street location at the end of each day. ECUA’s management received information in May of 2018, that members of the patch crew were leaving work early without authorization. This information led ECUA’s management to initiate an investigation. Part of that investigation involved the installation of tamper-proof global positioning devices (“GPS”) in ECUA vehicles. Those devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA’s management also hired a private investigator, Terry Willette, to observe and record the activities of the patch crew. Findings Regarding the Allegations from May 10, 2018 On May 10, 2018, Mr. Page received at least four assignments to fill holes at locations in Pensacola. Mr. Page recorded in ECUA’s work tracking system that he spent two hours completing two of those jobs and one hour completing the other two. Mr. Willette followed Mr. Page that day, and his observations contradict those time entries. Mr. Willette observed Mr. Page driving all over Pensacola, stopping on several occasions, and performing significant work at only one location. ECUA has proven by a preponderance of the evidence that Mr. Page wasted an excessive amount of time on May 10, 2018. Findings Regarding the Allegations from May 11, 2018 The May 11, 2018, GPS report for truck #1624 indicates that it stopped at or near Mr. Page’s residence from approximately 9:21 a.m. to 9:28 a.m. It is possible that Mr. Page used one of his 15-minute breaks to stop at his residence, and there is no evidence that ECUA expressly prohibits employees from stopping at their homes. The preponderance of the evidence does not demonstrate that Mr. Page violated any Manual provisions on May 11, 2018. Findings Regarding the Allegations from May 24, 2018 The patch crew employees use an electronic timekeeping system to record the amount of hours they work each day. The Manual specifies that every ECUA employee is responsible for verifying the accuracy of those time entries. Mr. Page’s entry for May 24, 2018, indicates he worked eight hours that day. Mr. Willette observed Mr. Page leaving work at 12:59 p.m. on May 24, 2018. Also, one of the ECUA trucks often utilized by Mr. Page was in use from 7:01 a.m. until 12:57 p.m. on May 24, 2018, and was not used again that day. The preponderance of the evidence demonstrates that Mr. Page failed to verify the accuracy of his time entry for May 24, 2018.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Tadarel S. Page violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2018.

Florida Laws (2) 120.57120.65
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FLORIDA SURPLUS LINES ASSOCIATION, INC. vs DEPARTMENT OF REVENUE, 93-005242RP (1993)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Sep. 10, 1993 Number: 93-005242RP Latest Update: Apr. 13, 1994

