DE REAL TING CAFE, INC.
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 DE REAL TING CAFE, 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 October 8, 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. 10-302-Dl to DE REAL TING CAFE, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein DE REAL TING CAFE, 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 October 8, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on DE REAL TING CAFE, 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 October 28, 2010, the Department issued an Amended Order of Penalty Assessment to DE REAL TING CAFE, INC. The Amended Order of Penalty Assessment assessed a total penalty of $45,593.28 against DE REAL TING CAFE, INC. The Amended Order of Penalty Assessment included a Notice qf Rights wherein DE REAL TING CAFE, 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 October 30, 2010, the Amended Order of Penalty Assessment was served by certified mail on DE REAL TING CAFE, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference.
On November 15, 2010, DE REAL TING CAFE, INC. timely filed a request for administrative hearing (hereinafter "Petition") with the Department. The Petition was forwarded to the Division of Administrative Hearings on January 10, 2011, and the matter was assigned DOAH Case No. 11-0068. A copy of the petition is attached hereto as "Exhibit C" and incorporated herein by reference.
On February 11, 2011, the Department served its First Interlocking Discovery Request ("discovery requests") with the Division of Administrative Hearings, to which Respondent was required to serve its answers upon the Department within 30 days of service,
pursuant to Rules l.340(a), l.350(b), and l.370(a), Florida Rules of Civil Procedure. The Discovery request included requests for admissions, interrogatories, and requests for production.
The Respondent did not answer the Department's Discovery request.
Accordingly, on April 11, 2011, the Department filed with Division of Administrative Hearings a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes.
On April 14, 2011, the Department issued a 2nd Amended Order of Penalty Assessment to DE REAL TING CAFE, INC. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $2,621.06 against DE REAL TING CAFE, INC.
On May 11, 2011, the 2nd Amended Order of Penalty Assessment was served by certified mail on DE REAL TING CAFE, INC. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit D" and incorporated herein by reference.
On July 5, 2011, the Administrative Law Judge issued an Order Granting Motion to Deem Matters Admitted and Relinquishing Jurisdiction. A copy of the Order Granting Motion to Deem Matters Admitted and Relinquishing Jurisdiction is attached hereto as "Exhibit E" and incorporated herein by reference.
On July 22, 2011, the Department issued a 3rd Amended Order of Penalty Assessment to DE REAL TING CAFE, INC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $1,541.73 against DE REAL TING CAFE, INC. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein DE REAL TING CAFE, 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 September 13, 2011, the 3rd Amended Order of Penalty Assessment was served by certified mail on DE REAL TING CAFE, INC. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as "Exhibit F" and incorporated herein by reference.
DE REAL TING CAFE, 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.
On October 11, 2011, DE REAL TING CAFE, INC., tendered full payment of the assessed penalty to the Department.
FINDINGS OF FACT
The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on October 8, 2010, the Amended Order of Penalty Assessment issued on October 28, 2010, the 2nd Amended Order of Penalty Assessment issued on April 14, 2011, and the 3rd Amended Order of Penalty Assessment issued on July 22, 2011, 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 DE REAL TING CAFE, 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.
IT IS THEREFORE ORDERED that:
The Petition for administrative review filed by DE REAL TING CAFE, INC. is hereby DISMISSED WITH PREJUDICE; and
DE REAL TING CAFE, 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 DE REAL TING CAFE, INC. has come into compliance with the coverage requirements of Chapter 440, Florida Statues.
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 ofrendition of this Order.
U.S. Mail to the person(s) listed below, on this day of ac.+-o\ 1 RA , 2011.
Assistant General Counsel Department of Financial Services Division of Legal Services
200 E. Gaines Street Tallahassee, FL 32399-4229
De Real Ting Cafe, Inc.
128 W. Adams St.
