FILED 001577 SEP 28 2009 Chief Financial Officer REPRESENTING Docketed by: 2: ALEX SINK o CHIEF FINANCIAL OFFICER STATE OF FLORIDA IN THE MATTER OF: SHANE MCNEAL, D/B/A LABRADOR Case Number: 94965-09- CONSTRUCTION CO. OF NORTH CAROLINA / 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, the Amended Order of Penalty Assessment and the Second Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 07-044-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On January 25, 2007, 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. 07-044-1A to SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA. 2. - On February 15, 2007, the Department issued an Amended Order of Penalty Assessment to SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA in Case No. 07-044-1A. The Amended Order of Penalty Assessment assessed a total penalty of $173,512.42 against SHANE MCNEAL, D/B/A LABRADOR. CONSTRUCTION CO. OF NORTH CAROLINA. 3. On March 26, 2008, both the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment were served by process server on SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA. Copies of the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment are attached hereto as “Exhibit A” and “Exhibit B,” respectively, and incorporated herein by reference. 4. On April 2, 2008, SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA filed a petition requesting an administrative review with the Department. The Department forwarded the petition to the Division of Administrative Hearings. on April 15, 2008, and the matter was assigned DOAH Case No. 08-1922. 5. On May 2, 2008, the Department served its discovery request on SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA, which! included interrogatories, requests for admissions, and requests for production. Responses or objections to the discovery were required to be served on the Department within thirty days. SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA failed to respond to the discovery request within thirty days. 6. On June 18, 2008, the Department filed a Motion to Deem Matters Admitted and Motion to Dismiss. 7. On July 2, 2008, the Honorable Suzanne F. Hood, the Administrative Law Judge, entered an Order Deeming Matters Admitted and an Order Closing File which relinquished jurisdiction of the case to the Department. A copy of the Order Closing File is attached hereto as “Exhibit C” and incorporated herein by reference. 8. Subsequently, the Department referred the matter for an informal proceeding pursuant to section 120.57(2), Florida Statutes, and designated Donald A. Dowdell as the Hearing Officer. The matter was assigned Case No. 97770-08-WC, and the Hearing Officer issued a Notice of Assignment and Order for a 120.57(2) Proceeding on November 7, 2008. 9. On January 13, 2009, the Department filed a Motion in Limine and Motion to Take Judicial Notice in which the Department requested that the Hearing, Officer instruct the parties that, pursuant to section 120.57(1)(i), Florida Statutes, no disputed issues of material fact could be asserted in the informal proceeding. 10. On January 15, 2009, the Hearing Officer entered an Order Denying Department’s Motion in Limine and Requiring Proffer. The Order required SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA to file ‘a written submission identifying witnesses to be called and facts to be elicited from each witness. 11. On January 30, 2009, SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA filed the required written submission, and on| February 10, 2009, the Department filed a Response to Proffer of Evidence and Motion to Relinquish Jurisdiction to the Division of Administrative Hearings. On February 12, 2009, the: Hearing Officer granted the Department’s Motion to Relinquish Jurisdiction to the Division of Administrative Hearings and entered an Order Closing File which directed the Department to transfer the matter back to the Division of Administrative Hearings for a formal proceeding pursuant to section 120.57(1), Florida Statutes. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference. 12. Pursuant to the Hearing Officer’s Order Closing File, the matter was forwarded to the Division of Administrative Hearings on April 9, 2009, and was assigned DOAH Case No. 09-1796. 