STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF WORKERS' COMPENSATION, )

)

Petitioner, )

)

vs. ) Case No. 98-4453

)

ERIC KRISTIANSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Florida, on January 28, 1999.

APPEARANCES

For Petitioner: Louise T. Sadler, Senior Attorney

Department of Labor and Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

For Respondent: Eric Kristiansen, pro se

3750 Aba Lane

North Port, Florida 34287 STATEMENT OF THE ISSUE

The issue is whether Respondent was an employee engaged in the construction industry and required to obtain workers' compensation insurance while working on the roof of the Myakka Animal Clinic and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Notice and Penalty Assessment Order dated August 25, 1998, Petitioner alleged that Eric "Richardson" (later lined out with the penned-in addition, "Kristiansen") was an employer engaged in the construction industry with one or more employees, but failed to carry workers' compensation insurance. The notice proposes a penalty of $1000.

At the hearing, Petitioner called four witnesses and offered into evidence seven exhibits, which were all admitted.

Respondent called no witnesses and offered into evidence no exhibits.

The court reporter filed the Transcript on February 10, 1999.

FINDINGS OF FACT

1. On August 24, 1998, Petitioner's investigator observed Respondent working on the roof of the Myakka Animal Clinic in Venice, Florida.

2. At the time, Respondent was regularly employed by Paradise Roofing, Inc., where he had an exemption from workers' compensation insurance coverage. He has never previously been guilty of a violation of the workers' compensation laws.

3. The contract price was $800. However, the evidence is conflicting as to the identity of the party that entered into the contract with the Myakka Animal Clinic.

4. The veterinarian testified that her understanding of the agreement was that Respondent was to do the work, but, if any problems arose, he was not alone, and she could go to Paradise Roofing, Inc., to ensure that the labor and materials were satisfactory. Although there are other indications in the record that Respondent may have been working on his own on this job, there is sufficient conflict in the evidence that Petitioner has failed to prove that Respondent was doing the job as a self- employed person, rather than an exempt employee of Paradise Roofing, Inc. Respondent's understanding of the contractual relationship carries less weight than the veterinarian's understanding of this relationship.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

6. Petitioner has the burden of proof in this case.

   
   

7. Petitioner failed to prove that Respondent was self- employed on the subject job, so as to render ineffective his exemption under Paradise Roofing, Inc. Absent such proof, Petitioner has failed to prove that Respondent was not, under Section 440.05(3), exempt from the requirement of obtaining coverage under workers' compensation insurance.

RECOMMENDATION

It is

RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing the Notice and Penalty Assessment Order and any related stop work order.

DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999.

COPIES FURNISHED:

Edward A. Dion, General Counsel Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Mary Hooks, Secretary Department of Labor and

Employment Security

303 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Louise T. Sadler, Senior Attorney Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Eric Kristiansen 3750 Aba Lane

North Port, Florida 34287

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-004453

Orders for Case No: 98-004453