STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL ) SERVICES, DIVISION OF WORKERS’ ) COMPENSATION, )

)

Petitioner, )

)

vs. )

)

GIO & SONS, INC., )

)

Respondent. )

Case No. 04-1180

)

RECOMMENDED ORDER

A final hearing was conducted in this case on October 22, 2004, via video teleconference at sites in Tallahassee, and Fort Lauderdale, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Joe Thompson, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-4229

For Respondent: Giovanny Martinez, Jr., pro se

Gio & Sons, Inc.

910 Southwest 18th Court Pompano Beach, Florida 33068

STATEMENT OF THE ISSUES

Whether Gio & Sons, Inc. (Respondent) violated Sections

1. and 440.38, Florida Statutes, and if so, what penalty should be imposed. References to sections are to the Florida Statutes (2004).

   PRELIMINARY STATEMENT

   
   

   By Stop Work Order and Penalty Assessment Number 04-311-D1 (Stop Work Order) Petitioner, the Department of Financial Services, Division of Workers’ Compensation (Petitioner), alleged that Respondent failed to secure workers' compensation coverage for its workers.

   Amended Order of Penalty Assessment 04-311-D1-03 (Amended Order), which calculated a penalty assessment as provided by law, was thereafter issued.

   Respondent timely requested a formal hearing to contest the penalty.

   The identity of the witnesses and exhibits and attendant rulings are set forth in the one-volume transcript of the hearing filed with the Division of Administrative Hearings on November 8, 2004.

   Petitioner timely filed its Proposed Recommended Order, which has been duly-considered. Respondent has not filed a proposed recommended order.

   FINDINGS OF FACT

   
   

   1. Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440, Florida Statutes, which require that employers secure workers’ compensation coverage for their employees.

   2. Respondent, whose principal is Giovanny Martinez, Jr. (Mr. Martinez), is in the business of providing drywall installation services.

   3. At all times material to this case, Respondent is an employer within the meaning of Section 440.02(16)(a), Florida Statutes.

   4. At all times material to this case, Respondent was legally obligated to provide workers' compensation insurance in accordance with the provisions of Chapter 440, Florida Statutes, for all persons employed by Respondent to provide drywall installation services within Florida. In particular, Chapter

      440 requires that the premium rates for such coverage be set pursuant to Florida law.

   5. At all times material to this case, Respondent failed to obtain workers' compensation coverage on behalf of over 150 employees.

   6. It is undisputed that Respondent had not furnished the required coverage, and that there was no valid exemption from this requirement.

   7. Accordingly, on February 26, 2004, the Stop Work Order was properly entered.

   8. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that Respondent employed the individuals referred to in paragraph 5, whose identities are not in dispute, under circumstances which obliged Respondent to provide workers' compensation coverage for their benefit.

   9. Based upon Respondent’s payroll records, Petitioner correctly calculated the penalty amount imposed by law under all the circumstances of the case, and issued the Amended Order imposing a penalty assessment in the amount of $107,885.71.

   10. Mr. Martinez does not dispute the factual or legal merits of Petitioner's case.

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter.

       §§ 120.569, and 120.57(1), Fla. Stat.

       
       

   12. Petitioner has the burden of proving by a preponderance of the evidence that Respondent has violated the workers’ compensation law, and that the penalty assessments are correct under the law. See Department of Labor and Employment Security, Division of Workers’ Compensation v. Genesis Plumbing,

       Inc., DOAH Case No. 00-3749 (Rec. Order, paragraph 32) (Final Order May 24, 2001); Department of Labor and Employment

       Security, Division of Workers’ Compensation v. Eastern Personnel Servs., Inc., DOAH Case No. 99-2048 (Rec. Order, paragraph 24) (Final Order, November 30, 1999), appeal dismissed, Case

       No. 1D99-4839 (Fla. 1st DCA 2000).

       
       

   13. Section 440.10(1)(a), Florida Statutes, provides in relevant part:

       (1)(a) Every employer coming within the provisions of this chapter shall be liable for, and shall secure, the payment to his or her employees . . . of the compensation payable under ss. 440.13, 440.15, and

       440.16. Any contractor or subcontractor who engages in any public or private construction in the state shall secure and maintain compensation for his or her employees under this chapter as provided in s. 440.38.

       
       

   14. Pursuant to Sections 440.10 and 440.38, Florida Statutes, Respondent was obliged to secure the payment of workers' compensation for the benefit of its employees and admittedly failed to do so.

   15. Petitioner has fulfilled its burden of proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order that affirms the Amended Order in the amount of

$107,885.71.

DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 15th day of December, 2004.

COPIES FURNISHED:

Joe Thompson, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-4229

Giovanny Martinez, Jr. Gio & Sons, Inc.

6910 Southwest 18th Court Pompano Beach, Florida 33068

Honorable Tom Gallagher Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florid a 32399-0300

Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 04-001180

Orders for Case No: 04-001180