Loading...
HomeMy WebLinkAbout2003-3398 Ordinance ORDINANCE NO, 2003-3398 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE MIAMI BEACH CITY CODE ENTITLED "MISCELLANEOUS OFFENSES" BY CREATING ARTICLE V THEREOF, TO BE ENTITLED "FALSE CLAIMS ORDINANCE", BY CREATING SECTION 70-300 TO BE ENTITLED "SHORT TITLE; PURPOSE; BY CREATING SECTION 70-301 TO BE ENTITLED "DEFINITIONS"; BY CREATING SECTION 70-302 TO BE ENTITLED "CERTIFICATION OF CLAIMS"; BY CREATING SECTION 70-303 TO BE ENTITLED LIABILITY FOR FALSE CLAIMS; PENALTIES; BY CREATING SECTION 70-304 TO BE ENTITLED AINTERVENTION BY THIRD PARTIES IN CIVIL ACTIONS FOR FALSE CLAIMS; BY CREATING SECTION 70.305 TO BE ENTITLED RIGTHTS OF PARTIES IN CIVIL ACTIONS; LIMITATION OF ACTIONS; BY CREATING SECTION 70-306 ENTITLED "AWARDS TO PLAINTIFFS BRINGING ACTION"; BY CREATING SECTION 70-307 TO BE ENTITLED AEXPENSES; ATTORNEY'S FEES AND COSTS; BY CREATING SECTION 70-308 ENTITLED "EXEMPTIONS TO CIVIL ACTIONS"; BY CREATING SECTION 70-309 TO BE ENTITLED "PROTECTION FOR P ARTICIP ATING EMPLOYEES"; BY CREATING SECTION 70-310 TO BE ENTITLED "BURDEN OF PROOF; PRESUMPTION OF FALSE CLAIMS"; BY CREATING SECTION 70-311 TO BE ENTITLED "INNOCENT CLAIMANT AFFIRMATIVE DEFENSE"; BY CREATING SECTION 70-312 TO BE ENTITLED "CONSTRUCTION AND SEVERABILITY OF PROVISIONS"; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, the State of Florida, via Sections 68.081 through 68.092 of the Florida Statutes, has created a false claims law whereby persons making false claims against the State shall be responsible for treble damages and are subject to enforcement provisions for making such false claims; and WHEREAS, local governments such as Miami-Dade County, and other government entities throughout the State of Florida, have enacted similar legislation to provide penalties for the making of false claims; and WHEREAS, the City has experienced false claims by claimants which have caused the City to expend substantial time and money to defend against such claims; and WHEREAS, the Mayor and City Commission of the City of Miami Beach deem it in the best interest of the City to enact legislation to provide penalties and enforcement for persons making fraudulent or false claims against the City of Miami Beach. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA as follows: SECTION 1. Creation of Article V of Chapter 70 of the Miami Beach City Code to be entitled "False Claims Ordinance." That Article V of Chapter 70 of the Miami Beach City Code is hereby created as follows: CHAPTER 70 Miscellaneous Offenses. * * * ARTICLE V. FALSE CLAIMS ORDINANCE * * * Sec. 70-300, Short title: purpose, (1) This article shall be known and may be cited as the Miami Beach False Claims Ordinance. (2) The purpose of the Miami Beach False Claims ordinance is to deter persons from knowingly causing or assisting in causing the City to pay claims that are false. fraudulent. or inflated. and to provide remedies for obtaining treble damages and civil penalties for the City when money is sought or obtained from the City by reason of a false claim; (3) The provisions ofthis article are not exclusive. and the remedies provided for in this article shall be in addition to any other remedies provided for in any other law. or available under cornmon law. or otherwise. (4) This article shall be liberally construed and applied to promote the public interest. See, 70-301. Definitions. The following terms and phrases when used in this article shall have the meanings ascribed to them in this section. except when the context clearly indicates a different meaning: (I) Bid takeoff means the final estimate. tabulation. or worksheet prevared by the contractor in anticipation ofthe bid submitted. and which shall reflect the final bid price. (2) Claim means any invoice. statement. request. demand, lawsuit. or action under contract or otherwise. for money. property. or services made to any employee, officer. or agent ofthe City. or to any contractor. grantee. or other recipient ifanyportion ofthe money. property. or services required or demanded was issued from. or was provided by. the City (hereinafter "City funds"). 2 (3) Claimant means anv person or entitv (including all officers, directors, emplovees or agents thereof who authorize, or participate) that brings, submits, files, maintains. or pursues a claim against the Citv or the Citv of Miami Beach Redevelopment Agencv, (4) Citv means the government of Miami Beach or anv department. division, bureau, section, commission. planning agencv. board. district. authoritv, agencv. or instrumentalitv of the Citv. including the Miami Beach Redevelopment Agencv. (5) Extended overhead means the amount of a claim relating to an increase in overhead costs resulting from a delay in contract performance that is not compensated bv a markup of direct costs, (6) Knowin$! or knowin$!