13. On May 22, 2009, the Department served another discovery request on SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA, which included interrogatories, requests for admissions, and requests for production. Responses or objections to the discovery were required to be served on the Department within thirty days. SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA failed to respond to the discovery request within thirty days. 14. On May 28, 2009, the Department issued a Second Amended Order of Penalty Assessment to SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA. The Second Amended Order of Penalty Assessment assessed a total penalty of $188,288.48 against SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA. A copy of the Second Amended Order of Penalty Assessment is atached hereto as “Exhibit E” and incorporated herein by reference. | 15. On June 17, 2009, the Department filed a Motion to Amend Order of Penalty Assessment with the Division of Administrative Hearings. The Administrative Law Tudge entered an Order Granting Motion to Amend Order of Penalty Assessment on June 30, 2009, which ordered the case proceed with the Second Amended Order of Penalty Assessment as the amended charging document. A copy of the Order Granting Motion to Amend Order of Penalty, Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. | 16. On July 10, 2009, the Department filed a Motion to Compel Discovery. The Honorable Barbara J. Staros, the Administrative Law Judge, entered an Order Granting Motion to Compel on July 22, 2009, which required SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA to serve responses to the requests for admission, interrogatories, and requests for production on or before August 14, 2009. 17. On August 25, 2009, the Department filed a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes, with the Division of Administrative Hearings after SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA failed to respond to the discovery request by August 14, 2009. 18. On September 9, 2009, the Administrative Law Judge entered an Order Granting Motion to Relinquish Jurisdiction and Closing File which relinquished jurisdiction of the matter to the Department for final disposition. A copy of the Order Granting Motion to Relinquish Jurisdiction and Closing File is attached hereto as “Exhibit G” and incorporated herein by reference. FINDINGS OF FACT 19. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on January 25, 2007, the Amended Order of Penalty Assessment issued February 15, 2007, and the Second Amended Order of Penalty Assessment issued on May 28, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s | Findings of Fact in this case. CONCLUSIONS OF LAW 20. Based upon the Findings of Fact adopted herein, the Department concludes that SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA. violated the specific statutes and rules alleged in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the Second Amended Order of Penalty Assessment and hereby adopts the violation(s) charged in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the Second Amended Order of Penalty Assessment as the Conclusions of Law in this case. PENALTY IMPOSED 21. The dismissal of the petition for hearing submitted in reference to the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the Second 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. SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA shall immediately pay the total penalty of $188,288.48 in full to the Department of Financial Services for deposit into the Workers’ Compensation Administration Trust Fund; and b. SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA shall immediately cease all business operations in the State of Florida until such time as the Department issues an order releasing the Stop-Work Order and Order of Penalty Assessment. The Department shall not issue an Order releasing the Stop-Work Order and Order of Penalty Assessment until SHANE MCNEAL, D/B/A LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA has come into compliance with the coverage requirements of Chapter 440, Florida Statutes, and has paid the total penalty of $188,288.48 to the Department. | DONE and ORDERED this_2s*_ day of _ Weokmber , 2009. ne 2 BRIA 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 Tracey Beal, DFS Agency Clerk, Department of Financial Services, Room 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390, 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: SHANE MCNEAL | LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA 519 OCI DRIVE JACKSONVILLE, NORTH CAROLINA 28540 JUSTIN FAULKNER DEPARTMENT OF FINANCIAL SERVICES DIVISION OF LEGAL SERVICES 200 EAST GAINES STREET TALLAHASSEE, FLORIDA 32399-4229 HONORABLE BARBARA J. STAROS DIVISION OF ADMINISTRATIVE HEARINGS THE DESOTO BUILDING 1230 APALACHEE PARKWAY