july 2003 final docket 2003 final docket.pdf · public benefits ..... 58. page 3 community economic...

Docket

Florida LegalServices, Inc.

July 2003

Table of Contents

Community Economic Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Consumer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Family/ Juvenile/ Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Health/Senior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Homeless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Immigration/Naturalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Migrant Farmworker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Public Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Community Economic Development

LEGISLATIVE ADVOCACY

1. Low-Income Emergency Home Repair Program funding

Number of People Affected: About 800 households annually

Summary: One of the state housing programs that has been funded by the SadowskiAct, the 1992 legislation that funds affordable programs in Florida through documentarystamp taxes, since the Act’s passage has been the Low-Income Emergency HomeRepair Program operated by the state Department of Community Affairs. The programhas received $2 million annual funding since 1994, that is used to pay for emergencyhome repairs of weatherization program recipients that are necessary for the recipients’health and safety, but are not payable through federal funds. In Florida, weatherizationagencies generally are community action agencies that are governed by and serve lowincome residents. In 2003, the state House of Representatives proposed reducing theprogram’s annual funding to only $175,000; the state Senate proposed funding of $2million during the regular session, but none in the special session called to pass a statebudget. FLS requested legislators to restore the $2 million annual funding for theprogram.

FLS Advocate: Ben Ochshorn

Status: In the state budget that was signed into law, funding for the Low-IncomeEmergency Home Repair Program was partially restored, to $1 million for 2003-04. Thefunding was restored by Senate President King and House Speaker Byrd in their finalconference over the budget.

ADMINISTRATIVE ADVOCACY

1. Gadsden Saves Project

Number of People Affected: 20,000 estimate (low income Gadsden County residents)

Summary: Legal Services of North Florida coordinated the creation of a program inGadsden County called “Gadsden Saves” beginning in May, 2001. The project ismodeled on “Cleveland Saves,” a pilot program of the Consumer Federation of Americato encourage persons to establish and regularly contribute to savings accounts,particularly those without accounts at financial institutions. Gadsden Saves is part of theFederation’s “America Saves” program. LSNF requested the assistance of Florida Legal

Services with Gadsden Saves. We attend monthly Gadsden Saves meetings andparticipate on the procedures committee, which plans how Gadsden Saves operates andoversees its operation. Gadsden Saves held its official “kick-off” in August, 2002, whichwas successful, and is operational and continues to gear up its program. The program isadministered locally by the University of Florida IFAS extension office in GadsdenCounty, which had already provided some services similar to those of Gadsden Saves.


Status: Gadsden Saves now has over 100 members. It was the first rural program ofAmerica Saves, so it is being used as a model for other America Saves rural programs.

Consumer


1. Regulatory Implementation of New Payday Loan Law

Number of People Affected: 16,000,000 (whole state)

Summary: State senator Lee Constantine’s payday loan bill, the Florida DeferredPresentment Act, SB 1526, was enacted into law as session law 2001-119, and wentinto effect October 1, 2001. FLS monitored the implementation of this law by theDepartment of Banking and Finance, including the development of any proposed rules.

FLS Advocates: Ben Ochshorn, Dorene Barker, Lynn Drysdale, Arthur Rosenberg

Status: The Department issued a report on the law’s first year of operation. Through arequired computer database, the law virtually eliminated the making of more than oneFlorida-regulated payday loan at a time, and appears to have reduced “roll-overs,” themaking of successive payday loans to pay off prior loans, below the levels reported inother states. Payday loan borrowers also under the new law are able to obtain 60 daygrace periods to pay off payday loans if they make and keep a credit counselingappointment. In 2002, FLS and the Department had negotiated state rules to govern theselection of credit counseling agencies by payday loan borrowers.

2. Federal Regulations Relating to Pay Day Loans


Summary: A number of federally regulated financial institutions outside Florida makepayday loans, short-term loans for which borrowers provide checks. Some Floridapayday loan lenders make payday loans through these foreign institutions, effectively“exporting” to Florida the allowable payday loan rates of the states in which theseinstitutions are located.

FLS Advocates: Lynn Drysdale, Dorene Barker

Status: We are presently determining methods to affect these practices involving thefederal regulation of financial institutions that make payday loans; and are networking todetermine the best methods of doing so, including regulatory and legislative.

3. Federal Regulatory Responses to Predatory Mortgage Lending

Number of People Affected: 1,000,000 estimate in Florida

Summary: Predatory mortgage lending has received public attention recently, althoughthese problems have long been present. In 2000, Congressional committees directedfederal financial institution regulatory agencies to address predatory lending issuesthrough their regulatory powers. After a series of public hearings and workshops in thesecond half of 2000, the regulatory agencies have proposed various changes to addresspredatory lending practices, for which they have invited public comment. In 2001, FLSsubmitted public comments in support of a staff memorandum by the Federal DepositInsurance Commission to investors on how to avoid purchasing or investing in predatorymortgage loans; proposed amendments to Federal Reserve Board Regulation Z, Truth inLending, to address predatory lending practices, issued in exercise of the Board’spowers under the Home Ownership Equity Protection Act; and proposed amendments toFederal Reserve Board Regulation C, Home Mortgage Disclosure, to expand mortgageinformation disclosure requirements to include terms of loans relevant to predatorylending practices. The mortgage lending industry opposed all of these changes, but byFebruary, 2002, all were approved as final agency actions with little change.


Status: We continue to monitor these regulatory actions and participate as appropriate. Most recently, in March, 2003 we submitted a written comment opposing a proposal bythe Comptroller of the Currency to issue an opinion that national banks are exemptedfrom having to comply with state predatory mortgage lending laws.

4. Increasing Participation in State “Lifeline” Program for Telephone Service

Number of People Affected: 1,000,000 estimate

Summary: The “Lifeline” program provides low-income telephone customers withsignificant discounts on connection fees and on monthly billings. Florida was one of thelast states to join the program, in 1995. Like most states, Florida bases Lifeline programeligibility upon participation in an income-based public benefits program. Our state’sparticipation remains very low - only 2% of residential customers statewide, less than 1%for GTE and Sprint customers. In July, 2001, Bell South, which provides local phoneservice to 60% of Florida residents, agreed to expand eligibility for its Lifeline program toinclude income-based eligibility. The agreement went into effect March 1, 2002. Theincome-based program is administered by the Office of Public Counsel. In late 2001, theFCC sought public comment on revisions to Lifeline programs nationally that includedincome-based eligibility; and on increases in the subscriber line charge on all residentialphone bills from the current $5.00 per month to $7.00 per month. FLS submittedcomments on both matters, supporting greater availability of Lifeline, and opposing theproposed $2.00 per month increase in the subscriber line charge. The FCC isconsidering a draft order to accomplish the expansion of Lifeline to some degree;however, in July, 2002, the FCC authorized the $2 increase in the monthly charge.


Status: The Office of Public Counsel invited FLS to become involved in theimplementation of the income-based Lifeline program, which we will. FLS also isinvestigating advocacy strategies for increasing the accessibility of the Lifeline programto our clients, especially in light of the new state telecommunications law.

5. Implementation of Florida Predatory Mortgage Lending Law


Summary: The Florida Fair Lending Act, was signed by the Governor as Florida Law2002-57, effective October 2, 2002. The Act applies to certain high-cost non-purchasemortgage loans that are covered by the federal Home Ownership Equity Protection Act(“HOEPA”). It explicitly preempts local government regulation of state-regulated lendingpractices, save for title loan ordinances. In return, the state Act will create stateremedies for many HOEPA violations, including state regulatory powers to investigateand bring disciplinary actions; authorizes the state to seek injunctive remedies forviolations; and, importantly for legal services clients, provides for affirmative equitablerelief and a defense in foreclosure proceedings based upon material violations of thestate act. There is a right to a 45-day reinstatement period after default, and aprohibition against door-to-door solicitation of covered loans covered by HOEPA. In the

second half of 2002, we participated in a workshop held by the Department of Bankingand Finance on the new Act, and submitted a written comment advising the Departmentnot to go forward with such rules, for a number of reasons. The Department so far hasheeded our suggestion.

FLS Advocates: Ben Ochshorn, Lynn Drysdale, Dorene Barker, Arthur Rosenberg

Status: FLS continues to monitor implementation of the new law.


1. Legislation to Increase Rates for Basic Local Telephone Service


Summary: The local exchange phone companies has been attempting at least since1998 to obtain legislative approval to raise their rates, and FLS, AARP and consumergroups have opposed them, successfully until 2003. During the 2002 legislative session,the incumbent phone companies persuaded the Florida Legislature to permit them toraise basic local service phone rates by an amount to be determined by the phonecompanies, over a period of two to five years. BellSouth represented it would raisebasic monthly phone rates by an average of $3 to $4; Verizon, by $5 to $6; and Sprint,by $8 to $9. The bill raised income eligibility for the state Lifeline program, whichsubsidizes charges paid by participating low income subscribers for local phone service,to cover all low income persons, but despite the specific request of FLS, did not providefor the removal of various other barriers that in practice prevent most low incomepersons from participating in the program. In 2002 FLS met with Governor Bush todiscuss our concerns with the bill and to request his veto, which he issued.

FLS Advocate (in 2003): Ben Ochshorn

Status: After the 2002 veto, the phone companies represent that they obtainedGovernor Bush’s support for their bill for 2003. The 2003 bill incorporated the 2002 billand contained additional provisions even more favorable to phone companies. TheLegislature passed, and the Governor signed this year’s bill into law, despite criticalmedia coverage of their actions and overwhelming public opposition to the bill. FLS isinvestigating advocacy strategies for our clients on the new law.

2. Legislation to Permit U.S. Mail Delivery of Demands to Make Good DishonoredChecks

Number of People Affected: 100,000 estimate

Summary: Florida Statutes, at s. 68.065, permits payees on dishonored checks to sendwritten demands to payors to make good on the checks within 30 days or be liable fortreble damages. Existing law requires the notice to be sent through registered orcertified mail. Legislation in 2003, HB 1509/SB 738, proposed also permitting the payorto send this notice through regular mail, and to be able to submit an affidavit asconclusive proof of delivery of the demand by this method. FLS determined that theconclusive proof provision was likely to violate due process.

FLS Advocates: Ben Ochshorn, Dorene Barker

Status: FLS persuaded legislators to drop the conclusive proof of delivery provision ofthe legislation. We requested unsuccessfully that the bill further provide for a reasonablemeans of proof of delivery of demands sent by regular mail. The bill then passed theLegislature and was signed into law by the Governor.

3. Legislation to Require Notice and Opportunity to Cure in Construction DefectsCases

Number of People Affected: 100,000 estimate

Summary: The 2003 Legislature considered a bill, HB 1789/SB 1286, that would requireplaintiffs in construction defects cases to provide contractors with a notice of the defects,and an opportunity to cure, before bringing suit. FLS expressed concerns to the bill’sprotagonists, the Florida Homebuilders (for the legislation) and the Academy of TrialLawyers (against) about bill provisions that appeared to: (a) extend the provisions of thebill to repairs of a kind low income persons typically make; (b) entitle the contractor tore-enter the plaintiff’s dwelling and use destructive testing prior to litigation; and (c)require this procedure in all covered cases, but not specify how it would be carried out.

FLS Advocates: Ben Ochshorn

Status: The legislation was changed in a manner that substantially addressed ourconcerns. The Homebuilders were not interested, though, in creating a notice processthat could readily be understood and used by non-lawyers. As passed by the Legislatureand signed into law by the Governor, the new law applies to construction defect casesinvolving new construction or rehabilitation (as opposed to repairs), other than personalinjury claims; and leaves to the judiciary determination of its applicability on a case-by-case basis.

LITIGATION

1. Churchwell v. National Title Loan, Inc./Ron Ross Meardy d/b/a Auto Liquidation Center Case Number 96-5098-CACircuit Court, Fourth Judicial Circuit, Duval County

Number Affected: Over 800 North Florida automobile owners estimated in class

Summary: Ms. Churchwell, as class representative, seeks damages and injunctive reliefpursuant to the Florida Deceptive and Unfair Trade Practices and Truth in Lending andquestions the constitutionality of the Florida title loan law. Hundreds of consumers losttheir automobiles because title lenders were deceiving consumers regarding interestrates assessed in their loans (in excess of 264%), regarding the compounding of theiralready high interest rates, and regarding the other fees assessed in these transactionssecured by the unencumbered title to consumers’ automobiles. Consumers are also notprovided a surplus upon default in loans in which the interest rate can range from 300%to 1,000%. This particular lender engages in several unfair and deceptive practices inthe conduct of its business, then repossesses the vehicles for sale at its used car lot.

FLS Advocate: Lynn Drysdale

Co-Counsel: Dominic MacKenzie, Esq. Status: The Defendant corporation’s general manager/corporate secretary has beenallowed to intervene as the “third-party” purchaser of the repossessed automobiles. The class was certified on December 2, 1997. The class certification order has been thesubject of two appeals and the case was stayed. However, the last of the appeals,including appeals to the Florida Supreme Court, were completed in Ms. Churchwell’sfavor. Ms. Churchwell obtained a Final Judgment as to Liability on April 10, 2001 and wehave provided notice to the class members. We had obtained a Final Judgment as toDamages on October 17, 2001, however, the Court granted the Defendant’s motion forrehearing and struck only the final judgment as to damages because the Plaintiffs hadrequested a jury trial. We have propounded damages discovery and the Defendantrepeatedly failed to comply with our requests or court orders. We obtained a second,final judgment as to damages on May 19, 2003. The Defendant has just filed a notice ofappeal.

2. Aggie Rhines v. National Consumer Debt Council/Financial Rescue Services

Summary: Ms. Rhines is an elderly person who contacted NCDC to assist her in

managing her debt. As with hundreds of consumers across the nation, NCDC promisedto contact all of her creditors and set up repayment agreements. They also set up anautomatic debit from her account for a number of fees, charges and for “payments” tocreditors. The company did absolutely nothing but collect money from her. They did notattempt to contact any of her creditors. She felt helpless to stop the automaticdeductions. The company collected over $2,400 before the deductions were canceled.

FLS Advocate: Lynn DrysdaleThis case is a joint effort between FLS and JALA

Status: Letters have been written to the company and they are not willing to refund Ms.Rhines money. We are considering filing class litigation or at least an individual caseseeking attorney fees pursuant to the Florida Deceptive and Unfair Trade Practices Act.

3. Jackson v. Wells Fargo Bank Minnesota.Case Number 6:02-cv-1265-Orl-31KRSDistrict Court, Middle District, Orlando Division

Summary: Mr. and Ms. Jackson are the victim of a home improvement scam, in whichthe title company, mortgage broker, contractor and mortgage company conspired toprovide the Jacksons a mortgage they could not pay and a home which is nearlyuninhabitable because of the contractors actions.

CFLS Advocate: Shirley Green

FLS Co-counsel: Lynn Drysdale

Status: An answer, counterclaims and third party claims have been filed. Counsel foreach of the parties met on Wednesday, January 15, 2003 for a federal court casemanagement conference. We anticipate the case will be tried in February, 2004.

4. Cynthia Turner v. Household Corporate and Beneficial Florida, Inc.Case Number 02-09098-CACircuit Court, Fourth Judicial Circuit, Jacksonville, Duval County

Summary: Ms. Turner is the victim of predatory mortgage lending practices in thecontext of a series Beneficial/Household mortgage loan. They have charged excessiveloan fees and interest and have engaged in illegal accounting practices. We have filed alawsuit against Beneficial/Household.


Status: The Defendants have been served and are trying to settle the case with theclient. We are awaiting the final draft of the proposed settlement documents.

5. Long v. ACE Cash ExpressDistrict Court, Middle District of Florida, Jacksonville Division3:02-cv-1001-J21TEMandLong v. ACE Cash ExpressCircuit Court, Clay CountyCase No.: Case00837-CADivision: CV-A

Number affected: Thousands of ACE customers who are paying exorbitant interestrates in loans disguised as “pay day loans” and “check cashing” transactions.

Summary: Ms. Long filed a class action lawsuit against ACE which uses a Californiabank to create a fiction which it claims allows them to avoid Florida usury loans. Theyalso use electronic debits from customers accounts illegally. She has also filed asecond, class action against the California bank to obtain documents they claim areprotected from discovery based upon OCC regulations. Ms. Long was featured in anarticle in the Wall Street Journal regarding “rent-a-banking” and pay day lending.


Co-Counsel: Al Mickler, Esquire (private attorney)

Status: Goleta National Bank, the bank ACE uses to cover its illegal practices through a“rent-a-bank” relationship filed a motion to intervene in the lawsuit. This motion wasgranted on October 14, 2001. We filed a Petition for a Writ of Certiorari which wasdenied. Both ACE and Goleta filed motions to dismiss. These motions were denied ata hearing held on March 12, 2002. We are now pursuing discovery efforts, including thescheduling of deposition. We are also are in the process of scheduling a hearing onanother one of our many motions to compel.

