07-003547 Community Health Charities Of Florida; The American Liver Foundation; Cystic Fibrosis Foundation; Crohn`s And Colitis Foundation; Prevent Blindness Florida; Children`s Tumor Foundation; March Of Dimes; Lupus Foundation Of America, Florida Et Al. vs. Department Of Management Services Status: Closed Recommended Order on Wednesday, August 5, 2009.

Summary: The remanded Recommended Order makes additional court required findings of fact, finding that certain (most) of the 21 Petitioners provided "direct" charitable services in United Way Fiscal Agent Areas and could claim disputed funds.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMMUNITY HEALTH CHARITIES OF )

)

)

Petitioners, )

)

vs. ) Case No. 07-3547

)

DEPARTMENT OF MANAGEMENT SERVICES, )

)

)

Respondent. )

)

RECOMMENDED ORDER ON REMAND

This proceeding came on before P. Michael Ruff, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings, pursuant to an opinion of the First

District Court of Appeal, reversing and remanding the Final

Order of the Respondent agency. That Final Order had adopted a

Recommended Order entered by Administrative Law Judge Charles

Adams on February 29, 2008. The Court's opinion reversed the

Final Order because the Recommended Order did not contain

findings of facts of record to support the findings made therein

that all but three of the Petitioner charities had not provided

"direct services" and therefore were not eligible for

"undesignated funds" from the Florida State Employees Charitable

Campaign (FSECC). Community Health Charities of Florida v.

Department of Management Services , 7 So. 3d 570 (Fla 1st

DCA 2009). Upon remand, the matter was assigned to

Administrative Law Judge P. Michael Ruff, due to Judge Adams'

intervening retirement. A status conference was held and the

parties agreed that no hearing was necessary, and that the

further proceedings directed by the Court's mandate could be

conducted based upon the extant administrative and judicial

record. The parties requested and were authorized to file

Proposed Recommended Orders addressing the scope of the Court's

opinion, the record evidence to be considered, and proposing

findings of fact and Conclusions of Law. The appearances were

as follows:

APPEARANCES

For Petitioner: David Andrew Byrne, Esquire

Phillips Nizer LLP

666 5th Avenue

New York, New York 10103-0001

David C. Hawkins, Esquire

David C. Hawkins, PLLC

3141 Brockton Way

Tallahassee, Florida 32308

For Respondent: Matthew F. Minno, Esquire

Deputy General Counsel

Department of Management Services

Division of Retirement

4050 Esplanade Way

Tallahassee, Florida 32399

Gerard T. York, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The issue to be resolved in this remand proceeding concerns

whether the Petitioner charities provided "direct services"

within the meaning of Section 110.181, Florida Statutes, (2007),

and Florida Administrative Code Rule 60L-39.0015(1)(i).

PRELIMINARY STATEMENT

This cause arose upon the filing of an amended petition for

formal administrative hearing (Third Amended Petition) by

Community Health Charities of Florida (CHC) and its member

charities (Petitioners). The Petitioners sought to contest a

decision by the Respondent, Department of Management Services

(DMS) and its Statewide Steering Committee (Committee), assigned

by statute and rule to make allocations of "undesignated funds"

remaining to be apportioned to participating charities, after

the FSECC charitable State employees campaign. By statute the

undesignated funds were to be apportioned and allocated to

charities who established that they provided "direct services"

in "fiscal agent areas." The Respondent and its Committee had

determined initially that 21 of the charities who were

Petitioners did not provide "direct services." The Petitioners

contested that initial decision and the dispute was assigned to

Administrative Law Judge Charles C. Adams, who held a de novo

hearing on November 13 and 14, 2007. Judge Adams issued a

Recommended Order on February 29, 2008, determining that three

of the Petitioners had provided "direct services" and that the

remaining Petitioner charities had not provided such services

and, therefore, were not entitled to a grant of their claims for

undesignated funds. That Recommended Order was adopted by Final

Order of the Respondent, which was then appealed to the First

District Court of Appeal.

The above-referenced opinion was then issued on March 4,

2009, wherein the District Court reversed the Final Order, in

part, because the Recommended Order had not identified record

support and "facts of record" supportive of the findings that

certain appellants, (Petitioners below) had not provided "direct

services." The Court remanded the case for further proceeding,

consistent with its opinion, in essence directing that

additional explanatory Findings of Fact be made concerning the

findings that certain appellants did not provide "direct

services" and were thus barred from receiving undesignated funds

in the 2006 FSECC campaign. The Court found that the Judge's

Recommended Order was devoid of factual findings regarding his

denial of "several" of the appellants' applications for

designated funds. The Court found that the Administrative Law

Judge (ALJ) had not set forth his basis for finding that

"certain" appellants did not provide "direct services" in a

local fiscal agent's area. The Court thus determined that the

requirements of Section 120.569 (2)(m), Florida Statutes (2008),

had not been met in the Recommended Order and, by its adoption,

the Final Order of the DMS. The Court affirmed in part and

reversed in part, and remanded the matter for further

proceedings consistent with that opinion.

Upon remand, and entry of the mandate, the case was

re-assigned to the undersigned Administrative Law Judge, who

conducted a telephonic status conference whereby the parties

agreed that the case should proceed on the original record,

without the need for taking additional evidence. An order was

issued on April 28, 2009, instructing the parties (as they had

agreed) to address in their respective Proposed Recommended

Orders the scope of the District Court's opinion and the scope

of the evidence to be considered. The parties were directed to

file their Proposed Recommended Orders on or before May 18,

2009, which they accomplished.

The Court's Opinion

The holding of the District Court of Appeal, as well as its

directions on remand, appears at pages 571 through 572 of the

opinion as follows:

At the close of the 2006 Campaign, the

appellants each applied for undesignated

funds pursuant to section 110.181(2)(e).

The Department determined that several of

the appellants did not qualify for receipt

of undesignated funds. As a result of these

denials, the appellants sought a formal

administrative hearing. In their third-

amended petition, the appellants asserted

their entitlement to receive undesignated

funds, alleging, in pertinent part, that the

Department had made improper factual

determinations when deciding that the

appellants were not entitled to such funds.

After the evidentiary hearing, conducted

pursuant to sections 120.57(1) and 120.569,

Florida Statutes (2007), the ALJ entered a

recommended order finding that several of

the appellants were properly denied

undesignated funds. In support of these

findings, the ALJ noted that he accepted the

appellants' exhibits twenty-one through

thirty-eight, which provided explanations

regarding the unapproved appellants and

"expand[ed] what is known about the

charities, their services, the manner that

the services were provided, who receives the

services and where the services are

received." The ALJ stated, "Without

recounting the details from the various

sources previously described, all that

information is accepted for purposes of this

Recommended Order, as to the facts

represented in the exhibits." The ALJ

found, "Based upon information provided in

the aforementioned exhibits, the Association

for Retarded Citizens/Florida, CHC, Florida

Hospices and Palliative Care and the

National Alliance for the Mentally Ill of

Florida do not provide direct services in

fiscal agent areas without intervention

between the services offered and persons

served in any location." The ALJ did not

provide further explanation or factual

support for these findings.