Findings Of Fact Based upon all of the evidence, including the stipulation of facts, the following findings of fact are determined: Petitioner, Florida Surplus Lines Association, Inc. (Association), is a Florida nonprofit corporation organized and maintained for the benefit of its members who include surplus lines agents and insurers and others who place surplus lines insurance. Petitioner's members are licensed or regulated by the Department of Insurance pursuant to Part VIII of Chapter 626, Florida Statutes. The parties have stipulated that petitioner has standing to bring this action on behalf of its members. Surplus lines insurance is a specialty line of insurance written for certain types of risks that authorized insurance carriers (those holding a certificate of authority) will not or cannot cover. It constitutes a limited, out-of-state insurance market that supplements the "authorized" in-state insurance market. Thus, when Florida residents cannot obtain coverage from authorized Florida insurers, they may seek insurance from out-of-state insurers (not authorized to do business in the state) who "export" the coverage to Florida surplus lines insurers who then handle the placement of the insurance. Under this statutory scheme, petitioner's members are not authorized insurers who hold certificates of authority but rather they are made "eligible" by the Department of Insurance to receive exported business. They do, however, countersign surplus lines policies covering Florida risks. On April 29, 1993, Chapter 93-128, Laws of Florida, became effective. The new law was the result of the extensive damage caused by Hurricane Andrew, which struck the southeastern coast of Florida in late August 1992. Section 2 of the law created an emergency management, preparedness, and assistance trust fund to be administered by the Department of Community Affairs and funded by the imposition of an annual surcharge of $2.00 on "every homeowner's, mobile homeowner's, tenant homeowner's, and condominium unit owner's policy" and $4.00 on "every commerical fire, commercial multiple peril, and business owner's property insurance policy" issued on or after May 1, 1993. Therefore, the new law applied to all residential and commercial casualty policies issued on or after May 1, 1993. Petitioner's members offer policies that fall within these broad categories. The same section required the surcharge to be paid by the policyholder and collected and remitted by the insurer. Since petitioner's members are engaged in the business of offering insurance policies, and they countersign property insurance policies, they are "insurers" as that word is commonly used and understood. Finally, section 2 has been codified as Section 252.372, Florida Statutes (1993). Section 2 of chapter 93-128 provided further that respondent, Department of Revenue (DOR), "shall collect, administer, audit, and enforce the surcharge pursuant to section 624.5092, Florida Statutes." This meant that DOR would utilize the procedures outlined in section 624.5092 for administering and collecting the newly-imposed tax. That statute prescribes the manner in which taxes should be paid to and collected by DOR. To implement this new responsibility, on August 20, 1993, DOR published notice in the Florida Administrative Weekly of its intent to adopt new rule 12B-8.0012. The proposed rule, which is quite lengthy in text, reads as follows: 12BN-8.0012 Insurance Policy Surcharge: Rate and Computation. Every insurer, including surplus lines and surplus lines agents, must collect a surcharge of $2 and $4 from the policyholders of certain types of property insurance issued or renewed on or after May 1, 1993. The proceeds will be deposited into the Emergency Management, Preparedness, and Assistance Trust Fund. The $2 surcharge applies to each residential dwelling fire policy, homeowner's, mobile homeowner's, tenant homeowner's, condominium unit owner's, and any other type of insurance coverage on residential property, issued or renewed on or after May 1, 1993. The $4 surcharge applies to each commercial fire, commercial multiple peril, and business owner's property insurance policy issued or renewed on or after May 1, 1993, including marine policies if the coverage includes real property. The surcharge does not apply to policies on tangible personal property, except multiple peril type policies on residential or commercial property and mobile homes. For purposes of this rule, the date of issue or renewal shall be the effective date of the policy. The surcharge applies to all policies issued or renewed even if they are subsequently cancelled. However, if the policy is cancelled back to the effective date, the surcharge shall not apply. The surcharge must be collected by the insurer from the policyholder and must be remitted in the same manner as the insurance premium tax to the Department of Revenue on Form DR-907, Insurance Premium Tax Quarterly Return, and on Form DR-908, Insurance Premium Tax Return. The surcharge on surplus lines policies must be remitted by the surplus lines agents, unless the surplus lines insurer collects and remits the surcharge, and must be remitted on Form DR-907 and Form DR-908. The surcharge is required to be remitted by the surplus lines agent for only the surplus lines policies. The authorized insurer is required to collect and remit the surcharge for all other policies. The $250 quarterly and annual filing fees do not apply to either the surplus lines agent or the surplus lines insurer. The insurance premium tax on surplus lines will continue to be remitted to the Department of Insurance as required. The surcharge is required to be remitted on the required return for the calendar quarter the policy is issued or renewed without regard to the collection of the surcharge from the policyholders. The insurer is responsible for collecting the surcharge and may cancel the policy for