DEC 08 2008 Chief Financial Offi Docketed by: CHIEF FINANCIAL OFFICER. STATE OF FLORIDA IN THE MATTER OF Case Number 93628-08-WC CREATIVE SOFFIT AND SIDING, LLC FINAL ORDER THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 07-163-D1, and being otherwise fully advised in the premises, hereby finds that: 1. On July 12, 2007, the Department of Financial Services, Division of Workers’ Compensation, (“Department”) issued Stop-Work Order and Order of Penalty Assessment No. 07-163-D1 to CREATIVE SOFFIT AND SIDING, LLC. The Stop-Work Order included a notice of rights advising that any request for hearing must be filed within twenty-one days from receipt. 2. On July 12, 2007, the Stop-Work Order and Order of Penalty Assessment was served by personal service on CREATIVE SOFFIT AND SIDING, LLC. A copy of the Stop- Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. CREATIVE SOFFIT AND SIDING, LLC did not file a petition to challenge or contest the Stop-Work Order and Order of Penalty Assessment. 4. On August 8, 2007, an Amended Order of Penalty Assessment was issued to CRREATIVE SOFFIT AND SIDING, LLC in the amount of was $111,123.98. The Amended Order of Penalty Assessment included a Notice of Rights wherein CREATIVE SOFFIT AND SIDING, LLC 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. 5. On November 28, 2007, the Amended Order of Penalty Assessment was served on CREATIVE SOFFIT AND SIDING, LLC by personal service. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 6. CREATIVE SOFFIT AND SIDING, LLC did not file a petition to challenge or contest the Amended Order of Penalty Assessment until December 20, 2007. A copy of the petition is attahced hereto as “Exhibit C.” 7. On July 30, 2008, the Department forwarded the untimely petition to the Division of Administrative Hearings (“DOAH”) for appointment of an Administrative Law Judge. DOAH assigned Case No. 08-3746. 8. On August 6, 2008, the Department filed a Motion to Dismiss in DOAH Case No. 08-3746 and filed an Amended Motion to Dismiss on August 20, 2008. Service of both motions was made by mailing to CREATIVE SOFFIT AND SIDING, LLC. at the address the company provided at the time the Stop- Work Order was issued and also to an address that its principal had provided when the Amended Order of Penalty Assessment was served, to 420 S. Vermont Ave., Green Cove Springs, FL 32043. The Amended Motion to Dismiss argued that the Petition was untimely, inasmuch as it was received 22 days after the Amended Order of Penalty Assessment was served. A copy of the Amended Motion to Dismiss is attached hereto as “Exhibit D” and incorporated by reference. 9. On September 10, 2008, the Administrative Law Judge entered an Order to Show Cause, which gave CREATIVE SOFFIT AND SIDING, LLC until September 25, 2008, to show cause why the Department’s Amended Motion to Dismiss should not be granted. A copy of the Order to Show Cause is attached hereto as “Exhibit E.” 10. CREATIVE SOFFIT AND SIDING, LLC did not respond to the Order to Show Cause. 11. On October 6, 2008, the Administrative Law Judge issued an Order Closing File And Relinquishing Jurisdiction, relinquishing jurisdiction to the Department for final agency action. A copy of the Order Closing File And Relinquishing Jurisdiction is attached hereto as “Exhibit F” and incorporated herein by reference. FINDINGS OF FACT 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued and served on July 12, 2007, and the Amended Order of Penalty Assessment issued on August 8, 2007, and served on November 28, 2007, which are fully incorporated herein by reference, are hereby adopted as Findings of Fact in this case. 13. The Department additionally finds as a matter of fact that the petition was received by the Department on December 20, 2007, which is 22 days from the date the Amended Order of Penalty Assessment was served on CREATIVE SOFFIT AND SIDING, LLC. Moreover, the petition did not offer any reason, excuse or explanation for its late filing. The type-written, unsigned document explained that CREATIVE SOFFIT AND SIDING, LLC had not been able to produce records to the Department, but did not address why it was filed 22 days after service of the Amended Order of Penalty Assessment. CONCLUSIONS OF LAW 14. Based upon the Findings of Fact adopted herein, the Department concludes that CREATIVE SOFFIT AND SIDING, LLC violated the specific statutes and rules alleged in the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment and hereby adopts the violation(s) charged in the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment as Conclusions of Law in this case. In addition, the Department finds as follows: 15. A pleading or other paper