TALLAHASSEE, FLORIDA 32399-3060 STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES DIVISION OF WORKERS' COMPENSATION STOP-WORK ORDER No.: 07-044-1A ISSUANCE DATE: 1/25/2007 ~“TEMPLOVER NAME: : SHANE MCNEAL DBA LABRADOR CONSTRUCTION CO OF NC FEIN: | EMPLOYER ADDRESS: 519 OCI DRIVE CITY: JACKSONVILLE STATE:NC ZIP; 28540 WORKSITE POSTING ADDRESS;5344 W TENNESSEE STREET CITY: TALLAHASSEE STATE: FL ZIP: 32304 INDUSTRY OF EMPLOYER: [] Non-construction [J Agriculture [m] Construction STOP-WORK ORDER Pursuant to section 440.107, F.S., the above-referenced Employer is hereby ORDERED TO CEASE ALL BUSINESS OPERATIONS FOR ALL WORKSITES IN THE STATE based on the following violation(s):. a gore to’secure the payment of workers’ compensation in violation of sections 440.1 0(1), 440.38(1), and 440, 107(2) .S, by: . ' A ‘fallirig to obtain coverage that meets the requirements of chapter 440, F. S., and the Insurance Code; materially understating or concealing payroll; matérially 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. ; Failure to préduce required business records within 5 business days in violation of section 440,107(7)(a), F.S. : Failure to pro required documents within 3 business days in violation of section 440.05(1 1), F.S. ' HIS STOP-WORK ORDER MAY BE AMENDED TO INCLUDE ADDITIONAL VIOLATIONS AND SHALL REMAIN iN EFFECT UNTIL THE DIVISION ISSUES AN ORDER RELEASING THE STOP-WORK ORDER FOR ALL WORKSITES. IF THE EMPLOYER CONDUCTS ANY BUSINESS OPERATIONS IN VIOLATION OF THIS STOP-WORK ORDER, A | PENALTY OF $1,000.00 PER DAY FOR EACH DAY OF VIOLATION SHALL BE ASSESSED. ; ORDER OF PENALTY ASSESSMENT: A penalty against the Employer is hereby ORDERED in an amount: fm Equal to 15 times the amount the employer would have Paid in premium when applying approved manuat rates to the. employer's payroll during periods for which it failed to secure the payment of workers’ compensation required by this i "chapter within the preceding 3-year period, or $1,000, whichever is greater. Section 440.107(7)(d), F.S. [[] Up to $5,000 for each employee who the Employer misclassified as an independent contractor. Sections 440,10(1)(f) and 440.107(7)(f), F. S. : The penalty may be amended until a Final Order or an Order of Conditional Release from Stop-Work Order is issued. 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 penaity that is due to a collection agency for the initiation of proceedings to collect the unpaid penalty. : CERTIFICATE OF SERVICE er, Compliance Investigator ervel Pursuant to section 440,107(4), F.S., Louise Gwynette Turn served a true copy of this Stop-Work Order: {M] By posting at the Worksite: Date: 1/25/2007 ; Time: 2:08:20 PM_- server, L G TURNER “Sy hand delivery: Date: ; Time: | Server. im By certified mail: Date: 4/26/2007 . Time: 9:30:20 AM . Article: 7004 1350 0000 8767 2224 . i? . —ee! A 14 ___ 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. f you dispute.a material fact contained in this Stop-Work Order, 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 Stop-Work Order, 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 Stop-Work Order. : . A petition for a hearing under section 1 20.57, 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 decision; d) if you dispute a material fact, a statement of all disputed issués of material fact (if there are none, then the petition must so indicaté), 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 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 Division of Workers' Compensation, Bureau of Compliance: 2012 CAPITAL CIRCLE SE Attn; Louise Gwynette Tumer, Compliance Investigator . Telephone; (850) 413-1837 ee eeeEEEsx_E, January 3, 2006 telephone number of the petitioner's representative, if any, and an explanation of how the pétitionér's substantial interests ; will be affected by the agency determination; c) a statement of when and how the petitioner received notice of the agency Mediation under section 120.573, F.S., is not available. . STATE O* FLORIDA, DEPARTMENT OF FINANCIAI : “ERVICES VISION OF WORKERS' COMPENSATIG . STOP-WORK ORDER No.: 07-044-1A ISSUANCE DATE: 2/15/2007 EMPLOYER NAME: 2 SHANE MCNEAL DBA LABRADOR CONSTRUCTION CO OF NC FEIN: oy } EMPLOYER ADDRESS: 5/9 OCI DRIVE . CITY: JACKSONVILLE : . STATE: NG AMENDED ORDER OF PENALTY ASSESSMENT The Division of Workers’ Compensation issued a Stop-Work Order in this case on 1/25/2007. 