/V means that a person, with respect to information: (a) Has actual knowledge of the information: (b) Acts in deliberate ignorance of the truth or falsitv ofthe information: or (c) Acts in reckless disregard of the truth or falsitv ofthe information. No proof of specific intent to defraud is required, However, innocent mistake shall be a defense to an action under this ordinance. (7) Overhead ver diem means the amount calculated bv dividing the total overhead costs set forth in the final bid takeoffbv the number of davs for substantial completion of the work set forth in the contract. (8) Person means anv natural person. corporation, firm, association, organization, partnership. limited partnership, agencv, limited liabilitv companv. business. trust. attornevat law, or other similar individuals, firms, associations, or agencv. See, 70-302. Certification of claims. (1 ) Upon the request ofthe Citv. the person submitting a claim shall, within thirtv (30) calendar davs, including Saturdavs. Sundavs, and legal holidavs, submit a certified claim as defined bv this section. A "certified claim" shall be made under oath bv a person dulv authorized by the claimant. and shall contain a statement that: (a) The claim is made in good faith: (b) The claims' supporting data are accurate and complete to the best of the person's knowledge and belief: 3 (c) The amount of the claim accurately reflects the amount that the claimant believes is due from the City: (d) The person certifying the claim has personally reviewed all supporting data: and (e) The certifying person is duly authorized by the claimant to certify the claim. (f) Further. all certified claims shall contain the following statement directly above the signature line ofthe certifying person. in 12 point bold tvoe: Any person who knowinl!ly presents or causes to be presented, to the City a false or fraudulent claim for payment or approval or uses or causes to be made or used a false record or statement. or conspires to l!et a false, fraudulent or inflated claim paid by the City, or delivers, with the intent to defraud, l!oods or services of different qualitv than specified. or executes a receipt of proper tv used or to be used by the City without completely knowinl! that the information on the receipt is true, or knowinl!ly makes, uses or causes to be made or used a false record or statement to conceal, avoid or decrease an oblil!ation to payor transmit money or property to the City, shall be liable to the City for an amount equal to three (3) times that part of the claim which is false, fraudulent. or inflated, plus all costs and fees incurred by the City. Any person found to have submitted a false claim shall immediately, fully and irrevocably forfeit the entire amount of the claim and be subiect to debarment from City contractinl! for a period of five (5) years, Liabilitv shall be ioint and several for any act committed by two (2) or more persons, (2) Failure to provide the reQuired certification within the prescribed thirty (30) day period shall constitute a forfeiture of the entire claim. Sec. 70-303. Liabilitv for false claims; penalties. (1) The following action(s) shall constitute a violation ofthis article: (a) Any person who knowingly presents or causes to be presented to the City or to any officer. employee. agent or consultant of the City, a false or fraudulent claim for payment or approval: (b) Any person who knowingly makes, uses. or causes to be made or used. a false record or statement to get a false. fraudulent. or inflated claim paid or approved by the City: 4 (c) Anv person who conspires to defraud the Citvbv facilitating the payment ofa false. fraudulent. or inflated claim allowed or paid bv the City: (d) Anv person who delivers, with the intent to defraud the City. goods or services of different quality or quantity than that specified in the applicable contract or specification: (e) Anv person who is authorized to make or deliver a document certifying receipt of property used. or to be used. bv the City and. intending to defraud the City. makes or delivers the receipt without completely knowing that the information on the receipt is true: (f) Anv person who knowingly buys. or receives as a pledge of an obligation or debt. public property from an officer. employee. or agent ofthe City who lawfully may not sell or pledge the property: or (g) Anv person who knowingly makes. uses. or causes to made or used. a false record or statement to conceal. avoid. or decrease an obligation to pavor transmit money or property to the City. (2) Anv beneficiary of an inadvertent submission of a false claim to the City. who subsequently discovers the falsity of the claim, and who fails to disclose the falsity ofthe claim to the City within thirty (30) days of discovering the error. shall also be found to have submitted a false claim to the City. (3) Anv person found to have submitted a false claim to the City shall: (a) Be liable to the City for an amount equal to three (3) times that part of the claim which is false. fraudulent. or inflated: (b) Immediatelv. fully. and irrevocably forfeit the entire amount of the claim: (c) Be liable to the City for all costs and fees (including. without limitation, reasonable legal. expert. and consulting fees) incurred bv the City to review. defend. evaluate and or litigate or arbitrate the false claim: and (d) Be subi ect to debarment from