is considered filed on the date it is “received by the office of the agency clerk during normal business hours... .” R. 28-106.104(1), Fla. Admin. Code. Thus, the petition was not filed until December 20, 2007. Section 120.569(2)(c), Florida Statutes, states, in relevant part: “A petition shall be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed.” Rule 28-106.111(2), Florida Administrative Code, states, “persons seeking a hearing on an agency decision which does or may determine their substantial interest shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.” Rule 28-106.111(4), Florida Administrative Code, states: “Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters.” 16. Section 120.569(2)(c) and Rule 28-106.111(4) also note that equitable tolling is available as an excuse, or defense, for untimely filings. The petition offered no reasons for delay in providing records, which amount to neglect and inadvertence on behalf of CREATIVE SOFFIT AND SIDING, LLC, and offered no reason for the petition being filed one day late. Therefore, CREATIVE SOFFIT AND SIDING, LLC has not made a showing upon which equitable tolling could be based. 17. Thus, CREATIVE SOFFIT AND SIDING, LLC has waived its right to be heard, formally or informally, on the Amended Order of Penalty Assessment. PENALTY IMPOSED 18. The dismissal of the petition for hearing submitted in reference to the Amended Order of Penalty Assessment, taken together with the Findings of Fact and Conclusions of Law adopted herein, constitute grounds for the Chief Financial Officer to impose the penalty and order the cessation of business operations'as set forth herein. IT IS THEREFORE ORDERED that: a. CREATIVE SOFFIT AND SIDING, LLC immediately pay the total penalty of $111,123.98 for failing to secure the payment of workers’ compensation to its employees in full to the Department of Financial Services for deposit into the Workers' Compensation Administration Trust Fund;.and b. CREATIVE SOFFIT AND SIDING, LLC shall cease all business operations in the state of Florida until such time as CREATIVE SOFFIT AND SIDING, LLC has come into compliance with the coverage requirements of Chapter 440, Florida Statutes. DONE and ORDERED this 54 day of Louwbas 2008. B LONDON DEPUTY CHIEF FINANCIAL OFFICER 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 General Counsel, acting as the agency clerk, at 612 Larson Building, 200 E. Gaines St., Tallahassee, Florida 32399-0333, and a copy of the same and filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order. COPIES FURNISHED TO: LYNICE BECKSTROM FLORIDA DEPARTMENT OF FINANCIAL SERVICES DIVISION OF WORKERS’ COMPENSATION, BUREAU OF COMPLIANCE 921 N. DAVIS ST. JACKSONVILLE, FL 32209 MATTHEW DA SILVA CREATIVE SOFFIT AND SIDING, LLC 8431 EATON AVE. JACKSONVILLE, FL 32211 MATTHEW DA SILVA CREATIVE SOFFIT AND SIDING, LLC 420 S. VERMONT AVE. GREEN COVE SPRINGS, FL 32043 STATL ‘ FLORIDA, DEPARTMENT OF FINAN _ SERVICES DIVISION OF WORKERS' COMPENS. ON STOP WORK ORDER > EMPLOYER! “rea-live Sako "e j "OT a FEIN: Q O 3 lo S Issuance Date BUSINESS ADDRESS: WORK SITE LOCATIO l <7. 4 bh/ve Veolra F, Construction OG Non-construction oO Agriculture Pursuant to § 440.107, Florida Statutes, the above-referenced Employer is hereby ORDERED to STOP WORK AND CEASE ALL BUSINESS OPERATIONS IN THIS STATE based on the following violations: ailure fo secure the payment of workers’ compensation in violation of § 440.107(2) Fla. Stat., by: failing to obtain coverage that meets the requirements of Ch. 440, Fla. Stat., and the Insurance Code; C materially understating or concealing payroll; O'materially misrepresenting or concealing employee duties so as to avoid proper classification for . premium calculations; . ; O materially misrepresenting or concealin experience rating modification factor. . O Failure to produce required business records within 5 business days in violation of § 440.107(7)(a), Fla. Stat. 0 Failure to produce required documents within 3 business days in violation of § 440.05(11), Fla. Stat. THIS STOP WORK ORDER SHALL REMAIN IN EFFECT UNTIL THE DIVISION ISSUES AN ORDER RELEASING THE STOP WORK ORDER, OR UNTIL THE DIVISION ISSUES AN ORDER OF CONDITIONAL RELEASE FROM STOP WORK ORDER PURSUANT TO THE EMPLOYER ENTERING INTO A PAYMENT AGREEMENT SCHEDULE FOR PERIODIC PAYMENT OF PENALTY. g information pertinent to the computation and application of an IF THE EMPLOYER CONDUCTS ANY BUSINESS OPERATIONS IN VIOLATION OF THIS STOP WORK ORDER, A PENALTY OF $1,000.00 PER DAY OF VIOLATION SHALL BE ASSESSED. - EXHIBIT _ ORDER OF PENALTY ASSESSMENT: 4 A penalty against the Employer is hereby ORDERED: it the employer would have paid in premium when