Findings Of Fact The Findings of Fact set forth in the Final Order entered in DOAH Case Nos. 15-7010 through 15-7016 and 15-7022 are hereby adopted in this Final Order. The PFO is hereby adopted and incorporated in this Final Order as though set forth in full. During the course of the rulemaking proceedings regarding “designated player” card games, Petitioners submitted a good-faith proposal for a lower cost regulatory alternative (LCRA) indicating that the proposed rules would have a significant monetary impact on Petitioners, which required Respondent to prepare a statement of estimated regulatory costs (SERC) pursuant to sections 120.54(3)(b) and 120.541, Florida Statutes. Respondent did not prepare a SERC. That failure was determined to be a material failure to follow applicable rulemaking procedures and became a basis for the invalidation of the proposed rules.
The Issue This is a license discipline case in which the Petitioner, by means of a three count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of alleged violations of subsections (2), (14), and of Section 475.624, Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Beverly J. Merchant is currently a Florida state certified general appraiser, having been issued license number 000141 in accordance with Chapter 475, Part II, Florida Statutes. The last license issued to Respondent was as a state certified general appraiser with a home address of 548 San Esteban Avenue, Coral Gables, Florida 33146. On January 14, 1994, Graimark/MIG Joint Venture and/or Crown Revenue, Inc., ordered Respondent to perform an appraisal of Sunrise Gardens, an adult congregate living facility (ACLF), in Miami, Florida. On March 31, 1994, the Respondent completed the appraisal of the property. The Respondent's appraisal report made several references to zoning "variances." The use of the term "variances" was reasonable under the circumstances of the subject appraisal. The Respondent's appraisal report stated that the highest and best use of the property was not as an adult congregate living facility (ACLF), but as some other institutional use. Under the circumstances of the subject appraisal, the Respondent provided adequate support to indicate that under the applicable zoning provisions "another institutional use" was probably permissible by variance. The Respondent's appraisal report included a cost approach that utilized a cost factor for "convalescent hospital space," even though the highest and best use was a use other than an ACLF. The use of that cost factor was reasonable under the circumstances of the subject appraisal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. 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 5th day of September, 1996.
The Issue The issue for determination is whether Intervenors are entitled to reasonable attorney fees and costs pursuant to Section 120.595, Florida Statutes (2003).1
Findings Of Fact Petitioner is an insurer and carrier within the meaning of Subsections 440.02(4) and 440.02(38), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(w).2 Petitioner is licensed in the state as a workers' compensation insurance carrier (carrier).3 Respondent is a state agency within the meaning of Subsection 440.02(3), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(b). In relevant part, Respondent is responsible for resolving reimbursement disputes between a carrier and a health care provider. Intervenors are health care providers within the meaning of Subsection 440.13(1)(h), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(u). Each Intervenor is a health care facility within the meaning of Subsection 440.13(1)(g), Florida Statutes (2005). Intervenors seek an award of attorney fees and costs against Petitioner pursuant to Sections 57.105 and 120.595, Florida Statutes (2003). The proceeding involving Section 57.105, Florida Statutes (2003), is the subject of a separate Final Order entered on the same date as this Recommended Order. The scope of this Recommended Order is limited to Section 120.595, Florida Statutes (2003). Intervenors allege that Petitioner is the "non- prevailing adverse party" in an underlying proceeding and participated in the underlying proceeding for an "improper purpose" as the quoted terms are defined, respectively, in Subsections 120.595(1)(e)3. and 120.595(1)(e)1., Florida Statutes (2003). The underlying proceeding involves eight consolidated Petitions for Administrative Hearing. Petitioner filed each Petition for Administrative Hearing after Respondent determined Petitioner had improperly discounted the amount of reimbursement Petitioner paid for hospital services that Intervenors provided to eight patients from March 13, 2004, through February 11, 2005. From April 13 through May 23, 2005, Respondent issued separate orders directing Petitioner to pay the disputed amounts pursuant to Subsection 440.13(7), Florida Statutes (2005). From June 1 through June 21, 2005, Petitioner filed eight separate Petitions for Administrative Hearing. The eight petitions were subsequently consolidated into one underlying