FILED

AUG 30 2011

Chief Financial Officer

Docketed by:       CHIEF FINANCIAL OFFICER

JEFF ATWATER

STATE OF FIDRIDA

IN THE MATTER OF:

MCDONNELL PAINTING, d/b/a PAINTING

AND WALLCOVERING BY MCDONNELL Case Number: 10-053-D4-WC

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FINAL ORDER

THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment served in Division of Workers' Compensation Case No. 10-053-D4 and being otherwise fully advised in the premises, hereby finds that:

1. On February 18, 2010, the Department of Financial Services, Division of Workers' Compensation (hereinafter "Department") issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers' Compensation Case No. 10-053-D4 to McDonnell Painting, d/b/a Painting and Wallcovering by McDonnell (McDonnell). The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein McDonnell was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days ofreceipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes.

2. On March 3, 2010, the Stop-Work Order and Order of Penalty Assessment was served via certified mail on McDonnell. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference.

3. On February 19, 2010, the Department issued an Amended Order of Penalty Assessment to McDonnell in Case No. 10-053-D4. The Amended Order of Penalty Assessment assessed a total penalty of $10,058.88 against McDonnell. The Amended Order of Penalty Assessment included a Notice of Rights wherein McDonnell was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes.

4. The Amended Order of Penalty Assessment was served on McDonnell by certified mail on February 25, 2010. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference.

5. On March 15, 2010, McDonnell timely filed a Petition requesting a formal administrative hearing. The Petition failed to satisfy the requirements of Rule 28-106.2015(5), Florida Administrative Code, in that it did not contain a statement requesting an administrative hearing which identified those material facts in dispute, or in the alternative a statement that there were no disputed issues of material fact. As a result, on April 23, 2010, the Department issued an Order Dismissing Petition for Section 120.57(1), Florida Statutes, Hearing Without Prejudice, giving McDonnell 21 days to file a Petition that satisfied the requirements of Rule 28- 106.2015(5), Florida Administrative Code.

6. The Order Dismissing Petition for Section 120.57(1), Florida Statutes, Hearing Without Prejudice was served on McDonnell by certified mail on April 27, 2010.

   
   

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7. On May 19, 2010, McDonnell timely filed an Amended Petition requesting an administrative hearing pursuant to Section 120.57(1), Florida Statutes. A copy of the Amended Petition is attached hereto as "Exhibit C" and incorporated herein by reference. The matter was referred to the Division of Administrative Hearings, where it was assigned Case No. 10-2788.

8. On January 10, 2011, the Department and McDonnell reached a negotiated settlement in which the Department agreed to issue a 2nd Amended Order of Penalty Assessment assessing a penalty in the amount of $2,379.00, and McDonnell agreed to pay the total penalty of

   $2,379 and to no longer contest the Stop-Work Order and Order of Penalty Assessment and 2nd Amended Order of Penalty Assessment.

9. On January 10, 2011, the Department filed a Notice of Settlement with the

   
   

   Division of Administrative Hearings, advising the Administrative Law Judge that the parties had resolved all issues pending in Case No. 10-2788. A copy of the Notice of Settlement is attached hereto as "Exhibit D."

10. On January 10, 2011, Administrative Law Judge R. Bruce McKibben entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the Order Closing File is attached hereto as "Exhibit E."

11. On August 5, 2011, the Department issued a 2nd Amended Order of Penalty Assessment to McDonnell in Case No. 10-053-D4. The 2nd Amended Order of Penalty Assessment lowered the penalty assessed against McDonnell to $2,379.00 pursuant to the negotiated settlement. The 2nd Amended Order of Penalty was served on McDonnell by email on August 11, 2011. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit F" and incorporated herein by reference.

FINDINGS OF FACT

1. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 18, 2010, and the 2nd Amended Order of Penalty Assessment issued on August 5, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.

   CONCLUSIONS OF LAW

   
   

2. Based on the Findings of Fact adopted herein, the Department concludes that McDonnell violated the specific statues and rules alleged in the Stop-Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment, and hereby adopts the violations charged in the Stop-Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment as the Conclusions of Law in this case.

   PENALTY IMPOSED

   
   

3. The Notice of Settlement and resulting Order Closing File, wherein McDonnell no longer contested the Stop-Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment pursuant to Sections 120.569 and 120.57, Florida Statutes, taken together with the Findings of Fact and Conclusions of Law adopted herein, constitute grounds for the Chief Financial Officer to impose the penalty as set forth herein.

IT IS THEREFORE ORDERED that:

a) McDonnell shall immediately pay the total penalty of $2,379.00 in full to the Department of Financial Services for deposit into the Workers' Compensation Administration Trust Fund, receipt of which is acknowledged.

DONE AND ORDERED this day of _

      ,, -' -t.~o-)t:

, 2011.

E. Tanner Holloman . Director, Division of Workers' Compensation

NOTICE OF RIGHTS

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Florida Rule of Appellate Procedure 9.110. Review proceedings must be instituted by filing a Notice of Appeal with the Agency Clerk at Room 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida, 32399-0333 and a copy of the Notice of Appeal, a copy of this Order and filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

Copies furnished to:

Peter McDonnell

Painting and Wallcovering by McDonnell 119 Clearwater Drive

East Harwich, Massachusetts 02645

Timothy L. Newhall Assistant General Counsel

Department of Financial Services 200 E. Gaines Street

Tallahassee, FL 32399-4229

Docket for Case No: 10-002788

Orders for Case No: 10-002788