applying approved for which it failed to secure the payment of workers' compensation eriod, or $1,000, whichever is greater. § 440.107(7)(d), Fla. Stat. tabbies" Nn an amount equal to 1.5 times the amoun manualfates to the employer's payroll during periods required by this chapter within the preceding 3-year p C In an amount up to $5,000 for each employee who the Employer misclassified as an independent contractor. §§ 440.10(1)(F) and 440.107(7)(f), Fla. Stat. The penalty may be amended based on further information obtained, including the production of business records by the Employer. CERTIFICATE OF SERVI ee | yee wpe Tivehcas”) Pursuant to § 440.107(4), Fla. Stat., me (print name afid)title of Server), served a tre copy of this Stop Work Order: ; ype. i Mey posting at the Work Site Location. Date: 7 lis. lp 7; Time: D45 hh O Server: Li Rekstom ; Time: | Article # Server: O By certified mail to Employer. Date: yey hand delivery to Employer. Daté-1 7; Time: 10/4544 Server: l. hss, . ana. WHITE Cory-ORIGINAL (CASE FILE/INVESTIGATOR) // YELLOW Copy {EMPLOYER} // MANILA Copy {work SiTE} Form 7 - Stop Work Order (Feb. 3, 2004). NOTICE OF RIGHTS You, the Employer, have a right under sections 120.569 and 120.57, Fla. Stat., to initiate proceedings by filing a written petition for hearing. . : hearing under section 120.57(2), Florida Statutes, at which you may be represented by counsel, present documentary evidence, and present a written Statement in opposition to this Stop Work Order. A petition. for a hearing under section 120.57 must conform to rules 28-106.201(2) and 28-106.301(2), Florida Administrative Code. The petition shall contain a) the name and address of each agency affected and each agency's file or identification number, if known; b) the name, address, and telephone number of the petitioner; t! telephone number of the petitioner's representative, if any, and an explanation of will be affected by the agency determination; c) a statement of when and how the petitioner received notice of the agency or modification of the agency's proposed action; and g) a statement of the relief sought by the petition with respect to the agency's proposed action. You must file a petition for hearing so that it is received by the Division at the address identified below, within twenty-one (21) days of receipt of this Stop Work Order. FAILURE TO FILE A PETITION FOR HEARING WITHIN THE TWENTY-ONE (21) DAYS OF RECEIPT OF THIS STOP WORK ORDER CONSTITUTES A WAIVER OF YOUR RIGHT TO REQUEST A HEARING. ISSUING AGENCY NAME AND ADDRESS Department of Financial Services, Division of Workers’ Compensation, Bureau of Compliance, 921 N. Davis Street, Building B, Suite 250, Jacksonville, Florida 32209 Attn: Robert Lambert, District Supervisor Telephone: (904) 798-5806 WHITE Copy-ORIGINAL (CASE FILE/INVESTIGATOR) // YELLOW CoFY {EMPLOYER} // MANILA Copy {work Site} 04-04- Form 7 - Stop Work Order (Feb. 3, 2004). Mediation under section 120.573, Florida Statutes, is not available. a 4 | STA,. FLORIDA, DEPARTMENT OF FINANCIAL. ERVICES DIVISION OF WORKERS’ COMPENSATION EMPLOYER NAME: STOP-WORK ORDER No.: Creative Soffit and Siding, LLC 07-163-D1 FEIN: 203376837 ISSUANCE DATE: 8/3/2007 : EMPLOYER ADDRESS: 6431 Eaton Avenue CITY: Jacksonville STATE: FL ZIP: 32081 AMENDED ORDER OF PENALTY ASSESSMENT The Division of Workers’ Compensation issued a Stop-Work Order in this case on 7/12/2007 : The Stop-Work Order included an Order of Penalty Assessment that identified the Penalties assessable under sections 440.10 and 440.107, F.S. The Division hereby amends the Order of Penalty Assessment based on the following penalties: : I=) Failure to secure the payment of workers’ compensation within the meaning of section 440.107(2), F.S., by: failing to obtain Coverage that meets the requirements of Chapter 440, F.S., and the Insurance Code; materially understating or concealing payroll: : materially misrepresenting or concealing employee duties so as to avoid Proper classification for premium calculations; . oO materially misrepresenting or concealing information pertinent to the computation and application of an "experience rating modification factor. OO) For such violation(s) the Employer is assessed a penalty of § 111,123.98 (section 440.107(7)(d), F.S.) as detailed in the attached PENALTY WORKSHEET, which is incorporated herein by reference; oO Conducting business operations in violation of the Stop-Work Order as detailed in the attached PENALTY WORKSHEET, which is incorporated herein by reference, for which the Employer is assessed a penalty of $ (section 440.107(7)(c), F.S.); oO Misrepresenting ‘the status of the employee(s) as an independent contractor(s), as