CODING: Words stricken are deletions; words underlined are additions.
SENATE AMENDMENT
Bill No. HB 2125, 2nd Eng.
Amendment No. ___
CHAMBER ACTION
Senate House
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11 Senator Diaz-Balart moved the following amendment:
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13 Senate Amendment
14 On page 38, line 12, through page 42, line 19, delete
15 those lines
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17 insert:
18 (1) The Department of Children and Family Services may
19 petition a court of competent jurisdiction for the appointment
20 of a receiver for a lead community-based provider established
21 pursuant to s. 409.1671 when any of the following conditions
22 exist:
23 (a) The lead community-based provider is operating
24 without a license as a child-placing agency.
25 (b) The lead community-based provider has given less
26 than 120 days notice of its intent to cease operations, and
27 arrangements have not been made for another lead
28 community-based provider or for the department to continue the
29 uninterrupted provision of services.
30 (c) The department determines that conditions exist in
31 the lead community-based provider which present an imminent
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SENATE AMENDMENT
Bill No. HB 2125, 2nd Eng.
Amendment No. ___
1 danger to the health, safety, or welfare of the dependent
2 children under that provider's care or supervision. Whenever
3 possible, the department shall make a reasonable effort to
4 facilitate the continued operation of the program.
5 (d) The lead community-based provider cannot meet its
6 current financial obligations to its employees, contractors,
7 or foster parents. Issuance of bad checks or the existence of
8 delinquent obligations for payment of salaries, utilities, or
9 invoices for essential services or commodities shall
10 constitute prima facie evidence that the lead community-based
11 provider lacks the financial ability to meet its financial
12 obligations.
13 (2)(a) The petition for receivership shall take
14 precedence over other court business unless the court
15 determines that some other pending proceeding, having
16 statutory precedence, has priority.
17 (b) A hearing shall be conducted within 5 days after
18 the filing of the petition, at which time interested parties
19 shall have the opportunity to present evidence as to whether a
20 receiver should be appointed. The department shall give
21 reasonable notice of the hearing on the petition to the lead
22 community-based provider.
23 (c) The court shall grant the petition upon finding
24 that one or more of the conditions in subsection (1) exists
25 and the continued existence of the condition or conditions
26 jeopardizes the health, safety, or welfare of dependent
27 children. A receiver may be appointed ex parte when the court
28 determines that one or more of the conditions in subsection
29 (1) exists. After such finding, the court may appoint any
30 person, including an employee of the department who is
31 qualified by education, training, or experience to carry out
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SENATE AMENDMENT
Bill No. HB 2125, 2nd Eng.
Amendment No. ___
1 the duties of the receiver pursuant to this section, except
2 that the court shall not appoint any member of the governing
3 board or any officer of the lead community-based provider. The
4 receiver may be selected from a list of persons qualified to
5 act as receivers which is developed by the department and
6 presented to the court with each petition of receivership.
7 (d) A receiver may be appointed for up to 90 days and
8 the department may petition the court for additional 30-day
9 extensions. Sixty days after appointment of a receiver and
10 every 30 days thereafter until the receivership is terminated,
11 the department shall submit to the court an assessment of the
12 lead community-based provider's ability to ensure the health,
13 safety, and welfare of the dependent children under its
14 supervision.
15 (3) The receiver shall take such steps as are
16 reasonably necessary to ensure the continued health, safety,
17 and welfare of the dependent children under the supervision of
18 the lead community-based provider and shall exercise those
19 powers and perform those duties set out by the court,
20 including, but not limited to:
21 (a) Taking such action as is reasonably necessary to
22 protect or conserve the assets or property of the lead
23 community-based provider. The receiver may use the assets and
24 property and any proceeds from any transfer thereof only in
25 the performance of the powers and duties set forth in this
26 section and by order of the court.
27 (b) Using the assets of the lead community-based
28 provider in the provision of care and services to dependent
29 children.
30 (c) Entering into contracts and hiring agents and
31 employees to carry out the powers and duties of the receiver
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SENATE AMENDMENT
Bill No. HB 2125, 2nd Eng.
Amendment No. ___
1 under this section.
2 (d) Having full power to direct, manage, hire, and
3 discharge employees of the lead community-based provider. The
4 receiver shall hire and pay new employees at the rate of
5 compensation, including benefits, approved by the court.
6 (e) Honoring all leases, mortgages, and contractual
7 obligations of the lead community-based provider, but only to
8 the extent of payments that become due during the period of
9 the receivership.
10 (4)(a) The receiver shall deposit funds received in a
11 separate account and shall use this account for all
12 disbursements.
13 (b) A payment to the receiver of any sum owing to the
14 lead community-based provider shall discharge any obligation
15 to the provider to the extent of the payment.
16 (5) A receiver may petition the court for temporary
17 relief from obligations entered into by the lead
18 community-based provider if the rent, price, or rate of
19 interest required to be paid under the agreement was
20 substantially in excess of a reasonable rent, price, or rate
21 of interest at the time the contract was entered into, or if
22 any material provision of the agreement was unreasonable when
23 compared to contracts negotiated under similar conditions. Any
24 relief in this form provided by the court shall be limited to
25 the life of the receivership, unless otherwise determined by
26 the court.
27 (6) The court shall set the compensation of the
28 receiver, which shall be considered a necessary expense of a
29 receivership and may grant to the receiver such other
30 authority necessary to ensure the health, safety, and welfare
31 of the children served.
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SENATE AMENDMENT
Bill No. HB 2125, 2nd Eng.
Amendment No. ___
1 (7) A receiver may be held liable in a personal
2 capacity only for the receiver's own gross negligence,
3 intentional acts, or breaches of fiduciary duty. This section
4 shall not be interpreted to be a waiver of sovereign immunity
5 should the department be appointed receiver.
6 (8) If the receiver is not the department, the court
7 may require a receiver to post a bond to ensure the faithful
8 performance of these duties.
9 (9) The court may terminate a receivership when:
10 (a) The court determines that the receivership is no
11 longer necessary because the conditions that gave rise to the
12 receivership no longer exist; or
13 (b) The department has entered into a contract with a
14 new lead community-based provider pursuant to s. 409.1671 and
15 that contractor is ready and able to assume the duties of the
16 previous provider.
17 (10) Within 30 days after the termination, unless this
18 time period is extended by the court, the receiver shall give
19 the court a complete accounting of all property of which the
20 receiver has taken possession, of all funds collected and
21 disbursed, and of the expenses of the receivership.
22 (11) Nothing in this section shall be construed to
23 relieve any employee of the lead community-based provider
24 placed in receivership of any civil or criminal liability
25 incurred, or any duty imposed by law, by reason of acts or
26 omissions of the employee prior to the appointment of a
27 receiver; nor shall anything contained in this section be
28 construed to suspend during the receivership any obligation of
29 the employee for payment of taxes or other operating or
30 maintenance expenses of the lead community-based provider or
31 for the payment of mortgages or liens. The lead
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SENATE AMENDMENT
Bill No. HB 2125, 2nd Eng.
Amendment No. ___
1 community-based provider shall retain the right to sell or
2 mortgage any facility under receivership, subject to the prior
3 approval of the court that ordered the receivership.
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