proceeding. Petitioner is the non-prevailing adverse party in the underlying proceeding. On December 8, 2005, Petitioner filed a Notice of Voluntary Dismissal in the underlying proceeding. On December 9, 2005, Intervenors filed their motion for attorney fees based on Section 120.595, Florida Statutes (2003). The formal hearing in the underlying proceeding was set for January 18, 2006. The ALJ amended the issue for the formal hearing to exclude the original reimbursement dispute and to limit the scope of the formal hearing to the fee dispute. The ALJ did so to avoid delay in the resolution of the proceeding. The fee dispute at issue in this proceeding includes only six of the original eight reimbursement disputes because Intervenors were not the medical providers in two of the original eight disputes.4 In the six reimbursement disputes involving Intervenors, Respondent ordered Petitioner to pay additional reimbursements in the aggregate amount of $54,178.52. Approximately $51,489.27 of the $54,178.52 in additional reimbursement involved inpatient hospital services provided to one patient.5 The remaining $2,689.25 in additional reimbursement involved outpatient hospital services in the emergency room.6 Subsection 440.13(12), Florida Statutes (2005), mandates that a three-member panel must determine statewide schedules for reimbursement allowances for inpatient hospital care. The statute requires hospital outpatient care to be reimbursed at 75 percent of "usual and customary" charges with certain exceptions not relevant to this proceeding. Notwithstanding the statutory mandate to schedule reimbursement rates for hospital inpatient services, the inpatient services at issue in the underlying proceeding were apparently unscheduled inpatient services. By letter dated April 13, 2005, Respondent ordered Petitioner to pay Intervenor, Holmes Regional Medical Center, Inc. (Holmes), an additional reimbursement in the amount of $51,489.27. The total reimbursement to Holmes was 75 percent of the charges that Holmes submitted to Petitioner for reimbursement.7 Respondent interprets Subsection 440.13(12), Florida Statutes (2005), to authorize reimbursement of both unscheduled inpatient hospital services and outpatient hospital services at the same rate. There is no dispute that Respondent reimburses unscheduled inpatient hospital services and outpatient hospital services at 75 percent of the "usual and customary" charges. The dispute in the underlying proceeding was over the meaning of the phrase "usual and customary" charges. Petitioner challenged the interpretation asserted by Respondent and Intervenors. Respondent and Intervenors contended that the quoted statutory phrase means Intervenors' usual and customary charges evidenced in a proprietary document identified in the record as the "charge master." Each Intervenor maintains its own charge master, and the information in each charge master is proprietary and confidential to each Intervenor. Petitioner asserted that the statutory phrase "usual and customary" charges means the usual and customary charges imposed by other hospitals in the community in which Intervenors are located. Petitioner maintains a data base that contains information sufficient to determine the usual and customary charges in each community. Petitioner did not participate in the underlying proceeding for an improper purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2003). Rather, Petitioner presented a good faith claim or defense to modify or reverse the then-existing interpretation of Subsection 440.13(12), Florida Statutes (2005). Petitioner had a reasonable expectation of success. The statutory phrase "usual and customary" charges is not defined by statute. Nor has the phrase been judicially defined. Respondent bases its interpretation of the disputed phrase on two agency final orders and relevant language in the Florida Workers' Compensation Reimbursement Manual for Hospitals (2004 Second Edition) (the Manual). The Manual is developed by the Florida Department of Financial Services (DFS).8 The Manual interprets the quoted statutory phrase to mean the "hospital's charges." However, after the effective date of the Manual in 2004, DFS developed a proposed change to the Manual that, in relevant part, interprets "usual and customary" charges to mean the lesser of the charges billed by the hospital or the median charge of hospitals located within the same Medicare geographic locality.9 The trier of fact does not consider the new interpretation of the disputed statutory phrase as evidence relevant to a disputed issue of fact. As Respondent determined in an Order to Show Cause issued on February 16, 2006, and attached to Intervenors' PRO, "what constitutes 'usual and customary' charges is a question of law, not fact." The ALJ considers the new interpretation proposed by DFS for the purpose of determining the reasonableness of the interpretation asserted by Petitioner in the underlying proceeding. The ALJ also considers the new DFS interpretation to determine whether the interpretation asserted by