FILED
DEC 30 2011
Chief Financial Officer Docketed by: L£),l;.,(3
00 3 5 2 11
REPRESENTING
CHIEF FINANCIAL OFFICER
JEFF ATWATER
STATE OF FLORIDA
IN THE MATTER OF:
Case No.: 11-083-lA-WC TRACY B. HINOTE d/b/a T.H. PLASTERING
'I
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 Stop-Work Order and Order of Penalty Assessment, the Amended Orders of Penalty Assessment, the Request for Administrative Hearing, the withdrawal of Petition, and the Order Relinquishing Jurisdiction and Closing File, and being otherwise fully advised in the premises, hereby finds that:
On March 14, 2011, 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. 11-083-lA to TRACY B. HINOTE, D/B/A T.H. PLASTERING.
On March 14, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the Stop Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference.
On March 28, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers' Compensation Case No. 11-083-lA to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The Amended Order of Penalty Assessment assessed a total penalty of$7,590.78 against TRACY B. HINOTE, D/B/A T.H. PLASTERING.
On April 6, 2011, the Amended Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference.
On April 28, 2011, the Department issued a 2nd Amended Order of Penalty Assessment in Division of Workers' Compensation Case No. 11-083-lA to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The 2nd Amended Order of Penalty Assessment assessed a total penalty of$6,05_Q.69 against TRACY B. HINOTE, D/B/A T.H. PLASTERING.
On May 3, 2011, the 2nd Amended Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit C" and incorporated herein by reference.
On April 25, 2011, the Division received from TRACY B. HINOTE, D/B/A T.H. PLASTERING a request for an administrative hearing. The request for administrative hearing is attached hereto as "Exhibit D" and incorporated herein by reference.
On June 28, 2011, the Department issued a 3rd Amended Order of Penalty Assessment in Division of Workers' Compensation Case No. 11-083-lA to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $2,618.57 against TRACY B. HINOTE, O/B/A T.H. PLASTERING.
On June 29, 2011, the 3rd Amended Order of Penalty Assessment was served by overnight mail delivery on TRACY B. HINOTE, O/B/A T.H. PLASTERING. A copy of the 3rd
Amended Order of Penalty Assessment is attached hereto as "Exhibit E" and incorporated herein by reference.
On October 17, 2011, the Petition was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 11-5327.
On November 23, 2011, the Division received from TRACY B. HINOTE, D/B/A
T.H. PLASTERING a withdrawal of the request for administrative hearing. The withdrawal of request for administrative hearing is attached hereto as "Exhibit F" and incorporated herein by reference.
On December 8, 2011, an Order Relinquishing Jurisdiction and Closing File was entered in Division of Administrative Hearings Case. No. 11-5327. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as "Exhibit G" and incorporated herein·by reference.
FINDINGS OF FACT
The factual allegations contained 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, which are fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.
CONCLUSIONS OF LAW
Based upon the Findings of Fact adopted herein, the Department concludes that TRACY
B. HINOTE, D/B/A T.H. PLASTERING 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 Relinquishing Jurisdiction and Closing File, 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:
TRACY B. HINOTE, D/B/A T.H. PLASTERING shall immediately pay the total penalty of $2,618.57, in full, to the Department of Financial Services for deposit into the Workers' Compensation Administration Trust Fund; and
TRACY B. HINOTE, D/B/A T.H. PLASTERING 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 3rd Amended Order of Penalty Assessment. The Department shall not issue an Order releasing the Stop-Work Order and 3rd Amended Order of Penalty Assessment until TRACY B. HINOTE, D/B/A T.H. PLASTERING has come into compliance with the coverage requirements of Chapter 440, Florida Statutes and has paid a total penalty of $2,618.57 to the Department.