nonpayment of the surcharge. The first installment on the surcharge was due June 15, 1993, for May and June with the subsequent installment due on October 15 for the calendar quarter ending September 30. A separate line denoting the surcharge is provided on the revised Form DR-907 and the revised Form DR-908, annual return, which is due by March 1. The estimated payment must be based on at least 90 percent of the actual number of policies subject to the surcharge to avoid penalty and interest as provided in s. 624.5092, F.S. Penalty and interest may be compromised as provided in s. 213.21, F.S. The surcharge is not considered to be a part of the premium charge, and is therefore not subject to the insurance premium tax. The surcharge is imposed on the policy- holder and will not be considered for retaliatory tax purposes whether or not the surcharge is collected from the policyholder. The text of the notice identified Subsection 213.06(1), Florida Statutes, and Chapter 93-128, Laws of Florida, as the specific authority for adopting the rule and Section 624.5092, Florida Statutes, and Chapter 93-128, Laws of Florida, as the laws being implemented. Finally, the notice summarized the new rule as one which "provid(ed) guidance for computing and remitting the $2 and $4 surcharge," and further stated its adoption was "needed to conform the rule to the 1992 and 1993 statutory revisions." Of significance to this controversy are all or parts of sections (1) and (8) of the proposed rule which expressly provide that the surcharge is applicable to surplus lines policies. Petitioner generally contends that surplus lines policies were not specifically referred to in either chapter 93- 128 or section 624.5092 and thus the surcharge was not intended to apply to that type of transaction. For this reason, among others, it argues that the proposed rule goes beyond the terms of the enabling statutes. In 1989, Chapter 89-167, Laws of Florida, created Section 624.5092, Florida Statutes, which transferred the responsibility for the administration and collection of all taxes enumerated in subsection 624.5092(3) from the Department of Insurance to DOR. That subsection identifies Sections 624.5091, 624.4425, 624.475, 624.509-624.515, 627.356, 627.357, 629.5011, 637.406, 651.027, and 440.57, Florida Statutes, as the taxing statutes which DOR is obligated to administer. Omitted from this subsection are Section 626.932, Florida Statutes, which imposes a premium receipts tax on surplus lines insurance transactions, and Section 626.933, Florida Statutes, which sets forth the procedure for collecting that tax. Therefore, surplus lines insurance transactions are not identified as being subject to the administration procedures in subsection 624.5092(3). The parties have stipulated that under section 624.5092 DOR is authorized to administer, collect and enforce insurance taxes prior to 1989 on all open years for all insurers subject to Section 624.509, Florida Statutes. They have also stipulated that DOR has the authority to assess surcharges and tax for all insurers that are subject to Sections 624.509 and 624.5091, Florida Statutes. These two statutes pertain to the payment of a premium tax and retaliatory tax, respectively, by insurers holding a certificate of authority. Surplus lines insurers do not possess such authorization. Neither chapter 89-167 nor chapter 93-128 amended sections 626.932 or 626.933. As noted earlier, those sections impose a surplus lines tax and the manner for collecting the same, respectively. Also, they did not amend subsection 624.5092(3) to include any tax imposed by Part VIII of chapter 626, the state surplus lines act. Section 4 of chapter 93-128 amended subsection 624.5092(1) by adding the underscored language below: The Department of Revenue shall administer, audit and enforce the assessment and collection of those taxes to which this section is applicable. The Department of Insurance is authorized to share information with the Department of Revenue as necessary to verify premium tax or other tax liability arising under such taxes and credits which may apply thereto. Besides the substantive contentions, petitioner also contends the rule's economic impact statement (EIS) is inadequate because DOR did not consider the rule's impact on small businesses. In making that assessment, DOR utilized the provisions of Subsection 120.54(2)(a)1.-5., Florida Statutes, and found the impact on small businesses to be minimal, that is, affected persons need only file a two page form on a quarterly basis reflecting the number of surplus lines policies issued or renewed during the preceding quarter. Given these minimal statutory requirements, DOR could not consolidate or simplify the reporting requirements, exempt small businesses, establish less stringent schedules, establish alternative performance standards, or create less stringent reporting requirements. Finally, copies of the proposed rule were sent to the minority business sections of the Department of Commerce and Department of Management Services, and DOR did not receive any reply or comment from those agencies. DOR did not receive a request for an economic impact statement from any affected person. Also, it received no information regarding any economic impact on any businesses affected by the proposed rule or on the size of businesses affected by the proposed rule prior to the initiation of this proceeding. Although some of petitioner's members qualify as small businesses as that term is defined within Section 288.703, Florida Statutes, and petitioner advised DOR of its position regarding the invalidity of the proposed surcharge, there is nothing of record to indicate that petitioner, or any of its members individually, specifically requested preparation of an EIS or provided information sufficient to make DOR aware of specific concerns regarding the economic impact of the proposed rule.