Petitioner presented a justiciable issue of law. Intervenors assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to initially explain its reduced reimbursement to Intervenors with one of the codes authorized in Florida Administrative Code Rule 69L-7.602(5)(n) as an explanation of bill review (EOBR). None of the EOBR codes, however, contemplates a new interpretation of the statutory phrase "usual and customary" charges. Intervenors further assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to respond to discovery. However, responses to discovery would not have further elucidated Petitioner's rule-challenge. Petitioner stated eight times in each Petition for Administrative Hearing that Florida Administrative Code Rule 69L-7.501, the DFS rule incorporating the Manual by reference: [S]hould be read to allow recovery of 75% of the usual and customary fee prevailing in the community, and not 75% of whatever fee an individual provider elects to charge. Respondent and Intervenors were fully aware of the absence of statutory and judicial authority to resolve the issue. Petitioner did raise at least one factual issue in each Petition for Administrative Hearing. Petitioner alleged that Respondent's decision letters ordering Petitioner to pay additional reimbursement amounts had no legal effect because Respondent acted before each provider requested and received the carrier's reconsidered reimbursement decision. The absence of a formal hearing in the underlying proceeding foreclosed an evidential basis for a determination of whether each provider in fact requested and received a reconsidered reimbursement decision before the date Respondent ordered Petitioner to pay additional reimbursements. In this fee dispute, Petitioner presented some evidence to support the factual allegation and thereby established the presence of a justiciable issue of fact. It is not necessary for Petitioner to present enough evidence to show that Petitioner would have prevailed on that factual issue in the underlying proceeding. If the letters of determination issued by Respondent were without legal effect, Petitioner would not have waived its objections to further reimbursement within the meaning of Subsection 440.13(7)(b), Florida Statutes (2005). A determination that Petitioner did, or did not, submit the required information is unnecessary in this proceeding. During the formal hearing in this proceeding, Petitioner called an expert employed by a company identified in the record as Qmedtrix. The testimony showed a factual basis for the initial reimbursement paid by Petitioner. It is not necessary for Petitioner to show that this evidence was sufficient to prevail on the merits in the underlying case. The evidence is sufficient to establish justiciable issues of fact in the underlying case. In this proceeding, Petitioner submitted some evidence of justiciable issues of fact in the underlying proceeding. Petitioner need not submit enough evidence in this fee dispute to show Petitioner would have prevailed on these factual issues in the underlying proceeding. Intervenors are not entitled to a presumption that Petitioner participated in this proceeding for an improper purpose in accordance with Subsection 120.595(1)(c), Florida Statutes (2003). Although Petitioner was the non-prevailing party in two previous administrative hearings involving the same legal issue, the two proceedings were not against the same prevailing hospital provider and did not involve the same "project" as required in the relevant statute. Intervenors seek attorney fees in the amount of $36,960 and costs in the amount of $2,335.37 through the date that Petitioner voluntarily dismissed the underlying proceeding. Absent a finding that Petitioner participated in the underlying proceeding for an improper purpose, it is unnecessary to address the amount and reasonableness of the attorney fees and costs sought by Intervenors. If it were determined that Petitioner participated in the underlying proceeding for an improper purpose, the trier of fact cannot make a finding that the proposed attorney fees and costs are reasonable. Such a finding is not supported by competent and substantial evidence. The total attorney fees and costs billed in the underlying proceeding were charged by six or seven attorneys or paralegals employed by the billing law firm. However, the fees and costs at issue in this proceeding exclude any time and costs charged by paralegals and include only a portion of the total fees and costs charged by the attorneys. The total amount of time billed and costs incurred in the underlying proceeding is evidenced in business records identified in the record as Intervenors' Exhibits 20-23. However, those exhibits do not evidence the reasonableness of the fees and costs billed by the attorneys.10 Either the testimony of the billing attorneys or the actual time slips may have been sufficient to support a finding that the attorney fees and costs are reasonable. However, Intervenors pretermitted both means of proof. Intervenors asserted that the time slips contain information