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: ZIP: 28540 ~ [i] Failure to secure the payment.of workers’ compensation within the meaning of section 440.1 07(2), F.S., by: failing to obtain coverage that meets the requirements of Chapter 440, F.S., and the Insurance Code; materially understating or congealing payroll: : : materially misrepresenting or concealing employee duties so as to avoid proper classification for premium calculations; : C1 materially misrepresenting or conéealin experience rating modification factor. OO) g information pertinent to the computation and application of an For such violatioti(s) the Employer is assessed a penalty of $ 173,512.42 (section 440.107(7)(d), F.S.) as detailed in the attached PENALTY WORKSHEET, which is incorporated herein by reference; []_ Conducting. business Operations in violation of the Stop-Work Order as detailed in the attached PENALTY e, for which the Employer is assessed a penalty of WORKSHEET, which is incorporated herein by feferenci $ (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 ; RENALTY WORKSHEET, which is incorporated herein by reference, for which the Employer is assessed a penaity of 1 (section 440.10(1)(f), F.S.,). It is hereby ORDERED that the Employer is assessed a TOTAL PENALTY of $ 173,512.42 The penalties assessed herein supersede any penalties 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. The Stop-Work Order issued in this case shall remain in effect until either (a) The Division issues an order releasing the Stop-Work Order upon finding that the employer has come into compliance with the coverage ' requirements of the workers’ compensation law and pays the total penalty in full, or (b) The Division issues an _ Order of Conditional Release From Stop-Work Order pursuant to the employer coming into compliance with the coverage requirements of the workers’ compensation law and entering into a Payment Agreement Schedule For Périodic Payment of Penalty. ; 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 440.107(4), F.S., LOUISE GWYNETTE TURNER, Compliance Investigator innit name and tile of server served a true copy of this Amended Order of Penalty Assessment: oO By hand delivery: Date: ; Time: ; Server: ial By certified mail: Date: 2/15/2007 ; Time: 3:15:27 PM , Article: 70041350000087672002 73,2006 EXHIBIT iB —— 5 ° ° NOTICE OF RIGHTS You, the Employer, ha 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 ofthe 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. ve a right under sections 120.569 and 120.57, F.S., to initiate proceedings by filing a written petition’ A petition for a hearing under section 120.57, F.S. must conform to rules 28-106.204(2) and 28-106.301(2), Florida Administrative Code. The petition shall contain a) the name and addréss 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 dé:tiot 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 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 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. 4 Mediation under section 120.573, F.S., is not available. ISSUING AGENCY NAME AND ADDRESS Division of Workers' Compensation, Buréau of Compliance: 2012 CAPITAL CIRCLE SE TALLAHASSEE FLORIDA 32399-4288 Attn: LOUISE GWYNETTE TURNER, Compliance Investigator, Telephone: (850) 413-1837 January 3, 2006 7/1/2008 Page ' State of Florida, Department of Financial Services Division of Workers' Compensation, Bureau_of Compliance Penalty Worksheet BUSINESS NAME: SHANE MCNEAL DBA LABRADOR CONSTRUCTION CO OF NC . DWC Case No. _07-044-1A o1/01 #2005 | fist UNK HISPANIC MALE 2ND UNK HISPANIC MALE — 22ND UNK C HISPANIC MALE _ ND UNK HISPANIC MALE * — If the employer-has failed to provide business records sufficient to enable the Department to determine the employer's payroll, payrolt shall be imputed to be the statewide average weekly wage as defined in s.440.12(2) F.S.multiplied by 1.5, (440.107(7)(e)). ** Premium multiplied by statutory factor of 1.5 *** Greater of penalty under column (g) or $1000. s440.107(d)(1) Page 1. of 1 rs \ RETURN OF SERVICE Amended Order of Penalty Assessment and Penalty Worksheet os Case Number: 07 044 1A Lod Plaintiff: STATE OF FLORIDA vs. Defendant: SHANE MCNEAL or: CHIEF FINANCIAL OFFICER e served on SHANE Received by Process Service of America, Inc. on the 10th day of March, 2008 at 5:53 pm to b _ do hereby affirm that MCNEAL, 819 OCI DRIVE, JACKSONVILLE, NC 28540, |,_/< Ww Péeume onthe 26 dayof_sarch ,200%at_ 26%? Im., executed service by delivering a true copy of the Amended Order of Penalty Assessment and Penalty Worksheet in accordance with state statutes in the manner marked below: M PUBLIC AGENCY: By serving SA ane fened} as owner of the within-named agency. . () SUBSTITUTE SERVICE: By serving as () CORPORATE