Florida Laws (16) 120.52120.54120.57120.68213.06213.21252.372288.703624.03624.475624.509624.5091624.5092626.932626.933629.5011 Florida Administrative Code (1) 12B-8.0012
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ADELMAN PIPE AND STEEL CO., INC. vs. FLORIDA PLUMBING AND MECHANICAL CONTRACTORS, 76-000196 (1976)
Division of Administrative Hearings, Florida Number: 76-000196 Latest Update: Apr. 27, 1976

Findings Of Fact On August 24, 1967 Thomas York, an employee of Yell for Pennell, one of the fund members, was injured while so employed and, as a result of the injury, is a paraplegic. A judge of industrial claims has entered an order requiring the payment of $42.00 per week compensation plus medical and nursing expenses for York. Nursing care has recently been running $91.00 per week. York is the only outstanding claim for the 1967 fund year. The average medical expenses for York over the past several years has averaged $8,800 per year. For the 1975 year the medical costs for York were $17,14O. Thomas York is 57 years old. Because of his physical condition aggravated by a drinking problem his life expectancy is approximately five years. The proposed assessment, if each fund amber pays the full amount of time assessment, will produce less than $50,000 income to the fund. The medical payments on behalf of York have materially increased during the past three years. If this trend continues the assessment herein requested will be used up in less than two years. Each fund member is individually and collectively liable for the compensation and medical expenses for York. In the event the fund fails to make payments when due and suit is brought on behalf of York the Trustees or individual embers will be liable for the payments as well as attorney's fees. The fund is current on weekly compensation payments to York, but has deferred payments of medical expenses with the concurrence of the doctor. The present assets remaining in the fund to make payments is less than $1,000. The primary insurance carrier for the fund, State Fire & casualty Company, went into receivership and no payments can be anticipated from this source. The Trustees brought legal action against various parties to recoup expenses to the fund resulting from the default of the primary carrier, but to date those actions have not been marked with success.

Florida Laws (1) 120.57
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BOARD OF EMPLOYEE LEASING COMPANIES vs SUSAN JAN HAGGERTY, 96-004967 (1996)
Division of Administrative Hearings, Florida Filed:Englewood, Florida Oct. 21, 1996 Number: 96-004967 Latest Update: Feb. 02, 1999

The Issue The issue is whether Respondents failed to file four quarterly and one annual financial statements and failed to maintain minimum amounts of net worth and working capital. If so, an additional issue is what penalty should be imposed.