protected by the attorney-client privilege. However, Intervenors neither submitted redacted time slips nor offered the actual time slips for in-camera review. Nor did Intervenors allow the attorneys to testify concerning unprivileged matters. The absence of both the testimony of the attorneys and the time slips is fatal. The fact-finder has insufficient evidence to assess the reasonableness of the fees and costs, based on the novelty and difficulty of the questions involved. Intervenors' expert opined that the attorney fees and costs are reasonable. The expert based her opinion, in relevant part, on her review of the actual time slips maintained by each attorney. However, Petitioner was unable to review the time slips before cross-examining the expert. In lieu of the actual time slips, Intervenors submitted a summary of the nature of the time spent by each attorney. The summary is identified in the record as Intervenors' Exhibit 2. Petitioner objected to Intervenors' Exhibit 2, in relevant part, on the ground that it is hearsay. The ALJ reserved ruling on the objection and invited each side to brief the issue in its respective PRO. The paucity of relevant citations in the PROs demonstrates that neither side vigorously embraced the ALJ's invitation. Intervenors' Exhibit 2 is hearsay within the meaning of Subsection 90.801(1)(c), Florida Statutes (2005).11 The author of Intervenors' Exhibit 2 summarized the unsworn statements of attorneys from their time slips and submitted those statements to prove the truth of the assertion that the time billed was reasonable. Intervenors made neither the attorneys nor their time slips available for cross examination.12 Even if the summary were admissible, the summary and the testimony of its author are insufficient to show the attorney fees and costs were reasonable. The insufficiency of the summary emerged during cross-examination of its author. The author is the lone attorney from the billing law firm who testified at the hearing. Q. What other information did you look at to decide what time to actually bill . . .? A. The information I used was the information from the actual bill. Q. If we look at the first entry . . . were you the person that conducted that telephone conference? A. No, I wasn't. Transcript (TR) at 510-511. Q. In other words, [the entries] go with the date as opposed to the event [such as a motion to relinquish]? A. That's correct. Q. So if I wanted to know how much time it took you to actually work on the motion to relinquish, I would have to look at each entry and add up all the hours to find out how long it took you to do one motion. Is that how I would do that? A. It would be difficult to isolate that information from this record, we bill and explain in the narrative what work is performed each day, and unless that was the single thing worked on for several days, there would be no way to isolate the time, because we don't bill sort of by motion or topic. . . . Q. Well, if I'm trying to decide whether the time billed is reasonable, wouldn't I need to know how much time was spent on each task? A. I'm not sure how you would want to approach that. . . . Looking at this document, it does not give you that detail. It doesn't provide that breakout of information. Q. Is there a way for us to know who you spoke with on those entries? A. The entry . . . doesn't specify who participated in the conference. I don't recall what the conference entailed . . . . And many of these entries are from months ago, and I can't specifically recall on that date if I was involved in a conference and who else might have been there. . . . And so my guess is where the conference is listed on a day when lots of activity was performed on behalf of the client, most of it in this case was research. TR at 516-521.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the motion for attorney fees and costs. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 27th day of April, 2006.
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Second Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing filed in each of these cases by LEAF and Suzi Ruhl. RECOMMENDED this 1st day of November, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 1st day of November, 1996. COPIES FURNISHED: David A. Ludder, Esquire Legal Environmental Assistance Foundation, Inc. 1115 North Gadsden Street Tallahassee, Florida 32303 Cynthia K. Christen, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Anthony Cleveland, Esquire Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez and Cole Post Office Box 6507 Tallahassee, Florida 32314-6507 Virginia B. Wetherall, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue What amount of appellate fees and costs in accordance with Phillips v. Department of Business and Professional Regulation, 1st DCA Case No. 97-0356, are to be awarded to Petitioner? Is Petitioner entitled to attorney's fees and costs incurred in the instant proceeding before the Division of Administrative Hearings for the period January 6, 1999, through April 1999, and if so, in what amounts?