The appellants filed several exceptions

to the ALJ's recommended order. The

appellants argued that the ALJ erred in

failing to cite to facts in the record to

support his findings that certain appellants

did not provide direct services and were

thus barred from receiving undesignated

funds through the 2006 Campaign. The

Department entered a final order approving

the ALJ's recommended order and denying all

of the appellants' exceptions. The

Department identified record evidence that

supported the ALJ's findings that certain

appellants did not qualify for undesignated

funds.

Section 120.569 Florida Statutes

(2007), governs administrative decisions

affecting substantial interests. Section

120.569(2)(m), provides, "Findings of fact,

if set forth in a manner which is no more

than mere tracking of the statutory

language, must be accompanied by a concise

and explicit statement of the underlying

facts of record which support the findings."

Additionally, we explained in Memorial

Healthcare Group, Inc. v. State, Agency for

Health Care Administration , 879 So. 2d 72,74

(Fla. 1st DCA 2004), that "ALJ's are

required to make specific factual findings

on substantial issues."

In the instant case, the ALJ's

recommended order is devoid of factual

findings regarding his denial of several of

the appellants' applications for

undesignated funds. The ALJ failed to set

forth his basis for finding that certain

appellants did not provide direct services

in a local fiscal agent area. The ALJ, as

the finder of fact, was required to identify

record evidence in support of his denial of

the appellants' claims to undesignated

funds. The Department's citation to record

evidence that supports the ALJ's findings in

the final order does not cure the ALJ's

failure to adhere to the requirements of

section 120.569(2)(m). Accordingly, we

AFFIRM in part, REVERSE in part, and REMAND

for further proceedings consistant with this

opinion.

The Court thus held that "[t]he ALJ, as the finder of fact,

was required to identify record evidence in support of his

denial of the appellants' claims to undesignated funds."

Community Health Charities , 7 So. 3d at 572. Thus, the opinion

requires the ALJ on remand to review the record de novo and

issue a recommended order citing facts of record which would

support any findings concerning whether any Petitioners provided

"direct services."

The ALJ's findings under challenge, which state that the

Petitioners did not provide "direct services," appear in two

paragraphs of the Recommended Order:

29. Based upon information provided in the

afore-mentioned exhibits, the Association

for Retarded Citizens/Florida, CHC, Florida

Hospices and Palliative Care and the

National Alliance for the Mentally Ill of

Florida do not provide direct services

in fiscal agent areas without intervention

between the services offered and persons

served in any location.

33. Of the unapproved requests for first

tier undesignated funds made by remaining

Petitioners' in other specific United Way

fiscal agent areas, the facts do not support

those requests.

The Court concluded that these findings were deficient for

two reasons. First, Section 120.569(2)(m), Florida Statutes

(2008), provides that findings which merely track a statutory

text must include "a concise and explicit statement of the

underlying facts." Paragraph 29 re-states the definition of

"direct services" adopted by Florida Administrative Code Rule

60L-39.0015(1)(i), without mentioning the explanatory underlying

facts which might show why the named charities mentioned in that

paragraph were deemed to have not provided services in the

relevant fiscal agent areas which met the definition of "direct

services".

Paragraph 33 in turn, provides, as to the remaining unnamed

Petitioners' (appellants) funds requests, that "the facts do not

support those requests." It is therein necessarily implied that

the facts do not show that those remaining unnamed Petitioners

provided "direct services in fiscal agent areas without

intervention between the services offered and persons served in

any location" (the Rule definition). Paragraph 33, however,

contains no mention of underlying, explanatory facts which would

support the ALJ's ultimate finding. The District Court

therefore reversed the Final Order because the findings, adopted

from the Recommended Order, violate Section 120.569(2)(m),

Florida Statutes (2008).

Second, the Court cites as additional authority, Memorial

Health Care Group, Inc. v. State Agency for Healthcare

Administration , 879 So. 2d 72, 74 (Fla. 1st DCA 1994), which

holds that ALJ's must "make specific factual findings on

substantial issues." The Memorial opinion then references Mayes

v. Department of Children and Family Services , 801 So. 2d 980

(Fla. 1st DCA 2001), where the Court determined that "It is

necessary that the ALJ make specific factual findings, based on

record evidence, indicating how appellant's use of harness

violated the statutes or rules or otherwise justified the denial

of appellant's application." The Mayes holding instructs the

fact finder to make specific findings of fact that justify the

denial of the applications for undesignated funds. The Court's

opinion, and the decisional authority it cited, clearly

illustrate that both paragraphs 29 and 33 of the Recommended

Order were deficient in terms of the absence of any explanatory

findings of fact.

Moreover, the ALJ made a general description of the

evidence he felt was necessary to decide entitlement as to all

21 Petitioners/appellants in paragraphs 26 and 27 of the

Recommended Order:

26. Concerning the remaining request to

receive first tier undesignated funds by

those 21 Petitioners, information necessary

to decide entitlement is found within the

2006 Campaign Direct Local Services

Certification Form with Guidelines

(Petitioner's Exhibit numbered 12A); the

explanations found within Exhibit 2 to the

Amended Petition for Formal Administrative

Hearing, which became Petitioner's Exhibit

numbered 12B and a series of exhibits

admitted at hearing, Petitioner's Exhibits

numbered 21 through 38. Those latter

exhibits provide explanations pertaining to

the 21 disappointed Petitioners, expanding

what is known about the charities, their

services, the manner that the services are

provided, who receives the services and

where the services are received, together

with the address(es) of the respective

organizations.

27. In addition, the depositions of Paul

Andrew Ledford of Florida Hospice and

Palliative Care (Joint Exhibit No. 2);

Susanne Homant, National Association of

Mentally Ill in Florida (Joint Exhibit No.

3); Deborah Linton, Association for Retarded

Citizens of Florida, Inc. (Joint Exhibit No.

4); Suzanne Earle, Children's Tumor

Foundation (Joint Exhibit No. 5); Pamela

Byrne, Leukemia and Lymphoma Society (Joint

Exhibit No. 6) and Tracy Tucker, Cystic

Fibrosis Foundation (Joint Exhibit No. 7)

afford additional insight on the subject of

who is served, where they are served etc.,

pertaining to the subject.

Then, in paragraph 28, the ALJ, in referencing those evidentiary

items stated:

28. Without recounting the details from the

various sources previously described, all

that information is accepted for purposes of

this Recommended Order, as to the facts

represented in the exhibits.

Explanatory findings of fact, however, are not supplied by such

a general statement of evidentiary reference. It is clear,

however, that in findings numbered 26 through 33, in the

Recommended Order, the Administrative Law Judge was addressing

the entitlement of all 21 previously disappointed Petitioners.