detailed on the attached PENALTY WORKSHEET, which is incorporated herein by reference, for which the Employer is assessed a penalty of $ . (section 440.10(1)(f), F.S.,). Itis hereby ORDERED that the Employer is assessed a TOTAL PENALTY of $ 111,123.98 The penalties assessed herein Supersede any penaities previously assessed in this case. The Employer shall pay the TOTAL PENALTY by money order or cashier's check, made payable to the DFS-Workers' Compensation Administration Trust Fund. Pursuant to section 440.107(11), F.S, the Department may initiate lien proceedings to collect any penalty due that has not been paid. In addition, the Department may refer any unpaid penalty that is due to a collection agency for the initiation of proceedings to collect the unpaid penalty. CERTIFICATE OF SERVICE Pursuant to section 440.1 07(4), F.S., Katina Johnson, WC Investigator for Investigator Lynise Beckstrom : int name and tile of server) served a true copy of this Amended Order of Penalty Assessment: P<} By hand delivery: Date: || Lago ; Time: 2) 30 p YK; Server: A hucbotonm icle: 70063450000285024291 IN By certified mail: Date: EXHIBIT i 8B January 3, 2006 : : —_—— NOTICE OF RIGHTS: : ’ You, the Employer, have a right under sections 120.569 and 120.57, F.S., to initiate proceedings by filing a written petition for hearing. If you dispute a material fact contained in this Amended Order of Penalty Assessment, you are entitled to a hearing under section 120.57(1), F.S., at which you may be represented by counsel, present evidence and argument on the issue(s), .| examine witnesses, submit a proposed recommended order, and file exceptions to the recommended order of the - administrative law judge. If you do not dispute a material fact contained in this Amended Order of Penalty Assessment, you are entitled to a hearing under section 120.57(2), F.S., at which you may be represented by counsel, present documentary evidence, and present a written statement in opposition to this Amended Order of Penalty Assessment. A petition for a hearing under section 120.57, F.S. must conform to rules 28-106.201(2) and 28-106.301(2), Florida Administrative Code. The petition shall contain a) the name and address of each agency affected and each agency's file or identification number, if known; b) the name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner's representative, if any, and an explanation of how the petitioner's substantial interests will be affected by the agency determination; c) a statement of when and how the petitioner received notice of the agency decision; d) if you dispute a material fact, a statement of all disputed issues of material fact (if there are none, then the petition must so indicate), and if you do not dispute a material fact, a concise statement of ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency's proposed action; e) a concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency's proposed action; f) a statement of the specific rules or statutes the petitioner contends require a reversal or modification of the agency's proposed action; and 8) a statement of the relief sought by the petition with respect to the agency's proposed action. You must file a petition for hearing so that it is received by the Division at the address identified below, within twenty-one (21) days of receipt of this Amended Order of Penalty Assessment. FAILURE TO FILE A PETITION FOR HEARING WITHIN THE TWENTY-ONE (21) DAYS OF RECEIPT OF THIS AMENDED ORDER OF PENALTY ASSESSMENT CONSTITUTES A WAIVER OF YOUR RIGHT TO REQUEST A HEARING. Mediation under section 120.573, F.S., is not available. ISSUING AGENCY NAME AND ADDRESS Division of Workers’ Compensation, Bureau of Compliance: 921 N Davis St Ste 8250 Jacksonville FL 32209 Attn: Robert Lambert, Supervsior Telephone: (904) 798-5870 January 3, 2006 © oe " LG-€91-Z0 “ON 8SeD Oma 140 L a6eg L401 abeg (LP)ZOLOFPS:"0001$ 40 (6) ULUN}OD JapUN AYES JO OPED yyy G*L-Jo JoyoR) Asoynyeys Aq paydyjnw winjwesg *e “(2)(2)20 Opp) ‘SL Aq paydainu's"4 (Z)ZLObb's Ur peuep se e6em Ayam abeLene epmeye}s ay} aq 0} paynduy, aq eys jouXed ‘JouKed s,sakojdtue ay; sujWE}ep 0} UOWPIEdeG oy) ajqeus 0} JUdIOWNS. splode!sssuIsNg spinosd 0} peyey sey.saXo|duse Su yy wSONIGS HdSSOr HOAOH HSOr an OTT ONIGIS GNV 1440S SAILVaND = :SINVN SS3NISNE yeoysoM: Ayeued : sauelduiog Jo neesng “uonesuadwios {siay10(4 Jo-UOISIAIC ‘SODIAINg JeIOUeUIY Jo JuelijIedeg ‘epuols joes | ooze ; DEC 21 2007 5:04PM Py COMPLIANCE apAgween p.