DONE AND ORDERED on this day of fJt!.cnrnw
E. Tanner Holloman
Director, Workers' Compensation
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.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail
31
.A-
to Tracy B. Hinote, 2635 Finch Circle, Chipley, Florida, 32428, on this day of
Paigeoemaker Florida Bar No. 143022
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 FURNISHED TO:
Tracy B. Hinote 2635 Finch Circle
Chipley, Florida, 32428
Robert Borden
103-A Lewis Street
Ft. Walton Beach, Florida 32547
Paige Shoemaker
Department of Financial Services Division of Legal Services
200 East Gaines Street Tallahassee, Florida 32399-4229
STATE OF r-lORIDA, DEPARTMENT OF FINANCIAL Si::KVICES
DIVISION OF WORKERS' COMPENSATION
EMPLOYER NAME: TRACY B HINOTE OBA TH PLASTERING FEIN: 266676014 | I | STOP-WORK ORDER No.: 11-083-1A ISSUANCE DATE: 3/14/2011 | ||
EMPLOYER ADDRESS: 1441 SOUTH BLVD CITY: CHIPLEY | STATE: | FL | ZIP: 32428 | |
WORKSITE POSTING ADDRESS: 1387 SOUTH CITY: CHIPLEY | BLVD STATE: | FL | ZIP: 32428 | |
INDUSTRY OF EMPLOYER: e Construction | 0 | Non-Construction | 0 Agriculture | |
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 vlolatlon(s):
0 Failure to secure the payment of workers' compensation in violation of sections 440.10(1), 440.38(1), and 440.107(2) F. S., by:
D failing to obtain coverage that meets the requirements of Chapter 440, F. S., and the Insurance Code;
D materially understating or concealing payroll;
□
D materially misrepresenting or concealing employee duties so as to avoid proper classification for premium calculations;
materially misrepresenting or concealing information pertinent to the computation and application of an experience rating modification factor. ·
DFailure to produce required business records within 5 business days in violation of section 440.107(7)( a), F.S.
D Failure to produce required documents within 3 business days in violation of section 440.05{11), F.S.
THIS 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.
CONDUCTING ANY BUSINESS OPERATIONS IN VIOLATION OF THIS STOP-WORK ORDER CONSTITUTES A FELONY OF THE THIRD DEGREE AND A PENALTY OF $1,000.00 PER DAY FOR EACH DAY OF VIOLATION SHALL BE ASSESSED.
ORDER OF PENALTY ASSESSMENT:
0
A penalty against the Employer is hereby ORDERED in an amount:
Equal to 1.5 times the amount the employer would have paid in premium when applying approved manual rates to the employer's payroll during periods for which it failed to secure the payment of workers' compensation required by this chapter within the preceding 3-year period, or $1,000, whichever is greater. Section 440.107(7)(d), F.S.
DUp 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.
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., ROBERT BORDEN served a true copy of this Stop-Work Order:
0By posting at the Worksite:
□By certified mail:
DATE:.8-/,;/...,¥:
DATE: 3-1' -I'('
SERVER,
0By hand delivery:
·aL
DATE: _
TIME: .
TIME:
_
SERVER: ,._A!.,,llll!loi:lllCUI :,
ARTICLE:
_
Please see the Notice of Rights on the reserve side that pertains to your rights regarding this action.
EXHIBIT
j A
October 2009
18
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 Sections 120.569 and 120.57(1), Florida Statutes, at which you may be represented by counsel, present evjdence 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 sections 120.569 and 120.57, Florida Statutes, must conform to Rule 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 Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A PETITION WITHIN THE lWENTY-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.
Division of Workers' Compensation, Bureau of Compliance: 103- A Lewis St. Fort Walton Beach, Florida 32547
Attn: Robert Borden
Telephone: 850 833 9048
ISSUING AGENCY NAME AND ADDRESS
.,
I
J' .
January 3, 2006
. Notice of Rights updated 4/15/2009
. 19
STATE OF r-LORIDA, DEPARTMENT OF FINANCIAL SE:.t<VICES
DIVISION OF WORKERS' COMPENSATION
I EMPLOYER NAME: TRACY B HINOTE OBA T H PLASTERING STOP-WORK ORDER No.: 11-083-1A | |||||||
FEIN: 266676014 | ISSUANCE DATE: | 03/28/2011 | |||||
EMPLOYER ADDRESS: CITY: CHIPLEY | 1441 SOUTH BLVD | STATE: | FL | ZIP: | 32428 | ||
AMENDED ORDER OF PENALTY ASSESSMENT.
The Division of Workers' Compensation issued a Stop-Work Order in this case on 03/14/2011. 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:
□
□
ailure 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;
materiallyunderstating or concealing payroll;
materially misrepresenting or concealing employee duties so as to avoid proper classlflcatlon for premium calculations;
Omaterially misrepresenting or concealing infonnation pertinent to the computation and application of an experience rating modification factor. .