SERVICE: By serving as () OTHER SERVICE: As described in the Comments below by serving - as \() NON SERVICE: For the reason detailed in the Comments below. COMMENTS: gal age and have proper authority in the jurisdiction in | certify that | have no interest in the above action, am of le enalty of perjury, | declare that the which this service was made. Pursuant to Florida Statute 92.525 and under. facts set forth are true and correct, executed on__ Maré aE_.O Ll lPEe (UK Ww PLa me ) PROCESS SERVER# CY 5 F | Appointed in accordance with State Statutes Process Service of America, Inc. P.O. Box 5848 Tallahassee, FL 32314-5848 (850) 877-9809 Our Job Serial Number: 2008006737 Copyright © 1992-2006 Database Services, Inc. - Process Server's Toolbox Vé.26 S-DYo8 Bu | 34 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS SHANE MCNEAL, d/b/a LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA, Petitioner, vs. Case No. 08-1922 DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Respondent. ORDER CLOSING FILE On January 25, 2007, Respondent issued a Stop-Work Order, alleging that Petitioner had failed to secure payment of ‘worker's compensation in violation of Sections 440.10(1), 440.38(1), and 440.107(2), Florida Statutes. On February 15, | 2007, Respondent issued an Amended Order of Penalty Assessment, | alleging that Petitioner had failed to obtain coverage that | meets the requirements of Chapter 440, Florida Statutes, and the Insurance Code. By letter dated March 27, 2008, Petitioner requested a formal administrative hearing to contest the above referenced Amended Penalty Assessment. On April 15, 2008, Respondent referred the case to the Division of Administrative Hearings. A Notice of Hearing by Video Teleconference dated May, 7, 2008, scheduled the hearing for July 2, 2008, 7 On May 2, 2008, Respondent served, by overnight delivery, its First Interlocking Discovery Request, including request for admissions. The subject matter related in the request for admissions addressed the facts and circumstances in association with the Stop-Work Order and Amended Order of Penalty Assessment. The request clearly stated that failure by Petitioner to respond or object to a request for admission in EXHIBIT iC writing within 30 days from service would result in that matter being conclusive admitted pursuant to Florida Rule of Civil Procedure 1.370. On June 18, 2008, Respondent filed a Motion to Deem Matters Admitted and Motion to Dismiss. (The Motion to Deem Matters Admitted is resolved in an order entered contemporaneously herewith. The Motion to Dismiss is premised upon those facts established through matters deemed admitted in accordance with Florida Rule of Civil Procedure 1.370. As a consequence, the motion alleges that no disputes of material fact remain to be resolved. See § 120.57(1) (i), Fla. Stat. Upon consideration, it is ORDERED: 1. No genuine issue of material fact exists to be | resolved. ; | 2. The file of the Division of Administrative Hearings is | closed. 3. durisdiction of the case is relinquished to Respondent for disposition. DONE AND ORDERED this 2nd day of July, 2008, in Tallahassee, Leon County, Florida. 2%. Yoox) SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassée, 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 2nd day of July, 2008. COPIES FURNISHED: Kristian E. Dunn, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Anthony B. Miller, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Shane McNeal Labrador Construction Co. of North Carolina 519 OCI Drive Jacksonville, North Carolina 28540 IN THE MATTER OF: en CASE NO. 97770-08-WC (BiA oe RUCTION OF NORTH CAROLINA ORDER CLOSING:FILE On Jatiuaty 25, 2007, 4 Départiient compliance investigator issued 4 Stop Wotk Order atid Order of Penalty Assessment to thé Pétitioner, Sharie McNeal d/b/a Labrador Constriiction Co Of Notih Carolina. The Departinéiit éntered an Amended Order of Penalty Assessinent on Febitiaiy 15, 2007. In a letter dated March 27, 2008, the Petitioner requested an administrative réview of the Department action arid the matter was referred to the Division of Adininistrative Heatings(DOAH) for the condiict of a formal administrative héaring pursuant to the provisions of Séction 120.57(1), Florida Statutes. The Petitioner’s request for aii adininistrative hearing inidicatéd that hé had subcoiitracted all work at the construction site in question to another pérson, that hé had no employees at that constriction site atid that he did riot employ any Hispanic men. In the DOAH proceeding the Department served a discovery