STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

LAWRENCE SIMON, )

)

Respondent. )

Case No. 02-3379

)

RECOMMENDED ORDER

Don W. Davis, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in this case on April 17, 2003, in Ocala, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: David C. Hawkins, Esquire

Department of Financial Services Division of Workers' Compensation

200 East Gaines Street Tallahassee, Florida 32399-4229

For Respondent: Lawrence Simon, pro se

1683 Southeast 160th Terrace Oklawaha, Florida 33379

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent complied with coverage requirements of the workers' compensation law, Chapter 440, Florida Statutes. A determination of whether

Respondent functioned as an employer is a preliminary issue to be resolved.

PRELIMINARY STATEMENT

By Stop Work and Penalty Assessment Order issued on

June 27, 2002, the Department of Financial Services, Division of Workers Compensation (Petitioner), alleged Lawrence Simon (Respondent) failed to secure workers' compensation coverage at a construction site in Ocala, Florida.

By Petition dated July 22, 2002, Respondent disputed the allegations and requested formal administrative proceedings. The matter was referred to the Division of Administrative Hearings on August 27, 2002.

By Notice of Hearing dated March 13, 2003, final hearing was scheduled to be held on April 17, 2003, before Administrative Law Judge Stephen F. Dean. Subsequently, the case was transferred to the undersigned for purposes of conducting the final hearing.

At the final hearing, Petitioner presented the testimony of two witnesses and offered 11 exhibits. Respondent presented testimony of three witnesses, but offered no exhibits.

The Transcript of the final hearing was filed on June 10, 2003. The parties requested and were granted leave to file proposed recommended orders on or before 20 days after the filing of the Transcript.

Respondent did not provide any post-hearing submissions. A Proposed Recommended Order submitted by Petitioner has been considered in the formulation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency of state government currently responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers secure the payment of compensation for their employees.

2. Respondent works in the construction industry as a house framer.

3. Petitioner's investigator received a report of a violation of the workers' compensation law on May 21, 2002. When the investigator arrived at the construction site located at 8225 Southwest 103rd Street Road, Ocala, Florida, he observed four men, including Respondent, installing trusses at a residence under construction. Respondent was identified by the other men as the person for whom they were working on the job.

4. All four men told the investigator that they were employees of Dove Enterprises (DOVE). Upon further investigation, the owner of DOVE and also the general contractor of record, Steven Slocumb, stated to the investigator that DOVE operated as the subcontractor for Triple Crown Homes. Slocumb further stated that DOVE, through Slocumb, in turn subcontracted the work to Respondent on a piece rate or square foot basis.

   Respondent, according to Slocumb, in turn hired the other three men.

5. When Petitioner's investigator returned to the construction site, the four men were gone. None of the four men had an exemption from coverage requirements of the workers' compensation law and none of them had workers' compensation insurance. Consequently, the investigator determined that Respondent was an employer both of himself and the three other workers and that all four were unprotected by workers' compensation insurance. On June 27, 2002, the investigator issued the Stop Work and Penalty Assessment Order at issue in this proceeding. The Order levied the minimum penalty under Section 440.107, Florida Statutes, of $1,100.00.

6. Slocumb and Respondent appeared at the final hearing.

   
   

   Respondent's position was that he and the other three men were employees of DOVE. None of the men produced documentation of such an employment relationship. Rather, documentation presented shows that DOVE paid Respondent for equipment rental. Additionally, payments to Respondent from DOVE for the jobs in question did not include adjustments for employment taxes that would have applied had Respondent been an employee.

   Respondent's testimony is not credited. Slocumb confirmed the facts determined by the investigator. Slocumb's testimony was candid, direct and creditable.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.569 and 120.57(1), Florida Statutes.

8. Section 440.10(1)(a), Florida Statutes, provides:

   
   

   (1)(a) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for, and shall secure, the payment to his or her employees, or any physician, surgeon, or pharmacist providing services under the provisions of s. 440.13, 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.

   
   

9. Section 440.38(1), Florida Statutes, requires every employer to secure workers' compensation as outlined by Chapter 440, Florida Statutes.

10. An "employer" as defined by the workers' compensation law, specifies "every person carrying on any employment." The terms "employment" and "employee" are also set forth by law. See Section 440.02(14), (15), and (16), Florida Statutes.

11. In this case, Respondent's claims that the four men were acting as employees of DOVE are not creditable. Slocumb's testimony establishes that Respondent was an independent contractor at the time of the incident.

12. Petitioner has established by a preponderance of the evidence that Respondent intended to evade the requirements of the workers' compensation laws.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order confirming the Stop Work and Penalty Assessment Order at issue in this proceeding.

DONE AND ENTERED this 8th day of July, 2003, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 8th day of July, 2003.

COPIES FURNISHED:

Lawrence Simon

1683 Southeast 160th Terrace Oklawaha, Florida 33379

David C. Hawkins, Esquire Department of Financial Services Division of Workers' Compensation

200 East Gaines Street Tallahassee, Florida 32399-4229

Honorable Tom Gallagher Chief Financial Officer

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

Mark Casteel, General Counsel Department of Financial Services The Capitol, Lower 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: 02-003379

Orders for Case No: 02-003379