é N and siding 904 874-7122. Irecelved a notice to stop work ordér i ihe field july 12 2007. I was aware that I needed to submit records to lyniae beokstror infortunately E _ submitted the wrong records and had recently moved i dida’t no : aupan the first of December I became awaro of the pengtlys I would be | occurring and that I had the option to write this to request a he. ie Joshua hough and joseph edinger lonly employed for that day: amd with out compensation and have no isaue paying the correct finde . are more thet Icould make in 5 years and in the end v id put my company 60 far into debt that I could never get ahead again ..plsase allow 116 Jo about my company .thanks creative soffit and siding ..matt dadlya RECEIVED bec 203007 eran aN EXHIBIT 7 = STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CREATIVE SOFFIT AND SIDING, LLC, Petitioner, vs. Case No. 07-3746 DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Respondent. AMENDED MOTION TO DISMISS The Department of Financial Services, Division of Workers’ Compensation, moves to . dismiss this cause because the request for an administrative hearing was filed untimely. In support of the motion, the Department states: 1. OnJuly 12,2007, Stop-Work Order and Order of Penalty Assessment No. 07-163-D1 was issued to and served upon Creative Soffit And Siding, LLC (“Creative Soffit.”) The Stop-Work Order inchided a notice of rights advising that any request for hearing must be filed within twenty- one days from receipt. A Business Records Request also was personally served on July 12, 2007, on Creative Soffit. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as Exhibit A. . 2. On August 8, 2007, an Amended Order of Penalty Assessment was issued to Creative Soffit in the amount of was $111,123.98. It was not until November 28, 2007, however, that the Amended Order of Penalty Assessment was served by hand delivery on Creative Soffit. The Amended Order of Penalty Assessment included a notice of rights advising that any request for EXHIBIT i Dp hearing must be filed within twenty-one days from receipt. A copy of the Amended Order of Penalty Assessment is attached hereto as Exhibit B. 3, On December 20, 2007, the Division received correspondence from Creative Soffit, requesting that the employer be allowed a hearing “to submit the correct facts about my company.” A copy of this correspondence is attached hereto as Exhibit C. 4, The correspondence was not signed by hand. The sender was identified as “Matt DaSilva.” Mr. DaSilva stated that he had received notice of the Stop-Work Order “in the field on (JJuly 12, 2007,” and acknowledged that he “was aware that I needed to submit records . . .” but that “unfortunately I submitted the wrong records and had recently moved.” He added that “ypon the first of December I became aware of the penalt[ies].” 5. The correspondence was not captioned, but in substance is a petition for an administrative hearing, and served asa request for a hearing in order to present accurate information to the Department. The petition was received 22 days from the date that the Amended Order of Penalty Assessment was served. Creative Soffit did not acknowledge in the petition that it had 21 days from November 28, 2007, in which to file a petition for a hearing. . 6. A pleading or other paper is considered filed on the date it is “received by the office of the agency clerk during normal business hours...” R. 28-1 06.104(1), Fla. Admin. Code. Thus, the petition was not filed until December 20, 2007. From Wednesday, November 28, 2007, when the Amended Order of Penalty Assessment was served on Creative Soffit, until Thursday, December 20, 2007, is 22 days. 7. Resolution of this matter is governed by section 120.569(2)(c), Florida Statutes, and Rule 28-106.111, Florida Administrative Code. Section 120.569(2)(c) states, in relevant part: “A petition shall be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed.” (Emphasis supplied.) 8. Two subsections of Rule 28-106.111 apply. Under subsection (2) “persons seeking a hearing on an agency decision which does or may determine their substantial interest shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.” Subsection (4) states: “Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such imatters.” . 9. Section 120.569(2)(c) and Subsection (4) also note that equitable tolling is available as an excuse, or defense, for untimely filings. The petition offered reasons for delay in providing records, which amount to neglect and inadvertence on behalf of Mr. DaSilva, but offers no reason for the petition being filed one day late Mr. DaSilva’s assertion that he did not become aware of the penalty against his company until December 1 does not square with the notation on the Amended Order of Penalty Assessment (Exhibit B) that it was served by hand delivery on November 28, 2007, . some three days prior to the date Mr. DaSilva asserts he “became aware” of the penalty. Assuming that assertion to be true, the gap in time between service and awareness is attributable to either Mr. DaSilva and Creative Soffit. 