City contracting pursuant to Chapter 2. Division 5. Sec. 2-406(b)(3) of the Miami Beach City Code for a period of five (5) years. Additionallv. any person who certified a claim later found to be false shall be subiect to debarment from Citvcontracting for a period of two (2) to five (5) years. Debarment under this Article may be granted bv a court of competent iurisdiction as part of the relief requested in the complaint filed with the court. (4) Liabilitv under this section shall be ioint and several for any act committed by two (2) or more persons, 5 See, 70-304, Intervention bv third parties in Civil actions for false claims, (I) The City Manager. or his designee, may investigate a violation under Section 70-303. Ifthe City Manager or his designee finds that a person has violated or is violating Section 70-303. he or she may bring a civil action against the person on behalf of the City and shall inform the Commission of the action to be taken. (2) A citizen resident of the City or person in privity of contract under which the false claim was made may bring a civil action for a violation of Section 70-303 for the person and for the City. Civil actions instituted under this article shall be governed by the Florida Rules of Civil Procedure and shall be brought in the name of the City. (a) The complaint shall be identified on its face as a Qui tam action and shall be filed under seal in the circuit court of the Eleventh Judicial Circuit. in and for Miami-Dade County. Immediately upon filing of a complaint by a person. a COpy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the City Manager and City Attorney by registered mail. return receipt requested. The City Manager may elect to proceed with the action. in lieu ofthe Qui tam plaintiff. on behalf of the City. within one hundred eighty (180) days after he or she receives both the complaint and the material evidence and information. (b) The City Manager. for good cause shown, may petition the court to extend the time during which the complaint remains under seal under subsection (a). Any such motion may be supported by affidavits or other submissions in camera. The defendant is not required to respond to any complaint filed under this section until twenty (20) days after the complaint is unsealed and served upon the defendant in accordance with law. (c) Before the expiration of the one hundred eighty (180) day period or any extensions obtained under subsection (b), the City Manager shall: i. Proceed with the action. in which case the action is conducted by the City Attorney on behalf of the City; or ii. Notify the court that the City declines to take over the action. in which case the person bringing the action has the right to conduct the action. (d) When a person files an action is brought under this section. no person other than the City Manager on behalf of the City may intervene or bring an action under this article based on the facts underlying the pending action. Sec. 70-305. Ril!hts of the parties in civil actions. (I) .fthe City Manager. on behalf ofthe City, elects to proceed with the action, he or she has the primary responsibility for prosecuting the action. and is not bound by any prior or subsequent act( s) 6 of the person bringing the action. The City may also voluntarily dismiss the action notwithstanding the obiections of the person bringing the action. (2) If the City Manager elects not to proceed with the action and does not voluntarily dismiss the action, the person bringing the action has the right to conduct the action. If the City Manager so requests, he or she shall be served with copies of all pleadings and motions filed in the action and copies of all deposition transcripts. When the person bringing the action proceeds with the claim, the court may permit the City to take over the action on behalf ofthe City at a later date upon a showing of good cause. (3) Nothing in this article shall be construed to limit the authority of the City or the Qui tam plaintiff, proceeding pursuant to Section 70-304(2), to compromise a claim brought in a complaint filed under this article if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. A civil action under this ordinance may not be brought: (I) More than five (5) years after the date when the facts material to therililit of action are known or reasonably should have been known by the City Official charged with the responsibility to act in the circumstances, but in no event more than seven (7) years after the date on which the violation of Section 70-303 is committed, whichever occurs last: or (2) In the event any person files a civil action which contains false claims, in whole or part, the City may pursue its remedies by counterclaim without the limitations of subparagraph (I ) hereinabove. Sec. 70-306, Awards to plaintiffs brinl!inl! action. (I) If the City proceeds with and prevails in an action brought by a person under this article, except as provided in subsection (2), the court shall order the distribution to the person of ten (10) percent of the proceeds recovered under any iudgment obtained by the City in an action under Section 