We have also filed a federal case in an attempt to get documents relating to an OCCinvestigation of Goleta. As a result of this investigation the OCC threatened to revokeGoleta’s national bank charter if it did not cease its relationship with ACE. Therefore,ACE can no longer engage in these types of transactions using Goleta or any othernational bank. We believe these documents are very important and the state court

judge refuse to compel production of Goleta’s OCC reports. He indicated it was amatter “for the federal courts.”

In May, the parties in most of the ACE litigation nationwide joined into a nationwide classsettlement agreement. The fairness hearing regarding the proposed settlement will beheard in federal court in Texas on October 6, 2003.

6. Michael Elliott v. C & A Financial Programs, Inc. Circuit Court, Nineteenth Judicial Circuit, Stuart, Martin County, Florida03-139-CA

Number affected: Thousands of military veterans around the United States who arepaying criminally usurious interest rates in loans secured by their retirement and disabilitypension benefits disguised as contracts to purchase these benefits.

Summary: Mr. Elliott was sued for non-payment of this illegal loan. This company isone of many that advertises to military personnel about a way to borrow money backedby their pension benefits. The loans are criminally usurious and no federal Truth inLending disclosures are provided. The company calls its transactions “ReceivablePurchase Agreements” to avoid both of these consumer protection laws.


Co-Counsel: Ray Ingalsbe, Esquire (private attorney)NCLC has also expressed an interest in joining in as co-counselThe Florida Attorney General’s Office is also investigating this practice

Status: Mr. Elliott has just filed class claims against C & A Financial Programs pursuantto the federal Truth in Lending Act, Florida usury laws and the Florida Unfair andDeceptive Trade Practices Act.

7. Cox v. Cash Advance, Inc.Circuit Court, Duval County 01-582-CA

Number affected: Hundreds of pay day loan customers in the greater Northeast Floridacommunity

Summary: Cash Advance, Inc. is charging pay day lending customers illegal amount inconnection with their already high interest rate loans. They also deposit customers

checks before the due date of their loans and engage in other unfair and deceptivepractices.


Co-Counsel: Albert Mickler, Private Attorney

Status: A summary judgment in favor of the Defendant was entered. We have filed amotion for rehearing and the Defendant has filed a motion for attorneys fees and costs. Counsel for the Defendant canceled the hearing set for these motions while the partiesattempt to resolve the remaining outstanding issues. We have not rescheduled thehearing as Ms. Cox is presently having other problems with her landlord and SocialSecurity and has a probate issue. We are working through these matters before wetake the risk of having our motion for rehearing denied.

8. Copeland v. Little Tiger Auto Sales, Inc. Circuit Court, Brevard CountyCase Number 05-2001-CA-8865

Number Affected: Customers of Little Tiger Auto Sales in the greater Brevard Countyarea.

Summary: Little Tiger is still engaging in title loans with triple digit interest rates. It isdoing so by disguising its loans as transactions in which the customer sells their vehicleto Little Tiger and buys it back through a financing agreement with Little Tiger.

CFLS Advocate: Merrily Longacre

FLS Co-counsel: Lynn Drysdale

Status: We were engaging in the discovery process and had a hearing scheduled to setfor trial when the defendant filed a Chapter 7 bankruptcy case. We are now evaluatingour options in bankruptcy court. The meeting of creditors was just held in June.

9. Emily Sampson v. CitiFinancial Mortgage Circuit Court, Fourth Judicial Circuit, Jacksonville, Duval CountyCase 16-2003-CA-001842-MA

Number affected: Ms. Sampson and potentially others who are being harassed forillegal payments in connection with predatory mortgage loans.

Summary: Ms. Sampson is an elderly woman who has an Associates loan which wassold to CitiFinancial. Associates was notorious for coercing elderly people into signinghigh cost, high interest mortgage loans. They have now sold Ms. Sampson’s loan toCitiFinancial who has set up three different accounts for one loan and is misapplying Ms.Sampson’s payments. They are also calling her many times a day and night trying tocollect the debt.


Status: Ms. Sampson has filed a lawsuit bringing claims under the Real EstateSettlement Procedures Act, the Florida Consumer Collection Practices Act and theFlorida Unfair and Deceptive Trade Practices Act. She just filed a Motion to Strikeseveral of Citifinancial’s Affirmative Defenses.

10. Elijah Nero v. Fairbanks Capital Corporation

Number Affected: Mr. Nero and hundreds of Florida consumers whose mortgages arebeing serviced by Fairbanks.

Summary: Fairbanks is a mortgage servicing company whose accounting and collectionpractices are so bad that the Federal Trade Commission is investigating them. A numberof lawsuits have been filed against Fairbanks for its servicing practices around the nation.


Co-Counsel: Megan Wall (JALA)

Status: Fairbanks has been sent a qualified written request pursuant to RESPA and weanticipate filing a lawsuit against Fairbanks for its illegal practices.

11. Worrow v. Loans 4 MilitaryDistrict Court, District of Columbia DistrictCase Number: 1:01CV00717

Number affected: Consumers of Loans 4 Military nationwide

Summary: Ms. Worrow was added as a named plaintiff in a lawsuit pending in theDistrict of Columbia based upon Loans 4 Military’s illegal pay day lending practices. Theyare charging illegal interest rates and violating the federal Truth in Lending Act.

Advocate: David Rubinstein, Esquire (private attorney)

FLS Co-counsel: Lynn Drysdale, Esquire

Status: The Defendant’s Motion to Dismiss was granted and we have filed motions forrehearing. We are awaiting the outcome of these motions.

12. Henderson and Thomas v. VIP Auto Sales, Inc., et al.Case No. 02-3471-CACircuit Court, Fourth Judicial Circuit, Duval County, Florida

Number affected: Hundreds of low income consumers in the greater Northeast Floridaarea who have purchased used cars from Gene Bernard at VIP Auto Sales.

Summary: VIP Auto Sales has devised a scheme of a “Rent-To-Own” contract to sellused cars. Consumers pay exorbitant amounts to “rent” the vehicles and then VIP failsto give them a contract at the end of the rental period to complete the sale as promised. The case arose out of a study among representatives of FLS, the Florida Division ofMotor Vehicles, the State Attorney’s Office, the Office of the Attorney General, theFlorida Department of Revenue and the Jacksonville Consumer Affairs Office.


Co-Counsel: Adams Wachs and Katie N. Lewis (Holland & Knight)

Status: We have filed a Second Amended Complaint and the Defendants filed a motionto dismiss. The Defendants have also served a Offer of Judgment which the Plaintiffshave accepted. We are wrapping up the final details of the case.

13. Parsons v. The Scott-MacRae Group and Duval MotorsCase No. 99-04760-CACircuit Court, Fourth Judicial Circuit, Duval CountyCase No.: 1D00-4866First District Court of Appeal

Number Affected: This case was filed individually pursuant to the federal Truth inLending Act, the federal Equal Credit Opportunities Act and the federal Truth in LeasingAct.

Summary: It is a classic case of an increasingly utilized industry bait-and-switch

practice called “spot delivery.” This practice involves the sale of a motor vehicle which isconsummated one day and then unilaterally altered by the lender subsequent to the sale.The lender often increases the interest rate, requires co-signor or, as in Ms. Parsons’case, requires the execution of a lease. This case also presents issues regarding anarbitration clause.


Co-counsel: Dominic MacKenzie (Holland & Knight)

Status: The Defendants’ motion to compel arbitration was granted. Our appeal wasdenied. We are going forward with the mediation and have been trying to settle the casewithout arbitration. The initial mediation conference has been scheduled for Friday, July11, 2003.

14. Magdalene Clark v. Ocwen Federal BankCase Number 16-2003-CA-3385Circuit Court, Fourth Judicial Circuit, Jacksonville, Duval County

Summary: Ocwen Federal Bank has taken over the servicing of hundreds of mortgagesaround the nation and has consistently added additional and illegal fees and mismanagedthe accounting in the mortgages it services. Ms. Clark has been a victim of theirmismanagement of her account as they repeatedly gave her erroneous informationregarding the change in loan services.


Status: Ms. Clark has filed counterclaims in Ocwen’s mortgage foreclosure lawsuitbased upon violations of the federal Real Estate Settlement Procedures Act, the FloridaDeceptive and Unfair Trade Practices Act and based upon the common law claims ofbreach of the duty of Good Faith and Fair Dealing and Unconscionability.

15. Creech v. Bank of AmericaCase Number 02-2423-CACircuit Court, Fourth Judicial Circuit, Duval County, Florida

Summary: We are representing Ms. Creech in a mortgage foreclosure case becauseshe is the victim of a classic form of predatory lending, failure to pay credit life insurancebenefits. Ms. Creech and her elderly husband executed a mortgage with Nationsbank. Although they were both elderly and Mr. Creech was in the later stages of renal failure,

the Nationsbank representative sold the Creeches a credit insurance policy with apremium of more than $4,000. The insurance was purchased from a Nationsbankaffiliate, Nationsbank. The Nationsbank agent knew of Mr. Creech’s renal problemsbecause they had to schedule the closing around his dialysis appointment. Mr. Creechdied. Insurance benefits were denied and now Ms. Creech is facing foreclosure.


Status: We have filed an answer, affirmative defenses and counterclaims as well asthird party claims against the insurance company. Depositions of the parties has beencompleted and we are waiting on a decision from a recent hearing on discovery disputes.

16. Denise Espy v. Supportkids Summary: Ms. Espy has been the victim of a private child support collection company’sillegal practices. This is a nationwide firm that offers to help persons owed child supportcollect it, risk free. They claim to have access to private investigators and state officials. Instead this company does nothing. Ms. Espy was able to get child support reinstatedon her own, without Supportkids’ help. As they do with all consumers, Supportkidsstarted collecting 34% of all of the support both current and delinquent. We were able toset aside the power of attorney which allowed them to collect the money directly fromthe Florida Department of Revenue.

Number Affected: Hundreds nationwide.


Status: We have contacted a legal services office in Wisconsin, which along with theNational Consumer Law Center has filed a nationwide class action against Supportkids. We are keeping in touch with them so that Ms. Espy can assist with that effort. Ms.Espy will also let us know if she is sued by Supportkids for revoking the power ofattorney.

17. Grant v. Florida Home Loan Finance, Inc. and Hamid and Bonnie FazelCase Number 02-6687-CACircuit Court, Fourth Judicial Circuit, Jacksonville, Duval County

Summary: Ms. Grant is an elderly woman who has been the victim of the predatorylending practices of a mortgage broker and Equicredit. The mortgage broker was

supposed to find a loan for Ms. Grant and did so. He arranged a loan she could not payand then convinced her to deed her property to him when she fell behind in herpayments.


Status: We filed the case and worked with the Jacksonville Human RelationsCommission and State Attorney’s office and settled the case. We were able to get acharitable organization to provide free repairs needed to her home, both because of theage of the home and because of the damage done by Florida Home Loan Finance, Inc.

OTHER ADVOCACY

1. Pay Day Lending Community Education (Pay Day Loan Task Force)

FLS is sponsoring a Pay Day Loan Task Force in Jacksonville, Florida which isdeveloping educational materials such as pamphlets and putting together legislativepackets for educating our city’s leaders. This group includes representatives from theAttorney General’s Office, the Florida Department of Banking and Finance, theJacksonville Better Business Bureau, the Jacksonville Division of Consumer Affairs, theState Attorney’s office, CEO’s of local credit unions, military leaders and FamilyCounseling Services.


2. Low Income Credit Unions/Individual Development Accounts

FLS is participating in the creation and development of a federally-sponsored LowIncome Credit Union which will provide competition with pay day lenders. Othermembers of this group include prominent Northeast Florida politicians, CEO’s of localcredit unions and former and present military leaders. As an alternative we are lookinginto partnering in an effort to facilitate the provision of IDAs in our area.


3. Northeast Florida Consumer Law Task Force

FLS has created the Northeast Florida Consumer Law Task Force which holds monthlymeetings for the advocates, primarily staff from legal aid/ legal services offices in

Northeast and Central Florida.

Employment


1. Broward County Living Wage Ordinance

Number of People Affected: Approximately 400 County employees who will receiveadditional wages due to the Ordinance and at least twice that number of employees ofCounty contractors and subcontractors.

Summary: FLS was greatly involved in the effort to get a Living Wage Ordinancepassed in Broward County which began with the Broward County Coalition for theHomeless. The effort branched into a Community Coalition for a Living Wage whichincluded service providers, labor representatives, and other segments of the community. The effort began over a year ago and resulted in passage of the Ordinance in October,2002. The Ordinance affects the County employees and employees of contractors andsubcontractors with County contracts of $100,000 or more. It assures those employeesof at least $9.57 per hour, with $1.25 per hour added if health insurance is not employerprovided. This was a great step forward and the Coalition is now planning how to takethe Living Wage message to municipalities in Broward and other employers such as theSchool Board.

FLS Advocates: Janet Riley, with assistance from Arthur Rosenberg

2. Living Wage Ordinances Around the State

Number Affected: Thousands

Summary: FLS, the Human Services Coalition , and the South Florida AFL-CIO foundedthe Community Coalition for a Living Wage, to organize the community and mount acampaign to enact a living wage ordinance in Dade County. The aim of the campaignwas to (1) ensure that the County, and any business or organization that contracts withthe County to provide services must pay its workers above the federal poverty level, and(2) bring attention to the issue of low wages and the working poor in our community.

The Miami-Dade County Commission unanimously passed a living wage ordinance in1999. The ordinance provides that all county employees, employees of service providers

who contract with the county, and employees of airport licensees must be paid at least$8.56/hour (now $9.00) with health benefits, and if no health benefits are provided,$9.81/hour now $10.30). The living wage is adjusted annually with the CPI. This wasthe first living wage ordinance passed in Florida and the southeastern United States.

As provided for in the ordinance, a commission has been established to review theimplementation and compliance with the ordinance. FLS has been appointed to a seaton the Miami-Dade Living Wage Board. Thousands of workers have received payincreases of an average of $2.50/hour.

FLS Advocate: Arthur Rosenberg

Status: FLS is now focusing on effective enforcement and enacting living wageordinances in other municipalities. In April 2001, FLS secured the passage of a livingwage ordinance in Miami Beach, which is substantially similar to Miami-Dade County's.Campaigns to enact living wage ordinances have begun in Coral Gables, South Miami,and the City of Miami. We are also working with student and faculty group at theUniversity of Miami who are seeking to bring about a living wage policy for all universityemployees and contract workers. In addition, FLS and the Coalition have been workingwith other community campaigns around the state to secure passage of living wageordinances, including Orlando, Gainesville, Jacksonville, Broward and Tampa, serving asa resource and providing support and the expertise necessary to help with theircampaigns. The Coalition has recently secured funding and has hired part time staff tohelp our local efforts.

3. Duval County Living Wage Ordinance

Number of People Affected: Thousands of workers in Duval County

Summary: Several southern Florida counties have enacted Living Wage ordinancesinsuring that people who work for the government are paid a fair and meaningful wage.FLS is working with other groups and individuals in Jacksonville to support a similar livingwage ordinance in Duval County.


Status: The ordinance has been before the City Counsel and the President decided itshould be the subject of an ad hoc committee. This was, in effect, an effort to shelve thebill because no action has been taken and the President has threatened to bring it upquickly knowing that it would be defeated. We hope to use the upcoming City electionsto get the ordinance back into committee and passed.

LITIGATION

1. Gregorio Rincon Castillo, et al. v. Hoyt Osborne, et al. (The Virginia Justice Center for Farm and Immigrant Workers/FLS/Foley & Lardner)

Summary: Mary Bauer of The Virginia Justice Center for Farm and Immigrant Workersfiled a lawsuit against a couple who ran a hotel providing substandard and grossly over-priced housing to migrant farm workers in Virginia. She was able to get a judgment forover $250,000 for actual and punitive damages based upon the Migrant and SeasonalAgricultural Worker Protection Act, the federal Fair Housing Act, the Civil Rights Act of1866 and the Virginia Residential Landlord and Tenant Act. The Defendants, Hoyt andGlenna Osborne moved to Florida and filed a Chapter 11 bankruptcy hoping to avoidliability for this judgment.

Number Affected: Seventeen migrant farm workers who are judgment creditors.

Advocates: Mary Bauer, Lynn Drysdale (FLS)

Status: We have filed proofs of claim and prevailed an adversary proceeding filed tochallenge the dischargeability of the judgement creditors debts. We filed objections totheir projected Chapter 11 Reorganization Plan and Disclosure. These objections wereargued on Tuesday, January 14, 2003. The Debtors filed an amended plan. We will bevoting to accept or reject the plan and then monitoring the sale of the assets to pay theclients.

Family/ Juvenile/ Education

LITIGATION

1. Appointment of counsel for indigent parents in juvenile dependencyproceedings (FLS)L.W. and R.L.W. v. Dept. of Children and Families. Consolidated Case Nos: 1D01-368/1D01639 First District Court of Appeal

Summary: In 1998, the Florida Legislature required appointment of counsel for allindigent parents at every phase of a dependency action. However, this mandate wasonly partially funded, and it appears that many court-appointed counsel provide onlyminimal assistance to parents in the majority of courts. The sad result is that many

parents have “due process” in name only, because they often get little individual attentionfrom their lawyers and their cases are not litigated competently. Parents frequentlyadmit to the allegations against them, and simply accept the case plans which aredeveloped by the Department of Children and Families. DCF is seldom held to its burdenof proof, and parents are denied the opportunity to act as partners in resolving familycrises. As a result, more children are being placed into foster care, where they languishwithout adequate services and where they are often abused in overcrowded housing.