The Respondent contends that the Court's opinion is limited

in its scope to the ALJ's findings as to the three named

Petitioners specifically identified in paragraph 29 and that

consideration upon remand does not include addressing the denial

of entitlement of the remaining Petitioners, which were not

specifically named in the Recommended Order findings at issue,

but were denied entitlement in Paragraph 33. The Respondent

grounds its argument on the Court's characterization of the

appellants' grievance as pertaining to "some of the appellants,"

"several appellants" or that the ALJ's error was limited to

"certain appellants." Community Health Charities , at 7 So. 3d

571, 572.

A plain reading of the opinion does not reasonably support

an inference that the adjectives "some", "several" or "certain"

mean only named appellants or those identified in paragraph 29.

The opinion does not distinguish appellants named and unnamed in

the Recommended Order's Findings. The Respondent's argument

does not appear to account for the conclusion in the Court's

opinion that the ALJ was required to identify record evidence,

"in support of his denial of the appellants' claims to

undesignated funds" (ie. Simply "appellants'"[plural]). That

conclusion reasonably could apply to all denied appellants and

is deemed to apply equally to Paragraphs 29 and 33, for each are

"devoid of factual findings" and violate the essential holding

of the opinion. Community Health Charities , at 572.

The Respondent's interpretation, in effect, misapplies the

authority cited in the opinion. Neither Section 120.569(2)(m),

Florida Statutes (2008), nor the Memorial Health Care holding,

by their terms, apply only when the finding pertains to an

identified applicant in a recommended order. The opinion would

defy rational analysis if the Court were deemed to treat

differently the appellant charities that were named and the

appellant charities that were unnamed. Such would produce the

absurd result that, as to the named appellants referenced in

paragraph 29, reversal for additional explanatory fact-finding

would be made, while as to the appellants referenced without

name, in paragraph 33 of the Recommended Order, a paragraph

characterized by the same lack of specific, explanatory findings

of fact as paragraph 29, the denial of entitlement to the funds

would be left undisturbed. Indeed, a plain, sensible reading of

the opinion and related record is that the findings as to all

appellant charities who were found not to have provided "direct

services" are reversed for the additional fact-finding

referenced in the opinion.

In consideration of all the record evidence, including, but

not limited to, that referenced in paragraphs 26 through 33 of

the Recommended Order, the following facts are found.

FINDINGS OF FACT

1. Section 110.181(1)(a), Florida Statutes (2006),

provides that the FSECC is the only authorized charitable fund-

raising campaign directed towards State employees within work

areas, during work hours, and for which the State will provide

payroll deduction. State employees are given the opportunity

annually to make pledges to the campaign, which includes the

opportunity to direct their donation to particular charities.

Each employee receives a booklet listing those charities that

are qualified to participate in the campaign. The employee can

designate a pledge amount to one or more particular charities on

the list, or simply pledge an amount of funds as "undesignated

funds" that are distributed to charities according to a

statutory formula.

2. Section 110.181, Florida Statutes (2006), governed

the 2006 FSECC and provides that "[P]articipating charitable

organizations that provide direct services in a local fiscal

agent's area shall receive the same percentage of

undesignated funds as the percentage of designated funds they

receive. . . "Section 110.181(2)(e), Florida Statutes, That

statute does not define the term "direct services."

3. The Respondent agency adopted Florida Administrative

Code Rule 60L-39.0015(1)(i) defining the phrase "direct

services" to mean "[i]dentifiable and specific services

available to the local fiscal agent's area without any

intervention between the services offered and persons served."

4. The Petitioners are 21 charities that were approved by

the Steering Committee to participate in the 2006 campaign. The

Petitioner CHC is a "Federation" or "umbrella" agency within the

meaning of Florida Administrative Code Rule 60L-39.0015(1)(j),

and represented its other member charities, including the 21

Petitioners, in the 2006 campaign. CHC did not apply for

undesignated funds in its own right, however, and there is no

question at issue of its entitlement to any such funds.

5. The 2006 campaign ended in December 2006 when CHC, on

behalf of its member charities, submitted the "Direct Local

Services Certification Form" (Form). That Form instructs the

Federation to provide for a "[d]escription of the type of direct

services delivered." See Petitioners' Exhibit 2 in evidence.

6. The Committee met in February 2007 to consider the

Petitioners' submittals. It limited its consideration to the

form and the report attached to the amended petition. Those are

in evidence as Petitioners' Exhibits 12A and 12B. The

Petitioners were not permitted to comment or provide

supplemental information to the committee.

7. On March 8, 2007, the Committee approved "All

charitable organizations that were . . . deemed, based on the

information submitted, to be providing direct local services in

at least one United Way fiscal agent area." The Committee thus

approved 18.64 percent of the Petitioners' individual

submissions or funding requests. The Committee did not offer

reasons for denying undesignated funds to the remaining

charities.

8. In September 2007 the Committee elected to reconsider

the Petitioners' submittals and reconvened to consider the

Petitioners' Form "for compliance with the eligibility criteria

for receipt of undesignated funds based upon the provision of

direct services." After its reconsideration, the Committee

ultimately approved 76.93 percent of the Petitioners' individual

fund request submissions.

9. The Committee determined that 21 Petitioners did not

provide "direct services" in one or more United Way fiscal agent

areas. Those Petitioners are as follows: The Association for

Retarded Citizens of Florida; The Alzheimer's Association;

American Diabetes Association; American Liver Foundation;

American Lung Association; Arthritis Foundation; Children's

Tumor Foundation; Crohn's and Colitis Foundation; Cystic

Fibrosis Foundation; Easter Seals of Florida; Hemophilia

Foundation of Greater Florida; Huntington's Disease Society of

America; Florida Hospices and Palliative Care; Leukemia and

Lymphoma Society; Lupus Foundation of America; March of Dimes,

National Alliance of the Mentally Ill (NAMI Florida); National

Kidney Foundation; National Parkinson Foundation; Prevent

Blindness Florida; and Sickle Cell Disease Association.

10. Upon remand, the undersigned has considered the

exhibits admitted into evidence on behalf of the Petitioners and

Respondent, as well as the joint exhibits, including

depositions. The undersigned has also considered all of the

hearing testimony and the deposition testimony admitted into

evidence. The previous ALJ in this proceeding noted that

information necessary to decide entitlement for the 21

Petitioners who were denied undesignated funds by the Committee

and Agency prior to this de novo proceeding, is found within

Petitioners' Exhibits 12A and 12B, as well as Petitioners'

Exhibits 21 through 38. Also germane to the determination of

entitlement are the depositions entered into evidence as Joint

Exhibits 2 through 7. In consideration of these portions of the

evidential record, as well as the above-referenced testimony,

particularly the testimony of witness Gwen Cooper, the ensuing

findings of fact are made.