70-303 or of the proceeds of any settlement ofthe claim. (2) Ifthe City proceeds with an action which the court finds to be based primarily on disclosures of specific information, other than that provided by the person initiating the action, relating to allegations or transactions in a criminal. civil. or administration hearing: a legislative, administrative, or inspector general report, hearing, audit. or investigation: or from the news media, the court may award such sums as it considers appropriate, but in no case more than five (5) percent of the proceeds recovered under a iudgment or received in settlement of a claim under this article, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. (3) If the City does not proceed with an action under this article and does not voluntarily dismiss the action pursuant to Section 70-305(1), the person bringing the action or settling the claim shall 7 receive twenty-five (25) percent of the proceeds recovered under a judgment rendered in an action under this article or in settlement of a claim under this article. with the balance going to the City, (4) Any payment under this section to the person bringing the action shall be paid only out ofthe proceeds recovered from the defendant. (5) Whether or not the City proceeds with the action. ifthe court finds that the action was brought by a person who planned. initiated. or furthered the violation of Section 70-303 upon which the action was brought. the person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not preiudice the right of the City to continue the action, Sec. 70-307. Expenses: attorney's fees and costs, (1) If the City initiates an action under this article or assumes control of an action brought by a person under this article. and the City preyails in such actjon. the City shall be awarded its reasonable attorney's fees. expenses. and costs. (2) Ifthe court awards the person bringing the action proceeds under this article. the person shall also be awarded an amount for reasonable attorney's fees and costs. Payment for reasonable attorney's fees and costs shall be made from the recovered proceeds before the distribution of any award. (3) Ifthe City does not proceed with an action under this article and the defendant is the prevailing party. the court shall award the defendant reasonable attorney's fees and costs against the person bringing the action. (4) No liability shall be incurred by the City for any expenses. attorney's fees. or other costs incurred by any person in bringing or defending an action under this article. except as othetwise specifically provided by law. See, 70-308. Exemptions to civil actions. (1) In no event may a person bring an action under Section 70-303 based upon allegations or transactions that are the subject of a civil action or an administratiye proceeding in which the City is already a party. (2) No court shall have jurisdiction over an action brought under this article based upon the public disclosure of allegations or transactions in a criminal. civil. or administrative hearing; in a legislative. administrative. or inspector general report, hearing. audit. or investigation: or from the news media. unless the action is brought by the City. or unless the person bringing the action is an original source of the information, For purposes of this subsection. the term "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the City Manager before filing an action under this article based on the information and who is not an employee or agent of the City. 8 (3) No court shall have iurisdiction over an action where the person bringing the action under Section 70-303 is: (a) Acting as an attornev for the Citv: or (b) An employee or former employee of the City,and the action is based, in whole or in part, upon information obtained in the course or scope of City employment. (4) No court shall have iurisdiction over an action where the person bringing the action under Section 70-303 obtained the information from an employee or former employee of the City, See, 70-309, Protection for participatine: emplovees, Any employee who is discharged, demoted, suspended, threatened, harassed. or in any other manner discriminated against in the terms or conditions of employment by his or her employer because of lawful acts done by the employee in furtherance of an action under this article, including investigation for, testimony for, or assistance in an action filed or to be filed under this article, shall have a cause of action under Florida Statutes. Section 112.3187, See, 70-310. Burden of proof: presumption offalse claim, (1 ) Whenever practicable. bid specification for City contracts shall contain a requirement that the successful bidder maintain, as a condition precedent to submitting a claim against the City, a final bid takeoff. The final bid takeoff shall contain a line item for allocation of overhead costs. (2) Upon request from the City, a contractor making a claim against the City for delay or other damages shall submit, within twenty (20) days, a COpy of the final bid takeoff, certified pursuant to this subsection. Failure to provide