Findings Of Fact This is not an appeal of a non-final order wherein the Petitioner must also prevail on the merits in a trial upon remand in order to be entitled to recover appellate attorney's fees and costs. This Petitioner prevailed on the merits at the appellate level, so no remand for retrial on the merits was necessary. The District Court has already determined that Petitioner is entitled to appellate attorney's fees and costs and has delegated to the Division the task of determining the amount thereof. Petitioner's attorney's affidavit and itemization claims $16,221.00 in appellate fees and $1,171.81 in appellate costs. Regardless of Respondent's failure to challenge or refute Petitioner's $16,221.00 itemization and affidavit of appellate fees, the undersigned understands the August 28, 1998, Order of the First District Court of Appeal to only permit the undersigned to determine the amount of the claimed appellate fees as appropriate under the rules and case law. Petitioner's affidavit and itemization of appellate attorney's fees is in order and complies with all necessary rules. All amounts claimed appear reasonable and necessary to the successful appeal, with the exception of those attorney's fees claimed for work performed prior to August 25, 1997. Apparently, work solely directed to the appeal began on that date. Paragraphs 3 and 4 of the affidavit address legal work done prior to August 25, 1997. This legal work involved Petitioner's Motion for Rehearing, Reconsideration, and Dismissal and Alternative Request for Referral for Administrative Proceeding and Alternative Motion for Stay Pending Appeal and an appearance by counsel before the Florida Real Estate Commission. All such legal work predates any time devoted to the Notice of Appeal to the First District Court of Appeal. This legal work, while valuable to the Petitioner, is not appellate in nature and was not performed before the First District Court. Therefore, the attorney's fee charges totaling $3,045.00 for this period of time must be disallowed. The remaining $13,026.00 in claimed appellate attorney's fees should be allowed and is both reasonable and necessary within the parameters established by Rule 4-1.5 of the Rules of Professional Conduct of The Florida Bar and the test established in Florida Patient's Compensation Fund v, Rowe, 472 So. 2d 1145 (Fla. 1985). Regardless of Respondent's failure to challenge or refute Petitioner's $1,171.81 itemization and affidavit of appellate costs, the undersigned understands the August 28, 1998, Order of the First District Court of Appeal to only permit the undersigned to determine the amount of the recoverable appellate costs as appropriate under the limitations of Rule 9.400 Fla.R.App.P. Rule 9.400 Fla.R.App.P. provides, in pertinent part: . . . Taxable costs shall include fees for filing and service of process; charges for preparation of the record; bond premiums; and other costs permitted by law Petitioner has cited no statutes specifically authorizing the itemized costs. Applying the foregoing rule to Petitioner's itemization and affidavit of appellate costs, I find that the only cost claims that are recoverable appellate costs are: 09/04/97 Stenographer/Court Reporter August Mtg. of FREC $ 77.00 09/30/97 Filing Fee $250.00 11/01/97 Printing (presumably of appellant's initial brief) $ 11.25 03/04/97 Printing (presumably of appellant's reply brief) $ 73.00 $411.25 Petitioner has also asserted a claim of $1,950.00 in attorney's fees and $69.12 in costs accrued between January 6, 1999, and April 1999, before the Division in this instant proceeding to determine the amount of appellate fees and costs. Respondent has been on notice that such a claim for this proceeding before the Division has been pending since the January 6, 1999, Motion. That Motion stated that Petitioner "continues to compensate his attorneys at the rate of $150.00 per hour, plus costs, for efforts in attempting to establish the amount of attorney's fees and costs recoverable by him and seeking recovery thereof from DBPR." I infer therefrom that the benefits of this "collection" proceeding ultimately inures to Petitioner. Petitioner only filed his attorney's affidavit and itemization of amounts claimed on May 11, 1999, when they were included with Petitioner's Response to Respondent's Reply to the April 21, 1999, Order herein, together with notice to the Department of Insurance of the claim for fees and costs for this "collection" proceeding. Respondent has not filed any objection or challenge to the affidavit and itemization for legal work and costs before the Division. The Department of Insurance has never attempted to intervene herein. Upon consideration of the pleadings, affidavit, itemization and record, I find that the amounts claimed for this "collection" proceeding before the Division are reasonable and, apparently, unopposed, even by the Department of Insurance, which has had 30 days in which to intervene but which has not done so. Petitioner is entitled to $1,950.00 in attorney's fees and $69.12 in costs for this proceeding to collect appellate attorney's fees and costs.
