FILED

MAR O 2 2011

Chief Financial Officer Docketed by:':-:{'4---fJ

000242

CHIEF FINANCIAL OFFICER

JEFF ATWATER

STATE OF FLORIDA

IN THE MATTER OF:

RALEIGH CUSTOM CARPENTRY & REMODELING, INC.

                                                                                 !

Case No.: 10-244-lA-WC

FINAL ORDER

THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from RALEIGH CUSTOM CARPENTRY & REMODELING, INC., the Stop-Work Order· and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that:

1. On June 9, 2010, 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. 10-244-lA to RALEIGH CUSTOM CARPENTRY & REMODELING, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein RALEIGH CUSTOM CARPENTRY & REMODELING, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in

   
   

   
   

   accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code.

2. On June 9, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on RALEIGH CUSTOM CARPENTRY & REMODELING, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference.

3. On June 25, 2010, the Department issued an Amended Order of Penalty Assessment to RALEIGH CUSTOM CARPENTRY & REMODELING, INC. The Amended Order of Penalty Assessment assessed a total penalty of $1,492.30 against RALEIGH CUSTOM CARPENTRY & REMODELING, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein RALEIGH CUSTOM CARPENTRY & REMODELING, INC. 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, and must conform to Rule 28-106.2015, Florida Administrative Code.

4. On August 12, 2010, the Amended Order of Penalty Assessment was served by certified mail on RALEIGH CUSTOM CARPENTRY & REMODELING, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference.

5. On August 26, 2010, RALEIGH CUSTOM CARPENTRY & REMODELING, INC. filed a petition for administrative review with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on September 2, 2010, and the matter was assigned DOAH Case No. 10-8819. A copy of the petition is attached hereto as "Exhibit C" and incorporated herein by reference.

   2

   
   

6. On September 9, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to RALEIGH CUSTOM CARPENTRY & REMODELING, INC. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $1,047.60 against RALEIGH CUSTOM CARPENTRY & REMODELING, INC.

7. On October 19, 2010, the 2nd Amended Order of Penalty Assessment was served by overnight carrier on RALEIGH CUSTOM CARPENTRY & REMODELING, INC. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit D" and incorporated herein by reference.

8. On October 11, 2010, a Status Report was filed with the Division of Administrative Hearings which stated that there were no longer disputed issued of material fact.

9. On October 25, 2010, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as "Exhibit E" and incorporated herein by reference.

   
   

   FINDINGS OF FACT

   
   

10. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 9, 2010, the Amended Order of Penalty Assessment issued on June 25, 2010, and the 2nd Amended Order of Penalty Assessment issued on September 9, 2010, attached as "Exhibit A," "Exhibit B," and "Exhibit D," respectively, and fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.

    
    

    3

    
    

    
    

    CONCLUSIONS OF LAW

    
    

11. The Department has jurisdiction over the subject matter of and the parties to this matter pursuant to Chapter 440, Florida Statutes.

12. Based upon the Findings of Fact adopted herein, the Department concludes that RALEIGH CUSTOM CARPENTRY & REMODELING, INC. 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 2nd 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 2nd Amended Order of Penalty Assessment as the Conclusions of Law in this case.

    PENALTY IMPOSED

    
    

13. The Order Relinquishing Jurisdiction and Closing File from the Division of Administrative Hearings, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd 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 as set forth herein.

    
    

    IT IS THEREFORE ORDERED that:

    
    

    1. RALEIGH CUSTOM CARPENTRY & REMODELING, INC. shall immediately pay the total penalty of $1,047.60 in full to the Department of Financial Services for deposit into the Workers' Compensation Administration Trust Fund; and

    2. RALEIGH CUSTOM CARPENTRY & REMODELING, INC. 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

4

not issue an Order releasing the Stop-Work Order and Order of Penalty Assessment until RALEIGH CUSTOM CARPENTRY & REMODELING, INC. comes into compliance with the coverage requirements of Chapter 440, Florida Statutes and has paid a total penalty of $1,047.60 to the Department.