FLS Advocate: Deborah Schroth

Co-counsel: Michael Yokan

Status: In 2000, FLS undertook representation of a mother whose 3 children had beenadjudicated dependent and who had numerous complaints about her court-appointedattorney. FLS’ advocacy was two-pronged. In the dependency case itself, FLSpersuaded the trial court first to allow her two boys, concerning whom only a“prospective risk of harm” was alleged, to return to the mothers home. Some monthslater, we secured supervised visitation for the father with his sons; finally culminating in areturn of custody of the two boys also to the father, which allowed him to finally moveback into the family home.

In the course of this representation, we learned the mother’s attorney failed to conducteven rudimentary discovery and failed to object to hearsay evidence at each and everyoccasion it was offered by the Department and the Guardian ad Litem. FLS filed ahabeas action to set aside the dependency adjudication based on the incompetency ofthe mother’s court-appointed counsel. A local private attorney, Michael Yokan,represented the father in an almost-identical action, as the father was represented by thesame court-appointed attorney at the dependency adjudication. The trial court deniedour Habeas petitions. This matter was appealed to the First District Court of Appeal,which issued its ruling in spring, 2002, affirming that parents who are constitutionallyrequired to have court-appointed counsel are required to have competent court-appointed counsel. The Appellate court also ruled that when an attorney wasincompetent, the proper remedy was by habeas corpus.

This case was settled with the Department upon remand.

2. Appointment of counsel for indigent parents in dependency cases in DuvalCounty.

H.D. v. DCF, et al: In Re Petition for Writ of Mandamus. Filed in the 1st DistrictCourt of Appeal.

Numbers affected: At this time, only in the 10's. However, the numbers could grow toaffect possibly hundreds of parents annually.

Summary: The dependency court has begun to deny court-appointed counsel to parentsseeking to appeal adverse judgments in dependency issues.

FLS Advocate: Deborah A. Schroth

Status: FLS filed a Petition for Writ of Mandamus, to require the trial court to appointappellate counsel for FLS’ appellate client. The First District Court of Appeal hasentered its Order to Show Cause, to which only the child’s custodians has responded.

3. Foster Children v. Jeb Bush, et al.Filed in the Federal District Court, Southern District of Florida.

Numbers affected: 15,000+ children in foster care

Summary: This is a class-action lawsuit brought against the State of Florida and theDepartment of Children and Families (DCF) on behalf of all the children in the legalcustody of DCF who have suffered harm as a result of DCF’s failure to provide themadequate care and/or necessary and meaningful services, including medical care,educational services and timely efforts to either return them to their families or to find thechildren permanent homes when reunification is not a possibility.

Advocates: Deborah Schroth (FLS), as co-counsel with numerous members of Florida’schildren’s advocates community; Children’s Rights, Inc., a non-profit New York law firmhighly experienced in systemic child welfare reform advocacy; and a contingent of privateattorneys working under the leadership of Karen Gievers.

Status: After months of various pleading motions and extensive discovery, the FederalDistrict Court in Miami rejected the Magistrate Judge’s recommendations that the allegedclass be certified and that the court deny the Defendants’ Motions to Dismiss. The Courtentered its order dismissing most of Plaintiffs’ claims in December 2001. The claimswhich the trial court left pending were still not certified as to the class; these claims weresettled for the individual plaintiffs affected. We then appealed the order of dismissal. This spring, 2003, the 11th Circuit Court of Appeals affirmed the trial court’s dismissal. We requested re-hearing, as we believe the Court misperceived our prayer for relief, butthis motion was denied.

Advocates have not yet decided whether to seek Certiorari in the U. S. Supreme Court.

4. J.J. vs. The School Board of Duval County, Florida.Filed in Circuit Court, Duval County

Numbers affected: Although this is an individual case, because we are seeking to havethe Duval County Code of Student Code rewritten to conform to Florida statutes, weestimate this case will affect a few thousand Duval County students.

Summary: J.J. was suspended from school for 10 days for being disruptive, with theschool’s Principal then deciding she was to serve 45 days in the District’s AlternativeMiddle School. Florida law provides for advance notice of the assignment; for anadministrative hearing should the student or parent wish to have a hearing; and for theSchool Board itself to make this decision. In this case, the Principal made the decision toremove J.J. and various District staff maintain that there is absolutely no right to anadministrative hearing.

Advocates: Deborah A. Schroth (FLS) and Kimberly Martyn (JALA), with the technicalassistance of Southern Legal Counsel.

Status: Shortly after filing the litigation, J.J. asked that we not seek an injunction toreturn her to her home school. She was afraid that if that happened, she would get intomore serious trouble out of retribution. Because J.J.’s alternative school assignment wasfor 45 days, which would carry her beyond the completion of the 2002-2003 school year,we believed our suit would remain timely. However, the School Board “forgave” herserving the number of days that would carry over into the 2003-2004 school year, andhas now moved for dismissal based on mootness.

Advocates are completing their argument and memorandum as to the mootness issue, atwhich time they will schedule the motion for hearing.

OTHER ADVOCACY

1. Rule 8.350, Florida Rules of Juvenile ProcedurePending before the Florida Supreme Court

Numbers affected: Approximately eight hundred annually

Summary: One issue concerning foster children concerns what due process they areentitled to, if any, when the Department seeks to place them into residential psychiatricplacement centers. Advocates at the University of Miami Children’s Law Clinic litigatedthis issue on behalf of MW, a child who contested his placement. This case wasultimately heard by the Florida Supreme Court, which requested the Juvenile Court Rules

Committee of The Florida Bar draft applicable procedural rules.

Advocates: Deborah Schroth (FLS); Sarah Bohr (private attorney).

Status: After working through the Juvenile Court Rules committee, writing and filing aminority report initially, that was adopted substantially by the Court, and writing and filingthe Committee’s majority report after the second referral by the Court, the Court adoptedthe proposed rule in substantially the same format we advocated. We are now in theprocess of gathering data state-wide to ensure the Rule is being followed.

2. Domestic Violence Legal Hotline (FLS)

Summary: FLS entered into a contract with the Florida Coalition Against DomesticViolence (FCADV) for a sixth year of funding in 2003; that contract has recently beenextended for another 12 months to June 30, 2004. The funding for FLS is for thecontinued operation of the FLS Domestic Violence Legal Hotline which provides initiallegal consultation and advice along with referrals for more extensive legal representationand for assistance from the domestic violence centers.

FLS Advocates: Kent Spuhler, Ann Perko, Suzanne Estrella, and Janet Anthony

Status: We have entered into another year of partnership with FCADV. We areworking with them to implement a comprehensive outreach program to promote theavailability of the hotline in the rural counties where the hotline is underutilized. We planto continue to develop strategies to address statewide or regional issues, workingclosely FCADV, local legal services programs, and domestic violence centers. Also, wehave developed a pro bono program through which local attorneys and FSU law studentshandle some of the calls received by the Hotline, and the FSU law clinic takes on fullrepresentation of some clients. We continue to provide training for organizations and probono attorneys upon request.

5. Children in the dependency/ delinquency system.

Number affected: Thousands of Florida’s children annually.

Summary: For the past two years, FLS has assisted in designing the Florida BarFoundation’s Children’s Legal Services Conference, with the help of other grantees. Thegoal of the conferences is to unify advocates into a small number of issues groups whowill work to solve the top problems currently facing Florida’s children.

FLS Advocates: Deborah Schroth will participate in litigation coming out of theDelinquency and Lawyers for Children groups. Anne Swerlick and Miriam Harmatz areinvolved in the EPSDT sub-committee of the residential treatment group, and willparticipate in EPSDT litigation currently being discussed. Deborah Schroth will alsoassist with this issue.

Status: The inaugural conference resulted in four initial working groups, whose successhas been varied. During the May 2003 conference, core advocates convened a numberof new working groups, as well as pledging to strengthen a few existing groups, includingthe provision of adequate and necessary health care for children in state custody(EPSDT); securing lawyers for children; education issues; “zero tolerance” - focusing onthe criminalization of school discipline matters. There were additional working groupsdiscussed, that are in the process now of getting off the ground.

6. Florida Supreme Court Steering Committee on Families and Children in theCourt

Summary: This committee, whose members are primarily judges, is charged withmaking recommendations to the Florida Supreme Court on improving how the judicialsystem responds to families and children. Specifically, the committee is currentlyfocused on implementing the unified family court, establishing standards for handlingdomestic violence cases and assessing the impact of the article V revisions on thecourt’s handling of family, dependency and delinquency cases.

FLS Advocate: Kent Spuhler

Status: A proposed rule on mediation in domestic violence cases that was developed bythe committee is currently pending before the Supreme Court. A small subcommittee isworking on identifying information sharing issues that could be problematic for childrenand families in the unified family court system which also tries to work with communityservice organizations to provide social services, treatment and counseling to addressunderlying family problems. The “best practices” guidelines for handling domesticviolence cases is still being worked on by the domestic violence subcommittee.

Health/Senior


1. Medicaid Waivers

Number Affected: Over 200,000 elderly and disabled Medicaid recipients andapplicants

Summary: Medicaid waivers (also called Home and Community Based Services orHCBS) are a critical benefit for individuals who are so disabled that, but for the waiverservices, they would require institutionalization. However, there is insufficient funding forwaivers and applicants and recipients have generally been deprived of Medicaid dueprocess rights.

Advocates: Miriam Harmatz and Anne Swerlick (FLS); Andrea Costello (Southern LegalCounsel)

Status: FLS is participating on a statewide task force on Medicaid waivers which isbeing chaired by Andrea Costello with Southern Legal Counsel. FLS staff are assistingin providing technical assistance on waiver questions and cases arising in the field. FLSand SLC have been working with staff from CFLS, JALA and LSGMI who are using thefair hearing process to help establish due process rights for waiver applicants andrecipients. This assistance has spanned the range of providing technical advice to writingproposed orders and co-counseling.

We recently discovered that DCF has revised its Request for Assistance (RFA) form bydeleting a check box used by applicants to indicate that they want to apply for Medicaidhome and community based waiver services (HCBS). DCF has proposed rules whichincorporate this new form. FLS requested a public hearing, attended the hearing andprovided written comments objecting to the revised form. We are waiting for a responsefrom DCF as to whether it will restore to the RFA the HCBS check box form.

2. EPSDT Advocacy on Behalf of Children in Care

Number Affected: Thousands of children in the dependency and delinquency system

Summary: Participants at the April 2002 Florida Bar Foundation sponsored children’sconference identified priority issues and created task-forces for follow-up work. One ofthe issues identified was the lack of health care services for children. A task-force wasformed to develop and implement strategies for enforcing Medicaid EPSDT rights inindividual juvenile court cases.

FLS Advocates: Anne Swerlick, Miriam Harmatz, Deborah Schroth

Other Advocates: Susan Khoury & Heather Morcroft (LASOCBA); Stephanie Johnson(LSNF); Robin Rosenberg (Holland & Knight)

Status: The task force drafted a memo of law which discusses the EPSDT rights ofdependent children. The GAL project with LASOCBA successfully used the memo onbehalf of a child in foster care who did not get necessary medical treatment. Thedependency court issued a comprehensive order which stated that DCF had failed toassure that the child had received EPSDT services and ordered, among other things, that DCF ensure that the child promptly get EPSDT services and warned DCF that it could beheld in contempt if it failed to do so.

At the May 2003 Bar Foundation Children’s Conference, task force members offered atraining to other conference participants. Topics included a presentation on the GALEPSDT memo and other litigation strategies in dependency court, as well as a training onbasic EPSDT law and enforcing EPSDT rights through Medicaid fair hearings. Taskforce membership was greatly expanded at the May 2003 meeting. Through list servemessages the task-force is identifying attorneys willing to appear in dependency ordelinquency proceedings and advocate for EPSDT services. The task force will providesupport to any attorneys who want to do this work including technical assistance, writtenmaterials and possible co-counseling on DCA appeals.

3. City of Jacksonville toxic waste incinerator and dump sites

Number affected: The Florida Times-Union estimated that 40,000 people live within ahalf-mile of the four contaminated sites.

Summary: In the 1940's and 1950's, the City of Jacksonville operated a number ofmunicipal incinerators which burned both residential and industrial waste. The City’spattern and practice was to dump the resulting ash throughout the City in poor andminority neighborhoods. The City gave some of the polluted land to the School Board,for an elementary school. Florida’s Department of Environmental Protection notified theCity of these toxic waste problems, which chose to ignore the problem. The DEP thenreported the situation to the United States Environmental Protection Agency. The EPAand the City reached a consent decree in this matter as to three sites known collectivelyas the “Jacksonville Ash Superfund Site.”

FLS Advocate: Deborah Schroth.

Co-counsel: Legal Environmental Assistance Foundation [LEAF]

Status: Our client is North Riverside Community Association (NRCA), which secured thedesignation from the City and EPA as the community’s representative in the clean-upprocess. Along with this designation, NRCA received a $50,000 grant to hire its ownscientific experts to review the data and its method of generation, and to keep the

community members informed.

We achieved a written commitment from the City of Jacksonville to comply with thestricter Florida law rather than federal law in devising the appropriate clean-up standard. Florida law requires a clean-up standard of “ten to the minus six”, which equates to aprojected cancer risk from the contamination which is allowed to remain of one in onemillion. However, the federal standard is “ten to the minus four”, which equates to a riskof one in ten thousand. We are pleased with this victory, as EPA has agreed to abide bythe City’s commitment.

Through the comments of its experts, NRCA secured more data collection than originallyproposed, in the first phase of determining the extent of the contamination of the soil andwater. However, this victory brought delay, and the community continues to await theproposed “Feasibility Study”, which will set forth the City’s proposed clean-up plan. When that study is received, our experts will again submit comments to EPA, hoping toinfluence the extent of the clean-up for this community.


1. Medicaid Cutbacks

Number affected: There are over 27,000 Floridians eligible for the medically needyprogram, and about 600,000 disabled and elderly Floridians who have Medicaidcoverage.

Summary: The Medically Needy (MN) program provides health insurance coverage forindividuals with catastrophic illnesses whose incomes are too high for the regularMedicaid program. However, most MN individuals have income close to the federalpoverty level (in 2003, $739 per month for an individual). During 2002 , the Legislaturefunded the MN program with non-recurring funds and changed the law so that effectiveMay 1, 2003 MN recipients would have to pay all but $450 of their monthly income inorder to qualify for coverage. However, the law was written in a very confusing way sothat most legislators had no idea how the change in law would impact the medicallyneedy population. In January 2003, the Governor proposed elimination of the MNprogram for the aged and disabled population, elimination of Medicaid coverage for adultvision and hearing services and the addition of a co-payment requirement forprescriptions and emergency room visits.

FLS Advocates: Anne Swerlick, Dorene Barker, Arthur Rosenberg, Miriam Harmatz

FLS Legal Assistant: Susie Rizzo

Status: FLS worked in conjunction with the Florida Transplant Survivors Coalition and anumber of other human services organizations to initiate a comprehensive publicawareness campaign about the threats to the MN program. In February, FLS organizeda kick-off press conference to alert the public on how MN needy recipients would beimpacted by the changes to the program slated to go into effect May 1, 2003 and theGovernor’s proposed elimination of the program. We were fortunate to haveRepresentative Gayle Harrell, a Republican legislator from Port St. Lucie, sponsor thepress conference and speak about her husband who is a transplant survivor. The pressconference was a catalyst for generating enormous amounts of press coverage aboutthe MN program throughout the legislative session. Soon after the press conference theSenate Health Care Committee held public hearings about the proposed health care cutsand FLS and two of our MN clients were invited to testify. Before and throughout thelegislative session, FLS staff and their clients met with a number of Representatives andSenators as well as representatives of the Governor’s office to explain the harmfulimpact the MN proposals would have on clients. The ongoing press coverage about theMN program generated many phone calls to our offices from fearful MN recipients. FLSserved as a “Clearinghouse” for collecting stories from recipients who were willing to “gopublic” and helped link up these recipients with state and national reporters. On the eveof April 30, 2003, the Legislature passed and the Governor signed into law anemergency bill which restored funding for the MN program through the remainder of the2002-03 fiscal year. Since the regular session ended without the Legislature passing abudget, a special session was convened in May. In budget negotiations during thespecial session, the MN program was treated as a “sacred cow” and quickly a verypublic consensus emerged between the House, Senate and Governor that $ 449 millionhad to be appropriated to preserve the MN program.

Unfortunately, other Medicaid issues that we worked on did not fare as well as the MNprogram. Our advocacy focused on recent scientific research demonstrating the harmfulimpact of imposing prescription co-payments on low income populations as well as thedetrimental impact of eliminating Medicaid coverage for vision and hearing services.Nevertheless, the Legislature included these Medicaid cuts in their final 2003-04 budget.