request including requests _ for admissions oni the Petitioner. The Department discovery request contairied a statement ifidicating that failiire to respond or object to the requests for admission within thirty days of sérvicé would result in the matter being coiiclusively admitiéd in accordance with the provisions of Riilé 1.370, Florida Riiles of Civil Procediire. The Petitioner did not file a timely respotise to Déeit Maiters Adinitiéd atid a Motion to Distfiiss in the DOAH proceeding. Following a hearing oni the Department Motions, oi July 2, 2008, the Administrative Law Jiidge eritered an Order granting the Motion to Deem Matters Adinitied as well as Order Closing File which relingiiished EXHIBIT i_D jutisdiction to the Department. The Department then provided Petitioner with a point of entry for af infotnial administrative proceeding, and as 4 restilt the current informal administrative proceeding was initiated. In this informal administrative proceeding the Départitient filed a Motion In Limirie and Motion to Take Judicial Notice in which ihe Department requested that the assigned Hearing Officér instruct the parties that, pursuant to the provisions of Section 120.57(1)(i), Florida Statiités, rio disputed issiiés of material fact cotild be asserted in the informal proceeding. Oni January 15, 2009, the undersigned Hearing Officer entered an Order Denying Departmeiit’s Motion In Limine and Requiring Proffer. That Order conieluided that disputed issties Of material fact had been raised in the formal administrative proceeding becatise Pétitionér’s request for an adininistrative proceeding asséried that it did not have any employees | at thé construction site where the Department had determined violations of Chapter 440, Florida | Slattités, were présented. That Order further coricludéd that due to the imprecise wording of the | féqiiestéed admissions, even if those facts were déenied admitted, unresolved dispiited issues of | material fact remaitied to be resolved in the administrative proceeding. As a result the Ordér required the Petitioner to file a written submission identifying the witnesses it interided to call | and the intended facts to be elicited from each witness. | ‘The Petitioner filed the required wiitten submission and on February 10, 2009, the | Dépaitmidiit tiniely filed its Response to the proffer and Motion to Relindiiish Jurisdiction to the | Division of Administrative Hearings. In its Motion to Relinqlish Jurisdiction the Department | itidicated that based iipon the Jantidty 15, 2009 Order, and the Petitioner’s written submission filed in resporise thereto, issues of inaterial fact exist in this proceeding. The Department Motion further argiies that pursuant to the provisions of Section 120.569(1), Florida Statutes, this informal adiiinisitative proceeding shioiild be terminated and a proceeding under Section 120.57(1), Florida Statutes should be conducted. Baséd tipon a Feview of thié Departnient Motion and the provisions of Section 120.569(1), trative proceeding is Goiicliided afid the Heatitig Officer's file in this proceeding is closed. The Departiiient is directed io tvatistet this proceeding back to the Division of Administrative Hearings for the conduict of a formal administrative liedtilig pursuant 6 Séction 120.57(1), Florida Statiites. DONE atid ORDERED this _/ tray of February, 2009 in Tallahassee, Florida. De ent of Financial Services 2124 Deerfield Drive Tallahassee, Florida 32308 Copies furnished to: Shane McNeal Justin Fatilkner, Esq. STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES DIVISION OF WORKERS' COMPENSATION ‘| STOP-WORK ORDER No.: 07-044-1A ISSUANCE DATE: 5/28/2009 EMPLOYER NAME: -. Shane McNeal DBA Labrador Construction Co of NC FEIN: 379784873 EMPLOYER ADDRESS: 519 Oci Drive city; Jacksonville _2nd_ AMENDED ORDER OF PENALTY ASSESSMENT The Division of Workers' Compensation issued a Stop-Work Order against the above-referenced Employer on 1/2512007_. The Stop-Work Order included an Order of Penalty Assessment that identified the penalties assessable under sections 440.10 and 440.107, F.S. Based upon Penaity Calculation Corrected : “the Division hereby amends the Amended Order of Penalty Assessment issued on __2/15/2007___ and assesses the penalty(s) as specified in the Penalty Worksheet, which is attached hereto and made a part hereof. : It is ORDERED that the Employer is hereby assessed a TOTAL PENALTY of $ 188,288.48 . The penalty(s) assessed herein supersedes any penalty(s) previously assessed in this case. The Employer shall pay the TOTAL PENALTY by nioney order or cashier's check, made payable to the DFS-Workers' Compensation Administration Trust Fund, or enter into a Payment Agreement Schedule for Periodic Payment of Penalty with the Division of Workers’ Compensation. | If the total penalty assessed in this Amended Order of Penalty Assessment is less than the total penalty assessed in the Amended Order of Penalty Assessment issued on __2/18/2007 __ the Division will mail a refund in the amount of the "| difference to the Employer. 