DONE and ORDERED this (Jrd day of    c,h.., ,2011.

5

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 Julie Jones, 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.

6

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by

U.S. Mail to the person(s) listed below, on this Q,re;l day of      C:tv ,2011.

        o          e                                                               

Florida Bar No. 46740 Assistant General Counsel

Department of Financial Services Division of Legal Services

200 E. Gaines Street Tallahassee, FL 32399-4229

850 413-1606

850 413-1978 (fax)

Copies to:

James Vena Vice President

Raleigh Custom Carpentry & Remodeling, Inc. 10004 Layton Ray Circle

Raleigh, North Carolina 27613

7

09/02/2010 09:30 850-9227270

Sep 2 2010 10:38

LEGALOFFICE PAGE 11

,;;;:§I UNITED STMES                                                              

POST& SERVICE.

Date Produced: 08/1812010

FL DEPT OF FINANCIAL SERVICES #1

The following is the delivery information for Certified Mell111 Item number 7108 2133 3935 2313 7456. Our records Indicate that tl'lfs item was deHverod on 08/12/2010 at 11:SB a.m. In RALEIGH, NC. 27613. The scanned Image of the dplent Information is provided below.

Signature of Recipient:

X

NIIIII

.....

...

Address of Recipient:

Thank you for selecting the Postal Service for your malllng needs. If you require additional assistance, please contact your local post office or Postal Service represantitive.

Sincerely,

United S1ates Postal Service

The customer reference number shown below ts not validated or endorsed by the United

States Postal Service. It is solely fur customer use.

Customer Reference Number:4254704 379451364228

09/0.2/2010 09: 30 850-9227270

Sep 2 2010 10:35

LEGALOFFICE PAGE 03

RAL.IIGH CUSTOM CARPENTRY & REMODl!LING, INC.

POBox90333 ce1s,a1z.7175ow,cs

RAU:IGH, NC 2787& (9t 9) 87211178 FAX

July 19. 2010

Julia Jones

DFS Agency CJetk

.,Oapartment-Gf· lfir'.lw;)Clal Services

612 Larson Building ·

200 East Gaines street

Tallahassee, FL 32399-0390

Dear Ms. Jones:

I am filing this written petition for an administrative review concerning the penaJty imposed by your department for the failure to obtain coverage of Worker's Compensation Insurance.

Before beginning work In the state of Florlda1 we discussed with our agent in North Caroflna our concerns about Worker's Compensation coverage whlle working outside of North Caronna•. We were informed ttlat if we used our current employees. they would be covered under our present polfcy and that It was not necessary for tis to procure adclltionaJ Wortcers compensation in Florida, thus paying for the same coverage twice. ·

EXHIBIT

I c_  

I here was no intent on our part to ao anything subversive or illegal and was operating with the understanding that separate Worker's Compensation Insurance in the state of FJorida was not _needed. We immedi tely ceased operations upon receiving the stop work order. I realize ignorance of the law is no excuse. but consider we did discuss this issue with our Worker's Compensation Insurance agent and felt we were given CQrrect advioe from·somfSOne we trusted.

09/02/2010 09:30 850-9227270

Sep 2 2010 10:35

LEGALOFFICE PAGE 04

,,

1. would also Hke to dispute a materiel fact contained in thia actfon concerning the class code imposed·in the penalty. The ela$s code from which the penalty was derived Is 5645, which represents sfngle famlly dwefHngs. The faclUty being constructed is housing for college students. and each building contains 12 different units. Therefore, should you decide to proceed with tl1e penalty, we feel the correct class code should be 5651, representing murtl-famHy dwelUngs, thus warranting a reduction In the penalty.

   Thank you for your revtew of this matter and look forward to being of any furth r

   assistanc. to you.