For such violation{s) the Employer is assessed a penalty of $7,590.78 (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 WORKSHEET, which is Yncorporated herein by reference, for which the Employer is assessed a penalty of $.00 {section 440.107(7)(c), F.S.);
!Misrepresenting the status of the employee(s) as an independent contractor{s), as detailed on the attached PENALTY WORKSHEET, 4hich is incorporated herein by reference, for which the Employer is assessed a penalty of $.00 {section 440.10(1)(f), F.S.,).
It is hereby ORDERED that the Employer is assessed a TOTAL PENALTY of $7,590.78.
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 Periodic Payment of Penalty.
I
, 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 wlll 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.
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.,
-ROBERT BOR-DE-
N 1
served a true copy of this Amended Order of Penalty Assessment:
0By hand delivery: DATE: '/--,-// TIME:,/¢ f)f"'(J
SERVER: l .. 0 ....-::::
□By certified mail: DATE TIME: _
October 2009
ARTICLE: _
EXHIBIT
I _(>
20
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 Sections 120.569 and 120.57(1), Florida Statutes, at which you may.be represented by counsel, present evidence and argument on the issue(s), e,camine 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 sections 120.569 and 120.57, Florida Statutes, must conform to Rule 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 Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A PETITION 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.
Division of Workers' Compensation, Bureau of Compliance: 103-A Lewis St. Fort Walton Beach, Florida 32547
Attn: Robert Borden
, Telephone: 850 833 9048
ISSUING AGENCY NAME AND ADDRESS
ti
l1
r
;, January 3, 2006
;; Notice of Rights updated 4/15/2009
21
Page 1 of2
State of Florida, Department of Financial Services Division of Workers' Compensation, Bureau of Compliance
Penalty Worksheet
Part 1. Penalty for failure to obtain coverage that meets the requirements of Chapter 440, F.S. and the Insurance Code. | |||||||||||
Employee Name | Calculation . Methodology | W Class Code | Period of Non-Compliance | 00 Gross Payroll* | Column (c) /100 | 00 Approved Manual Rate | 00 Premium (d) x {e) | PenaltyM (f) x 1.5 | |||
rrRAcY HINOTE | =ed lj ..R t S ; | i | 5445 | 03/16/2008 j 12/31/200.8 ····-··.......! | 4,825.8t | 48.26 | 9.1ft | 481.621 i | |||
BUSINESS NAME: TRACY B HINOTE DBA T H PLASTERING DWC Case No. 11-083-1A
.,..I
722.,
If the employer has failed to provide business records sufficient to enable the Department lo determine the employer'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(7Xe)).
- Premium multiplied by statutory factor of 1.5
*- Greater of penalty under column (g) or $1000. s440.107(dX1)
Page 2 of 2
State of Florida, Department of Financial Services Division of Workers' Compensation, Bureau of Compliance
Penalty Worksheet
BUSINESS NAME: TRACY B HINOTE OBA T H PLASTERING owe Case No. 11-083-1A
Part 1. Pena , for failure to obtain coverage that meets the requirements of Chapter 440, F.S. and the Insurance Code. | |||||||||||
Employee Name | Calculation Me:thoedodlogy | 00 Clan Code | W Period of Non-Compliance | Gross Payroll* | Column (c) 1100 | W Approved Manual Rate· | 00 Premium (d) x (e) | Penalty""' (f) x 1.5 | |||
RACY HINOTE | 5445 |
| 02/11/2010 | j | 7,038.18; | 70.38 | 7.10 | 499.71! | 749.57! | ||
' | ><1 Records | l | : | ||||||||
* If the employer has failed lo provide business records sufficient to enable the Department to determine the employer'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)
TOTAL PENALT,Y for Parts 1, 2, 3. 41 5: $7,590.78
STATE Or- FLORIDA, DEPARTMENT OF FINANCIAL c:RVICES DIVISION OF WORKERS' COMPENSATION
I EMPLOYER NAME: TRACY B HINOTE OBA T H PLASTERING STOP-WORK ORDER No.: 11-083-1A | |
FEIN: 266676014 | ISSUANCE DATE: 04/28/2011 |
EMPLOYER ADDRESS: 1441 SOUTH BLVD . CITY: CHIPLEY STATE: FL. ZIP: 32428 | |
2nd AMENDED ORDER OF PENALTY ASSESSMENT
The Division of Workers' Compensation issued a Stop-Work Order against the above-referenced Employer on 03/14/2011. 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 additional records provided, the Division hereby amends the Amended Order of Penalty Assessment issued on 03/28/2011 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 $6,050.69.
