STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' COMPENSATION,

Petitioner,

vs.

LEE ROY LAMOND SIZEMORE, d/b/a LEE'S SCREEN AND REPAIRS,

Respondent.

/

Case No. 15-3983

RECOMMENDED ORDER

On September 14, 2015, a disputed fact hearing was held in this case by video teleconferencing, with sites in Orlando and Tallahassee, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399

For Respondent: Lee Roy Lamond Sizemore, pro se

9728 Piney Point Circle Orlando, Florida 32825

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent should be assessed a penalty for an alleged failure to obtain workers’

compensation, as charged in a Stop-Work Order and Amended Order

of Penalty Assessment.

PRELIMINARY STATEMENT

The Petitioner, Department of Financial Services, Division of Workers’ Compensation, issued a Stop-Work Order and Order of Penalty Assessment against the Respondent for failing to secure payment of workers’ compensation insurance in violation of sections 440.10(1), 440.38(1), and 440.107(2), Florida Statutes (2014). The Respondent requested a hearing, and the matter was referred to DOAH.

At the DOAH hearing, the Petitioner called Kirk Glover and Lawrence Pickle to testify. The Petitioner’s Exhibits 1

through 8 were received in evidence. The Respondent testified in his case-in-chief.

The Transcript of the final hearing was filed on November 5, 2015. The Petitioner’s Proposed Recommended Order has been considered in preparation of this Recommended Order. The Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. On March 3, 2015, Kirk Glover, an investigator employed by the Petitioner, observed two men who appeared to him to be installing soffits on a home at 8905 Dove Valley Way in the Champions Gate residential development near Davenport,

   
   

   Florida (the worksite). The two men were the Respondent, Lee Roy Lamond Sizemore, and his son, Chris Sizemore.

2. The investigator asked the Respondent for the name of his company. The Respondent answered that he had not established his company, which was to be named “Lee’s Screen and Repairs.”

3. The investigator then asked the Respondent if he had workers’ compensation coverage or an exemption or exclusion from the requirement to have coverage. The Respondent answered, no. The investigator verified this information and concluded that the Respondent was in violation. The investigator asked the Respondent to provide business records to facilitate the computation of the appropriate penalty.

4. In response, the Respondent provided all the records he had for 2015, which consisted of bank statements on a personal account he shared with his wife, and their joint income tax returns for 2013 and 2014. The bank statements did not reflect any business activity. The 2014 tax return indicated that the Respondent was self-employed in construction but had no income for that year. The 2013 tax return indicated that the Respondent was self-employed selling and installing pool enclosures and had gross income of $6,264 that year.

5. Based on the information provided by the Respondent, the Petitioner calculated a penalty of $11,121.16. The calculated penalty included $1,633.84 for the Respondent for the period from

   
   

   July 1 to December 31, 2013, based on the tax return for 2013. It also included $4,743.66 each for the Respondent and his son for the period from January 1 to March 3, 2015; those amounts

   were based on income imputed to them because the records provided for that period were deemed insufficient.

6. The Respondent did not dispute the penalty calculation, assuming that workers’ compensation coverage was required and that penalties were owed. However, the evidence was not clear and convincing that coverage was required for either the Respondent or his son in 2015.

7. The Respondent testified that he was in the process of establishing his business under the name of Lee’s Screen and Repairs on March 3, 2015. Up to and including that day, he was self-employed, but there was no clear and convincing evidence that he or his son had worked or had any income in 2015. The Respondent testified that his son had been released from prison in 2014, was not employed, and needed money. The Respondent brought his son to the worksite on March 3, 2015, hoping that the contractor on the job would hire him and his son to do soffit and fascia work. He had not yet seen the contractor when the Petitioner’s investigator arrived, and neither he nor his son had any agreement with the contractor to begin work or be paid.

   There was no clear and convincing evidence that there was any

   
   

   agreement by anyone to pay either the Respondent or his son for any work on March 3, 2015, or at any other time in 2015.

8. The Petitioner did not contradict the Respondent’s testimony. In this case, the absence of business records for 2015 is evidence that no business was conducted that year, consistent with the Respondent’s testimony, and does not support the imputation of income and assessment of a penalty for 2015.

   CONCLUSIONS OF LAW

   
   

9. The administrative fine at issue in this proceeding is penal in nature. In order to prevail, the Petitioner must demonstrate by clear and convincing evidence that the Respondent was required to be in compliance with the applicable statutes on the day or days in question, that he failed to meet the requirements, and that the proposed penalty is appropriate. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   As the Supreme Court of Florida stated, quoting Slomowitz v.

   
   

   Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983):

   
   

   [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction,

   
   

   without hesitancy, as to the truth of the allegations sought to be established.

   
   

   In re Henson, 913 So. 2d 579, 590 (Fla. 2005).

   
   

10. Every employer is required to obtain workers' compensation coverage for employees unless a specific exemption or exclusion is provided by law. See §§ 440.10 and 440.38, Fla. Stat. (2014).

11. Section 440.02, Florida Statutes (2014), provided the following applicable definitions:

    (8) "Construction industry" means for- profit activities involving any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land.

    
    

    * * *

    
    

    (15)(a) "Employee" means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.

    
    

    * * *

    
    

    (16)(a) "Employer" means the state and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustees of any person.

    
    

    * * *

    
    

    (17)(a) "Employment," subject to the other provisions of this chapter, means any service performed by an employee for the person employing him or her.

    
    

    (b) "Employment" includes:

    
    

    * * *

    
    

    2. All private employments in which four or more employees are employed by the same employer or, with respect to the construction industry, all private employment in which one or more employees are employed by the same employer.

    (emphasis added).

    
    

12. As the terms are defined, “construction industry” activities must be “for profit” and employment must be for remuneration. In this case, there was no clear and convincing evidence that the Respondent employed his son, or that he or his son received or was owed any compensation for their activities at the worksite on March 3, 2015, or at any other time in 2015.

Only the penalty assessed for 2013 was proven by clear and

convincing evidence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order imposing a penalty against the Respondent in the amount of $1,633.84 for 2013, but no penalty for 2014 or 2015.

DONE AND ENTERED this 20th day of November, 2015, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2015.

COPIES FURNISHED:

Trevor S. Suter, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399 (eServed)

Lee Roy Sizemore

9728 Piney Port Circle Orlando, Florida 32825

Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)

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: 15-003983

Orders for Case No: 15-003983