the requested certification shall constitute a forfeiture of the claim for delay or other damages, The certification shall be submitted under oath by a person fully authorized by the claimant and shall contain a statement that: (a) The final bid takeoff was prepared contemporaneously with the bid and in anticipation ofthe bid for the proiect: (b) The contractor relied on the final bid takeoff to prepare the bid and the original schedule of values: and (c) The final bid takeoff has not been altered in any way. (3) Any claim for extended overhead cost that exceeds, on a per diem basis, more than ten (10) percent ofthe overhead per diem contained in the final bid takeoff shall be presumed to be a false claim, and the contractor shall have the burden of proving that any such claim for extended overhead is not false. 9 Sec. 70-311. Innocent claimant affirmative defense, The provisions ofthis article shall not apply if the claimant can demonstrate, by the greaterweigl1t of the evidence, each of the following facts: (1) The claimant submitted or caused to have submitted the claim to or against the City reasonably believing that such claim was free of any material misstatements, or any exaggerated, inflated, or unsubstantiated assertions or damages; (2) The claimant had no reasonable basis to doubt the truth, veracity, or accuracy of such claim at the time it was submitted; (3) Prior to submitting the claim, the claimant diligently investigated the facts underlYing such claim and prepared the claim in a reasonable manner given all the relevant information available; and (4) When information indicating that any element, statement, or allegation in the claim was false or misleading first became available, such claimant, with five (5) business days of discovering the falsity of the claim, took immediate steps to modify, correct, or withdraw such claim and provided the City with immediate notice thereof. See, 70-312, Construction and severability of provisions. (1 ) This article shall be liberally construed to effectuate its remedial and deterrent purposes. (2) If any provision ofthis article or its application to any particular person or circumstance is held invalid. that provision or its application is severable and does not affect the validity of other provisions or applications ofthis article. SECTION 2, REPEALER All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 3, SEVERABILITY If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 4, CODIFICATION It is the intention of the Mayor and City Commission ofthe City of Miami Beach, and it is 10 hereby ordained that the provisions ofthis ordinance shall become and be made a part of the Code of the City of Miami Beach, Florida. The sections ofthis ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section", "article," or other appropriate word. SECTION 5. EFFECTIVE DATE This Ordinance shall take effect on the 8th day of March, 2003. ATTEST: PASSED AND ADOPTED this 26th day ,2003. _tfu),tr Pal(,~ CITY CLERK APPROVED MiTO FORM & LANGUAGE & FOR EXECUTION ':\ATTOITUJllIN)RDfNANl':IfAl1/CUO.DOC 11 ~ T C(- J.-- '-OJ Data OFFICE OF THE CITY ATTORNEY <6~ of J/domi 1JftlM F L o R o A MURRAY H, DUBBIN City Attorney Telephone: Telecopy: (305) 673-7470 (305) 673-7002 COMMISSION MEMORANDUM TO: Mayor David Dermer and Members of the City Commission FROM, MurrayH. DUbbkA. ..f\/IlV City Attorney IY~ l1'W.' SUBJECT: FALSE CLAIMS ORDINANCE DATE: February 26, 2003 SECOND READING PUBLIC HEARING Pursuant to the request of Commissioner Jose Smith, the above referenced Ordinance is submitted for consideration by the Mayor and City Commission for second reading. This Ordinance provides for treble damages and enforcement procedures against persons making false claims against the City. This legislation is patterned after similar provisions in the Florida Statutes that address false claims against the State. 1':\AlTO\TURN\COMMMEMQlFAtllClMl.WPD Agenda Item 115'/3 1700 Convention Center Drive -- Fourth Floor -- Miami Bea Date 1- '-C:rD.3 C.' mHo Lt:.- 'i" :..... i- i ....."t' 03 J~1i2 CITY OF MIAMI BEt\.~H-3 A115:0S OFFICE OF THE MAYOR & COMMIs~teN, I... .' ,JFICE - MEMORANDUM TO: JORGE M, GONZALEZ CITY MANAGER FROM: JOSE SMITH COMMISSIONER ~ DATE: January 23, 2003 RE: AGENDA ITEM FALSE CLAIMS ORDINANCE Please place the attached article on the February 5,2003 Commission Agenda for consideration in conjunction with the False Claims Ordinance, Thank you, IS/els ...... BANKRUPTCY FILINGS see FOR.ECLOSURES see .Kroae...KT TUESDAY, JANUARY ZI, zoo Praud figbt Hoping to fight wrongful billing and raise money, more states join Florida in enacting whistleblower laws by Steve Seidenberg It's a great time to be a whistle- blower, Not only can you feel good about doing the right thing, but you stand a better chance than ever of getting a big finan- cial return. That's because more and more states are following the federal government's lead and enacting their own false claims acts with qui tam provisions. These provisions allow individuals who know of a fraud committed on the government to bring a civil suit against the wrongdoer on behalf of the