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 peoalty assessed in the 2nd Amended Order of Penalty Assessment is less than the total penalty assessed in the Amended Order of Penalty Assessment issued on 03/28/2011, 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 ofthe order assessing the penalty, the calculation of the penalty imputing the employer's payroll will remain in effect.
CERTIFICATE OF SERVICE
Pursuant to section 440.107(4), F.S.,
served a true copy of this 2nd Amended Order of Penalty Assessment:
-ROB-ERT-BOR-DE-N---------------.-., 1
□By certified mail:
Byhanddelivery:
DATE:,y3-f/
DATE:
TIME9:_ -A:«7
TIME: _
SERVER: -1,,.,,Ct:!. z..::::::::
ARTICLE: _
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 collactlon agency for the initiation of proceedings to collect the unpaid penalty.
Please sea the Notice of Rights on the reserve side that pertains to your rights regarding this action.
EXHIBIT
C
October 2009
NOTICE CJF 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 Sections 12Q.569 and 120.57(1), Florida Statutes, at which you may be represented by counsel, present evidence and argumert 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·entltled 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 120.569 and 120.57, Florida Statutes, must conform to Rule 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 whu: the petitioner received notice of the agency action; and e) a statement including the file number to the agency actior1.
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 flied with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street: Tallahassee, Florida 32399-0390. FAILURE TO FILE A PETITION 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.
Division of Workers' Compensation, aureau of Compliance: 103-A Lewis St. Fort Walton Beach, Florida 32547
Attn: Robert Borden
Telephone: 850 833 9048
ISSUING AGENCY NAME AND ADDRESS
{.
Ir
tai··
t
-
January 3, 2006
Notice of Rights updated 4/1512009
23
Page 1 of 2
State of Florida, Department of Financial Services Division of Workers' Compensation, Bureau of Compliance
2nd Amended Order Of Penalty Assessment
BUSINESS NAME: TRACY B HINOTE OBA T H PLASTERING owe Case No. 11-083-1A
Part 1. Penalty for failure to obtain coverage that meets the requirements of Chapter 440, F.S. and the Insurance Code.
!TRACY HINOTE
i
1 ~1AWW
' Imputed
5445 03/16/2008 12/31/2008
4,825.81
'
48.26
9.98'
481.621
! _, Imputed
'•9 ,,.R,,eco..rds
;_ , , -, .., ...
5445 01/01/2009 03/31/2009
712.5ol
7.13
;lriAWW
7.4-4 -- 5301
I
722.43!
'
79:2
i Records
!
TRACY HINOTE
i ,,} Imputed
5445
04/01/2009 [ 06/30/2009
I
712.50;
7.13
7.91
56.36;
84.54:
' ,AWW
ii Records
;
TRACY HINOTE
5445
TRACY HINOTE
5445
5445
UNKNOW N.PAYEE
_
; ; =ed
1
5445 10/04/2010 12/31/2010 19,755.32!
197.55
6.80 1,343.36;
2,015.04:
··- _J •.. Records
-="
!
5445
01/03/2011 02/28/2011
="""""
3,300.0
"YSS
33.oo;
6.77
223.41
335.12;
...
UNKNOWN PAYEE
) Imputed
,..) AWW
4tRecords
,,..,,,,,,..,,..,,,
5445
;
~ o,-,,y,,, ,,,,,,,,,,.,,,,.,,,,_
01/01/2011 02/28/2011 11,053.681
110.54
6.77
748.33
1,122.501
I
,......
.,. .., ...,,.
l
I
TOTAL PENALTY: $6,050.69
(a) | (b) | (c) | (d) | (e) | (f) | (g) | ||
Employee Name | Calculation | Class | Period of | Gross | ·Column (c) | Approved | Premium | Penalty** |
Methodology | Code | Non-Compliance | Payroll* | /100 | Manual Rate . | (d) X (e) | (f) X 1.5 | |
!