LITIGATION

1. Hernandez et al. v. MedowsCase No. 02-20964 CIV-GoldU.S. District Court, Southern District of Florida

Number affected: The relief granted benefits any of the state’s 1.9 million Medicaidrecipients whose request for prescription coverage is denied.

Summary: Every month, thousands of Medicaid recipients are denied coverage for theirprescription drugs without any written notice of the reason why, their right to appeal orthe circumstances under which they could continue receiving medication pending theresult of an appeal. Plaintiffs challenged the Medicaid agency’s refusal to providerecipients with adequate written notice and hearing opportunities.

FLS Advocates: Miriam Harmatz and Anne Swerlick

Co-Counsel: Bill Fraser (LASPBC); Jane Perkins and Lourdes Rivera (National HealthLaw Program)

Status: A class was certified which includes “all current and future Florida Medicaidrecipients who have, or will have their prescription drug coverage denied, delayedterminated or reduced without adequate notice and the opportunity for a fair hearing.” Subsequent to intensive mediation the parties executed a settlement which was approvedby the court and incorporated into a final order of dismissal in May 2003. Under theterms of the settlement, the state Medicaid agency, as well as each Medicaid HMO,must provide all class members with written notice that contains the information requiredby federal Medicaid regulations. Further, the settlement provides for the right to appeala coverage denial, including the right to a pre-termination appeal (which means thatcoverage for a refill will be continued pending the outcome of an appeal) if the recipientbelieves the reason for non-coverage is erroneous. Finally, the Settlement provides forcreation of an Ombudsman office to assist in resolving coverage problems.

The parties are currently working on implementation of the settlement agreement. Theagency has until May 2004 to implement all elements of the agreement. The parties arealso litigating the amount of attorney’s fees and costs to which plaintiffs are entitled.

Homeless


1. Anti-homeless ordinances

Number affected: Thousands

Summary: In response to the efforts of a number of cities in Florida to enact ordinancesthat serve to target and criminalize behavior that homeless persons tend to, oftennecessarily, engage in, FLS continues its work with the Florida Coalition for theHomeless, local homeless advocates, and the ACLU to assure that homeless persons'civil rights are protected and that homelessness is not criminalized.

FLS Advocates: Arthur Rosenberg , Lynn Drysdale

Status: Working in conjunction with the Florida Coalition for the Homeless, we have setup a statewide criminalization taskforce to monitor, address and counteract the efforts ofmunicipalities throughout Florida who have, or are attempting to pass anti-homelessordinances that criminalize and/or limit the activities and freedom of movement ofhomeless persons. These communities include Brevard County, Jacksonville, Key West,Orlando, Ocala, Miami Beach, Sarasota, and West Palm Beach. The taskforce willassist local communities: oppose or modify proposed ordinances; monitor the impact andimplementation of ordinances that have passed; and explore possible litigation to addressunconstitutional ordinances or implementation. The settlement reached in Pottinger v.City of Miami is being used as a model to preserve and respect the rights of thehomeless within our communities. In addition the state Coalition, we are working withlocal homeless coalitions, various state and local advocacy groups, the ACLU, theNational Coalition for the Homeless, and the National Law Center for Homelessness andPoverty.

2. Labor Pool Act Implementation/Enforcement of employment rights

Numbers affected: Thousands

Summary: FLS, along with LSGMI, was instrumental in securing the passage of theLabor Pool Act by the Florida Legislature. This act provides significant protections forday laborers who find work at labor pools. FLS is working with the Florida Coalition forthe Homeless and advocates in various parts of Florida to provide education to labor poolworkers about their rights, determine the extent of continued problems, and to assistworkers and/or secure representation in the legal enforcement of their rights under thelaw.

FLS Advocate: Arthur Rosenberg

Status: FLS is working with LSGMI to conduct clinics for both staff and residents ofhomeless shelters. We are also working with the Florida Coalition for the Homeless, andadvocates in Jacksonville, Orlando, and Broward to assist labor pool workers and assureimplementation of the law.

3. State Office on Homelessness


Summary: FLS has for the past 2 years been working with the Florida Coalition for theHomeless (FCH) for the creation of a statewide commission or interagency task force toidentify and address issues and challenges facing the homeless in Florida. In the 2000session, a bill was passed to create a Commission to look at the problem ofhomelessness in Florida. FLS worked to secure passage of this legislation. TheCommission then proposed legislation for the 2001 Session. FLS worked with FCHduring the 2001 legislative session to successfully improve the bill filed by theCommission. The bill that passed presents an opportunity to make significant inroads tolessening homelessness in Florida and enhancing coordinated services to the homeless. It created a state Office on Homelessness within the Department of Children andFamilies and a 15 member Council to advise the Office, provides almost $12 million fornew or expanded efforts to help homeless people, and addresses a variety of publicpolicy issues relating to homelessness

FLS Advocates: Arthur Rosenberg, Dorene Barker

Status: We are working with FCH to monitor implementation and provide input anddirection to the work of the Office and Council.

LITIGATION

1. Pottinger v. City of Miami Case Numbers 91-5316, 92-5145, 95-455511th Circuit Court of Appeals

Number of Persons Affected: Approximately 6,000

Summary: This is a class action filed in Federal District Court in 1988 by the ACLU, onbehalf of homeless persons, challenging the City of Miami's practice of harassing andarresting homeless persons for engaging in life-sustaining activities, i.e. eating, sleeping,washing, etc. in public places. In 1992, the Court ruled in favor of plaintiff class.Pottinger v. City of Miami, 810 F.Supp. 1551 (S.D. Fla. 1992). After two appeals, the11th Circuit ordered mediation. The primary provisions of the settlement that wasreached are: required police training regarding the circumstances and rights of homelesspersons; an established protocol for law enforcement contacts with homeless personsthat assures that people without shelter cannot be arrested for conducting life sustainingactivities in public when no shelter is available; places the responsibility of finding shelteron city authorities; establishes an advisory committee to monitor city compliance; a$600,000 compensation fund for homeless persons who were injured by police conductruled unconstitutional by the District Court (money remaining in the fund after classmembers claims are paid will be used as a "start up fund" to assist homeless persons

secure housing); and $900,000 attorneys fees.

FLS Advocate: Arthur Rosenberg, (co-counsel with ACLU)

Status: Implementation of the settlement agreement is ongoing. A total of $417,000was awarded to 278 class members($1500 per person). The remaining $183,000 hasbeen used to help homeless families secure housing, i.e. through security deposits, utilityturn-on, first months rent, furniture, kitchen supplies, etc. Approximately 200 families(400 individuals) have secured housing and set up households through the "start-up fund." We are working with the Advisory Committee, and overseeing and monitoring the overallimplementation of the agreement and police protocol.

OTHER ADVOCACY

1. Homeless Access to Health Care


Summary: FLS and the Jacksonville Emergency services and Homeless Coalition areworking together in investigating reports from homeless individuals residing in homelessshelters around town that they are being denied access to medical care. It appears thatthe indigent care hospital is imposing illegal residency requirements when determiningeligibility for care. The advocates are gathering anecdotal information. A meeting hasbeen scheduled for August 6 with the hospital’s general counsel and an administrator toreview the questioned eligibility policies.

Housing


1. Community Development Block Grant Funds (Broward County)

Number of People Affected: This could potentially affect a thousand or more peoplewho are impacted by the County's CDBG activities and those of the municipalities whoseCDBG funds are administered by the County.

Summary: Broward County has recently adopted a new policy with regard toadministration of Community Development Block Grant (CDBG) funds received from U.S.Department of Housing and Urban Development. The County administers CDBG fundsfor a number of the municipalities within the County which are their own entitlementjurisdiction but choose to allow the County to administer the funds. These funds havepreviously been put into the County "pool" so to speak, and the funds were apportionedon a competitive project proposal basis which was county-wide. The process involvedranking of proposals by an Advisory Board, which included citizen participation. Themunicipalities began to raise issues with the process because funds were not spentproportionally within the municipality in accordance with the amount of CDBG funds it hadbrought to the table. With the disbanding of the Advisory Board and the Countyabandoning any real oversight responsibility with regard to the municipalities whoseprograms it administers, it is likely that there will be even less attention and expendituredirected at housing for low income households. Florida Legal Services contacted a localfair housing advocacy organization, HOPE, Inc. regarding the above situation. HOPE andFLS are preparing for filing with HUD a challenge to the new process, in light of itsimpact on affordable housing for low income persons and its impact on fair housing.

Status: The County contacted Legal Aid Services of Broward County to partner in aproposal to HUD for a Fair Housing initiative. This initiative would include addressing fairhousing issues in the municipalities' use of CDBG funds. Legal Aid did receive fundingunder the grant and has now done training for entitlement jurisdiction staffs in Broward,Miami-Dade, and Palm Beach counties. In addition, it has done similar trainings for theBroward Alliance for Neighborhood Development and the Community HousingDevelopment Organizations in Broward.

Legal Aid will also be involved in the Broward County’s Analysis of Impediments to FairHousing as part of the County’s Consolidated Planning process. In addition, FloridaLegal Services will monitor the Broward local governments’ Annual Plans andexpenditures under the Community Development Block Grant Program.

FLS Advocate: Janet Riley


1. SB 482 - Landlord/Tenant, Sen. Lynn

HB 477, Rep. Patterson

Session Law 2003-30

Summary: Bill amends §§83.682 pertaining to termination of a rental agreement by aservice person. Landlord can no longer collect liquidated damages for an earlytermination by a service person due to permanent relocation or involuntary discharge orrelease. §§83.67 Prohibited practices is amended to add that a landlord may notdiscriminate against a member of the service in offering a dwelling for rent or in term ofthe rental agreement. The bill creates §§83.575, termination of tenancy with specificduration providing that a (1) a rental agreement of specific duration may contain aprovision requiring a tenant notify a landlord before the end of the rental agreement, notto exceed a 60 day notice; (2) a rental agreement may provide that if a tenant fails togive the notice the tenant may be liable for liquidated damages; (3) if a tenant remains inthe unit after the rental agreement ends but fails to give the notice required under§§83.57(3) the tenant is liable for an additional 1 month’s rent. Effective May 23, 2003by the Governor’s signature.

Analysis: There were a number of military bills this session, several dealing withchapter 83, many covering the same provisions. Dorene and I knew these were vehiclesfor the Florida Apartment Association to tack on other provisions. Creation of the new§§83.575 was an amendment. I missed this amendment in its first committee ofreference and was unable to defeat it thereafter, but not for lack of effort. There is nowritten analysis of the new §§83.575, since the goal of the lobbyist and her sponsorswas to downplay its addition. Once we testified against it, the Florida ApartmentAssociation’s claimed basis for it was a case out of Dade County where a judge struckdown a lease that required the tenant give 30 days notice to vacate. They claimed theywere worried this would have far reaching impact. Later the reason shifted to concernthat since the liquidated damages provision was removed for the military, judges wouldinterpret this to mean no landlord could collect liquidated damages without statutoryauthority.

NOTE: The only provisions of this bill to become law appear to be §§83.575. Everything else is also treated in SB 1098 below and the language in that bill will beadded to the statute according to the best information I can get from Statutory Revision.

FLS Advocates: Dorene Barker and Alice Vickers

2. SB 1944 - Mobile Home Owners, Sen. Dockery

HB 1065, Rep. Fiorentino

Summary: Bill amends various sections of Chapter 723. Briefly some of the changesinclude clearly placing Chapters 83, 723 and 513 under §§48.183; $1 surcharge on eachmobile home license (for mobile homes located in a mobile home park covered by 723)

for the Relocation Trust Fund; $1 surcharge on the annual fee for each mobile home lotwithin a mobile home park; mobile home owner or park owner may put any size mobilehome and appurtenances on a lot in accordance with requirements in effect at the time ofthe approval of the mobile home park; eviction grounds now apply to mobile home owner,a mobile home tenant, or a mobile home occupant; language is added that for an evictionfor conviction of a law detrimental to health, safety, or welfare of the residents, the parkowner must give a 7 day notice to vacate; this section shall also be grounds for denyingan initial tenancy of a purchaser of the home; if a purchaser of a mobile home in a mobilehome park occupies the home before the approval is granted the owner or tenant shallhave 7 days form the date of notice of failure to be approved to vacate; a person whoreceives compensation under the trust fund shall not have a cause of action against thecorporation or the park owner for any claim arising under the rights, duties, andobligations of the corporation or park owner under the relocation act; no payment fromthe relocation trust fund if the home owner has a pending eviction action for nonpaymentof lot rent which was filed against him prior to the mailing date of the notice of change inuse of the park; if a home owner is required to move due to change in use of the park thepark owner shall pay to the relocation corporation $2750 for each single-wide and $3750for each double-wide (increases from what they were paying); if the home owner isrequired to move due to a change in use of the park he is entitled to payment from thecorporation in the amount of $3000 for a single-wide and $6000 for a double-wide(decrease in amount previously paid); in lieu of collecting payment from the relocationcorporation the home owner may abandon the home and collect $1375 for a single-wideor $2750 for a double-wide (was one-fourth of the maximum allowable movingexpenses), however, home owner must submit a document signed by the park ownerstating that the home has been abandoned and the park owner agrees to make paymentto the corporation, but the corporation may consider facts if this document is notsubmitted; any home owner approved for payment from the relocation corporation isbarred from asserting any claim or cause of action under this chapter relating to orarising out of the change in use of the park; for 2003-2004 fiscal year, $500,000 isappropriated from the relocation trust fund to the relocation corporation. Effective June26, 2003 by the Governor’s signature.

Analysis: There are a number of staff analyses of this bill and a lot of testimony. Dorene and I worked very hard on this bill and are pleased we were able to get rid ofmany bad provisions, including a ridiculous provision that allowed for the park owner tomake repairs to the mobile home and charge the home owner and making mobile homessubject to §§715.10 prior to the issuance of a writ of possession thereby giving parkowners the ability to quickly place a lien on the mobile home. This was particularlysatisfying since the manufacturers, park owners and the Florida Manufactured HomeOwners Association all supported the original bill and are individually and collectively verypowerful lobbies.


3. SB 920 - Florida Mobile Home Relocation Trust Fund, Sen. Clary

Summary: This bill recreates the trust fund without modification. Effective November 4,2004.


4. HB 1021 - Public Records Exemption, House State Administration

Summary: State law requires a review of public records exemption every 5 years. Theparticular provision under review in this bill pertains to applicants for and participants infederal, state, or local housing assistance programs. The exemption is narrowed toexclude exemptions for bank account numbers and credit card numbers since this isexempt under current law and therefore redundant; exclude exemptions for phonenumbers since the more intrusive address is not exempt so exempting the phone numbercannot be justified (phone numbers for victims of domestic violence are exempt underanother existing law). The previous exemption applied to any "agency" but house staffdetermined that this included agency as defined in chapter 119 and not all of theseagencies maintain records on applicants for government housing programs. So thehouse staff decided to specify which "entities" must follow the exemption. Under the newlaw they are the Department of Community Affairs, Florida Housing Finance Corporation,counties, municipalities, and local housing finance agencies. Effective October 1, 2003.

Analysis: There are very clear staff analyses of this bill. It appears to me that thischange will not cover public housing authorities that are not a creation of a county ormunicipality. There is no discussion of public housing authorities in the staff analyses, sopresumably this question was never considered.


5. SB 1098 - Florida Uniformed Servicemembers Protection Act, Sen. Fasano

Session Law 2003-72, (There were many similar bills)

Summary: This is a lengthy bill amending many provisions. The following are thechanges to the Florida Residential Landlord Tenant Act. "Servicemember," "active duty,"and "state active duty" are defined in §§83.43 to be the same as provided in §§250.01;protected against retaliatory conduct in §§83.64 if "the tenant is a servicemember whohas terminated a rental agreement pursuant to s.83.682; §§83.682 pertaining to

termination of a rental agreement by a servicemember to provide greater protections tothe servicemember. Effective on July 1, 2003.

Analysis: We promoted this bill over SB 482 in hopes of defeating the §§83.575language. Both bills passed. Statutory Revision has shown me their rough drafts and itappears that the language in SB 1098 is being used for the amendments to §§83.64(only difference between the two is the use of the term "servicemember" above) and§§83.682 (greater protections to service member provided above). As an aside, I wasaware that the addition to prohibited practices for the "servicemember" is poorly placedbut made a decision not to interfere with the military changes.


6. SB 2470 - Fair Housing Act, Sponsored by Senator Wise (FLS Clearinghouse priority)

Summary: Defines term "source of income"; prohibits discrimination in sale or rental ofhousing because of person's source of income. FLS was able to secure sponsors formthe Jacksonville area because of the great work done by JALA. Unfortunately, Rep.Gibson’s House Bill was "lost" in the process of filing and the leadership was not willingto accommodate her request to cure. The Senate, per senate policy, would not hear thebill if was not moving in the House. Amends 760.22,.23. Introduced, referred toComprehensive Planning; Judiciary 05/02/03 SENATE Died in Committee onComprehensive Planning.