Findings Of Fact At all material times, Respondent Susan Jan Haggerty (Haggerty) was the controlling person of Respondent Suncoast Resource Management, Inc. (Suncoast). The Board of Employee Leasing Companies (Board) licensed Suncoast as an employee leasing company, holding license number EL 0000055, and Haggerty as the company’s controlling person, holding license number CO 0000125. Haggerty is also the licensed controlling person for Suncoast Management Group, Inc., an employee leasing company licensed since January 1994. Respondents applied for their licenses in July 1992. Suncoast was first licensed on March 22, 1994, and Haggerty was first licensed on January 13, 1994. Haggerty’s license remains currently in effect. However, following its surrender, as described below, Suncoast’s license became null and void on September 12, 1995. During 1994--its first year of licensed operation-- Suncoast encountered financial problems. At some point prior to December 31, 1994, a workers’ compensation carrier won a judgment of about $200,000 against Suncoast for unpaid workers’ compensation premiums. During 1994, Haggerty decided to close Suncoast. She instructed the company’s independent accountant to contact Board staff and find out how to close down the company, from a regulatory standpoint. An unidentified male staffperson employed by the Board informed the accountant by telephone that all the Respondents had to do was to write the Board a letter informing it of what was happening and to submit the quarterly compiled financial statement. The accountant conveyed these instructions to Haggerty in October or November 1994. Suncoast ceased doing business effective December 31, 1994. During this month, Suncoast terminated its last employee. During 1994, Suncoast had a gross Florida payroll of less than $2.5 million. During 1995, an investigator for Petitioner contacted Haggerty and discussed some of the unfiled financial statements that are the subject of these cases. In an effort to resolve this matter, Suncoast formally surrendered its license on August 2, 1995. The Administrative Complaints allege that Respondents failed to file five financial statements with the Board. These are four quarterly financial statements due for the quarters ending December 31, 1994, and following, and the 1994 annual financial statement. There are also allegations of failure to maintain minimum requirements of net worth and working capital. It appears that Suncoast did not file any quarterly financial statements prior to the one due for December 1994. However, Petitioner did not elect to allege violations of the law for these failures to file. For the relevant period, Suncoast only filed two statements with the Board of Employee Leasing Companies. The first statement was a quarterly financial statement for the last quarter of 1994, which was filed in March 1996--well after the ordinary deadline for such quarterly statements. The second statement was an annual financial statement for 1994. The accountant prepared this statement, dated June 4, 1995, and Haggerty filed it with the Board of Employee Leasing Companies on July 10, 1996--also well after the ordinary deadline for such annual statements. The 1994 financial statement is compiled, not audited or reviewed. The 1994 financial statement reveals that Suncoast had a tangible accounting net worth deficiency of about $180,000 and a positive working capital of $28,737, which reflects current assets and current liabilities and treats the $200,000 judgment as a long-term liability. Suncoast never obtain Board-approved security to offset the $180,000 deficiency in its net worth.

Recommendation It is RECOMMENDED that the Board of Employee Leasing Companies enter a final order dismissing the administrative complaint against Suncoast Resource Management, Inc. and suspending Susan Jan Haggerty’s license for a period equal to the earlier of five years or until she proves to the reasonable satisfaction of the Board that the $200,000 judgment in favor of the workers’ compensation carrier has been satisfied or vacated with all judicial review concluded; but in no event shall the term of the suspension be less than one year. ENTERED in Tallahassee, Florida, on June 5, 1997. COPIES FURNISHED: Mary Ellen Clark Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 ROBERT E. MEALE 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 on June 5, 1997. Tallahassee, Florida 32399-0792 Attorney Frank M. Gafford Post Office Box 1789 Lake City, Florida 32506-1789 Isla Jones Executive Director Board of Employee Leasing Companies 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (4) 120.57468.525468.526468.532 Florida Administrative Code (4) 61G7-10.00161G7-10.001161G7-5.00261G7-5.0031
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MSS BIOMEDICAL CORPORATION, D/B/A IMMUNECARE INFUSION vs AGENCY FOR HEALTH CARE ADMINISTRATION, 01-002242F (2001)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jun. 05, 2001 Number: 01-002242F Latest Update: Dec. 16, 2004

The Issue Whether the Petitioner is entitled to fees as a prevailing small business party pursuant to Section 57.111, Florida Statutes.