   James Vena,

   
   

   oe President

   Raleigh Custom Carpentry and Remodeling, Inc.

   
   

   
   

   
   

   STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES

   DIVISION OF WORKERS' COMPENSATION

   
   

   EMPLOYER NAME: RALEIGH CUSTOM CARPENTRY AND REMODELING INC. 'STOP-WORK ORDER No.: 10-244•1A
   FEIN: 753074851			ISSUANCE DATE:	06/26/2010
   EMPLOYER ADDRESS: 10004 LAYTON RAY CIRCLE CIT'f: RALEIGH STATE: NC	ZIP:	27613

   . AMENDED ORDER OF PENALTY ASSESSMENT ;

   t:

   The. DMslon of Workers' Compensation iasued a Stop-Work Order in this case on 06/09/2010. The Stop-Work Order lnc!tii'ded W i!Jr er orPenally A&Besament th.at Identified the penalUes assessable under sections 440.10 and 440.1071 F.S. The Division l\\i)"11byamgntls the Order of Penally Aaseasment based on the followlng penallles: i!:!

   • rn);<

   allure to aecure lhe payment of workers' compensation within the meaning of section 440.107(2), F.S., by: 0 '.: 1 fj

   falllng lo oblaln·coverage that meets the requirements of Chapter 440, F. S., and the Insurance Code: ;.:_ 5f

   n

   ... m..:.

   materially understating or conceallng payroll: . -.t (/)

   materially misrepresentln9 or oonceallng employee dulies so as to avoid proper classification for _premium oaloulatlons; .-•.

   rnaterlitlly mlr;repreaentlng or conc&aling Information p rtine.nt to the computation and application of an experience ratrng modification factor.

   For auch vlolation(s) the Employer Is assessed a penalty of $1,492.30 (section 440.107(7){d},F.S.) as detailed In1he attached

   PENALTY WORKSHEET, which Is Incorporated herein by reference;

   .i-bonducllng business operations In violation of the Stop-Work Order as detalled In the attached PENAL'fY WORKSHEET, which is

   Yncorpora1ed herein.by reference, for which the Employer la aasessed·a penalty of $.00 (section 440.107{7)(c), F.S.):

   
   

   f7Vllsrepresentlng the statua of the employee(s) as an Independent contractor(s), as detailed on the attached PENALTV WORKSHEET,

   L-\yflfch Is Incorporated herein by reference, for which lhe Employer Is assessed a penally of $.00 (section 440.10(1)(t), f .s. J.

   
   

2. ls tiereby 0RDER6D that the Emptoyer 18 assessed a TOTAL PENALTY of $1,492.30•

.The-penamH asseased herein111upe111ede any penallfes previously a111&&&ad In this case. TheEmployer shall pay the TOTAL eENALTV by money.order or caahler'a oheck, made payable to the DFB-Worktra' Compensallon Administration Trust Fund.

The Stop.Work Order issued In this case shallremain In effect until either (a} The DMslon i&&uea an order releasing the Stop•Work Order upon finding that the employer has come Into compliance with the coverage requirements of the workers' compenaaUon law and pays the total penalty In full, or (b) The Division lasues an Order of Conditional Release From Stop-Work Order pursuant to the employer coming into compliance with the coverage requirements of fha workers' compensation law and entering Into a Payment Agreement Schedule For Periodic Payment of PenalJy.

Pursuant lo Rule 69L•6,028, Florida Administrative Cede, If the Division imputes the employer's payroll, the emptoyer shall have twenty business days after service of the order assesafng the penalty to provide business records sufficient for the Division to determine the employer'a payroll for the period requested In the business records request for the calculation of the penalty. If sufficient business records are not provided within twenty business days after service of the order assessing the penelty, the calculation of the penally

-lmpullng-the-employer's-payroll-wlll-remaln-ln-effee..,...