11. Gwen Cooper is the president and CEO of CHC. In that

capacity she is required to be very familiar with services by

each charity which is a member of CHC (the Petitioners) and one

of her principal duties involves her being required, and being

competent, to speak on the behalf of those member charities.

She has first-hand knowledge of services provided by those

charities due to her personal involvement, research, and

extensive interaction with the staff of each charity. She

completes applications and service reports on behalf of those

charities for State and federal campaigns. Although Ms. Cooper

is an officer of CHC, which was at least a nominal party to this

proceeding (although it sought no undesignated funds) and is the

administrator organization for the member charities, it is

determined that Ms. Cooper testified competently and credibly

concerning her impressions and knowledge regarding the services

provided by member charities in Florida, directly, without

intervention, to the people who might request the services.

12. The Association for Retarded Citizens of Florida (ARC

of Florida) serves as the advocacy arm for all local ARC

organizations. It advocates for disabled persons who do not

receive services needed through the Medicaid Waiver Program. It

conducts business and advocacy efforts with legislators, local

governments, in order to advocate for change, and for additional

such services. Witness Debra Linton described in her

deposition, in evidence, that advocacy at all levels of

government by ARC of Florida is more than an incidental function

of that organization. Local services are provided in large part

by ARC of Florida's local affiliates which are separate

entities. Local services to help the developmentally disabled

really are provided by those local organizations. ARC of

Florida is more of an information and referral service for

assistance and does some training for persons who provide the

services for the developmentally disabled on the local level.

On balance, it is determined that ARC of Florida is more of an

advocacy organization, rather than one which provides services

directly, without intervention, to the people who actually

request or need the service. Thus, because of the definition of

direct services embodied in the referenced rule, ARC of Florida

would not be entitled to a portion of the undesignated funds at

issue.

13. The Florida Hospices and Palliative Care Association

serves mostly as an advocate for patients and families with

questions or issues regarding end-of-life care. It maintains a

toll-free "hotline" for referral purposes and to address

end-of-life issues for patients and their families. It conducts

advocacy before State government on behalf of individuals and

systems regarding end-of-life care, and is the advocacy arm for

local, non-profit Hospice organizations. It is mostly engaged

in education efforts and advocacy for Hospice patients and

families on a statewide level, in terms of public education

efforts and governmental advocacy. The more direct service for

patients and families in the provision of end-of-life care,

bereavement counseling, and grief support is provided by local

Hospice organizations that are entities under the umbrella of

the Petitioner Florida Hospices and Palliative Care Association.

It is thus determined that the "direct services" for Hospice

patients, individuals and families are accomplished in great

degree by local Hospice organizations rather than by the

applicant Florida Hospices and Palliative Care Association.

Since the preponderant evidence does not show that Florida

Hospices and Palliative Care engages in direct services to

patients in the fiscal agent areas who receive or request the

services, then that organization is not entitled to a portion of

undesignated funds.

14. The National Alliance for Mental Illness (NAMI) is

essentially a statewide source or clearinghouse for mental

health related training programs. The organization trains

representatives of local affiliate organizations, teaching them

how to teach mental health-related programs at the local level.

These teachers then return to their local communities and teach

parents and other relatives of mentally ill persons concerning

various aspects of coping with mental illness. The organization

maintains a toll-free line for people who are dealing with

crisis situations and uses that to refer such persons to their

local affiliates in the geographical area where the caller is

located. The organization also engages in statewide educational

efforts and advocacy concerning people with mental illness,

including legislative advocacy. It engages in efforts in

conjunction with pharmaceutical companies to obtain psychotropic

drugs for patients with such a need, and it does some training

of Law Enforcement personnel concerning interaction with

mentally ill persons. On balance NAMI is more of a parent or

umbrella organization and does not engage, in a significant way,

in direct provision of services to mentally ill persons or their

supportive families. It clearly provides an important public

service, but is more of an advocacy organization than a provider

of direct services in a local context. This quality is shown by

the fact that it trains personnel from local affiliate

organizations, but those persons go back and teach their skills

to others at the local level, with the local affiliate

organizations where the services are actually provided.

Moreover, with regard to the toll-free line maintained for

persons dealing with mental health related crises, Susan Homat

showed that, in the use of that facility, the persons calling

who need services are referred by NAMI to local affiliate

organizations where the actual provision of services occurs.

Consequently, on balance, and considering the various exhibits

and the testimony of Ms. Homat and Ms. Cooper together, it

cannot be determined that NAMI is actually providing a "direct

service" as defined above, and thus it is not entitled to

allocation of undesignated funds.

15. The Alzheimer's Association provides support groups,

caregiver training and respite care in the fiscal agent areas

applied for. They provide training for Law Enforcement officers

which helps them to recognize Alzheimer's patients when they

observe a person "wandering." They are therefore better able to

distinguish whether such a person might be an Alzheimer's

patient, as opposed to a person with an unrelated mental

problem, or simply a person who might be drunk or under the

influence of drugs. The Association conducts research within

Florida, conducts caregiver training for caregivers of

Alzheimer's patients, and provides respite care. It provides

support groups for patients and their families and caregivers.

The Alzheimer's Association had been denied by the Respondent's

Committee in the fiscal agent areas for the Big Bend, Brevard

County, Escambia County, Lake County, Marion County, Miami,

Northwest area, Okaloosa/Walton, Okeechobee County area,

St. Lucie County area, Santa Rosa County area and Suwannee

Valley. The preponderant evidence of record, however,

establishes that all the referenced services, including many

provided in those localities on the local level are provided in

all those fiscal agent areas and that actual people were served

in all those fiscal agent areas. Consequently, the preponderant

evidence establishes that The Alzheimer's Association provides

"direct services" as defined above, in all fiscal agent areas

applied for. Thus, they should receive a corresponding

allocation of the undesignated funds, for the period represented

by the 2006 Campaign.

16. The American Diabetes Association provides an

extensive interactive educational website. It provides

information and referral services to trained staff and

volunteers via a toll-free telephone number. The Association

offers support groups, diabetes education programs for patients

and caregivers, and family members, and drug purchasing

assistance. It conducts an annual public Diabetes Awareness

Program. It maintains six or seven offices in regions around

the state that offer support groups, diabetes educational

programs and drug assistance. Services are available in the

local offices as well as at local hospitals, doctor's offices

and adult congregate living facilities (ALFs). The offices

maintained by the Association cover regions made up of many

different counties. In order to deliver its services, the use

of the toll-free telephone line, website and the regional

offices results in no need for an actual office to be maintained

in each county or even in each fiscal agent area in order to

deliver direct services in all fiscal agent areas.