govern- ment and to collect a portion of the damages and fines which the wrongdo- er pays the government. '" think there is good public policy behind it," said William V. Hoyle Jr., a solo practitioner in NewpoTt New5, Va., who represents whistleblowers. "The federal or state government is subjected to unethical, lackadaisical or generally aberrational billing, and someone decided to put a stop to it by enacting these laws." To date, It states and the District of : William V, HoyleJr" who representl whiltleblowerl, lays false claims lawl help prevent 'unethical, lackadailical or generally aberrational billing' of governments, ing fraud may be one reason for the laws, money is certainly another one, said John T. Boese, a partner in the Washington, D.C., office of New York's Fried Frank Harris Shriver & Jacobson and the author of a book on the sub- ject, "Civil False Claims and Qui Tam Actions." He said these statutes allow cash-strapped gov- ernments to garner additional revenue without raising taxes. "The states are running deficits, they need money and these [wrongdoers] are easy tar- gets," said Boese, who represents corporate defendants in false claims act cases. "The states look at the amount of money that the federal government has recovered in the last 16 years. and they want their share," Since 1986, when the federal FCA wa5 amended to promote qui tam suits, the government has recovered more than $6 billion in whistleblower cases and the whistle- blowers have kept more than $800 mil- s.. Whistl.blowers, 'Pag. AS Columbia have enacted false claims acts (FCAs) with qui tam provisions. Similar legislation has been intro- duced in 10 other states. While thwart- ...BIST............S From Pa~A7 lion for themselves, according to sta~ tistics r.l.as.d by the U,S. D.p.rtm.nt of justic.. In fisc.l y..r 2002 alone, whistleblower suits under the f.d.ral FCA brought in .lmost $'.1 billion in s.ul.m.nu .nd judg- ments and the whistleblowers col. l.ct.d mar. th.n $.60 million. .ccording to the DOj. The ltate laWI St.t. f.ls. cl.ims .cu. like the f.d- eral statute, create liability for any" one who has intentionally or reck. l.ssly submiu.d f.ls. cl.ims to the government for payment. Most of the st.t. FCAs .lso follow f.d.ral l.w and impose liability for ureverse false claims." These claims occur when companies provide false information in order to hide or diminish their obligations to pay money or property to the govern. ment. A number of state FCAs differ from f.d.r.l l.w .nd impose liability on a somewhat con trover. sial basis: inadvertent submi..ion of . f.ls. cl.im. Und.r FCAs in California, Virginia, M.ryl.nd .nd M....chus.tts. an entity violates the law when it sub. mits a claim that it believes is good, subsequently discovers its claim is too large and fails to notify the gov- ernment about the overpayment. "This is a big issue," said Boese. uH you inadvertently submit a false cl.im .nd don't p.y it b.ck f.st enough, you're liable. I think this will come as a shock to most citizens of these states." Li.bility und.r st.t. .nd f.d.r.l FCAs is stiff. Violators are subject to tr.bl. d.m.g.s as w.ll .s fin.s th.t usually run $5,000 to $10,000 per false claim. This can add up, as a company can be accused of hundreds or thou- sands of individu.l billing viol.tions. Und.r the f.d.r.l FCA .nd .bout h.lf of the st.t. FCAs. . whistl.- blower who wins its qui tam suit is entitled to between 15 percent and 30 percent of the amount recovered - receiving a smaller percentage if the government intervenes in or takes ov.r the l.wsuit. Half of the st.t. FCAs are more generous to success. ful whistleblowers, .ccording to Bo.... Th. District of Columbia, for inst.nce, pays betw.en 'S percent .nd ....0 percent of the recovery. Nevada pays between 15 percent and 50 per- cent. To date, however, only two states h.v. coll.ct.d h.fty bounti.s for both governments and whistleblowers. California, which was the first state to enact its own FCA law modeled on the f.d.r.l st.tute. has coll.ct.d hundr.ds of millions of dollars sinc. its law was enacted in 1987. Florida, the second state in the nation to enact this type of l.w. hIS r.port.dly col- lected more than $~8 million in recoveries as of June 1001. Th.r. hIS not y.t b..n signific.nt case law in the other states with FCA laws. This is p.rtly b.c.us. these statutes are more recent, and $0 civillitiga- tors .r. not fully f.mili.r with them. lilt is like any oth.r l.w th.t is . littl. strange," Boese said. As these laws get older and people learn more about them - and as the recov- eries under these laws garner more publicity - the statutes will become more used, he said. Money is another fac- tor. "California and Florida are the states with the I.rg.st budg.ts, so frauds th.r. will h.v. the biggest total impact," said Robert Salcido, a partner in the D.C. offic. of Akin Gump Str.uss H.u.r & Feld and an expert on health care fraud. flIn states like Nevada or Delaware, there is less likelihood of big fr.ud, This is just. function of dollars spent." It is also possible that signifitant state FCA cases have already been brought outside