LITIGATION

1. Reese et al. v. Miami-Dade County Housing Agency, et al.U.S. District Court, Southern District Fla.Case No. 01-01-3766 Civ-Highsmith

Summary: This is a class action on behalf of African American families living in ScottHomes public housing project and on behalf of African American households on thewaiting list challenging the planned demolition and "revitalization" of the Scott Homesproject as part of a HOPE VI grant. The action challenges the Housing Authority'sactions as well as U.S. HUD's on numerous grounds, including Fair Housing Act violationsand violations of the Housing and Community Development Act.

FLS Advocate: Chuck Elsesser

Co-Counsel: JoNel Newman (Florida Justice Institute); Todd Espinosa (NationalHousing Law Project); Ben Reid (Carlton Fields)

Status: The court denied defendants' motion to dismiss the resident plaintiffs for lack ofstanding and granted the defendants' motion to dismiss the organizational plaintiff andthe waiting list plaintiffs for lack of standing. The court has certified the class anddenied defendants' motion to dismiss the HCDA and QHWRA claims. In earlyDecember the court affirmed the Magistrate's Report and Recommendation denyingplaintiffs' request for preliminary injunction. Plaintiffs have appealed to the 11th Circuitand the initial brief was filed on January 28th. Argued on June 5, 2003.

2. Bailey v. Country Walk Circuit Court - Miami-Dade County

Summary: Defendant/Counter Plaintiff, Velma Bailey, was relocated from Scott homesto a five bedroom house in Country Walk Patio Homes. The landlord failed to getapproval and the Homeowners’ Association sued. Ms. Bailey filed counterclaim for racialand family status discrimination against Homeowners’ Association.

FLS Advocates: Chuck Elsesser, JoNel Newman

Status: Homeowners’ Association motion to evict was denied. Tenant is attempting torelocate. HA filed amended complaint seeking writ of possession. We have filed answerand motion to dismiss. Motion to dismiss was denied in part and granted in part. Asecond amended Complaint has been filed and discovery is continuing. We have filedcomplaint with U.S. HUD also.

3. Tharpe v. Stefan

Summary: This is an action, initiated by Legal Aid Service of Broward County, torecover funds stolen from a woman in foreclosure in Broward County. Original actionwas an eviction filed by owner who is the mother of the real estate agent. The agentstole more than $14,000 from the plaintiff from an escrow as part of the sale of herhouse. This is a counterclaim against mother and a third party complaint against realestate agent.

Advocates: Shawn Boehringer (LASBC); Chuck Elsesser (FLS)

Status: Defendant failed to participate in discovery. Motions to compel were grantedand responses to discovery were completed. Additional depositions are being conductedto determine location of a 3rd party defendant.

OTHER ADVOCACY

1. Sunshine Apartments

Number of People Affected: Initially, this will affect approximately 30 families but asunits are turned over, it could affect a hundred or more.

Summary: Sunshine Apartments is a 32 unit apartment building acquired for occupancyby people affected by HIV/AIDS with HOPWA funds administered through the City ofFort Lauderdale. The building was acquired by Sunshine Health, a non-profit, which wasto renovate and manage the property. The renovation and management were nothandled properly and there was some question of mishandling of funds. The propertywas deeded back to the City of Fort Lauderdale which has now written to HUD forauthorization to abandon the property and to replace it with 16 single family homes. TheHIV/AIDS community objects to this as scattered sites do not permit the support systemwhich living in close proximity provides those who are affected by AIDS. Also, thereduction in number of units to be provided is a major issue. We have written to the Cityand to HUD expressing our objection based upon Fair Housing issues and issuesconcerning proper use of HOPWA funds for the number of units for which the originalfunds were provided.

Status: The city modified the plan so that the number of bedrooms to be provided in the16 scattered site homes are equal to those available in Sunshine Apartments, eventhough the total number of housing units is less. Local AIDS/HIV providers are satisfiedwith that.

2. City of Fort Lauderdale Community Development Block Grant Funds

Number of People Affected: This could affect hundred of families, and individualseligible to benefit from CDBG funds.

Summary: As reported in previous dockets, the City of Fort Lauderdale used approximately $1,000,000 in CDBG funds for construction of a post office facility to beleased to the United States Postal Service. This was a very political decision which was centered on the need to get the post office to relocate from the property it previouslyleased from the City because the City wanted to put an aquarium tourist attraction at the

site. HUD did approve the expenditure of funds; largely, we believe to a Congressman'sintervention. When we learned of the construction we objected to the City and to HUDto no avail. However, due to our objection, HUD told the City that it must repay moneysinto the CDBG program from the proceeds of the post office lease. To the best of our knowledge that has not been done. We raised this issue with HUD.

Advocate: Janet Riley

Status: The City hired a consultant to analyze the issue and to conclude that all moniesused in acquisition and construction of the post office have not been repaid and that theproceeds of the lease are not "program funds" payable back into the CDBG programuntil after all construction costs have been paid. This analysis was put in a letter toHUD. We have responded in opposition to that analysis and arguing that the proceeds ofthe lease are program funds and must be paid back into the CDBG program.

At this time, we have not received an answer from HUD on the above described issue.

3. Yettie’s Outreach and Development Corporation v. City of Lauderhill

Number of People Affected: Hundreds of people will be affected by the loss of fundingand the resulting loss of housing units affordable to the low income, disabled individualsand families to be served.

Summary: FLS was contacted by Yettie’s Outreach and Development Corporationbecause the City of Lauderhill was refusing to sign a Certificate of Consistency with theCity’s Consolidated Plan. The Certificate of Consistency is required to obtain HUDfunding for two projects; My Family Place and Chez Papillions. My Family Place andChez Papillons are a transitional housing project and a permanent housing project,respectively; both are for formerly homeless, mentally ill individuals and families. MyFamily Place is in operation and now requires a renewal of its funding and a newCertificate of Consistency; Chez Papillons required the Certificate to support anapplication for initial funding. The City had previously signed the Certificate for My FamilyPlace with no problem. It now refused the Certificate to both projects, based on claimsof HUD requirements to deconcentrate minority and poverty housing. Federal funding willbe lost if the Certificates are not executed forthwith.

Advocate: Janet Riley

Status: FLS contacted the City in writing and advised that to deny the Certificate ofConsistency for housing which will be specifically for the disabled and low incomepersons constitutes a violation of the Americans with Disability Act, the Federal Fair

Housing Act and the Florida Fair Housing Act. It also would be violation of the City’s dutyunder the CDBG program to affirmatively further fair housing. Yettie’s has filed a FairHousing complaint with HUD in order to protect its funding applications from rejection onthe basis of lacking the Certificate of Consistency.

At this time we are awaiting further response from the City. Litigation will be pursued, ifnecessary.

4. City of Miami HOPWA Program

Summary: This is a project, initiated by Legal Services of Greater Miami advocates torequire City of Miami HOPWA to provide HOPWA participants with the federal rights towhich they are entitled. Specifically, advocacy has focused on requiring the City first, to include utilities in their calculation of rent/housing costs for HOPWA recipients and toalso obtain retroactive benefits, and second to provide notice and an opportunity for ahearing prior to any determination to discontinue or change HOPWA benefits.

Advocates: Leslie Powell, Jeff Hearne (LSGMI); Chuck Elsesser (FLS)

Status: We wrote a demand letter to the City of Miami HOPWA regarding the utilityallowance/housing cost calculation. The City has agreed to implement the utilityallowance retroactively. We are negotiating with the City regarding a draft grievanceprocedure which would guarantee all of the rights which we believe are required.

Immigration/Naturalization

LEGISLATION

1. Instate Tuition for Undocumented


Summary: Bills were filed in the 2003 session to enable undocumented students whohave lived in Florida for at least 3 years and have graduated from a Florida high school tobe eligible for resident tuition rates at Florida colleges. Four states have passed similarmeasures.

Advocates: Arthur Rosenberg, Dorene Barker (FLS); David Skovholt (Florida ImmigrantCoalition, FIAC).

Status: The bill was passed by the Senate, and although it passed 4 committees in theHouse, it did not reach the floor of the House before the end of session.

LITIGATION

1. Lopez-Sanchez v. AshcroftCase No. 02-20421-CIV-MorenoU.S. District Court, Southern District of Florida

Summary: This is an action on behalf of a Guatemalan immigrant in INS custody,challenging the conditions of his confinement and the failure of INS to release him fromcustody pending the final determination of his asylum claim. The action is based onenforcement of the Settlement Agreement in Flores v. Reno, Case No. CV- 85-4544RJK- Px. After an evidentiary hearing lasting several days, the Court denied plaintiff’srequest for a preliminary injunction.

Advocates: Charles Elsesser (FLS); JoNel Newman (FJI); Chris Kleiser, Cheryl Little(FIAC)

Status: After an evidentiary hearing lasting several days, the Court denied plaintiff’srequest for a preliminary injunction. During settlement discussions INS finally agreed tocooperate in providing permission for the client to proceed in State court. As a result adependency action was commenced and Alfredo was released to the family of hisinterpreter. He has applied for a special juvenile visa and it is expected to be granted. As a result of INS cooperation in terminating his deportation and permitting his releasethe lawsuit was dismissed. Copy of pleadings available from FLS by email upon request.

2. Moises v. BulgerCase No. CIV 02-20822 (Leonard/Simonton)U.S. District Court, Southern District of Florida

Summary: This is a class action writ of habeus corpus to obtain the release of Haitiansin the "credible fear process" in the Miami District of INS and further to halt the practiceof the Miami District of INS through which they refuse to release any Haitians who arrivein Miami by boat while their asylum claims are pending. This practice which began inDecember is challenged as violative of the Due Process Clause of the United StatesConstitution, the INA and INS regulations as well as the Administrative Procedures Act.

Advocates: Charles Elsesser (FLS); JoNel Newman (FJI); Rebecca Sharpless, CherylLittle (FIAC), Ira Kurzban.

Status: After extensive briefing and documentary evidence, the trial court dismissed theaction, holding that a policy treating Haitians differently is not violative of the Constitutionor the INA.

Copy of pleadings available from FLS by email upon request.

3. Moises v. BulgerCase No. 02-13009-D (11th Cir.)

Summary: This is an appeal of the decision of the trial court in Moises v. Bulger, CaseNo. CIV 02-20822 (Leonard/Simonton) holding that the practices alleged were notviolative of the Due Process Clause of the United States Constitution, the INA and INSregulations or the Administrative Procedures Act.

Advocates: Charles Elsesser (Florida Legal Services, Inc.); JoNel Newman (FloridaJustice Institute, Inc.); Rebecca Sharpless, Cheryl Little (Florida Immigrant AdvocacyCenter, Inc.), Ira Kurzban.

Status: The 11th Circuit affirmed the decision of the trial court. Plaintiffs’ counsel arereviewing the possibility of applying for certiorari to the U.S. Supreme Court.

Migrant Farmworker


1. Carolina Gonzalez, et al. v. City of Fort Pierce

Number of Farmworkers Affected: 5,000 (St. Lucie County)

Summary: As part of an effort to redevelop its downtown area, the City of Fort Piercehas for two years engaged in aggressive code enforcement actions against landlordswho rent to the city’s thousands of migrant farmworkers. Various city ordinances havebeen selectively enforced against landlords who rent to minority farmworkers, includinglandlords whose properties have been properly licensed as residential migrant housing bythe Florida Department of Health. To avoid fines, many landlords have ceased renting tomigrant workers, substantially decreasing the housing in the area available tofarmworkers.

FLS Advocates: Lillian Hirales, JoNel Newman, Chuck Elsesser and Abbie Schwaderer

Status: Having successfully defended a series of citations against a well-run residentialmigrant housing facility, FLS is reviewing City files to determine whether civil rightsviolations have occurred in the course of the code enforcement efforts.

2. Pesticide exposure documentation project

Number of Farmworkers Affected: 300,000 (statewide)

Summary: Historically, only a handful of reports are filed annually regarding Floridafarmworkers exposed to hazardous pesticides, despite evidence of widespread workerexposure. In conjunction with the Farmworker Association of Florida, the Farm LaborOrganizing Committee and other community groups, FLS is assisting farmworkers in filingformal reports of pesticide exposure with the Florida Department of Agriculture andConsumer Services and the Florida Department of Health.

Advocate: Tania Galloni

Status: Over the past year, the number of complaints of pesticide exposure filed withgovernmental agencies has increased exponentially. FLS is closely monitoring theagencies’ treatment of these complaints to ensure that they are promptly and thoroughlyinvestigated.


1. Agricultural Guest Worker Legislation


Summary: On August 2, 2001, Senator Kennedy introduced S. 1313 and Rep. HowardBerman introduced H.R. 2736, the “H-2A Reform and Agricultural Worker AdjustmentAct.” This legislation is strongly supported by farm worker organizations including theUFW, FLOC, and the Florida Farmworker Association. Senator Larry Craig has filed S.1161 which is strongly supported by agricultural employers. Both the Kennedy-Bermanand Craig bills provided for legalization of a large part of the undocumented farm laborforce and make major revisions in the existing H-2A guest worker program. In addition,Rep. Chris Cannon and Senator Zell Miller have introduced identical bills (S. 1442 andH.R. 2457) which would weaken the wage protections under the current H-2A program.

FLS Advocate: Rob Williams

Status: FLS has been working with the same broad coalition of Florida organizationswhich opposed the grower legislation in the 105th and 106th Congress. In addition, wehave provided legal counsel and expertise to the United Farm Workers of America, AFL-CIO with respect to this legislation and have worked closely with Representative HowardBerman and Senator Kennedy to help formulate the farm worker bills. We have alsodiscussed our concerns directly with Senator Graham and his staff. The legislative battlein is in play against a backdrop of negotiations between the Mexican and U.S.governments over the future of immigration between the two countries. Prior toSeptember 11, momentum had been building for Congressional action in this area. Theissue is now beginning to resurface and talks have begun between farm worker andemployer interests over a possible compromise between the Kennedy-Berman and Craigbills.

2. Florida Agricultural Worker Safety Act


Summary: Representative Frank Peterman (HB 1253) and Senator Tony Hill (SB 1253)sponsored legislation to restore a provision of Florida’s pesticide act that hadinadvertently sunset in 1998. The proposed legislation would have reinstated the right ofFlorida farmworkers to know the effects of pesticides used at work. It also would haverequired the Florida Department of Agriculture to report on complaints of retaliationagainst workers exercising their rights under the federal Worker Protection Standards.

Status: A coalition of farmworker organizations, religious groups and communityorganizations, helped push the legislation through the House Commerce Committee andthe Senate Agriculture Committee. The legislation faltered when the chairs of otherrelevant committees refused to schedule hearings or mark-ups on the bill. The bill’ssupporters plan to seek reintroduction of the bill during the 2004 legislative session.

FLS Advocate: Tania Galloni

3. Anti-Slavery Legislation


Summary: Representatives Frank Peterman and Marco Rubio (HB 1327) and SenatorsMandy Dawson and Tony Hill sponsored legislation to amend Florida’s Farm LaborRegistration Act to make growers responsible for ensuring that the workers employed ontheir operations are paid their wages. For decades, many Florida growers have sought

to avoid liability by contending that the farm labor contractors, or “crew leaders”, whorecruit and hire the workers are solely responsible for wages. Recent prosecutionsunder the federal peonage laws have revealed how some crew leaders have keptfarmworkers in conditions akin to slavery by refusing to pay workers their wages. Theproposed legislation would make growers strictly liable for payment of wages, even if theworkers are hired and supervised by a crew leader. The bill also would have created aprivate right of action for farmworkers to collect their wages.

Status: Despite active support from a broad coalition of farmworker, labor, andreligious groups, the bill stalled when the Agriculture Committees in the two housesrefused to schedule a hearing on the legislation prior to the end of the 60-day legislativesession. Proponents anticipate offering similar legislation in the 2004 legislative session.

FLS Advocate: Rob Williams

LITIGATION

1. Arriaga, et al. v. Florida Pacific Farms, LLC, et al. Case No. 01-16402-BBU.S. Court of Appeals, Eleventh Circuit

Number of Farmworkers Affected: 120 (Hillsborough County)

Summary: Action by H-2A workers employed by two Dover strawberry growers in the1998-99 harvest. The H-2A workers incurred expenses related to their travel to thegrowers’ job site totaling between $500 and $1000 per worker. These charges includedrecruitment fees, visa expenses, border crossing charges and inbound transportationcosts in traveling from Mexico to Florida. Only the inbound transportation expenses wereultimately reimbursed to the workers, and these reimbursements were less than the fullcost of the travel expenses between the workers’ home villages in Mexico and the jobsite in Florida. The farmworkers contended that these charges violate the Fair LaborStandards Act. The validity of requiring H-2 workers to incur such expenses is an issuewith regard to virtually all of the 100,000 H-2 workers employed annually in the UnitedStates.