17. The Association was principally denied in 22 of the 27

fiscal agent areas because the Association had not, in the view

of the Committee, (and possibly the ALJ) clearly identified the

persons or the number of people or the population served. The

requirement on the information form, which the charities had to

submit to the Committee, requested the number of people served

or population. The evidence shows that it would be impractical

or impossible to provide the information on the population

served or available to be served, however, because approximately

nine percent of the entire population of the State is diabetic

or will become diabetic. In fact, however, the preponderant

evidence shows, especially through Ms. Cooper's testimony, that,

in addition to being approved in five fiscal agent areas, that

the American Diabetes Association actually provides direct

services as defined above in the remainder of the fiscal agent

areas applied for. Consequently, it should be accordingly

approved for allocation and receipt of undesignated funds.

18. The American Liver Foundation provides education and

outreach. It provides different brochures concerning various

types of liver problems which interested persons can access

either by mail or electronic media. It also conducts liver

disease "screening days" at local hospitals, where members of

the public can be screened for potential liver problems. The

American Liver Foundation was approved for providing direct

service in the Tampa Bay area; it was denied in the Big Bend

area. There was no preponderant persuasive evidence that showed

what services or what degree of direct services were provided in

the Big Bend fiscal agent area. There was no persuasive

testimony or documentary evidence to indicate that direct

services in the form of education efforts, liver screening,

including Hepatitis Awareness Day, was actually provided in the

Big Bend area. Consequently, it has not been established that

the American Liver Foundation should be allocated additional

undesignated funds for the Big Bend fiscal agent area.

19. The American Lung Association of Florida is a well-

known charitable agency. It is intensively involved in smoking

cessation programs, asthma programs, tobacco education programs,

etc. The Lung Association was denied by the Respondent for the

Tampa Bay or Gulf Coast area. The evidence shows, particularly

Ms. Cooper's testimony, and Petitioner's Exhibit 23, that The

American Lung Association performs the same direct charitable

service in the Tampa or Gulf Coast area that it does in the

remaining fiscal agent areas in Florida, in which they were

approved without dispute. The referenced evidence shows that

the Association properly documented the services provided and

even the number of people served in the Tampa Bay/Gulf Coast

area, as well as the undisputed other fiscal agent areas of the

State.

20. In summary, in all the fiscal agent areas, except the

Tampa Bay area, there is no dispute that the American Lung

Association provides direct services to clients/patients or

other interested persons. The preponderant persuasive evidence

shows that the Association provides the same direct services in

the Tampa Bay area as well. The Association operates a

statewide camp for children with severe asthma and serves as a

referral agency to connect lung patients state-wide with

specialists. It operates a toll-free call center which is

staffed by medical professionals. It thus should be approved

for allocation of undesignated funds as to all areas for which

it applied.

21. The Arthritis Foundation was approved for all fiscal

agent areas in Florida, except for Santa Rosa County. It is

thus undisputed that it provides direct services in accord with

the above-referenced definition. The Foundation offers water

exercise and land exercise classes for arthritis sufferers and

it offers various support groups. The preponderant persuasive

evidence shows, based upon the testimony of Gwen Cooper, that

the same services are offered for Santa Rosa County as elsewhere

in Florida. Therefore, there is preponderant evidence to show

that the Foundation should be approved for the Santa Rosa fiscal

area. It provides such direct services for that area. It thus

should be allocated undesignated funds for the Santa Rosa fiscal

agent area as well.

22. The Children's Tumor Foundation is concerned with a

devastating, very painful disease known as Neurofibromatosis.

The Foundation maintains a 24-hour help-line for parents to call

local support people in various areas of the state when they are

having a crisis with a child who has the disease. In

conjunction with The Children's Hospital in St. Petersburg, it

has inaugurated a statewide website providing information to

members of the public, parents, and others who have a need for

knowledge concerning this disease and reference to treatment

therapies and options. The Foundation publishes pamphlets,

brochures and a quarterly newsletter which has approximately

2,800 subscribers, including the four Neurofibromatosis clinics

operated at the University of Florida Health Science Center in

Gainesville, the University of South Florida Genetics Program in

Tampa, The Miami Children's Hospital in Miami, and the Nemour's

Children's Hospital in Jacksonville, as well as the Nemour's

Children's Clinics in Orlando. The Foundation also has funded

four research grants, two at the University of Florida in the

Department of Pediatrics and Neuroscience and in the area of

molecular genetics and mutation studies, another grant at the

University of Central Florida and one at the University of

Miami. The Foundation additionally conducts at least three

medical symposiums per year concerning the disease and directly

provides information and resources to members of the public, to

children and adults affected by Neurofibromatosis and to medical

professionals. The Foundation provided direct service without

an intermediary in the fiscal agent areas applied-for and the

preponderant, persuasive evidence demonstrates that its

application for undesignated funds in those fiscal agent areas

should be approved.

23. The Crohn's and Colitis Foundation provide public

information to persons suffering with these diseases or their

family members or those interested in facts concerning these

diseases. The Foundation provides support groups with medical

speakers, nutritionists and drug company representatives as

speakers or teachers. Thus information is promulgated

concerning new drugs that are available or show promise in

treating these diseases, and speakers otherwise provide

attendees with information concerning the diseases and related

subjects. This includes nutrition information which might help

alleviate the debilitating nature of these diseases. This

service, through support groups, is directly provided by the

Foundation without any intermediary in the various fiscal agent

areas. The Foundation was initially approved as providing

direct services in seven fiscal agent areas for which it

applied. It did not apply for approval in all 27 fiscal agent

areas. It was initially denied by the Respondent in Lee County,

the Northeast Florida area, and the Northwest Florida area only.

The preponderant, persuasive evidence shows however that the

same service is provided in those areas where its application

was denied as where it was approved. Consequently, preponderant

evidence has established that the Foundation provides direct

services in the fiscal agent areas for which it applied and it

should be approved for allocation of undesignated funds

accordingly.

24. Easter Seals of Florida Inc. operates through offices

around the state and also through home-based care programs. It

provides early intervention and childcare center-based child

development programs. This includes after school care for

children with or without disabilities and special needs, from

birth to five years of age, in a pre-school educational setting.

The programs are designed by a treatment team based on a child's

individual needs. Speech, occupational and physical therapies

are offered, as prescribed, along with specialized therapeutic

equipment designed to help children meet developmental goals.

25. After school programs provide enrichment

opportunities, tutoring, recreation, relaxation, nutrition and

cultural programs. Easter Seals served approximately 475

children through these programs during the 2006 campaign year.

26. Easter Seals also offers home-based intervention

programs for infants and toddlers up to 36 months, with

developmental delays. Professional early intervention services

are provided one-on-one in the home or in a typical childcare

setting. Easter Seals served approximately 100 children through

these programs. The Easter Seals Safety Net Program is an

attendance monitoring program sponsored in conjunction with the

Department of Children and Families. It serves at-risk children

who are enrolled in childcare facilities that are contracted

with the School Board of Hillsborough County. The goal is to

keep children safe and families together. Case managers for the

Easter Seals Safety Net Program are assigned to various

childcare facilities throughout Hillsborough County. Easter

Seals monitored the attendance of some 1,400 children in

Hillsborough County through this program during the 2006 year.