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. , Please see the Notice of Rights on the reserve side that pertains to your rights regarding this action. CERTIFICATE OF SERVICE Pursuant to section 440.107(4), F.S., Torry McClellan, Compliance investigator , TT a OF SET served a true copy of this 2nd Amended Order of Penalty Assessment: Clsy personal service: Date: ; Time: ; Server: (1 By certified mail: Date: : Time: ; Article: January 3, 2006 EXHIBIT E eee NOTICE OF RIGHTS You have a right to administrative review of this action by the Department under Sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. If you dispute a material fact contained in this action, you are entitled to a hearing under Section 120.569 and 120.57(1), Florida Statutes, 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 action, you are entitled to a 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 action. A petition for a hearing under Section 120.569 and 120.57, Florida Statutes, must conform to rules 28-106.2015, Florida Administrative Code. The petition shall contain a) the name, address, and telephone number, and facsimile number (if any) of the petitioner; b) the name, address, and telephone number, and facsimile number of the attorney or qualified representative of the petitioner (if any) upon whom service of pleadings and other papers shall be made; c) a statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate; d) a statement of when the petitioner received notice of the agency action; and e) a statement including the file number to the agency action; You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action. The petition must be filed with the General Counsel acting as the Agency Clerk, Department of Financial Service, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0333. FAILURE TO FILE A PETITION FOR HEARING WITHIN THE TWENTY-ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. : Mediation under section 120.573, Florida Statutes, is not available. SSS , ISSUING AGENCY NAME AND ADDRESS : Division of Workers' Compensation, Bureau of Compliance: 2012 Capital Circle SE, Tallahassee, Florida 32399-4288 Attn: Torry McClellan, Compliance Investigator , Telephone: (850) 413-1837 TT i January 3, 2006 State of Florida, Department of Financial Services Division of Workers' Compensation, Bureau of Compliance Penalty Worksheet BUSINESS NAME: SHANE MCNEAL DBA LABRADOR CONSTRUCTION CO OF NC - DWC Case No. _07-044-1A Ewplovec#2 OPA IEMPLOYEE #1 JEMPLOYEE #1 jEMPLOYEE #2 04 4 12/31/2004 01/01/2005 * — If the employer has failed to provide business records sufficient to enable the Department to determine the employer's payroll, payroll shail be imputed to be the statewide average weekly wage as defined in s.440.12(2) F.S.multiplied by 1.5, (440.107(7)(e)). ** Premium multiplied by statutory factor of 1.5 *** Greater of penalty under column (g) or $4000. $440.107(d)}(1) Page 1 of 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS... COMPENSATION, Petitioner, vs. Case No. 09-1796 SHANE MCNEAL, d/b/a LABRADOR CONSTRUCTION CO. OF NORTH CAROLINA, Respondent. ee ee a ORDER GRANTING MOTION TO AMEND ORDER OF PENALTY ASSESSMENT This cause came before the undersigned on Petitioner's : Motion to Amend Order of Penalty Assessment. The Motion states | that Respondent objects to thé Motion, but no response to the Motion was filed. ; Having considered the Motion and having reviewed the file, — it is ORDERED: : 2 Petitioner's Motion to Amend Order of Penalty Assessment is granted. The case will proceed with the Second Amended Order of Penalty Assessment as the amended charging document. EXHIBIT iF DONE AND ORDERED this 30th day of June, 2009, in Tallahassee, Leon County, Florida. Katox| tea BARBARA J. STAROS 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 30th day of June, 2009. COPIES FURNISHED: Justin H. Faulkner, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Shane McNeal Labrador Construction Co. of North Carolina 519 OCI Drive Jacksonville, North Carolina 28540

Docket for Case No: 09-001796

Orders for Case No: 09-001796