FLS Advocates: Greg Schell and Raul Barrera

Co-counsel: Stephen Hut, Thomas Page and Robin Lenhardt, Wilmer, Cutler &Pickering, Washington, D.C.; Edward J. Tuddenham, Austin, Texas

Counsel for amici: Bruce Goldstein and James Leonard, Farmworker Justice Fund;

Cathy Ruckelshaus, Rebecca Smith and Amy Sugimori, National Employment LawProject

Status: In a landmark decision, the Eleventh Circuit reversed the lower court ruling andheld that expenses incurred by migrant workers in traveling to distant job sites fortemporary work primarily benefit the employer. 305 F.3d 1228 (11th Cir. 2002). As aresult, employers must reimburse workers for these expenses during the first week ofemployment, to the extent that these expenses reduce workers’ wages below theminimum wage. The National Council of Agricultural Employers estimates that this ruling ifapplied nationwide will require growers to pay $110 million annually in additional wages.The ruling has substantial implications outside the guestworker arena. The National LawJournal referred to this decision as possibly “the most significant minimum-wage ruling inthe past 20 years.”

The plaintiffs’ motion for attorney’s fee was heard in June, 2003. Several importantissues are involved in the fee petition, including the joint and several liability of the twodefendant growers, one of which is no longer in business.

2. Gonzalez-Sanchez, et al. v. International Paper Co., et al.Case No. 02-12201-JJU.S. Court of Appeals, Eleventh Circuit

Number of Farmworkers Affected: 6,000 (Escambia and Santa Rosa Counties, and20 other states)

Summary: Class action by Mexican nationals admitted as temporary workers (H-2Bworkers) to plant trees and perform pre-commercial thinning activities on InternationalPaper and Union Camp operations throughout the United States. The workers wererecruited, supervised and paid by various labor contractors. The workers contend thatthey were paid substantially less than the federal minimum wage for their work and werenever paid overtime wages as required by law. The workers also claim that theiremployers failed to keep payroll records and issue wage statements as required by theAWPA. International Paper and Union Camp denied that they “employed” the workerswithin the meaning of the Fair Labor Standards Act or AWPA, asserting that the forestryworkers were employed solely by the various labor contractors.


Co-Counsel: Mary Bauer and Jim Knoepp of the Virginia Justice Center for Farm andImmigrant Workers

Counsel for Amicus: Ilene V. O’Malley, Oregon Law Center; D. Michael Dale,Cornelius, Oregon

Status: In April, 2002, the district court granted the timber companies’ motion forsummary judgment on the question of their status as employers of the tree planters. Thedistrict court concluded that although the timber companies dictated many of the detailsof tree planting and used their personnel to monitor and supervise the performance of thework, these actions did not constitute the sort of control demonstrated by employersunder the FLSA. The district court also held that although tree planting is unskilled laborand was conducted on the timber companies’ lands, the work was not an integral part ofthe timber-producing business. Finally, the district court concluded that, as a matter oflaw, the plaintiffs lacked standing to represent tree planters other than those suppliedthrough their own labor contractors. The plaintiffs appealed the judgment to the EleventhCircuit. Oral argument was held in December, 2002.

3. Martinez-Mendoza, et al. v. Champion International CorporationCase No. 02-12171-JJU.S. Court of Appeals, Eleventh Circuit


Summary: Class action by Mexican nationals admitted as temporary workers (H-2Bworkers) to plant trees and perform pre-commercial thinning activities on the operationsof Champion International in western Florida and other locations throughout the UnitedStates. The workers were recruited, supervised and paid by various labor contractors. Although the workers were guaranteed pay at the applicable prevailing wage (usuallymore than $8.00 per hour, depending on the location), most workers were paidsubstantially less than the federal minimum wage of $5.15 per hour for their work andwere never paid overtime wages as required by law. The workers also claim that thepayroll records and wage statements prepared with respect to their employment failed tomeet the requirements of the AWPA. Champion denied that it ever “employed” theworkers within the meaning of the Fair Labor Standards Act or the AWPA. Instead,Champion insisted that the plaintiffs and the other tree planters workers were employedsolely by the various labor contractors who furnished the workers to Champion.



Counsel for Amicus: Ilene V. O’Malley, Oregon Law Center; D. Michael Dale,Cornelius, Oregon

Status: In April, 2002, the district court granted Champion’s motion for summaryjudgment on the question of Champion’s status as an employer of the tree planters. Thedistrict court concluded that although Champion dictated many of the details of treeplanting and used its personnel to monitor and supervise the work, these actions did notconstitute the sort of control demonstrated by employers. The district court also heldthat although tree planting is unskilled labor and was conducted on Champion’s property,the work was not an integral part of Champion’s business. The plaintiffs appealed thejudgment to the Eleventh Circuit. Oral argument was held in December, 2002.

4. Lizarraga-Ruiz, et al. v. Georgia-Pacific Corporation, et al.Case No. 03-11765-CCU.S. Court of Appeals, Eleventh Circuit


Summary: Class action by Mexican nationals admitted as temporary workers (H-2Bworkers) to plant trees and perform pre-commercial thinning activities on Georgia-Pacific’s operations throughout the United States. The class consists primarily ofMexican nationals, with smaller numbers from Guatemala, Honduras and other LatinAmerican nations. Georgia-Pacific handles its planting and commercial thinning through acompetitive bid system. Most of the successful bidders are labor contractors who hireH-2B workers to complete the contractual work. The highly competitive bid system hasdriven prices so low that successful bidders find it extremely difficult to compensate theH-2B workers as required by law. The plaintiffs contend that they were never paid thepromised prevailing wage (usually in excess of $8.00 per hour, depending on thegeographic location). Many were paid well under the federal minimum wage of $5.15per hour. Although they routinely worked in excess of 40 hours per week, the plaintiffswere never paid overtime wages. The payroll records and wage statements preparedwith respect to the workers’ labor were falsified to conceal the various wage violations, inviolation of the AWPA. Georgia-Pacific contends that the forestry workers were solelyemployed by the various labor contractors and were never employees of Georgia-Pacific.



Status: In March, 2003, the district court granted Georgia-Pacific’s motion for summaryjudgment, finding that Georgia-Pacific did not “employ” the tree planters within themeaning of the FLSA and the AWPA. The Plaintiffs appealed this decision to theEleventh Circuit, where the matter has been fully briefed and is awaiting oral argument.

5. Carranza, et al. v. Mecca Farms, Inc., et al.Case No. 01-9013-Civ-RyskampU.S. District Court for the Southern District of Florida, West Palm Beach Division

Number of Farmworkers Affected: 2000 (Palm Beach and Martin Counties)

Summary: Class action by seven migrant farmworkers on behalf of field workers whoharvested tomatoes and peppers between 1997 and 2001 for Mecca Farms, one of thenation’s largest vegetable producers. The workers contended that they were not paidthe minimum wage, were not compensated at all for some buckets of produce picked,and were transported to the job site in unsafe vehicles. In addition, the workers claimedthat incomplete payroll records were maintained on their work and that only a small portion of the Social Security taxes due on their earnings were actually deposited withthe government. Several of the plaintiffs were seriously injured while being transportedto work in an unsafe and uninsured van. Mecca Farms claimed that because it did not“employ” the harvest workers within the meaning of the AWPA and the FLSA, it was notliable for the violations of law. FLS Advocates: Greg Schell and Raul Barrera

Status: After extensive discovery, the parties settled the matter. In addition to amonetary payment to the class, the proposed settlement provides for substantialchanges in the defendants’ business practices aimed at eliminating similar problems inthe future. Payment of the settlement proceeds to the class members is expected tobegin in September, 2003.

6. Martinez, et al. v. Mecca Farms, Inc., et al.Case No. 01-9096-Civ-MiddlebrooksU.S. District Court for the Southern District of Florida, West Palm Beach Division

Number of Farmworkers Affected: 1000 (Palm Beach and Martin Counties)

Summary: Class action by four migrants on behalf of workers employed between 1996and November, 2001 at Mecca Farms’ Palm Beach County packinghouses. The workers

contended that they were not paid for all of their compensable hours of work. Althoughthe workers checked in and out from work using punch cards and a time clock, Meccadid not pay the workers for all of the elapsed time shown on the time cards. In addition,Mecca did not pay the workers for short meal breaks of less than 30 minutes, contraryto Department of Labor regulations. The workers were also not paid overtime wages fortheir work. Finally, most of the Social Security taxes withheld from the workers’ wageswere never deposited with the government, but were simply retained by the farm laborcontractors who supplied them to Mecca Farms. Mecca Farms contended that it did notemploy the packinghouse workers and, instead, they were solely employed by the laborcontractors.


Status: The district court granted the plaintiffs’ class certification motion, rejectingMecca’s argument that undocumented aliens are not protected under the AWPA. 213F.R.D. 601 (S.D. Fla. 2002). After protracted negotiations, the parties settled thematter. In addition to a monetary payment to the class, the proposed settlementprovides for substantial changes in the defendants’ business practices aimed ateliminating similar problems in the future. Payment of the settlement proceeds to theclass members is expected to begin in September, 2003.

7. Jimenez-Garcia, et al. v. Sorrells Brothers Packing Co., Inc., et al. Case No. 2:01-cv-539-FtM-29DNFU.S. District Court, Middle District of Florida, Fort Myers, Division

Numbers of Farmworkers Affected: 112 (DeSoto, Hardee and Highlands County)

Summary: Action for unpaid wages by H-2A workers employed in the 1999-2000 or2000-01 citrus harvests. The workers contend that they were not paid the requiredadverse effect wage rate for their labor, and that the employers attempted to concealthis information through falsification of payroll records. Nine of the plaintiffs seekcontract damages after being unlawfully terminated from their jobs early in the 1999-2000 harvest season.


Co-Counsel: Lisa Butler and Christine Larson, Florida Rural Legal Services

Status: The parties reached a settlement of all issues in the case except for the claimsregarding the termination of the nine workers. Discovery is proceeding on those claims,with a trial anticipated in late 2003 or early 2004.

8. Lopez-Diaz v. Pero Family Farms, Inc.Case No. 2-80008-HuckU.S. District Court, Southern District of Florida, West Palm Beach Division

Number of Farmworkers Affected: 2,000 (Palm Beach and Hendry Counties)

Summary: Class action against one of the nation’s largest growers of bell peppers,claiming violations of the AWPA’s wage payment, recordkeeping, wage statement andvehicle safety provisions. The Plaintiff contended the workers were paid less than theminimum wage for their work and that most of the money withheld from their wages forSocial Security purposes was never paid to the government. Pero Farms claimed that itdid not “employ” the workers and therefore is not liable for any violations of law whichmay have occurred.


Status: A tentative settlement was reached in January, 2003. In addition to a monetarypayment to the class, the proposed settlement provides for major changes in Pero’sbusiness practices, including direct payment of harvest workers by Pero andimplementation of an electronic timekeeping system. These changes have beenimplemented, with Pero adopting some of the most sophisticated recordkeepingprocedures in the state. The court is expected to finally approve the settlement in July,2003.

9. Morante-Navarro, et al. v. T & Y Pine Straw, Inc.Case No. 03-10387-FFU.S. Court of Appeals, Eleventh Circuit

Number of Farmworkers Affected: 100 (Walton, Washington, Holmes, Jackson andGadsden Counties)

Summary: Action by 14 H-2B workers admitted to gather and pack pine straw innorthern Florida and southern Alabama during 2001. The workers were paid far lessthan the federal minimum wage for their work, and had large deductions made from theirwages for recruitment and transportation charges. The Plaintiffs also claimed that thedefendants violated the disclosure, recordkeeping, wage statement and vehicle insuranceprovisions of the AWPA. The defendants argued that pine straw work is non-agriculturalwork not subject to the AWPA.


Status: A monetary settlement was reached regarding the claims of the 14 namedplaintiffs. The district court retained jurisdiction of the plaintiffs’ claims for declaratoryand injunctive relief to resolve the question of whether pine straw gathering is coveredemployment under the AWPA. On December 20, 2002, the district court ruled in favor ofthe defendants on this question. The plaintiffs appealed this ruling to the Eleventh Circuit. Oral argument is scheduled for October, 2003.

10. Pucheta-Teboa, et al. v. Jose Gracia, et al.Case No. 8:02-cv-2125-T-23MAPU.S. District Court, Middle District of Florida, Fort Myers Division

Number of Farmworkers Affected: 50 (Polk and Hillsborough Counties)

Summary: Class action brought by six Mexican nationals hired as guestworkers by aPolk County labor contractor to pick fruit for a Hillsborough County citrus grower andlabor contractor during the 2001-02 harvest season. The plaintiffs were paid far lessthan the required hourly wage for their work and were not reimbursed for their inboundtransportation and visa expenses.

FLS Advocates: Lillian Hirales, Greg Schell and Raul Barrera

Status: Discovery is underway. The Plaintiffs have moved for class certification.

11. Renteria-Marin, et al. v. Ag-Mart Produce, Inc., et al.Case No. 3:01-cv-1392-J-25HTSU.S. District Court, Middle District of Florida, Jacksonville Division

Number of Farmworkers Affected: 800 (Hamilton County)

Summary: Class action by five migrant workers against the nation’s largest producer ofthe newly-developed “grape tomato” arising out of the 2001 harvest near Jennings,Florida. Hundreds of the company’s workers were housed in overcrowded hotel rooms,many without beds. None of the workers was provided with access to cooking or foodstorage facilities, forcing the workers to purchase their meals from restaurants oritinerant taco wagons. The workers were each charged $25 weekly for theseaccommodations. The defendants contend that because the workers were housed inmotels, the AWPA’s housing provisions are inapplicable.


Status: Following the district court’s certification of the class, the parties filed cross-motions for summary judgment.

12. Perez-Alvino, et al. v. Ag-Mart Produce, Inc.Case No. 3:02-cv-627-J-25HTSU.S. District Court, Middle District of Florida, Jacksonville Division

Number of Farmworkers Affected: 900 (Hamilton County)

Summary: Class action by 14 migrant workers against the nation’s largest producer ofthe newly-developed “grape tomato” arising out of the 2002 harvest near Jennings,Florida. The workers were housed in either overcrowded motels or unpermitted laborcamps in the area. Ag-Mart argues that it is not liable under the AWPA for housingprovided in commercial motels.


Status: Following the district court’s certification of the class, the parties filed cross-motions for summary judgment.

13. Solange Zamor v. Sylvio C. Adolph, et al.Case No. 01-5100-Civ-SeitzU.S. District Court, Southern District of Florida, Miami Division

Number of Farmworkers Affected: 200 (Miami-Dade County)

Summary: Elderly farmworker was injured while harvesting beans near Homestead. Despite the requirements of state law, neither the labor contractor nor the farmermaintained worker’s compensation insurance. In order to obtain his certificate ofregistration, the labor contractor submitted a fraudulent document issued by aHomestead insurance agent indicating the contractor had workers’ compensationinsurance. The Plaintiff claims that the labor contractor defendant violated theregistration, record-keeping, wage statement and wage payment provisions of theAWPA.

FLS Advocate: Greg Schell

Status: A settlement has been reached with the defendant grower. The Plaintiff hassought class certification of the remaining claims against the contractor defendant.

14. Phillip, et al. v. Atlantic Sugar Association Case No. 91-3107-AOPalm Beach County Circuit Court

Number of Farmworkers Affected: 1,070 (Palm Beach County)

Summary: Class action on behalf of cane cutters who harvested sugar cane during the1988-89 season for Atlantic Sugar Association. The workers’ contracts promised aperiod of employment extending from November 1 through April 30, with a provisionguaranteeing at least 3/4 of this work. The harvest season ended in early February, butthe employer refused to pay the sums due under the "3/4 guarantee." The companyrelied on a contract clause permitting the grower to unilaterally cancel the contracts upon a 10-day advance written notice of an early completion date for the harvest. ThePlaintiffs contend that the 10-day notice provision was not validly invoked, is contrary tofederal regulation and violates public policy.


Lead Counsel: David Gorman, North Palm Beach

Status: In June, 2003, the trial court denied the grower’s summary judgment motion,based on a Fourth District Court of Appeals in favor of another sugar producer in asimilar case. The parties are now preparing to try the remaining factual issues.

15. McDonald v. Okeelanta Corp. (FRLS)Case No. 91-3105-AOPalm Beach County Circuit Court

Number of Farmworkers Affected: 2,700 (Palm Beach County)

Summary: Class action on behalf of cane cutters who harvested sugar cane during the1988-89 season for Okeelanta Corporation, one of the state’s largest sugar growers.Under their work contracts, the cane cutters were promised work from November 1through April 30, with a provision guaranteeing at least 3/4 of this work. Some workerswere sent home by the company in late January, while the remaining class membersremained until the end of the harvest on March 8. Okeelanta refused to pay the workersany money under "3/4 guarantee," relying on a provision in the contract permittingOkeelanta to unilaterally cancel the contracts upon a 10-day advance written notice ofan early completion date for the harvest. The Plaintiffs contend that the 10-day noticeprovision was not validly invoked, is contrary to federal regulation and violates publicpolicy.


Lead Counsel: David Gorman, North Palm Beach

Status: In June, 2003, the trial court denied the grower’s summary judgment motion,based on a Fourth District Court of Appeals in favor of another sugar producer in asimilar case. The parties are now preparing to try the remaining factual issues.