10. Equitable tolling does not apply in this instance, as case law conclusively demonstrates. In Aleong v. State, Department of Business and Professional Regulation, 963 So. 2d 799 Fila. 4th DCA 2007) a veterinarian challenged dismissal of his late-filed petition for an administrative hearing. The court held: The doctrine of equitable tolling is generally applied when a plaintiff has been “misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Machules v. Dep't of Admin. , 523 So.2d 1132, 1134 (Fla.1988). Three of Florida's district courts have held that the untimely filing of a request for hearing by counsel is not an “extraordinary” circumstance which warrants the application of the doctrine of equitable tolling. See Envil. Res. Assocs. | of Fla., Inc. v. State, Dep't of Gen. Servs., 624 So.2d 330 (Fla. Ist DCA 1993); Cann v. Dep't of Children & Family Servs., 813 So.2d 237 (Fla. 2d DCA 2002); Williams v. Albertson's, Inc., 879 So.2d 657 (Fla. 5th DCA 2004). This court agrees, and holds that, in the instant case, the failure of Dr. Aleong's counsel to timely file a petition for hearing did not amount to an extraordinary circumstance, accordingly, the doctrine of equitable tolling does not apply and does not serve to relieve Dr. Aleong of the consequences of the untimeliness of his petition. 963 So. 2d at 801. The court went on to hold that excusable neglect was not grounds for excusing @ late-filed petition. Id. 11. In this case there is no evidence of any of the three factors that Machules cited as justifying equitable tolling. The Department did nothing to mislead or to lull Creative Soffit into inaction. The Department took no action that prevented Petitioner from asserting its rights. Indeed, the last action that the Department took was to serve the Amended Order of Penalty Assessment on November 28, 2007, and this motion is predicated on that final event, and not the Stop-Work Order, which was served on July 12,2007. Finally, Creative Soffit did not timely assert its rights in another forum. . 12. Moreover, the petition did not allege any facts that would support a claim of equitable tolling or even acknowledge that the petition was filed late. Creative Soffit and Mr. DaSilva were on express notice of the 21-day deadline. The notice of rights on the Amended Order of Penalty Assessment reads: You must file a petition for hearing so that it is received by the Division at the address identified below, within twenty-one (21) days of receipt of this Amended Order of Penalty Assessment. FAILURE TO FILE A PETITION FOR HEARING WITHIN TWENTY- ONE (21) DAYS OF RECEIPT OF THIS AMENDED ORDER FOR PENALTY ASSESSMENT CONSTITUTES WAIVER OF YOUR RIGHT TO REQUEST A HEARING, Exhibit B (emphasis in original). 13. The reasons Creative Soffit gave in its petition as to why it had not acted previously do not address the reasons why its petition was late. Rather, they seek excuse from the requirement that records requested by the Division be produced within no more than 45 days, See §440.107(7), Fla. Stat., Rule 69L-6.028(3), Fla. Admin. Code. Even if those reasons were applicable, they are not grounds for equitable tolling. 14. Inasmuch as failure to file a petition within the 21-day time limit constitutes a waiver of the right to request a heating, and inasmuch as no grounds to support equitable tolling were alleged or shown, Creative Soffit’s untimely petition is fatally defective and cannot be cured. WHEREFORE, the Department moves for entry of an Order recommending that the Department dismiss the petition as untimely. SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE ] HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by overnight courier delivery to Matthew DaSilva, Creative Soffit and Siding, LLC, 8431 Eaton Ave. . Jacksonville, FL 32211, and to 420 S. Vermont Ave., Green Cove Springs, FL 32043 on August 22, 2008. Respectfully submitted and served, Cor Thomas H. Duffy Assistant General Counsel Florida Bar No. 470325 Department of Financial Services, Division of Legal Services 200 E. Gaines St. Tallahassee, FL 32399-4229 850 413-1606 850 922-7270 (fax) Exhibit A ; Beyer may be amended based on further Information obtained, including i yor hand detivery to Employer. Dat 14 DEC ef 2007 5:04PH ") COMPLIANCE sone . p.3 STATE ALORA, DEPARTMENT OF FINANC _ [SERVICES sO N OF WORKGAS* COMPENGATIO FO, : STOP P WORK 0. ‘Pursuant to § 440.107, Florida Statutes, the ahova-refarenoed Empio ALL BUSINESS ‘OPERATIONS IN THIS STATE based on the following violation the payment of workers’ compensation In violation ¢4 § 40.407(2) Fla Stat., by! ™ doing neve tt ani rages of Dp, Pia. Stat, and the Ingurance inguranes Code; ; understating or concealing payroll; ' . ‘o ema et misrepresenting or concealing employee duiles 20 a ho avold proper classification for ‘ob Pmatartaly mnisrapreadniing or conoesling Information portinert iq the computation and epplicdtion of an experience factor. 