DIAGONAL TILE AND MARBLE, INC.
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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 Petition from DIAGONAL TILE AND MARBLE, INC., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that:
On June 11, 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. 10-317-D3 to DIAGONAL TILE AND MARBLE, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein DIAGONAL TILE AND MARBLE, 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.
On June 11, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on DIAGONAL TILE AND MARBLE, INC. A copy of the Stop Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference.
On August 3, 2010, the Department issued an Amended Order of Penalty Assessment to DIAGONAL TILE AND MARBLE, INC. The Amended Order of Penalty Assessment assessed a total penalty of $16,241.92 against DIAGONAL TILE AND MARBLE, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein DIAGONAL TILE AND MARBLE, 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.
On August 31, 2010, the Amended Order of Penalty Assessment was served by
process server on DIAGONAL TILE AND MARBLE, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference.
On August 31, 2010, DIAGONAL TILE AND MARBLE, INC. timely filed a request for administrative hearing (hereinafter "Petition") with the Department. The Petition was forwarded to the Division of Administrative Hearings on September 29, 2010, and the matter was assigned DOAH Case No. 10-9374. A copy of the petition is attached hereto as "Exhibit C" and incorporated herein by reference.
On November 9, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to DIAGONAL TILE AND MARBLE, INC. The 2nd Amended Order of Penalty
Assessment assessed a total penalty of $12,793.30 against DIAGONAL TILE AND MARBLE, INC.
On November 15, 2010, upon motion by the Department, the Administrative Law Judge entered an order accepting the 2nd Amended Order of Penalty Assessment and allowing it to supersede any previously entered Order of Penalty Assessment. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit D" and incorporated herein by reference.
On December 15, 2010, the Department issued a 3rd Amended Order of Penalty Assessment to DIAGONAL TILE AND MARBLE, INC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $2,268.83 against DIAGONAL TILE AND MARBLE, INC. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein DIAGONAL TILE AND MARBLE, INC. was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 3rd 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.
On January 18, 2011, upon motion of the parties, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as "Exhibit E" and incorporated herein by reference.
On September 10, 2011, the 3rd Amended Order of Penalty Assessment was served by certified mail on DIAGONAL TILE AND MARBLE, INC. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as "Exhibit F" and incorporated herein by reference.
DIAGONAL TILE AND MARBLE, INC. failed to answer the 3rd Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes.
FINDINGS OF FACT
The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 11, 2010, the Amended Order of Penalty Assessment issued on August 3, 2010, the 2nd Amended Order of Penalty Assessment issued on November 9, 2010, and the 3rd Amended Order of Penalty Assessment issued on December 15, 2010, and attached as "Exhibit A" "Exhibit B" "Exhibit D" and "Exhibit F" respectively, and fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.
CONCLUSIONS OF LAW
The Department has jurisdiction over the subject matter of and the parties to this matter pursuant to Chapter 440, Florida Statutes.
Based upon the Findings of Fact adopted herein, the Department concludes that DIAGONAL TILE AND MARBLE, INC. violated the specific statutes and rules alleged in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, and the 3rd 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, the 2nd Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment as the Conclusions of Law in this case.
PENALTY IMPOSED
The Order Closing File from the Division of Administrative Hearings, the Stop- Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, and the failure of DIAGONAL TILE AND MARBLE, INC. to answer the 3rd 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:
DIAGONAL TILE AND MARBLE, INC. shall immediately pay the total penalty of $2,268.83 in full to the Department of Financial Services for deposit into the Workers'
Compensation Administration Trust Fund; and
DIAGONAL TILE AND MARBLE, 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 not issue an Order releasing the Stop-Work Order and Order of Penalty Assessment until DIAGONAL TILE AND MARBLE, INC. has come into compliance with the coverage requirements of Chapter 440, Florida Statues and has paid the remaining penalty balance of $2,268.83 to the Department.
E. Tanner Holloman
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.
U.S. Mail to the person(s) listed below, on this IM...µ,-- day of Ontolul\ , 2011.
Florida Bar No. 46740
Assistant General Counsel Department of Financial Services Division of Legal Services
200 E. Gaines Street Tallahassee, FL 32399-4229
Diagonal Tile and Marble, Inc. 3911 Valrico Grove Dr.