LIEN NOTICE

Pursuant to S•otlon 440.107(11), F.S., the Department may Initiate Han proceedings to r:ollect any penalty due that has not been paid. In addltfon, the Department may refer any unpaid penalty that la due to • collectfo11 aoencv for the lnitlatlon of proceedings tocollect the unpaid penalty.

PleaH see the Notice of Rights on the reserve srde that pertain& to your rights regarding this actton.

October 2009

NOTICE OF RIGHTS

You have a·right to administrative review of this action by the Department under sections 120.669 and 120.57, Florida Statutes.

To obtain review, you must flle a written pettllon requesting review. If you dispute a material fact contained in this action, you are entltfed to a hearing under Sections _120.669 and 120.67(1), Florida S1atutes, 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. Uyou do not dispute a materlat fact contained

ii) this action, you are entitled to a hearing under section 120.57(2), Florida Statutes, at which you may be represented by .

counsel, present documenfary evidence, and present a written statement In opposition to this action. .

A petition for a hearing under sections 120.669 and 120.57, Fforlda Statutes, must conform to Rule 28-106.2016, Florida Administrative Code. 'fo petition for a hearing, you must send In •lther acompleted Election of Proceedings form (attached) wllh any required attachments or a petition requesting a hearing, which contains a) the name, address, and telephone number, and facslmlle 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 servlce of pleadings and other papers shall be made; c) a statement requesting an administrative hearlna ldentffY)ng those material facts that are In drspute. If there are none, the petition must soIndicate; d) a statement of when the petiftoner received notice of the agency action; and e)a statement Including the file number to the agency action. If there are no facts In dispute, the petition must

soJ!'1 1 te. . ... . .. _...--- _ . . . -·· . .. . .. . . •. ... . ..:. ... .

You must file tha petition for hearing so that It Is fQJ18IVi by the Department within twenty-one (21) days of your receipt

of this agency action. The petltfon must be flied with Julle Jones, DFS Agency Clerk, Department of Financial Services, 812 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390.

FAILURE TO FILE A PETfTtON WtTHIN THE TWENTY•ONE (21) DAYS CONSTITUTES A WAlVER OF YOUR RIGHT

TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION.

ISSUING AGENCY NAME AND ADDRESS

Division of Workers' Compensation, Bureau of Compliance:                                                                                 

Attn:.....,                                         , Telephone:                  _

,Mediation under section 120.673, Florida Statutes, is not avallabre.

,

October 2009

Notice orRighllll Updated 6130/2010

BUSINESS NAME: RALEIGH CUSTOM CARP

State of Florida, Department of Financial Services

Division of Workers' Compensation, Bureau of Compliance Penalty Worksheet

* If the employer has top

suffidietlt to enable the Department to determine the employee's payn:,U, pa)'RIIIshaD be

TRY AND REMODBJNG INC. DWC Case No. 10-244-1A

imputed tobe the statewide ave s.440.12(2) F.S.multipliecl b,y .5, (440.107(7)(e)•)

$1000, s440.107(d)( )

.

Page1 cf1

-

.., Premium multiplied by staturo .5

STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES DIVISION OF WORKERS' COMPENSATION

2nd AMENDED ORDER OF PENALTY ASSESSMENT

The Division of Workers' Compensation issued a Stop-Work Order against the above-referenced Employer on 06/09/2010. The Stop-Work Order included an Order of Penalty Assessment that Identified the penalties assessable under sections 440.1O and 440.107, F.S.

Based upon Class Code changed from 5645 to 5651, the Division hereby amends the Amended Order of Penalty Assessment issued on 06/25/2010 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 $1,047.60.

The penalty(s) assessed herein supersedes any penalty{s) 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, or enter into a Payment Agreement Schedule for Periodic Payment of Penalty with the Division of Workers' Compensation.

If the total penalty assessed in th 2nd Amended Order of Penalty Assessment is less than the total penalty assessed in the Amended Order of Penalty Assessment issued on 06/25/2010, the Division will mail a refund in the amount of the difference to the Employer.