1 Fallura to produce required ao rccorde within 6 business days 1 oldtion of § 440.t07¢7\0); Fla. Stat Sipeieainnenpicininennnneie q ar9 ac000(11 Stat. . THie STOP WORK ORDER & SHALL Ri IN BRET UNTIL THE DIVBIGN tgaUl2g AN ORDER RELEASING THE “@TOP WORK. ORDE! NES AN ORDER OF CONDITIONAL RELEASE PROM STOP WORK OROER PURSUANT TO THE, EMP 1 ENTERING | OA US PAYMENT AGREEMENT, £4 FOR PERIO renionw PAYMENT: OF DN OF THIS STOP WORK ORDER, A ba id EMPLOYER CONDUCTS ANY BUSINESS OPERATIONS IN VIOLATI “CY OF $1,000.00 PAR DAY OF VIOLATION SHALL BE AQSEQSED. ORDER OF PENALTY ASSESSMENT: Apenally ageinet he Employer Is haraby ORDERED: a aroun cust 4 (6 thnes the amount the amplyer would rae Sener egoaan ) fi d pertoda for whi fallad to seou 9 Re payment * required tine chapter win Payal ue pert 8,000, whiner greater. 4 as0cAOTITNG) FR amount up to $6,000 for each employee who the Employer miaz i fled as an independant contrector. gg 440-t0cint and 440.107(7)(f), Fia, Stat, lproquotian of businese tecords by the (By carifled mall to Employer. Date: nn ; Time: _______ Aiticle t. “ NOTICE OF RIGHTS ‘You, the Employer, have a right under sactions 120.569 and 120.87, Fle. Stat, to initiate proceedinge by fling a written petition for hearing.” “a Procsecings by fing u dispute a material fact contained In thie Stop Work Order, you are entitted to a hearing under section tal p present evidence and argumenton the issue(s), 7( examine witnesses, submit a proposed recommended ordar, and file exceptions to the recommended order of the A petition. for a hearin Administrative Code. The You muat fle a pafition for hearing go that Ite received by the Divialon-at the address identified below, within twanty-ond (21) days of recalpt of thie Stop Work Order. FAILURE TO FILE A PETITION FOR HEARING WITHIN THE TWENTY-ONE (21) DAYS OF RECEIPT OF THIS STOP WORK ORDER CONSTITUTES A WAIVER OF YOUR RIGHT TO REQUEST A HEARING. . Mediation tinder section 120.579, Florida Statutes, ‘s not available. ISSUING AGENCY NAME AND ADORESS Department of Financial Services, Division of Woskera' Compensation, Bureau af Compitance, 921N, Davis Street, Sule 200, Jat $2200 Attn: Robert Lambert, District Supervisor Telephone: (904) 7os-5606 \ WHITE CoPy-ORIGINAL (case FiLE/INvEsTIGATOR) / YELLOW Cory {empower} // MANILA Cory (Work Site} __ Form 7 » Stop Work Order (Feb, 3, 2004). Exhibit B DEC 2) 2007 5:04PM #Y COMPLIANCE a ‘ COPY ‘ STATE on FLORIDA, DBPARTMENT OF FINANCLIL RERVICES ' ION OF WORKERS' GOMPEN The Clon ctr minaued a Work Orderin this case cn j ol Raneity. te assesaabi>upcereactone44 ink The ort hereby amands isthe onder of Panatly Asedeument hased on that lowing paneltiea: toss pearl nate canon ws ti ahetton 440,107(2}, FS. by: LE a ae concaalny pl Han wt eer 8, F and the Insurance rance Code; lo. raat marta rong ocal employes duties €0 aq (9 avold Wrap nr lanatoation for prem os Fer auth vielation(a) the Emptoyer ie aqasead & penaliy of § 111,128.08 Keactlon, 440.107(7Nd), F.8.) sonra ein ra + rrctrpareted Fara iy reference: - Resa 1ig business operations M Vipletian of the Stop-Work Order der galidatalled.in tho attached PENALTY Le ee horarnd ber by Tbnen tr which Tyr Alvar erated penly ot (anction 440.107(7)(0), F.8.)5 ; Misrapresenti the stetue-ot the am ) ap an independent coutrap BNALTY WORKS - which ta incorporated harain hy reference, for whiot tf (natn 44010110, F8, Lo ortel;-ee-deteted! on onvttie-atteched” - - Einptoyer le eegessed a penailyof = ToL PENALTY assessed heraln aupereeda a setia praviousl emeneed b in higfcose ene until either (a) @ Divielont laeues an ordiar rag the Stop-Work Order upon rae etter the er hee congue 501 with the . tequivements of Poredie ee penal, . Pursuant te section 440,107(11 FG, thet the pee rater initiate a not been paid. (n addition, he ent ay intial et inttletion of proceedings to collect ttie fe unpeld po penalty CERTIFICATE OF BERVIOE Pureuant ta section 440,107(4), F.S., Kena Johnson, W 6 inveatgats fr inveetignte Lt ‘ ‘ ] NOTICE OF RIGHTS youn Employer, have a right under sections 120.669 and 120.87, F.S., to initiate proceedings by filing @ written petition of Identification number, If :.b) the name, address, and telephone number of the pettianer: the name, address, and