16. Frederick County Fruit Growers Association v. U.S. Department of Labor Case No. 87-1588U.S. District Court for the District of Columbia

Number of Farmworkers Affected: 8,000 (Virginia, West Virginia, Maryland, NewYork, Massachusetts, Rhode Island, Connecticut and Maine)

Summary: Class action claiming that 400 apple growers in eight northeastern statesfailed to pay wage rates as required by federal law during the 1983 and 1985 appleharvests. The district court concluded that the growers were obligated to pay higherwages to the apple pickers and entered judgment in favor of the workers forapproximately $6 million. 703 F. Supp. 1021 (D.D.C. 1989). The court of appealssubsequently affirmed. 968 F.2d 1265 (D.C. 1992).

Advocate: Greg Schell

Co-counsel: Garry Geffert, Martinsburg, West Virginia, and Edward Tuddenham,Austin, Texas

Status: Since 1994, efforts have been underway to distribute almost $6 million in backwages to nearly 6,000 class members who picked apples in Maryland, Virginia, NewYork or the New England states in 1983 or 1985. Over 80 percent of the class membershave been paid. The unclaimed funds are expected to be used to establish a trust to payfor tardy claimants and for the costs and attorney’s fees due class counsel. The InternalRevenue Service has waived all penalties and fees for late filing of tax returns. A finalaccounting will be filed before the district court shortly, coupled with a plan to disburseany unclaimed funds and to pay the plaintiffs’ attorney’s fees.

17. Alcegaire, et al. v. J.M. Management Group, Inc.Case No. 01-8214-Civ-HurleyUnited States District Court, Southern District of Florida, West Palm BeachDivision

Number of Farmworkers Affected: 14 (Palm Beach County)

Summary: Fourteen Haitian or African-American members of a cane-planting crew wereterminated without cause from their jobs in November, 1999 and replaced by an Hispaniccrew. The Haitian foreman was paid at a substantially lower rate than the Hispanicforemen. The Haitian workers were paid at a lower rate for their work than the Hispanicworkers. The labor contractor also failed to keep proper payroll records and issue wagestatements as required by the AWPA.

Advocate: Greg Schell

Status: A settlement has been reached with the grower defendants. The plaintiffs willtry the remaining claims against the contractor defendant.

18. Martin v. Roy C. ArnoldCase No. 02-14178-Civ-PaineU.S. District Court, Southern District of Florida, Fort Pierce Division

Martin v. Clarence ArnoldCase No. 02-14213-Civ-RoettgerU.S. District Court, Southern District of Florida, Fort Pierce Division

Number of Farmworkers Affected: 1 (Okeechobee County)

Summary: Actions on behalf of a middle-aged farmworker who has been employed bya pair of Okeechobee County brothers for over 25 years. The brothers failed to pay anySocial Security taxes on the plaintiff’s labor or to keep any payroll records regarding hiswork. Because of these practices, the plaintiff is unlikely to qualify for Social Securityretirement benefits.

Advocate: Lillian Hirales

Status: Discovery is ongoing, with the plaintiff expected to seek summary judgmentthereafter. The growers are expected to seek summary judgment that they are exemptfrom the AWPA and the FLSA because of their relatively small scale of operations.

19. Pedro Francisco v. S. Arthur Peterson, Inc.Case No. 02-80165-Civ-RyskampU.S. District Court, Southern District of Florida, West Palm Beach Division

Number of Farmworkers Affected: 50 (Palm Beach County)

Summary: Class action under the AWPA to recover overtime wages due migrantworkers employed grading and bundling cut flowers in a packinghouse near DelrayBeach, Florida. Although the employees routinely worked in excess of 40 hours perweek, no overtime wages were paid.

FLS Advocate: Lillian Hirales

Status: The district court certified the class and approved a settlement under which theclass members each receive all overtime wages to which they are entitled.

20. Marisol Ponce-Rubiov. North Brevard, Inc. Case No. 6:03-cv-738-ORL-31KRSU.S. District Court, Middle District of Florida, Orlando Division

Number of Farmworkers Affected: 50 (Brevard County)

Summary: Class action initiated by four women who were employed as H-2A workersfor a hydroponic tomato producer near Cocoa. The women were paid substantially lessthan the minimum wage, sometimes receiving less than $3.00 per hour. In addition, theemployer failed to comply with its obligation to reimburse the workers for theirtransportation costs between their home villages and Florida.

FLS Advocates: Lillian Hirales, JoNel Newman and Abbie Schwaderer

Status: The Plaintiffs will move for class certification shortly.

21. Sedieu Leandre v. Raymon C. Land Case No. 1:03-cv-11-MMPU.S. District Court, Northern District of Florida, Gainesville Division

Number of Farmworkers Affected: 100 (Levy County)

Summary: Class action by watermelon packer for pervasive violations of the AWPAduring the 1999, 2000, 2001 and 2002 watermelon harvests near Branford. Incompletepayroll records were maintained, no wage statements were issued, no worker’scompensation insurance was in place and no Social Security taxes were paid on theworkers’ wages.


Status: Discovery will commence shortly. The Plaintiff will seek class certification withinthe next 60 days.

22. Rafael Badillo v. Homes of Merit, Inc.

Case No. 1D03-1263Florida First District Court of Appeal


Summary: Undocumented alien, whose immigration status was known to his employer,suffered a serious injury at work. Following the accident, the employer terminated theworker, citing his immigration status. The employer argued that the worker was notentitled to temporary partial disability benefits under the Florida Workers’ CompensationAct because of his immigration status.

FLS Advocates: Greg Schell and JoNel Newman

Co-Counsel: Nora Leto, Kaylor & Kaylor, P.A., Winter Haven

Status: The judge of compensation claims concluded that because the worker lost hislight duty job during the period of his convalescence because of his undocumentedstatus, he was not entitled to temporary partial disability benefits. The claimantappealed the ruling, arguing that the employer was estopped from raising the worker’simmigration status.

23. In re Guardianship of Luis Alberto JimenezCase No. 00-344-CPMartin County Circuit Court


Summary: Undocumented landscaper suffered serious head injuries during 2000 autoaccident. Since that time, he has been hospitalized at Martin Memorial Hospital. Although the worker still requires 24-hour nursing care, the hospital has sought an orderreturning him to his native Guatemala. The worker’s guardian has presented evidencethat there are few public health services in Guatemala for indigents, and that theworker’s condition will almost certainly suffer if he is repatriated.

FLS Advocate: JoNel Newman and Miriam Harmatz

Status: After a two-day trial, the circuit judge granted the hospital’s petition and orderedthe alien returned to Guatemala. The guardian has sought rehearing, noting that thecircuit court lacks jurisdiction to order removal of individuals from the United States,because of federal pre-emption of the field of immigration.

Public Benefits


1. Support Services for Cash Assistance Participants in a Privatized WelfareSystem

Number of recipients affected: Potentially thousands

Summary: Since the repeal of the Aid to Families with Dependent Children (AFDC)program, support services like child care and transportation have ceased to be anentitlement even where participants needs these services in order to fulfill workrequirements. Notwithstanding the lack of entitlement status, the TANF block grantallows states to provide support services and Florida’s welfare laws have indeedmandated the provision of these support services so long as resources permit. Since1996, resources have been sufficient in Florida for support services to be provided yetthe actual delivery of these services has been ad hoc and arbitrary if not altogetherabsent. Various studies of persons who leave welfare (leavers) have demonstrated thatboth current and former participants did not get the support services they needed to getand keep jobs much less to become self-sufficient. And despite the 1999 Legislature’semphasis on the delivery of transitional support services, post-welfare transitionalsupports are rarely, if ever, extended.

FLS Advocates: Cindy Huddleston and Valory Greenfield

Status: In early 2000 FLS began working with the staff of the Miami Workers Center(the Center) and the members of the grass roots organization Minority Families FightingAgainst WAGES (MFFAW) as the latter group compiled a list of complaints against theMiami-Dade/Monroe WAGES Coalition. With the technical support of FLS, the twogroups met with Mayor Alex Penelas and local WAGES officials in Spring 2000 topresent and discuss their campaign. One result of the meeting was that Mayor Penelasincluded an additional $3 million in his budget to expand child care subsidies. But beforethe Mayor and WAGES could respond to every demand in the campaign, the FloridaLegislature abolished the WAGES Coalitions and created the workforce development

board to take its place. This new regional workforce board (RWB) administers thework/training/education components of the cash assistance program in new ways undernew contracts which began in October 2000.

To date, this new RWB has not been willing to meet or work with MFFAW to get input onsystemic issues. For this reason, FLS began anew to work with the staff of the Centerand the membership of MFFAW, now called Low Income Families Fighting Together(LIFFT).

FLS designed a “know-your-rights” curriculum and has been going to the Worker Centereach month in order to train low income participants on their right(s) to support services.

FLS, together with The Miami Workers Center applied and was approved for fundingfrom the Dade Community Foundation to produce a video version of the Know YourRights training to be used at The Miami Worker Center and to be made available to othercommunity groups. The first planning meeting was held in June 2002. Filming took placein October 2002. Editing was completed in January 2003. Videocassettes weredistributed to Human Services Coalition, Legal Services of Greater Miami, Inc. and TheMiami Workers Center by March 2003 and the final report was submitted to the funder.

2. Vehicles for WAGES Clients


Summary: In late 1998, FLS identified the provision of private transportation as anunderutilized support service for WAGES clients. FLS informally contacted the StateWAGES Board Executive Director who indicated interest in this area. FLS informallycontacted some local WAGES Coalitions which indicated a reluctance to get involved inproviding private vehicles based on direction not to do so in a Department of Labor legalopinion. FLS examined the legal opinion and analyzed the existing WAGES Act andformally wrote to the State WAGES Board in January 1999 pointing out that vehiclepurchases were authorized under state law and advocating for the issuance of astatewide policy permitting the same.

FLS Advocates: Val Greenfield, Cindy Huddleston, and Arthur Rosenberg

Status: FLS made contact with an advocate in a national back-up center as well asseveral advocates in other parts of the nation who have information about vehiclepurchase programs in other states. Meanwhile, the federal government branchresponsible for oversight of TANF, Department of Health and Human Services, issued aMarch 1999 letter to Judge Kearney, Secretary of DCF and to the Labor Dept. attorney,affirming support for the use of federal TANF funds to acquire vehicles for eligible

individuals. In addition, the Florida Legislature passed a 1999 amendment to thetransitional transportation section of the WAGES Act making it clear that the purchase ofvehicles is permitted. FLS also contacted counsel to the State WAGES Board andlearned that the state was again considering implementation of a statewide vehiclepurchase program. However, the State WAGES Board failed to act and was replacedby Workforce Innovation in July 2000. Workforce Innovation has been unwilling toaddress the issue. As a result, FLS assisted attorneys at Legal Services of GreaterMiami (LSGMI) in filing with the Agency for Workforce Innovation (AWI) a September2001 Petition for Declaratory Statement on behalf of a transitional cash assistance clientwho was denied a car, without the ability to appeal the denial. See the consolidatedcases of Hepburn v. South Florida Regional Workforce Board and Hepburn v. AWI inthe litigation section of the public benefits docket. To date, car purchase has been left tothe discretion of each regional workforce board. This is not a popular option givencurrent fiscal concerns throughout state government. Indeed, in the spring of 2003 theSouth Florida Regional Workforce Board voted not to adopt a policy permitting thepurchase of personal vehicles for individual participants but instead to refer to committeethe study of transportation options.

3. Elimination of In-person Assistance for Unemployment CompensationClaimants


Summary: Effective July 1, 2001, the Agency for Workforce Innovation (AWI) whichoversees administration of the Unemployment Compensation (UC) program, eliminatedin-person assistance for claims taking and processing. The entire state switched-over toa system in which claims can only be initiated by mail, fax, or Internet filing. Follow-uprequests for information are facilitated by phone call to claimants and claimants report ontheir work search activities by telephone using an automated menu with recorded voiceprompts. Upon implementation, this new system began causing problems for the lowliteracy and limited English proficient (LEP) clients served by Florida Rural Legal Services(FRLS) many of whom were migrant workers in need of immediate assistance. Neitherapplications nor instruction booklets were available in Spanish or Creole and the phonelines and operators who answered the lines, although theoretically able to handleinquiries in these two languages, were overloaded, technically inadequate, and unable tohandle the volume of calls coming in.

FLS Advocates: Cindy Huddleston, Val Greenfield, Arthur Rosenberg

Status: In mid-July 2001 FLS contacted Ms. Lucy Hadi, the senior administrator at AWI,and she directed a team of specialists to meet with FRLS staff to review their concerns.

As a result of this meeting, AWI assigned additional temporary bilingual staff to severalof the One-stop offices serving unemployed migrant workers until the phone line servicecould be improved. AWI also agreed to promptly translate the UC application forms andinstruction booklets into Spanish and Creole. In a formal letter, FLS requested amongother items: statewide telephonic claims filing (for illiterate persons who are unable tocomplete a written application by mail and who are without access to fax and Internet);translation of all printed materials; and a re-evaluation of the decision to eliminate in-person assistance. When AWI failed to respond, FLS drafted a formal public recordrequest pursuant to Chapter 119, Fla. Stat., seeking the information referenced in theletter. This request is pending. In June 2002, FLS drafted a letter to a team ofDepartment of Justice investigators who came to Florida to perform a TechnicalAssistance Review of the Florida Unemployment Compensation program’s compliancewith Title VI, specifically with respect to accessibility for limited English proficient (LEP)claimants. In addition, FLS arranged for the investigators to meet for several hours withtwo farm worker attorneys from Florida Rural Legal Services to discuss the advocates’concerns. FLS also arranged for the DOJ team to meet for about two hours with aLegal Services of Greater Miami, Inc. attorney specializing in unemploymentcompensation cases as well as a grassroots advocate from the Haitian community inMiami who both expressed their concerns about barriers to benefits for LEP claimants. DOJ informed FLS that a civil rights attorney from the Department of Labor would reviewthe Florida Unemployment Compensation program’s compliance with Title VI, specificallywith respect to accessibility for limited English proficient (LEP) claimants. However, DOJfailed to respond to our calls seeking information about how we could contact the DOLinvestigator. Our summer intern conducted a review and determined that although AWIhas published guidance for delivery of services to LEP persons, translations of vitalinformation are not available statewide in either printed form nor on the web. The intern’s analysis of the public record update additionally reveals that in spring 2003 UCbegan accepting filings of claims via telephone statewide. She is conducting “tester-trials” of the telephonic UC claims filing system in various languages to determinewhether free interpreters make services accessible statewide to LEP phone filers.

4. Provision of food stamps to non-custodial parent with child support arrears

Number of potential recipients: Thousands

Summary: Federal law gives the State of Florida the option to disqualify from foodstamp eligibility a non-custodial parent with child support arrears. Federal regulationsproscribe the manner by which the states are to apply the child support arrears option tofood stamp applicants and recipients. If a state opts to apply the disqualification, theregulation compels the state to impose the child support disqualification arrears optionafter-the-fact by establishing an overpayment claim at the end of any month in which thestate finds that the non-custodial parent remained in arrears for the month and did not

comply during that month with an approved plan concerning child support payments. 7C.F.R. 273.11(q); see also 66 Fed. Reg. 4438, 4454 (Jan. 17, 2001) and 64 Fed. Reg.70920, 70932 (December 17, 1999). However, as of January 1, 2001 the Departmentbegan prospectively denying food stamps at the outset of a given month to persons whoadmitted to having child support arrears when they applied or re-certified for food stampbenefits.

FLS Advocates: Val Greenfield and Cindy Huddleston

Status: During negotiations for the individual appellate case of Wendy and RussellMeyer (see Wendy Meyer v. DCF in the Litigation section herein), the Departmentagreed to look at a more global settlement of the issues raised by Mr. Meyers’ appeal. Around October 18, 2002, The Department issued a memo prohibiting the future denialof food stamps to persons having child support arrears, but the memo does not correctpast errors in the implementation of this option. FLS is preparing a rule petition in thename of a new and different client to be filed if the Department persisted in refusing tonegotiation. See the litigation section of this public benefits docket for furtherdevelopments in this area.

5. Compromise of Food Stamp Over-issuance Claims for Current Food StampParticipants

Number of potential recipients: Thousands

Summary: Under federal law and state rule a food stamp recipient has the right to haveDCF consider his/her request to “compromise” his/her food stamp overpayment if theeconomic circumstances of the household indicate that it is not likely the claimant wouldbe able to repay the overpayment within three years. Notwithstanding these provisions,claimant Richard Roesch was denied consideration of his compromise request on thebasis that he is a currently a food stamp recipient. There is no such limitation in law.