California or Florida, but the cases are under seal. Und.r f.d.ral .nd stat. FCAs. qui tam suits are kept under seal to allow the government to investigate the fraud .1I.v-tions .nd to. d.cid. if it wants to intervene in the case. It is not uncommon for such cases to be kept sealed for several years. So far, the following jurisdictions have enacted FCAs with qui tam pro" visions: California, Florida, Ulinois, louisiana, Texas, Tennessee, Nevada, Hawaii, Delaware, Massachusetts .nd the District of Columbi.. The laws in Louisiana and Texas apply only to c.rt.in typ.s of h.alth car. fr.ud. . John T. Iloete. who repreaenu corporate d.f.ndan.., aay. hia clients 'an: easy tarpts' for FVernments IooltinB for additional revenue without raising tUeII. Steve Seidenberg report. for the Nation.l L.w Journ.l, .n .ffili.te of the D.ily Business Review. DEC-l1~2002 WED 11:42 AM FAX NO. p, 02/04 FALSE CLAIMS ACTS SIEGFRIED, RIVERA, LERNER. DE LA TORRE & SOBEL, P.A, Steven M. Siegfried Jason Molder During the Civil War, suppliers to the Union Anny frequently defrauded the government when Submitting claims for payment. For example, "war profiteers were shipping boxes of sawdust instead of guns, for instance, and swindling the Union Anny into purchasing the same cavalry horses several times_ "You can sell anything to the government at almost any price you've got the guts to ask," boasted One profiteer who made millions unloading moth-eaten blankets to the military.,,1 As a result, the False Claims Act (originally known as the "Lincoln Law") was enacted, The False Claims Act, codified at 31 U.S,C. ~ 3729, et. seq" imposes civil liability on any person or entity submitting a false claim for payment to the United States government. The Act provides, in pertinent part: (a) Liability Cor certain acts.--Any person. who- (1) knowingly presents. or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used. a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; ... is liable to the United States Government for a civil penalty o~not less than $5,000 and not more than SlO.OOO, plus 3 times the amount of damages which the Government sustains because of the act of that person. , ., (b) ,Knowing aDd knowingly defined.--Fo:r::pUlposes of this section. the terms "knowing" and "knowingly" mean that a person, with respect to information-- (1) has actual knowledge ofthe information; (2) acts in deliberate ignorance of the truth or falsity of the information; or I http;lIwww.whistleblowers.c:om/HTMLIFRMlhistJ.hlJ1\ DEC-11~2002 WED 11:43 AM FAX NO. P. 04/04 price contract, where it gets paid the same regardless of time); (2) substitution of products (substituting inferior quality products for superior products specified in the contract); (3) improper cost allocation (allocating certain time, ~uch as design and ~ngineering supervisory time, to government contracts and not private contract, which typically pay a single market rate for their products); and many others, including plainly failing to comply with contract speci fications, an act which rises to a mere breach of contract claim had the contracting party been a private entity.5 5 See genemlly, http.:llwww.whistlcblc......crs.comIHTMLlFRWcmtypd_f.htm DEC-l1~2002 WED 11:42 AM FAX NO. P. 03/04 ;" , f. (3) acts in reckless disregard ofthe troth oc falsity of the information, (c) Claim deOned.--For purposes of this section, "claim" includes any request or dcmand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if tIle United States Govenunent provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such cmitractor, grantee, or'other recipient for any portion of the money or property which is requested or dcmanded. Fundamentally, the Act prohibits six key actions: 1. Making a false statement to get a false claim paid by the government; 2. Conspiring to get a false claim paid by the government; 3, Withholding property oflhe government with the intent to defraud; 4, Making or delivering a rcceipt for government property that is false; 5. Buying government property tiom someone not authorized to sell it; and 6. Making a false statement to avoid an obligation to pay money to the government.2 Damages under the Act can be costly, as the Act provides for treble damages sustained by the government. As such, [t]he stiffpenalties have made the False Claims Act one ofLhe government's favorite tools to combat fraud and abuse in government- funded programs.',3 Additionally, Qui Tam provisions of the Act pcrmit anyone with knowledge ofthe submission of false claims to bring suit On behalf of the government. This ''whistleblowcr'' provision cncourages citizen suits, Indeed, qui tam actions have enabled the government to recover almost $4 billion to date, awarding the qui tam relators, as 1he plaintiffs are called, with over $100 million in kickbacks for their efforts.4 Government contractor fraud comes in many fomls, such as (1) cross-charging (charging "lixed-price" contract costs to a related "cost-plus" contract, and subsequently getting paid on a cost-plus profit basis when it should have applied the work to the fixed- 2 See