telephone number of the petittoner’s representative, if any, and an explanation of how the petitioner's substantial intereate will be affected by the agency determinatian; c) & statement of when and how the petitioner received nctice of the agency decielon; d) (f you diepute a material fact, a statement of all d fasues of material fact (if there are none, then the petition must so indicate), and if you do not dispute-2 materiel fact, @ concise atatement of ultimate facts alteged, Including tha specific facte the petitioner contends warrant reverse! or modification of the agency's proposed action; e) a concise statement of the uitimete facte alleged, Including tha epacific facts the petitioner cantends warrant reversal or modification ofthe agency's proposed action; f) a statament of the specific rules or atetutes the petitioner contends require a reverael or modification of the agency's proposed action; and g) a statement of the rallef sought by the patition with respect to the agency's proposed action. | Division of Workers’ Compensation, Bureau of Compliance: 921 NOavts Ste 8250 Jacksonvite Fi, 92208 ARSE, Attn: Robért Lambert, Suparvsior , Telephone: (204) 798-8870 . : January 3, 2006 Ilo Exhibit C . DEC 21 2007 6104PN Py COMPLIANCE apagseenet ° ‘ iN Division of workers compensation jburean of compliance I was aware that I needed to submilt secords to lysles beckatror’ a fuld put my company #0 18 }o subit the comect facts - RECEIVED pec 20,2007 pd oo mene ee — uraquge pur STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CREATIVE SOFFIT AND SIDING, LLC, Petitioner, Case No. 08-3746 vs. DEPARTMENT OF FINANCIAL SERVICES, Respondent. ORDER TO SHOW CAUSE This matter came before the undersigned on Respondent’s Amended Motion to Dismiss. No response has been filed to the motion. , Respondent asserts that an Amended Order of Penalty Assessment was hand delivered to Petitioner on November 28, 2007. The Amended Order of Penalty Assessment included a notice of rights advising that any request for hearing must be filed within 21 days of receipt. Petitioner filed a letter with Respondent which requested an administrative hearing. The letter reflects a stamp which reads “Received Dec 20 2007 Bureau of Compliance Jacksonville.” Thus, the request for hearing was received 22 days from the date the Amended Order of Penalty Assessment was served. Florida Administrative Code Rule 28-106.111 states that a party seeking a hearing on an agency decision shall file the petition within 21 days of receipt of written notice and failing to do so constitutes a waiver of the right to a hearing. Section 120.569(2)(c), Florida Statutes, states in relevant part: A petition shall be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed. Accordingly, it is ORDERED: On or before September 25, 2008, Petitioner shall file with the Division of Administrative Hearings any reason why Petitioner’s request for an administrative hearing should not be dismissed. Failure to do so will result in the dismissal of this case. DONE AND ORDERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. Ss BARBARA J. STAROS 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 10th day of September, 2008. COPIES FURNISHED: Matthew DaSilva Creative Soffit and Siding 8431 Eaton Avenue Jacksonville, Florida 32211 Thomas H. Duffy, Esquire Department of Financial Services 200 East Gaines Street, 6th Floor Tallahassee, Florida 32399-4229 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CREATIVE SOFFIT AND SIDING, LLC, ) Petitioner, ) vs. ) Case No. 08-3746 DEPARTMENT OF FINANCIAL SERVICES, Respondent. ) ——— ORDER CLOSING FILE AND RELINQUISHING JURISDICTION it ee Respondent file an Amended Motion to Dismiss to which no response was filed. On September 10, 2008, an Order to Show Cause was entered directing Petitioner to file on or before September 25, 2008, with the Division of Administrative Hearings any reason why Petitioner's case should not be dismissed. As of today's date, Petitioner did not file any response to the Order to Show Cause. Accordingly, it is ORDERED: 1. Respondent's Amended Motion to Dismiss is granted. 2. The file of the Division of Administrative Hearings is closed and jurisdiction is relinquished to the Department of Financial Services for final disposition. EXHIBIT iF DONE AND ORDERED this 6th day of October, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 6th day of October, 2008. COPIES FURNISHED: Thomas H. Duffy, Esquire Department of Financial Services 200 East Gaines Street, 6th Floor Tallahassee, Florida 32399-4229 Matthew DaSilva Creative Soffit and Siding, LLC 8431 Eaton Avenue Jacksonville, Florida 32211

Docket for Case No: 08-003746