STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) LABOR AND EMPLOYMENT SECURITY, ) DIVISION OF WORKERS' ) COMPENSATION, COMPLIANCE UNIT, )

)

Petitioner, )

vs. ) CASE NO. 94-5712

) RICHARD YOUNG d/b/a STRAUSS ) GALLERY, )

)

Respondent. )

)

RECOMMENDED ORDER

As notice was provided, on January 5, 1995, a formal hearing was held in this case. The hearing location was the offices of the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Authority for conducting the hearing is set forth in Chapter 120.57(1), Florida Statues. Charles C. Adams was the hearing officer.

APPEARANCES

For Petitioner: Margaret R. Young

Department of Labor and Employment Security

2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189

For Respondent: Richard Young, Pro Se Respondent Strauss Gallery

1950 Thomasville Road at Betton Place

Tallahassee, Florida 32303 STATEMENT OF THE ISSUES

Did Respondent fail to secure payment of compensation as required by Chapter 440, Florida Statutes? If so, is Respondent required to pay a one thousand dollar ($1,000.00) penalty for such failure, pursuant to Section 440.107(3)(b), Florida Statutes (1994 Supp.)?

PRELIMINARY STATEMENT

Petitioner cited Respondent for failure to secure the payment of compensation. Through the citation Petitioner intends to assess a one thousand dollar ($1,000.00) penalty against Respondent. Respondent opposed that outcome and the case was referred to the Division of Administrative Hearings and a formal hearing ensued.

Prior to hearing, Petitioner moved to dismiss the case based upon the alleged lack of a disputed issue of fact. The motion was denied by written order dated October 26, 1994. Following the respective presentations at hearing, the motion was renewed. The motion was again denied for reasons explained in the transcript.

The parties entered into certain stipulations of fact which are provided with this recommended order. In addition, Petitioner presented Carrie Fitton as a witness. Ms. Fitton is a workers' compensation investigator for the Petitioner. Respondent testified in his own behalf.

The transcript was filed with the Division of Administrative Hearings on January 13, 1995. Petitioner filed a proposed recommended order. Respondent did not. The fact finding in the proposal was incorporated in the recommended order in substance.

FINDINGS OF FACT

1. On August 25, 1994, Respondent was an employer as defined in Section 440.02(14), Florida Statutes, (1994 Supp.). At that time he had persons engaged in employment as defined in Section 440.02(15)(b)2. Florida Statutes, (1994 Supp.). Those persons were employees as defined in Section 440.02(13)(a), Florida Statutes, (1994 Supp.).

   
   

2. On the subject date there were four employees working for the Respondent.

   
   

3. The employment on the date in question involved the sale of picture frames and artwork, unassociated with the construction industry. The employees worked at a location at 1950 Thomasville Road, Tallahassee, Florida.

   
   

4. The four persons were engaged in employment for Respondent as a sole proprietor of the business known as Strauss Gallery. That business was not incorporated.

   
   

5. On the date in question, Respondent did not carry any workers' compensation insurance for the benefit of the four employees.

   
   

6. Pursuant to an investigation conducted on August 25, 1994, Carrie Fitton, Investigator for the Petitioner, issued a citation to the Respondent in the amount of one thousand dollars ($1,000.00) for the alleged failure to comply with Section 440.10, Florida Statutes, (1994 Supp.) which makes Respondent liable for and responsible to secure the payment of compensation for his employees.

   
   

7. Respondent posted a one thousand dollar bond when served with the citation.

   
   

8. He timely protested the contentions alleged in the citation.

   
   

9. His protest was timely forwarded by the Petitioner to the Division of Administrative Hearings for assignment of a hearing officer and conduct of the hearing.

   
   

10. The citation date and date upon which the Respondent protested the citation were August 25, 1994, and September 15, 1994, respectively.

11. In explanation, Respondent testified that his certified public accountant told him that the provision requiring compensation did not pertain to Respondent's business, where, in effect, Respondent had only four employees. This information was imparted prior to the August 25, 1994, investigation.

    
    

12. Respondent also urges, and the record bears out, that he did not intentionally violate the law requiring him to provide compensation.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this action pursuant to Section 120.57(1), Florida Statutes.

    
    

14. On August 25, 1994, Respondent was an employer as defined at Section 440.02(14), Florida Statutes, (1994 Supp.). He had persons engaged in employment for him as defined in Section 440.02(15)(a), Florida Statutes, (1994 Supp.). Those persons were employees as defined in Section 440.02(13)(a), Florida Statutes, (1994 Supp.).

    
    

15. On that date, Respondent was liable for compensation for those employees consistent with Section 440.10, Florida Statutes, (1994 Supp.)

    
    

16. Having failed to secure the payment of compensation for the four employees as required by Chapter 440, Florida Statutes, (1994 Supp.), Petitioner is entitled to assess a penalty against Respondent in the amount of one thousand dollars ($1,000.00), as set forth in Section 440.107(3)(b), Florida Statutes, (1994 Supp.). Petitioner may assess the penalty notwithstanding Respondent's lack of intent to violate Chapter 440, Florida Statutes, (1994 Supp.).

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it

is,

RECOMMENDED:

That a final order be entered assessing a one thousand dollar ($1,000.00)

penalty against Respondent for violating Section 440.10, Florida Statutes, (1994 Supp.).

DONE and ENTERED this 2nd day of February, 1995, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1995.

COPIES FURNISHED:

Margaret R. Young, Esquire Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, FL 32399-2189

Strauss Gallery c/o Richard Young

1950 Thomasville Road

Tallahassee, FL 32303

Shirley Gooding, Secretary Department of Labor and

Employment Security

303 Hartman Building

2012 Capital Circle, S.E. Tallahassee, FL 32399-2189

Edward A. Dion, General Counsel Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, FL 32399-2189

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 94-005712

Orders for Case No: 94-005712