Findings Of Fact The Respondent is the state agency charged with the authority to oversee and govern the Medicaid Program in Florida. To that end the Agency has established a Medicaid Program Integrity Bureau that seeks to detect and prevent fraud and abuse by Medicaid providers. The Petitioner is a pharmacy provider within the purview of the Florida Medicaid Program. As such, it is accountable to the Agency for its accounting practices and records. At all times material to the underlying case in this matter (DOAH Case No. 00-4708) the Agency employed auditors who routinely review the records of Medicaid providers being reimbursed through the Medicaid Program. In DOAH Case No. 00-4708 such auditors determined that the records maintained by the Petitioner did not accurately reflect information needed to verify and support the billings for which the Medicaid Program had reimbursed the Petitioner. In one instance, the Petitioner did not produce authorizations for a substitution of a prescribed drug. In a separate claim, the Agency maintained that the records indicated an invoice shortage for a prescribed medication. In other words, the provider had allegedly billed for a certain amount of drugs but the acquisition records and invoice records did not establish that quantities in a corresponding amount had been purchased for dispensing. The Agency hired Heritage Information Systems to perform an independent audit of the Petitioner. That audit supported findings unfavorable to the Petitioner in that it identified a substitution problem. The substitution of a more expensive drug for a less expensive prescribed drug is not permissible under the Medicaid Program guidelines without authority from the prescribing physician. As it relates to this case, the prescribing physician was Dr. Sachs. Coincidentally, Dr. Sachs owns the Petitioner. At all times material to the auditing period, the Agency interviewed Dr. Sachs, reviewed all records provided to it at the Petitioner's office, and believed that Dr. Sachs had not authorized the substitution of the more expensive drug for the drug prescribed. Thus, when the records indicated the Petitioner had substituted and billed Medicaid for the more expensive drug, a substitution issue was documented. This claim formed the basis for DOAH Case No. 00-4708. Dr. Sachs appeared before the auditors on more than one occasion and did not indicate that he had authorized any substitution for the prescribed item. At all meetings with Dr. Sachs the Agency believed that the doctor had written prescriptions for IVIg. In fact, Dr. Sachs wrote prescriptions for IVIg, Dr. Sachs did not write prescriptions for CytoGam. As to all prescriptions written for IVIg, the Medicaid Program was billed for a drug known as CytoGam. The substitution of CytoGam for IVIg formed the crux of the auditing dispute. Based upon the substitution issue, the Agency elected to attempt recovery against the Petitioner for the unauthorized substitution of the more expensive drug. Not once during the auditing process did the Petitioner or Dr. Sachs allege that the substitution had been authorized. No records were produced during the audit to support the substitution. Nevertheless, in anticipation of trial and within a short time before hearing on the underlying case, the Petitioner produced documents that supported the Petitioner's claim that Dr. Sachs had authorized the substitution. This assertion was directly opposite of the position formerly held by the doctor. Moreover, given the short time remaining until hearing, the Agency had no opportunity to verify the authenticity of the exculpatory documents. Rather than proceed to hearing on the unauthorized substitution claim, the Agency filed a Motion to Relinquish Jurisdiction based upon its decision to rescind the action against the Petitioner. Such motion was treated as a voluntary dismissal. Subsequently, the hearing was canceled and the Division of Administrative Hearings relinquished jurisdiction to the Agency. A final order was entered by the Agency on July 19, 2001. The Agency has not contested the timeliness of the Petitioner's claim for fees and costs pursuant to Section 57.111, Florida Statutes. The Agency does not dispute that the Petitioner is a small business as defined by Section 57.111, Florida Statutes. The Agency maintains its actions were substantially justified in the underlying case and that the Petitioner is not a prevailing party as a matter of law. The Petitioner argues that had the Agency done its job of auditing more thoroughly the actions against the Petitioner would have been avoided. As such, the Petitioner maintains it is entitled to recover fees and costs in the amount of $15,000. The Agency does not dispute that the Petitioner incurred fees and costs in excess of the statutory cap in defense of the underlying case. One of the complicating factors in the case was the issue of whether CytoGam was a permissible substitution to fill a prescription written for IVIg. The issue of permissible substitution then was clouded by the fact that until preparations for hearing were being finalized the Agency did not know that Dr. Sachs had authorized the substitution. Presumably, had there been no authorizations, the question of permissible substitution of the drugs would have been the focus for trial. Once the exculpatory documents were produced by the Petitioner, the Agency's theory of the case was left questionable. Permissible or not, the doctor had authorized the substitution. Because the Petitioner had dispensed the drug billed to the Medicaid Program, the billing of the substituted more expensive drug would have been authorized. Additionally, had Dr. Sachs written prescriptions for CytoGam, the auditing process would have supported the records initially produced by the Petitioner.

Florida Laws (3) 120.57120.6857.111
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