Pursuant to Rule 69L-6.028, Florida Administrative Code, if the Division Imputes the employer's payroll, the employer shall have twenty business days after service of the order assessing the penalty to provide business records sufficient for the Division to determine the employer's payroll for the period requested in the business records request for the calculation of the penalty. If sufficient business records are not provided within twenty business days after service of the order assessing the penalty, the calculation of the penalty imputing the employer's payroll will remain in effect.

LIEN NOTICE

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.,

□By hand delivery:

seived a true copy of this 2nd Amended Order of Penalty Assessment:

-TORRY M-CCLELLAN ,

□

By certified mail:

DATE:

DATE:

TIME:

TIME:

_

_

SERVER:

ARTICLE:

_

_

Please see the Notice of Rights on the reserve side that pertains to your rights regarding this action.

  D  

EXHIBIT

October 2009

NOTICE OF RIGHTS

You have a right to administrative review of this action by the Department under- sections 120.569 and 120.571 Florida, Statutes. ·

To obtain review, you must file s written petition requesting review. ff you dispute a material fact contained in this action, you are entitled to a hearing under Sections 120.569 and 120.67(1), Florida Statutes, at which you may be represented by counsel, present evfdence and argument on the lssue(s), examine witnesses, submit a proposed recommended order, and file exceptions to the recommended order of the Administrative Lew Judge. If you do not dispute a materlaJ 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 sections 120.5 9 and .120.57, Florida Statutes, mustconfonn to Rule 28•106.2015, Florida Administrative Code. The petition shall contain a) the name, address, and telephone number; and facslmlle numbet (if any) of the petitioner; b) the name, address, and telephone number, and facslmlfe number of the attorney or qualified representative of the petitioner (if any) upqn 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 staten'lent of when· the petitioner received notice of the agency acHon; and e) a statement Including the file number to the agency action, •

' . .

You must file the petition for hearing so that It ls ceceiyeq by the· Department within twenty-one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clelk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. .

FAILURE TO FiLE A PETITION WliHIN THE TWENTY-ON (21) DAYS c·oNSTITUTES A WAIVER OF YOUR RlqHT

TO ADMINISTRATIVEREVIEW OF THE AGENCY ACTION. .·

ISSUING AGENCY NAME f\ND ADDRESS

Division of Workers' compensation, Bureau of.Compllance:       

......,.:...-------------

,103-A Lewis St, Busby Center, Fort Walton Beach, Fl 32547-3182                                                            

Attn: Lawrenc& G, E11ton, Compllance lnvasUgator

• '. I

'

, Te!ephone: 850 833-9047

.

Mediation under section 120.573, Florida Statutes, Is not available.

State of Florida, Department of Financial Services Division of Workers' Compensation, Bureau of Complian·ce·

Penalty· Worksheet

BUSINESS NAME: RALEIGH CUSTOM CARPENTRY AND REMODELING INC. owe Case No. 10-244-1A

....-.'.E..i.nplc;iy,ee Name

FREDO MARTINEZ NAPOLE

f :ji

._...,,_·1 4_       

jCARLOS GALLECOS RUIZ Jijr 5651

!GEORGE MARTIN-VALDES Ji[ 5651 IMA COS MELCHOR GONZALE Ji" 5651 IMAXIMINO CRUZ-PARRAL jiT' 5651

04/02/2010 • 06/09/2010 1,425.30':

-

I 0410 2010 J0 1091201_ 1 1,425.301 I04ro21201 o_ -:1 6!0?!.201o I 1,42s.30 1 I 04/021201_0 ,1 0610s12010 I 1,425.30';

* If the employer has failed to provide business records sufficient to enable the Department to determine the employe s payroll, payroll 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 'I of 1

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Docket for Case No: 10-008819

Orders for Case No: 10-008819