27. Easter Seals also provides outpatient rehabilitation

and therapy for children and adults with disabilities. It

served approximately 200 children and adults through these

programs. It served some 290 children and adults through its

camping and recreation program at "Camp Challenge". Easter

Seals serves disabled children from all areas of this state

through this camping program. Easter Seals also provides adult

day healthcare, vocational services and a health watch for

persons who are frail, elderly and have various disabilities.

It served over 1,600 adults through these programs. Easter

Seals served approximately 4,100 individuals with disabilities

and their families through 19 programs offered statewide.

28. The Respondent denied Easter Seals' application for

undesignated funds as to Collier, Marion, Martin, the Northeast

region, Okeechobee County, Pasco County, St. Lucie County,

Sarasota County and the Suwannee Valley region. While the

charity does not have its own offices in all of those counties

it does offer its home-based care program, with rehabilitation

and therapy, and its camp for children with developmental and

physical disabilities to children in all areas of the state.

Therefore, in that sense it provides direct service in all the

areas for which it sought undesignated funds. The persuasive

evidence demonstrates that there is no difference in the service

offered or provided in the counties in which the Respondent

denied Easter Seal's application versus those where it was

approved. Consequently Easter Seals Florida Inc., should be

approved for allocation of undesignated funds in the fiscal

agent areas applied-for.

29. The Hemophilia Foundation of Greater Florida

(Hemophilia Foundation) provides direct service to Hemophilia

patients in Florida through its support of blood treatment

centers throughout the State of Florida. Additionally, the

Foundation provides gas cards to patients in order to pay

expenses for them to travel to treatment centers, if the

treatment center is not located in their specific county. The

Hemophilia Foundation also works directly with patients, with

pharmaceutical companies and the PHARMA Program in order to get

patients reimbursement money for drugs related to Hemophilia.

The treatment options for patients, including drugs, are

extremely expensive.

30. The Foundation works directly with patients. It

actually delivers gas cards directly to the patient, in the

instances where patients are being reimbursed for travel

expenses, and the same occurs with drug reimbursement. The

Foundation either works directly with patients in obtaining

requests for drug reimbursements, processing them and

correspondingly working with the drug companies or the PHARMA

program to carry out the requests. Therefore, they intervene in

these matters directly on behalf of the patients. The

Foundation also works directly with the treatment centers and

with physicians on delivery of services to Hemophilia patients.

The preponderant, persuasive evidence derived from Petitioners'

Exhibit 30 in evidence, and the testimony of Gwen Cooper, shows

that the foundation provides these services directly to people

in the fiscal agent areas where they were not approved by the

Respondent for the 2006 campaign year.

31. The Foundation also maintains a camp for children or

young people who have Hemophilia. Additionally, the Foundation

provides some drug reimbursement directly to patients. The

Foundation provides some emergency financial assistance directly

to patients. The Foundation offers educational information,

programs and services to persons with bleeding disorders. These

include "Camp Spirit" for children with bleeding disorders,

family retreat weekends, publication of newsletters and

brochures, as well as information and referral. Because the

above-referenced patient services are provided and because they

are available and offered to patients from all areas of the

state and not just counties where the Foundation maintains a

physical presence, the Foundation should be approved as

providing "direct services" in the areas applied-for.

32. The Huntington's Disease Society is an organization

involved in supporting patients and families concerning this

rare disease, which involves dementia. This agency applied for

undesignated funds only in areas where it has a funded

Huntington's Disease "Center of Excellence" and /or support

groups. It was denied in the Lee County fiscal agent area and

in the Northeast Florida fiscal agent area by the Respondent.

The Society is affiliated with approved Huntington's Disease

Centers, called Centers of Excellence, located at the University

of South Florida and in Miami. It operates support groups in

the fiscal agent areas applied-for and supports patients with

Huntington's Disease. It provides input and education

opportunities for the patients locally, as well as assisting and

sending them to treatment centers for treatment. As to the Lee

County and Northeast Florida fiscal agent areas, the Society

only documented a local service address or support group in each

of those fiscal agent areas. In the Heart of Florida area, the

Society documented local services provided at Florida Hospital,

including the support group, and documented 170 patients served

in that fiscal agent area. In the Palm Beach fiscal agent area

the Agency provided a local service address for its support

group, meeting at the Pine Crest Rehabilitation Center, and

documented serving 22 patients and their families in that fiscal

agent area. In the Tampa Bay fiscal agent area the Agency

listed a local support group and its address, serving 20

patients and their families and also listed the Center of

Excellence at the University of South Florida, describing the

services offered there and documenting that 400 families were

thus served. The preponderant, persuasive evidence shows that

the Huntington's Disease Society provided direct services in the

Heart of Florida, the Palm Beach and the Tampa Bay fiscal agent

areas, but direct services were not sufficiently documented or

proved with regard to the Lee County and Northeast Florida

fiscal agent areas. Therefore, the Huntington's Disease Society

should be allocated a share of undesignated funds as to the

three fiscal agent areas recommended to be approved, referenced

above.

33. The Leukemia and Lymphoma Society provides a number of

forms of patient aid and support services, including patient

education, assistance with payment and reimbursement for

medication and co-payments. The Society employs full-time

Patient Service Managers, with Masters in Social Work, with an

oncology background. It sends a social worker to a patient's

home to assess the patient's and the family's needs. The

Society has a policy of contacting 50 percent of newly-diagnosed

cancer patients within 30 days of the diagnosis. The Society

also provides up to $500 per patient per year, based upon need,

to reimburse allotted expenses, drugs and co-payments. These

services, and the majority of services provided by the Society

are direct patient services, without any intermediary. In fact,

the Palm Beach office of the Society maintains 13 staff members

with two patient managers on staff. Ultimately, based upon the

testimony of Gwen Cooper and Pamela Byrne as well as the

Petitioners' Exhibits 31 and 12-B, the Society was initially

approved in all fiscal agent areas applied-for, except for the

Big Bend area.

34. Although the society does not maintain an office in

the Big Bend area, the Jacksonville office provides patient

service coverage for the Big Bend area, and, in fact, service

has been provided in Tallahassee, in the center of the Big Bend

area. This was arranged by the Society's Jacksonville office,

during the 2006 campaign. The same service was shown to be

provided in the denied area, as in the approved fiscal agent

areas. In all those fiscal agent areas support groups are

provided, and co-facilitated by healthcare professionals,

including an oncology nurse, an oncology social worker, a

licensed clinical psychologist, a registered nurse and a

physicians' assistant. In summary, preponderant persuasive

evidence has established that The Leukemia and Lymphoma Society

provides direct service to patients and their families in all

fiscal agent areas applied-for.