If the employer has failed to provide business records sufficient to enable the Department to determine the employer'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 2 of 2
State of Florida, Department of Financial Services Division of Workers' Compensation, Bureau of Compliance
2nd Amended Order Of Penalty Assessment
BUSINESS NAME: TRACY B HINOTE OBA T H PLASTERING owe Case No. 11-083-1A TOTAL PENALTY: $6,050.69
Part 1. Penalty for failure to obtain coverage that meets the requirements of Chapter 440, F.S. and the Insurance Code. | |||||||||
Employee Name | Calculation Methodology | (a) Class Code | (b) Period of Non-Compliance | (c) Gross Payroll* | (d) Column (c) /100 | (e) Approved Manual Rate | ., (f) Premium (d) X (e) | ,,, (g) Penalty... (f) X 1.5 | |
TRACY HINOTE | 5445 | 03/01/2011 | 03/14/2011 | 400.ool '' | 4.0( | 6.77' | 27.0Bj | 40.62! | |
40.621
6,050.691
* If the employer has failed to provide business records sufficient to enable the Department to determine the employer'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)
TOTAL PENALTY for Parts 11 2, 31 4, 5: $6,050.69
April 24, 2011
DFS Agency Clerk Julie Jones, CP, FRP
Florida Department of Financial Services 200 E. Gaines Street
Tallahassee, FL 32399-0390
In Re: DWC Case No. 11-083-lA
Dear Ms. Jones:
Please allow this correspondence to serve as my written request for an Administrative Hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes. Upon receiving the Amended Order of Penalty Assessment and the Penalty Worksheet (on April 6, 2011, at 12:40 P.M.) and reviewing it, I found several claims presented that were incorrect.
Portions of the records that were presented to Mr. Robert Borden were apparently
misinterpreted and others appeared to be incomplete. The facts from the Penalty Worksheet that I am disputing in this case are as follows:
CLAIM: It is stated that during the time periods of 3/16/2008-6/30/2009 I made
$6,250.81 in labor (broken down in the amounts of$4,825.81, $712.50, $712.50).
During the above-stated time period, I earned income from a manufacturing business which did not require that I carry Workman's Compensation on myself.
CLAIM: During the time period of 6/21/2010-2/28/201l, there is $16,650 (broken down in the amounts of $1,850, $11,500 and $3,300) that is stated that I earned in labor from construction.
During the above-stated time period, withdrawals from my personal account totaling
$16,650 were, in fact, savings that were used as start-up funding for my restaurant. These monies were obtained through a loan and revenue from the restaurant.
CLAIM: During the time period of 10/04/2010-2/28/2011, $30,809 (broken down into the amounts of $19,755.32 and $11,053.68) it is stated that I earned this amount in labor.
&JVtll'I' u1wv1n, •
n-.+
FILED
nant of Financial Services
c
EXHIBIT
.I. :J.)
These were clearly deposits made into our restaurant account by customers through credit card transactions. The documents showing that the deposits made during this time were previously presented to Mr. Robert Borden.
CLAIM: During the time period of 01/0l/2010-03/14/2011, it is stated that I earned
$9,384.24 in labor.
These facts are classified as "imputed" on the Penalty Worksheet (Page 2) and I am unsure as to where these figures actually came from. My income during that time to the present is through revenue from my restaurant only.
CLAIM: It is stated that during the time period of 03/01/2011-03/14/2011, I paid
$7,038.18 in labor costs to Jeff Miller, Jacob Rogers and Jeff Nelson, each receiving
$2,2346.06.
I have presented signed and notarized affidavits to Mr. Robert Borden stating that this labor cost was actually the responsibility of Jacob Rogers as these gentlemen were employed by him.
I request the opportunity to present all of the facts and infonnation at an administrative hearing. Please do not hesitate to contact me if you have questions or need further information.