genel'ally, http://v<'WW_falseclaimsact.eomlucs(:ription,hlml lTd. 41d. ~ I , ~ .., ~ IE > a: "" :::> a: CD ..... "- >" "" '" :z: :::> '" E 0 u 'C ~ .. (l) .r:. J ~ ~ CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARINGS ~ ......... NOTICE IS HEREBY given that public hearings will be held by the Mayor and City Commission of the City of Miami Beach, Florida, in the Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach. Florida, on Wednesday, February 26, 2003, at the times listed below to consider the fOllowing on first reading: at 10:15 a.m.: AN ORDINANCE AMENDING MIAMI BEACH CITY CODE ARTICLE III, DIVISION 2 ENTITLED "BARRIER-FREE ENVIRONMENT COMMITTEE," SECTION 2-31 (D) THEREOF BY DELETING THE SIX NON-VOTING EX OFFICIO MEMBERS.': ESTABLISHING A BOARD QUORUM OF THREE MEMBERS AND REQUIRING AT LEAST THREE VOTES FOR BOARD ACTION; PROVIDING FOR REPEALER, SEVERABILITY. CODIFICATION, AND AN EFFECTIVE DATE Inquiries may be directed to the Legal Department at (305) 673-7470. at 10:20 a.m.: AN ORDINANCE AMENDING MIAMI BEACH CITY CODE CHAPTER 82, ENTITLED "PUBLIC PROPERTY," BY AMENDING ARTICLE IV THEREOF ENTITLED "USES IN PUBLIC RIGHT-OF-WAY," BY AMENDING DIVISION V THEREOF ENTITLED "SIDEWALK CAFES," BY AMENDING SECTION 82-383 ENTITLED "FEE; RENEWAL FEE; PENALTIES FOR LATE PAYMENTS FOR RENEWAL FEE," BY AMENDING SUBSECTION (E) THEREOF TO A8ATE SIDEWALK CAFt FEES FOR BUSINESSES NORTH OF 63RD STREET; PROVIDING FOR REPEALER, CODIFICATION, SEVERABILITY AND AN EFFECTIVE DATE. Inquiries may be directed to the Finance Department at (305) 673-7466, at 10:25 a.m.: AN ORDINANCE AMENDING THE CODE OF THE CITY OF MIAMI BEACH. BY AMENDING CHAPTER 12. "ARTS, CULTURE, AND ENTERTAINMENT," ARTICLE II, "SPECIAL EVENTS," BY INSERTING A NEW SECTION 12-6, ENTITLED "PARKING FOR SPECIAL EVENTS," ADOPTING PROCEDURES FOR THE REVIEW AND APPROVAL OF THE USE OF PUBLIC AND PRIVATE PROPERTY NOT SO PERMITTED UNDER EXISTING ZONING TO BE USED AS EMERGENCY PARKING LOTS FOR SPECIAL EVENTS, PROVIDING FOR REPEALER, CODIFICATION. SEVERABILITY, AND AN EFFECTIVE DATE. 'C 'i .. w ~ I Inquiries may be directed to the Parking Department at (305) 673-7505. .r. '~. ... ~ ......- ,:,~.10:30 a.m.: . -- ' AN ORDINANCE AMENDING CHAPTER 70 OF THE MIAMI BEACH CITY CODE ENTITLED "MISCELLANEOUS OFFENSES.' I ~ BY CREATING ARTICLE V THEREOF, TO BE ENTITLED "FALSE CLAIMS ORDINANCE," BY CREATING SECTION 70-300 TO' . .', BE ENTITLED "SHORT TITLE; PURPOSE"; BY CREATING SECTION 70-301 TO BE ENTITLED "DEFINITIONS.; BY'" CREATING SECTION 70'302 TO BE ENTITLED "CERTIFICATION OF CLAIMS" ; BY CREATING SECTION 70-303 TO BE ENTITLED "LIABILITY FOR FALSE CLAIMS; PENALTIES"; BY CREATING SECTION 70-304 TO BE ENTITLED ' "INTERVENTION BY THIRD PARTIES IN CIVIL ACTIONS FOR FALSE CLAIMS"; BY CREATING SECTION 70,305 TO BE ENTITLED "RIGHTS OF PARTIES IN CIVIL ACTIONS; LIMITATION OF ACTIONS"; BY CREATING SECTION 70-306 ENTITLED "AWARDS TO PLAINTIFFS BRINGING ACTION"; BY CREATING SECTION 70-307 TO BE ENTITLED "EXPENSES; ATTORNEY'S FEES AND COSTS"; BY CREATING SECTION 70-30B ENTITLED "EXEMPTIONS TO CIVIL ACTIONS"; BY CREATING SECTION 70-309 TO BE ENTITLED "PROTECTION FOR PARTICIPATING EMPLOYEES"; BY CREATING SECTION ,: 70-310 TO BE ENTITLED "BURDEN OF PROOF; PRESUMPTION OF FALSE CLAIMS"; BY CREATING SECTION 70-311 TO . BE ENTITLED "INNOCENT CLAIMANT AFFIRMATIVE DEFENSE"; BY CREATING SECTION 70-312 TO BE ENTITLED . "CONSTRUCTION AND SEVERABILITY OF PROVISIONS"; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE .....+ Inquiries may be directed to the. Legal Department at (305) 673-7470. ALL INTERESTED PARTIES are invited to appear at this meeting. or be represented by an agent, or to express their views in writing addressed to the City Commission. c/o the City Clerk, 1700 Convention Center Drive, 1 st Floor, City Hall, Miami Beach, Florida 33139. Copies of these ordinances are available for publiC inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive, 1 st FIDor. City Hall, Miami Beach. Florida . 33139. This meeting may be continued and under such circumstances additional legal notice would not be provided. Robert E. Parcher. City Clerk City of Miami Beach Pursuant to Section 286.0105, Fla. Stat., the City herelty advises the public that: if a person decides to appeal any decision made by the City Commission with respect to any matter considered at its meeting or its hearing, such person must ensure that a verbatim record of the proceedings is made, which record includes the testimony and' evidence upDn which the appeal is to be based. This notice does not constitute consent by the City fDr the introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act Df 1990, persons needing special accommodation to participate in this proceeding, or to request informatiOn on access for persons with disabilities, or to request this publication in accessible format. or to request sign language interpreters, should contact the City Clerk's office at (305) 673-7411, no later than four days prior to the proceeding. If hearing impaired, contact the City Clerk's office via the Florida Relay Service numbers, (800) 955-8771 (TrY) or (800) 955-8770 (VOICE), (Ad #0157)