Findings Of Fact On August 17, 1989, the Executive Board acting for the Local Elected Officials of the Heartland Employment and Training Consortium, voted to terminate Clifton Thomas, Jr., from his position as Executive Director of the Heartland Private Industry Council. At the time of his termination from employment, Mr. Thomas was being paid the sum of $47,528 per annum. Mr. Thomas' salary was established on an annual basis by the Executive Board. On or about December 1, 1989, Mr. Thomas, acting through his attorney, Mr. Robert McKee, notified E. John Dinkel, III, acting as counsel for the Executive Board, that he intended to file a law suit against the Heartland Employment and Training Consortium and its Executive Board. The complaint to be filed in the United States District Court, Middle District of Florida, Tampa, Division, demanded equitable relief and damages and alleged that Mr. Thomas was fired without justification and "was not accorded due process." Mr. Dinkel, acting as counsel for the Executive Board, was able to obtain agreement from Mr. McKee, acting as counsel for Mr. Thomas, that the complaint would be dropped upon payment of $24,096 to Mr. Thomas. At a regularly scheduled meeting of the Heartland Private Industry Council held on December 14, 1989, the Council voted to concur in a payment of $24,096 to Mr. Thomas to avoid the cost of litigation. It was understood and agreed that a statement would be signed by Mr. Thomas denying any liability or wrongdoing by any of the parties to the action. At a specially convened meeting of the Executive Board of the Heartland Consortium held on December 15, 1989, the Board unanimously agreed to the settlement. On December 21, 1989, a check in the amount of $21,598.40 was issued to Mr. Thomas. This amount represented the agreed upon amount minus a levy from the Internal Revenue Service. The check (#010471) was charged to the pooled administrative funds from allocations through State of JTPA formula monies. In consideration of the above payment, Mr. Thomas gave up his threatened law suit and signed a statement, dated December 22, 1989, denying any wrongdoing on the part of the Executive Board, the Heartland Private Industry Council and any officers or employees of the Board or Council. In the annual audit of the Heartland Private Industry Council conducted by Grant Thornton, Accountants and Management Consultants, the use of JTPA monies to pay the former Executive Director was questioned. The auditor stated: "The use of JTPA funds in settlement of legal claims was determined by Florida Department of Labor and Employment Security to be an unallowable cost under State and Federal law as indicated in a letter to the Council's attorney dated November 6, 1989, therefore this is a questioned cost." On September 30, 1991, the Heartland Private Industry Council received notification from Patricia S. Gilbert, Director, DLET that the costs questioned by the auditor were disallowed. No reason other than that cited by the auditor was given. On October 24, 1991, Heartland Private Industry Council, Inc., notified the Department of Labor of their intent to appeal the disallowed cost. On November 1, 1991, Jack E. Lyons, Executive Director of the Heartland Private Industry Council, wrote a letter to Secretary Scruggs, questioning the applicability of the statutes, both State and Federal, that were cited by the auditor in the statement of questioned costs. At a regularly scheduled meeting of the Heartland Private Industry Council held on April 17, 1992, the Council denied any misapplication of Federal JTPA dollars and voted to not permit the Executive Director to settle the disallowed costs by payment from non-JTPA dollars. The attached documentation styled Index of Exhibits, containing fourteen (14) exhibits is incorporated by reference into the proposed Statement of Facts.
Recommendation It is recommended that a Final Order be entered finding the payment to Clifton Thomas, Jr., of $24,096 in settlement of his law suit against the Heartland Private Industry Council Inc. to be a nonallowable cost and improperly charged to federally provided funds. RECOMMENDED this 29th day of July, 1992, in Tallahassee, Florida. K. N. AYERS 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 29th day of July, 1992. COPIES FURNISHED: Larry R. Jackson, Esquire 300 Parkview Place Lakeland, FL 33805 Carolyn Cummings, Esquire Hartman Building, Suite 307-2102 Capitol Circle SE Tallahassee, FL 32399 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152