FLS Advocates: Cindy Huddleston, Valory Greenfield

Co-advocate: Lena Smith, Withlacoochee Area Legal Services

Status: At the outset of 2003 FLS contacted assistant general counsel for DCF prior tofiling a rule challenge petition. DCF indicated its willingness to settle the matter withoutlitigation. By early March 2003 DCF signed a letter of agreement indicating that theagency would: disseminate a policy transmittal explaining that current food stamprecipient are eligible for compromise consideration, that a written decision will be issuedto those who request compromise, and that a fair hearing will be afforded to those who

disagree with the agency’s determination of their compromise request; prepare a moredetailed memo and update the Collections Manual to reflect this clarification by May2003; determine Mr. Roesch’s request for compromise and issue a written decisionnotifying him of his appeal rights. By March 12, 2003 DCF wrote to Mr. Roesch denyinghis compromise request and advising him of his appeal rights. The advocates atWithlacoochee Area Legal Services are appealing this denial at a local fair hearing andare getting technical assistance from FLS in pursuing this matter. A Food StampCompromise Task Force has been established by FLS and an advocate fromJacksonville Area Legal Services, whose client’s compromise request has not been actedupon in writing, has joined those of us who were already deeply involved with this issue.

LITIGATION

1. In re: Administrative Complaint with the Office of Civil Rights of theDepartment of Health and Human Services concerning Title VI Violation byWorkforce florida Inc. formerly known as State WAGES Board

Number of cash assistance participants and applicants affected: Potentiallythousands

Summary: Evidence from the field programs as well as the results of an FLS publicrecords act request indicated that the provision of services to limited English proficient(LEP) applicants and participants in the WAGES program was ad hoc, arbitrary, orwholly lacking. The WAGES State Board did not respond to informal overtures from FLSto address these oversights. So, along with the Florida Immigrant Coalition, FLS filed aformal administrative complaint of discrimination under Title VI with HHS Office of CivilRights (Atlanta Region) in May 2000. Shortly after the filing of that complaint weobtained a declaration of an affected client with the help of Gulfcoast Legal Services. We filed that declaration with OCR and asked that it be appended to our complaint. Wealso filed a duplicate of the complaint plus declaration with the Office of Civil Rights forUSDA as this LEP discrimination affects food stamp receipt in Florida. And with theassistance of Legal Services of Greater Miami, Inc., we filed three additionaldeclarations concerning individually affected clients to be appended to the originalcomplaint.

FLS Advocates: Cindy Huddleston and Val Greenfield

Co-counsel: Tom Zamorano, Florida Immigrant Coalition

Status: In June 2000, OCR for HHS accepted jurisdiction over our complaint and invitedus to participate in alternative dispute resolution (ADR). Workforce Florida, Inc. declined

to participate in ADR but promised a LEP policy to be adopted by March 2001. OCRindicated to Complainants that it would advise Workforce Florida that OCR would prefera timetable including an initial January presentation to Executive Committee withconcurrent dissemination to OCR in January. Around January 2001, Workforce Floridaprovided its draft LEP policy to both OCR and FLS. OCR asked FLS to submit writtencomments on the draft LEP policy. Our comments were submitted in February 2001. InApril 2001, OCR contacted Workforce Florida to initiate mediation. Workforce Floridaindicated to OCR that it declined to participate in mediation. In response, OCRscheduled Florida for an audit review of the state’s compliance with Title VI, the ADA,and Section 504 of the Rehabilitation Act. As a result of the impending audit and a Julyletter from OCR, Workforce Florida agreed to engage in mediation of the LEP complaint. Mediation began in September 2001. By March 2002, a revised draft policy was agreedupon by the parties. The revised policy was submitted to the Board of WorkforceFlorida, Inc for its review and approval. The document was referred to committee and isawaiting from feedback from the administrative “arm” of WFI, the Agency for WorkforceInnovation. Although Respondent represented that the Board would take the reviseddocument up again at is August 2002 meeting, that did not happen. FLS contacted OCRand prevailed upon OCR to write to Workforce Florida’s counsel in November 2002.OCR did so and asked counsel for Workforce Florida to respond by providing a timelinewithin ten days which would demonstrate the specific steps that Workforce Florida wouldtake to assure prompt consideration of the LEP Guidelines. OCR has not followedthrough in pursuing this investigation/mediation despite FLS’ repeated attempts to secureaction.

2. Hepburn v. Agency for Workforce Innovation (AWI) (Petition for Declaratory Statement); Hepburn v. S. Fla. Regional Workforce Board (Petition for Rulemaking)

Number of potential families affected: Thousands

Summary: Under welfare reform, all work-related aspects of welfare are nowadministered by Workforce Florida, Inc., (WFI). a not-for-profit corporation. Thetransfer of administrative responsibilities to Workforce Florida, Inc., from theDepartments of Labor and Children and Family Services achieved one of theconventional goals of privatization by eliminating much of the bureaucratic morassassociated with state government. However, in getting rid of that bureaucracy, welfarerecipients were divested of important safeguards designed to protect them from illegaland unwise policies affecting their TANF services. This is because Workforce Florida,Inc., takes the position that it and the regional workforce boards (RWBs) it charters areexempt from Florida law that restricts state agencies in policy-and decision-making (i.e.,the APA). Fortunately, the Agency for Workforce Innovation, which is the fiscal agent for

state and federal workforce-related funds, has, to a minor extent, assumed the legalresponsibility for limited rulemaking.

Hepburn is a former welfare recipient who needs a car to get her children back and forthfrom day care and for her to commute to work and school. Using public transportation,her commute time is, at a minimum, 3 hours per day. Under Florida law, RWBs may buya car worth up to $8500 for former recipients in Ms. Hepburn’s situation. Ms. Hepburnrequested that the RWB assist her in buying a car. However, her request was deniedwithout adequate written notice or the opportunity for appeal.

As part of a coordinated strategy for establishing the right to APA protections, Ms.Hepburn filed the following two actions:

A. Hepburn v. S. Fla. Regional Workforce Board (SFRWB) (filed with SFRWB by LSGMI and FLS)

This is a request for a declaratory statement asking the Dade/Monroe RegionalWorkforce Board for clarification about the applicability of the APA and othersimilar laws to their decisions. In response, the RWB refused to declare that theAPA applies. When Notice of Appeal was filed in the 3rd DCA, the RWB argued itis not a state agency subject to the APA. Ms. Hepburn’s appeal has beenconsolidated with the proceeding described below.

B. Hepburn v. Agency for Workforce Innovation (filed with AWI by FLS)This is a Petition for Rulemaking filed with the Agency for Workforce Innovationasking AWI to adopt the APA’s Uniform Rules of Procedure for all work relatedactions by AWI, RWBs and service providers. AWI refused to grant our request,stating that RWBs are not state agencies subject to the APA. Hepburn appealedto the 3rd DCA and her appeal was consolidated with the proceeding describedabove.

Advocates: Valory Greenfield, Cindy Huddleston (FLS): Troy Elder, Lizel Gonzalez(LSGMI)

Status: Appeals have been filed in both cases and consolidated in the 3rd DCA. However, the opposing parties have asked to settle by 1) buying Ms. Hepburn a car; 2)SFRWB will, with LSGMI’s input, develop grievance policies; 3) AWI will conductrulemaking regarding its grievance policy; and 4) SFRWB will, with LSGMI’s input,develop a vehicle policy. The settlement is pending. As of December 2002, theAppellees had sufficiently complied with the time lines set forth in the Stipulation forSettlement such that Appellant voluntarily dismissed the appeal. SFRWB bought a carfor Appellant Hepburn plus six months of insurance for said vehicle. SFRWB hasproposed a local grievance policy to its Board which has directed it to finalize thegrievance policy taking into account the concerns expressed by LSGMI and The Miami

Workers Center at the public Board meeting wherein the grievance policy waspresented. SFRWB has declined to adopt a vehicle purchase policy at this time but hasdirected staff to develop a more comprehensive approach to the transportation issues ofits customers. And AWI has, in fact, commenced amending its statewide grievance rulesand has solicited FLS’ comments. FLS has submitted written comments and requested arule development workshop in 2003. After FLS submitted comments, AWI changed legalcounsel and failed to schedule a rule development workshop. When contacted this year,AWI’s new counsel finally issued a June 2003 letter which does not favorably respond toour request that the rule be amended to compel the local RWBs to hold grievancehearings which comport with APA due process. AWI also refuses to amend the rule tocompel RWBs to issue written notice of service decisions which inform recipients of theirright to a fair hearing. AWI insists that these are matters left to the local RWBs. Ratherthan continue administrative advocacy on these two points with AWI, FLS is convening astatewide due process task force to assist advocates in ensuring that their local RWBsput grievance policies into place which provide due process. The first statewideconference call for this task force is set for July 18, 2003.

3. Tullos v. Department of Children and Family ServicesConsolidated Cases Nos. 03-0084RU and 03-0085RU (DOAH)

Number affected: Hundreds

Summary: This case is a further challenge to DCF’s up-front disqualification of non-custodial parents who are in arrears with child support from getting food stamps and itsfailure to restore past stamps to persons erroneously denied under DCF illegal policy. Federal law requires that, if persons in arrears are to be penalized, the penalty must notbe applied until it is determined on a month-by-month basis that arrears have not beenpaid. Ever since January 2001 Florida has applied the disqualification prospectivelywithout giving persons the opportunity to show that arrears have been paid orsuspended. Based on settlement of a prior individual appeal (Meyers v. DCF) and DCF’srepresentation that it would consider a more systemic resolution of the issues raised bythe appeal, DCF issued a corrective policy transmittal memo stating that it would nolonger disqualify aforesaid persons effective October 18, 2002 and would restore pastbenefits commencing no earlier than September 2002. In our client’s case, because sheis disabled and can not work, she accrued child support arrears. She applied for foodstamps in August 2001 at a time when she was in arrears with child support. DCFdenied her food stamp case on this basis. The custody and support arrangements for ourclient’s children changed and she came into compliance with her child support obligationssometime around January 2002. She began getting food stamps in January 2002 butwas unable to get past retroactive food stamps to restore the underpayment sheexperienced between August 2001 and January 2002 when she requested same afterthe issuance of the October 18, 2002 memo.

FLS Advocates: Valory Greenfield, Cindy Huddleston

Paralegal: Angie Vega, Florida Rural Legal Services

Status: Two rule challenge petitions were filed along with a motion to consolidate thetwo challenges. The first petition challenged ESS Program Policy Manual provisionsprohibiting non-custodial parents with child support arrears from getting food stamps asan unpromulgated. rule. The second petition challenged the October 18, 2002transmittal memo prohibiting restoration any earlier than September 2002 as anunpromulgated rule. The cases were consolidated and discovery ensued. Prior to finalhearing, the Department settled the case with FLS, agreeing to rescind the manualprovision, agreeing to restore food stamps back to October 2001 for all persons harmedby the illegal policy, and agreeing to cancel any overpayment claims which resulted fromapplication of the illegal policy. The ALJ approved the settlement and allowed DCF timeto implement the actions it agreed to undertake as part of the settlement.

4. McKellar, Pilcher et al. v. ReigerCase No. 4:03cv34spm (U.S. District Court, Northern District)

Number affected: Hundreds

Summary: This case is yet a further challenge to DCF’s up-front disqualification of non-custodial parents who are in arrears with child support from getting food stamps and itsfailure to restore past stamps to persons erroneously denied under DCF illegal policy. Federal law requires that, if persons in arrears are to be penalized, the penalty must notbe applied until it is determined on a month-by-month basis that arrears have not beenpaid. Ever since January 2001 Florida has applied the disqualification prospectivelywithout giving persons the opportunity to show that arrears have been paid orsuspended. Based on settlement of a prior individual appeal (Meyers v. DCF) and DCF’srepresentation that it would consider a more systemic resolution of the issues raised bythe appeal, DCF issued a corrective policy transmittal memo stating that it would nolonger disqualify aforesaid persons effective October 18, 2002 and would restore pastbenefits commencing no earlier than September 2002. We challenged the October 18,2002 memo’s deficiencies in a rule challenge which DCF settled by agreeing to restorebenefits to those harmed back to October 1, 2001 but no earlier. However, DCF put theburden on the individuals to reapply for food stamps and put the burden on individuals toseek corrective action. DCF did nothing to automatically restore food stamps it illegallydenied and did nothing to automatically reinstate illegally denied and terminatedindividuals back into the food stamp program. This class action lawsuit was filed infederal court to force DCF to comply with federal law requiring it to take these correctivemeasures on its own.

FLS Advocates: Valory Greenfield, Cindy Huddleston

Status: Defendant moved for summary judgment and alternatively moved to dismiss forfailure to state a claim upon which relief could be granted. Defendant attached aFebruary 2003 memo to his pleading which announced that benefits would be restoredretroactive to October 2001. Plaintiffs responded opposing same attaching thedeclarations of named plaintiffs and four other putative class members illustrating thatDefendant was still putting on the burden on class members to seek reinstatement andrestoration. Defendant contacted Plaintiffs in an attempt to settle the case by agreeingto take affirmative steps to identify all affected class members, send them notice of theireligibility for current and retroactive food stamps, invite them to re-apply for food stamps,and restore food stamps to all affected persons back to October 2001 (but not January2001). After discussion with class representatives, Plaintiffs agreed to these settlementterms. The parties moved the court for modification of the scheduling order to allow DCFtime to take steps to settle the case. The court granted the continuance. DCF shouldcomplete its tasks around August 2003.

5. Dorene Walters v. Department of Children and Family Services Case No. 1D02-87 (Fla. 1st DCA)

andRichardson v. DCF

Numbers affected: Thousands

Summary: DOR and DCF permanently impose Medicaid and welfare sanctions on mothers who name the wrong father in paternity actions if the mother has sworn that shehas named all possible fathers, even when the child was conceived as many as 17 yearsago

Advocates: Valory Greenfield and Cindy Huddleston (FLS); Leslie Powell (LSGMI)

Status: Oral argument on a 1st DCA appeal on this issue was held in Tallahassee inNovember 2002. During the pendency of these cases, DOR changed its policy tospecifically allow a parent to cooperate by attesting to lack of information at any pointduring the process as a result of these cases. Although the court per curiam affirmedthis appeal, we consider the policy change a complete victory.

PROGRAM/CLIENT EDUCATION

1. Summer Fellows Training

Valory Greenfield prepared and conducted training on public benefits. The training wasdesigned to give new lawyers an overview of public benefits in general, teach them toissue-spot, and prepare them with the fundamentals for handling individual public benefitscases.

2. New Advocates TrainingValory Greenfield and Cindy Huddleston prepared and conducted training on basic publicbenefits issues. The training focused on teaching basic fundamentals aboutadministrative law and governmental assistance well as preparing new advocates forrepresenting public assistance clients across-the board.


1. 2003 Unemployment Compensation Issues

Number of people affected: Thousands

Summary: FLS continued its work during the 2003 session to expand UC eligibility andrecipiency for Florida’s low wage workers. FLS’s work focused on 2 issues. The firstwas to enact the “Alternate Base Period,” which would require the consideration of anemployee’s recent work history in determining if they qualify for UC. Present UC lawautomatically excludes a worker's most recent work history in determining eligibility forUC. This most impacts low-wage, intermittent and contingent workers, and recententrants into the workforce, such as individuals leaving WAGES and women returning towork from maternity leave or family leave, who most commonly need their most recentwork history to be considered on order to qualify.

FLS also sought to correct a 1999 amendment to Florida law which deprives many parttime workers of needed UC benefits. Prior to 1999, workers who continued to work apart time job after termination from their full time job could continue to receive UC at areduced rate. This would continue even if they later voluntarily quit their part time job. The 1999 amendment resulted in the termination of all UC benefits after any voluntaryquit. FLS sought to eliminate the 1999 amendment and restore the pre-amendmentpractice.

FLS Advocates: Arthur Rosenberg and Dorene Barker

Status: The alternate base period was passed unanimously by the Senate and was partof the Senate’s final budget implementing bill. Unfortunately, it did not survive the lastminute compromise between the House and Senate and did not become law. Legislationto correct the voluntary quit problem also failed. We will continue to move forward on the

ABP and the “part time quit” issue between now and the 2004 session.

2. Federal Unemployment Compensation Legislation

Number affected: Thousands.

Summary: FLS has been working with the National Employment Law Project on federalUC/economic stimulus legislation. Included in the proposal were provisions that wouldprovide federally funded extended benefits, enhance recipient benefits by improvingtreatment of part-time workers, and eliminate some restrictions on the Extended Benefitsprogram.

Advocate: Arthur Rosenberg

Status: Congress passed legislation continuing federally funded extended benefits.

3. State Preemption of Local Minimum Wage Ordinances


Summary: Bills were filed during the 2003 Legislative Session to prevent localcommunities from enacting ordinances requiring private employers to pay wages abovethe federal minimum wage. The bills exempted ordinances that require wages above thefederal minimum wage for employees of 1) the affected municipality, 2) employers thatcontract to provide goods and services to the municipality, and 3) employers that receivetax abatements or subsidies from the municipality.

FLS Advocates: Arthur Rosenberg and Dorene Barker

Status: The bill was passed and signed by the Governor. However, all living wageordinances already passed, and those modeled on such ordinances, would not beaffected by this legislation.

july 2003 final docket 2003 final docket.pdf · public benefits ..... 58. page 3 community economic...

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