35. During the 2006 campaign year, the March of Dimes

initiated a new program involving the provision of vitamins, and

especially folic acid, to pregnant women to help lower the

incidence of birth defects. The March of Dimes agency also

provides a great deal of informational and educational programs

to the general public, healthcare professionals, and

particularly women of child-bearing age, including education of

women about pre-conception care, as well as early and regular

pre-natal care. The Florida Chapter supported a number of nurse

and physician conferences, as well as health fairs and other

events designed to distribute information to women of child-

bearing age concerning, especially, the issues of pre-maturity

of babies and low birth weight. The March of Dimes is working

with various healthcare-related partners to provide multi-

vitamins free of charge to women who may not otherwise be able

to afford them.

36. Additionally, the Florida chapter has awarded more

than $500,000 in state and local grants for such programs as the

"Save Our Babies" project, and others, which are designed to

reach high risk pregnant women to educate them on proper

nutrition and pre-natal care. It also provides assistance to

families coping with the stress of having premature, ill babies

in neo-natal intensive care units. The Agency uses many

volunteers, both laypersons and healthcare professionals, to

combat problems of birth defects and pre-mature birth rates.

The March of Dimes agency was initially approved for 17 of the

27 fiscal agent areas in Florida. The testimony of witness

Gwen Cooper, as well as Petitioner's Exhibit 33, in terms of

showing offices or division locations and the counties served by

them, establishes that the remaining 10 fiscal agent areas for

which the March of Dimes was initially denied fund allocations

are additional areas where the March of Dimes makes available

direct services, in the manner described above.

37. The National Kidney Foundation provides services

through a program of direct patient aid. It reimburses kidney

patients for various medication and transportation costs. It

operates a Kidney Early Evaluation Program (KEEP), which is a

health screening program designed to identify individuals for

increased risk for kidney disease and encourages them to seek

further evaluation and physician follow-up. The Direct Aid to

Patients Program is designed to financially assist patients with

obtaining needed medication and transportation to treatments and

medical appointments. It operates a medication grant program

which enables qualified kidney patients to receive urgently

needed medications, nutritional supplements, and durable medical

supplies through a contracted mail-order pharmacy.

38. The Foundation's transportation grant program assists

dialysis patients with the cost of transportation not covered

from other sources. The grants are limited to travel to and

from treatment, doctors appointments once a month, or for

transplant work-ups. There is also a one-time emergency grant

program providing financial assistance to qualified kidney

patients who need assistance with various household expenses or

co-payment costs for durable equipment.

39. The KEEP screening program is provided at various

locations throughout the state. Nurses and other persons

involved in the screening process screen patients or potential

patients, with blood samples and urine samples, in order to

assess for kidney problems. Operation of that service involves

the providers going to the individual counties to test patients,

potential patients or members of the public. These services,

and the reimbursement services referenced above, are essentially

provided on a statewide basis. In fact, of all the fiscal agent

areas in which funds were sought by the Kidney Foundation, they

were only denied by the Respondent in Citrus and Santa Rosa

counties.

40. The services they provided in all the other fiscal

agent areas, with which there was ultimately no dispute, were

the same services provided in Citrus and Santa Rosa counties.

Therefore, the totality of the persuasive evidence shows that

direct services, of the type described above, were provided in

Citrus and Santa Rosa counties and the other fiscal agent areas

for which the National Kidney Foundation applied for

undesignated funds. Consequently allocations of those funds

should be approved for the National Kidney Foundation for all

those fiscal agent areas.

41. The National Parkinson's Foundation has "Centers of

Excellence" located throughout Florida where it provides

movement therapy, support groups, rehabilitation therapy, and

educational seminars, as well as doctor visits and clinics for

Parkinson's disease patients. It provides related educational

seminars for family members of patients. The Centers of

Excellence throughout Florida provide clinical trials regarding

drugs and research, education, offer symposiums, as well as

support groups and therapy. In the free-form stage of this

proceeding, the National Parkinson's Foundation was approved in

9 out of 10 of the fiscal agent areas for which it applied for

undesignated funds. The sole fiscal agent area in which it was

denied was its headquarters location in Miami. In fact, the

same direct services for patients were provided from its Miami

location, and in the Miami vicinity and fiscal agent area;

further, a higher volume and variety of services are provided

from that headquarters location.

42. Clinical trials and research are done at the centers

referenced above. The center at the University of Florida is

called The Parkinson Movement Disorder Center. There is also a

similar facility at the University of Miami which offers

education regarding Parkinson's Disease issues, symposiums,

support groups and therapy for patients. Many of the people

participating in these activities are in clinical trials and

some therapeutic programs in efforts to find a cure for

Parkinson's disease. There is no question that the National

Parkinson's Foundation, through the Florida operations at issue,

provides direct services in all 10 of the fiscal agent areas

that entity applied for with regard to undesignated funds.

Consequently, its entitlement to appropriate allocation of

undesignated funds for those 10 fiscal agent areas is

established. These findings were established by the testimony

of Gwen Cooper at pages 169 through 171 of the Transcript, as

well as Petitioner's Exhibit 36 in evidence.

43. Prevent Blindness Florida provides vision screening

for children and adults through the school systems and through

various businesses who wish to promote a vision screening

program. The organization also provides such a program at local

Wal-Marts once a year called "Vision Day at Wal-Mart". They

also provide educational materials for the Vision Centers at

Wal-Mart. In January of each year they conduct a Vision Month

program with the Department of Highway Safety and Motor Vehicles

(DMV) and provide written vision screening information to

various DMV office locations around the state. They arrange

vision screenings at DMV offices if asked to do that as well.

In consideration of Gwen Cooper's testimony, it can not be

definitively determined whether the Prevent Blindness Florida

organization did the screenings themselves or the employer or

other business host of the screening opportunities actually

provided the screenings (such as Wal-Mart stores or the DMV).

According to Ms. Cooper, the charity and the businesses where

screenings were done worked cooperatively, but she was unable to

say which entity in a given instance would have provided the

screenings. Although she believes that Prevent Blindness

Florida did provide some screenings themselves, she was unable

to testify definitively on which occasion, and, implicitly, in

which fiscal agent area this might have occurred or not

occurred, as opposed to the screening efforts being provided by

the host business or agency, arranged for by Prevent Blindness

Florida. In light of this quality of the testimony, it cannot

be deemed that the Petitioners established that Prevent

Blindness Florida provided direct services in any or all

instances in each fiscal agent area, as opposed to a cooperative

effort, with the host business or agency of a given visual

screening being an intervenor between the charity and the person

ultimately served. Consequently, it has not been established

that Prevent Blindness Florida provided direct services as

defined in the Department's form and in the rule.

44. The Sickle Cell Disease Association of Florida (Sickle

Cell), through a contract with the Department of Health,

provides screenings for Sickle Cell disease in many counties in

the State. The Association provides education and literature

for people receiving the screenings. Much of its activities

involve educating people in Florida concerning Sickle Cell

disease and raising public awareness of what populations or

persons might be at risk for the disease. The Association

provides hemoglobin screenings and works with school districts,

civic groups, churches, federal employees, and healthcare

providers, in providing support, education and screening for the

public. They provide the service directly to patients or

citizens in the fiscal agent areas and also work with

intermediaries.

45. The Association was approved for allocation of

undesignated funds in 13 fiscal agent areas. It was denied in

the Central Florida, Citrus, Collier, Hernando, Lake/Sumter,

Martin, Northwest, Okaloosa, Okeechobee, Pasco, St. Lucie, Santa

Rosa, Sarasota, and Suwannee Valley fiscal agent areas.

However, the service provided in the 13 areas where the

Association was approved is no different than the service

provided in the areas where it was denied. There is no clear

evidence of record concerning the rationale for the denials.

The evidence embodied in Gwen Cooper's testimony as well as

Petitioner's Exhibit 38 indicates that a substantial portion of

the services provided by the Sickle Cell Association are direct

services without an intermediary. Therefore, on balance, it is

determined that the Association should be approved in all the

fiscal agent areas for which it applied.

46. In summary, the testimony and evidence discussed above

is preponderant and persuasive. It established that the

charities addressed in the above findings of fact, for which

entitlement to the undesignated funds at issue was found to be

justified, provided their services directly and without

intervention in the fiscal agent areas referenced by the above

findings of fact. Thus, their requests for undesignated funds,

as to those fiscal agent areas in which the above findings of

fact determine that they provided such services, should be

approved.

47. The above findings of fact also show that the

Association for Retarded Citizens of Florida, Florida Hospices

and Palliative Care Association and the National Alliance for

the Mentally Ill of Florida, based upon the preponderant

evidence of record, did not provide "direct services" in the

manner defined in the referenced rule and in the form used by

the Steering Committee, and the applicant charities, in the 2006

campaign reporting. Therefore, the request for entitlement to

the undesignated funds as to these named charities should be

denied. Moreover, the Petitioner, Community Health Charities of

Florida (CHC), although a party, is, undisputedly, not an

applicant for such funds. It was the umbrella or administrator

organization acting on behalf of the Petitioner member

charities.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction of the subject matter and parties to this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2008), and Community Health Charities of Florida v.

Dept. of Management Services , 7 So. 3d 570(Fla. 1st DCA 2009).

49. The burden of proof in this matter is by a

preponderance of the evidence, which must be viewed and

considered in a de novo , context. § 120.57(1),(j),(k), Florida

Statutes (2008); Hamilton County Commissioners v. Dept. of

Environmental Regulation , 587 So. 2d 1378, 1387 (Fla. 1st DCA

1991). The Petitioners have the burden to establish that the

member charities provided "direct services" within the meaning

of Section 110.181(2)(e), Florida Statutes (2007), and Florida

Administrative Code Rule 60L-39.0015(1)(i). See Florida Dept.

of Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778, 787

(Fla. 1st DCA 1981).

50. Section 110.181, Florida Statutes (2007) sets forth

the requirements of the FSECC that applied to the 2006 campaign,

including the method of distribution of undesignated funds:

"[P]articipating charitable organizations that provide direct

services in a local fiscal agent area shall receive the same

percentage of undesignated funds as the percentage of designated

funds they receive." Sections 110.181 (2)(e), Fla. Stat. The

terms "direct" or "services" are not defined by this statutory

section, nor the phrase "direct services". That phrase was

interpreted by the Respondent agency in its rule to mean

"[I]dentifiable and specific services available in the local

fiscal agent area without any intervention between the services

offered and persons served." Fla. Admin. Code R. 60L-

39.0015(1)(i).

51. Apart from declaring that "services" must be

"identifiable and specific," the rule does not elaborate on

activities that qualify as "services" nor what is meant by

"intervention between the services offered and persons served."

Deciding what is or is not a "service" and what is offered to

persons served, with or without such intervention, is a matter

that must be determined by considering the plain and ordinary

meaning of the statutory text and the language of the above

rule. The statute offers no distinction between the services

provided by one particular charity, which may be reimbursement

funds for purchase of drugs or of another which may be the mere

provision of newsletters or may, in the case of another charity

be the offering and operation of support groups and educational

programs. In fact, a "service" is deemed to be anything of

benefit or potential benefit offered to another person or

entity.

52. The language of the above rule is interpreted to mean

that the thing of benefit or potential benefit must come

directly to the person receiving it or entity receiving it from

the offerer of the service (charity) with no intervening person

or entity actually providing the service directly to the person

or entity served.

53. The primary question in considering the question of

the entitlement of each of the above charities to the subject

funds involved not so much an emphasis on whether the benefit

being provided constituted a service, but rather whether there

was any intervening person or agency involved in the actual

delivery of the service to the person or entity served. That

consideration, as well as the question of where the service was

being provided in relation to the fiscal agent areas, was the

pivotal part of the thought process in making the above findings

of fact concerning which charities proved entitlement to the

allocation of the subject funds, and in what areas they

established such entitlement. Part of the reason leading to the

determination in the findings of fact that many or most

charities proved some level of entitlement lies also in the fact

that many things, under the language of the above statute and

rule, can be defined as "services."

54. In view of these considerations and in light of the

testimony and evidence referenced above, which was considered in

arriving at the above findings of fact, the preponderant,

persuasive evidence showed that the above-referenced

Petitioners, proved their entitlement to the allocation of

undesignated funds from the FSECC campaign for 2006, in the

manner and for the areas delineated in the above findings of

fact, with the exception of The Association of Retarded Citizens

of Florida, Florida Hospices and Palliative Care Association,

The National Alliance for the Mentally Ill, and Prevent

Blindness Florida, which did not establish the provision of

direct services in the fiscal agent areas applied-for.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, and the pleadings

and arguments of the parties, it is, therefore,

Recommended that a final order be entered determining that

the Petitioner charities named above provided direct services in

the manner and in the fiscal agent areas referenced in the above

findings of fact, for the 2006 FSECC campaign and that they be

entitled to their statutory share of undesignated funds, with

the exception of The Association of Retarded Citizens of

Florida, Florida Hospices and Palliative Care Association, The

National Alliance for the Mentally Ill, and Prevent Blindness

Florida.

DONE AND ENTERED this 5th day of August, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of August, 2009.

COPIES FURNISHED :

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Linda H. South, Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

David Andrew Byrne, Esquire

Phillips Nizer LLP

666 5th Avenue

New York, New York 10103-0001

David C. Hawkins, Esquire

David C. Hawkins, PLLC

3141 Brockton Way

Tallahassee, Florida 32308

Gerard York, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Matthew F. Minno, Esquire

Deputy General Counsel

Department of Management Services

Division of Retirement

4050 Esplanade Way

Tallahassee, Florida 32399

James A. Peters, Esquire

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.