Sincerely, Tracy B. Hinote
1441 S. Boulevard
Chipley, FL 32428
Cell Phone: 850/260-4504 Business Phone: 850/638-3500 No Fax
STATl t= FLORfDA1 D PART:M..ENT OF FINANC·IA.,, 2RVIOES
DlViSrON Qf WQRK RJ ' c6MPl;.NSATlON
t;IVIPLOYER NAME: TRACY B HINbTE OBA f | H | PLAS.TERlNG | 11.-000-1A | |
08728/2011 | ||||
cMPLO.Y R ADCJRESS; 1441 ' PU.TH l;lL\/D CITY: CHl..PbEY | STATE: FL | |||
3. rd. A.ME. ND:ED O..'RD-·E,R O. .F P,ENALTY A..SS. , E'S.S..M- ENT
1111:1 R(v.ir:;/l)r:i 9f \/yqrke.ts'. Opmpensation issued;astop;,VIJork Order against ttl apov.e fl;ifeteroed ErtjptClyer on. . 03114/201 , The top:a.Wotf<_(?rd f irjt:luded an·.ordai"of Penalty,As®SSIT) nttb.qt id nijfj cf th.e.pei:1.altie.s.assessable under sections 44,Q,}Q lid 44p.10:7, F,$;
£,ilased upoti Add1tfo al[nformc:1tionproviqe,d, fryeQiVcis,foi'J::h fet;>y. amends th.eAmended Grd rofi?e,n1:1.llYAs. es. me_nt
i stl d:on 03t28l2011 anti assesses the penalty(S) as specifie fin the Penalty Worksheetiwhich is atta hed h retoand
m IJ p;3rt n. reqt,
ft·i. 0801:.RSO ltu t th EmplOYit is hereby -assessed a TOTAL PENALTY of$2;ij18.57.
1:' !9.J> naltY($) assessed herein sµpen:ie<ie lUJY Pe.OcJlty.(s)previoysly as.ses:sed in this case, The·E111ployershall pay the IQTA :Pl;;NALTY by:money order or cashier's h,1; k\ ma t:1 p ya.b,!$; tQ th.e :DFS-\l\fork-ers' Go.mpensatian Ad,m1r;tl$fr.a1ion Try§ltFl.!od.. qt ente(into a Payment Agreement Schedu!.e for J:?eriodic F'a.yment:of Penalty: with.the Division ot WorR. rs1 Compensation, · · ·
l;f th tq IP rt.l;lli>.1 _ass $sed Jn the,atd men_de Or er qfJ qa,lty A sg f9!Jllis.} $ tJ1ai(tM to! l penally assess in thf! Arnend C! Q.rrter. f'P n.altyA$sessment1ssued on 03/28/2011, the D1v1 1pnw1II rmaJI e.-si;fund 1r1 the amount of the difference to the Eropl!>yeri
PUrsUanuo Rule6 V$1.t14a, flt>rfQ<;! Adrni(li ttatiV. Co.de, lftHe Division imputes the empJoye(s p_ayti;,ll, th ernplQ.yar.shall tiJY ,lWeiitY: bU"Sihessdays>after entfc,: of tM rp.rcif;t8. $S.!ti9 the peoalty. to-pfoiiide usiness;reco s s.uffiaienn&r th QMs.iPJi t9'. detetrr\il$ thEt,emplqyers.payroU f¢r the p r(Pd fE!qµ sted in trie.q:usiness recor!ls request:for,the t. ltigJijtii;,n·ot the Ren tty., . lf$1Jffieiei1tbusmes records, are noi'provit:ie w.lft.iii'i tw aty b.1J.$!1i $$'.#ayfaffet Nice:of'the order assessing tf11:t pen lfy, the cafoulaaon of the penaify ifnp.t.iting tiie empkfyei:'$ P!aYrQU Will re,maih in effect.
Cl:RTIF1CATE OF SERVtCE
Pursuan·'t to sectron 440.107(4), KS.,
.......-. -----------------------------,
ROB!=RTE10ROEN
served.a trua,copy ofl!Jl rd l\rnend¢tl Order r;if Penal(VAssessment:
QEIY h rid delhl ry: OA'.fEi TIMI=:
QI3y oer;tifi$c:I 111 il: PATE: TIME.:
,.
_
S.ERV.ER: ;._
ARJIC!c.E:: _
LIEN NOT)O'E
proceecii_l)Q$. t t1:.9.lf cfabij un'j? il:I pe.nalf:Y. ·
b.ee,itplilil:I. In additi .n; the bepartntent may refeft;!'llY titr iiij P. 'ri lfy'tfii!Us;due to acollectfon as,en y for the i11ltfat!qp. Of
Pursuant to Section 440. 10'7{11), F.S,, thEt Depc11'tfn iih:nayfottlateJien proceedi11gs t9.Qo,1 tanY P.fm IJy ue- t h $ not
·
·
'
..
..
EXHIBIT
l::
-
Pl.ea:ui seethe Notice.of Rights on thf r s,rvesjtl ,th. t pe.rtalns to your rigl:lts re arding this act!cui.
N..OT.I...CE·. O. F R. llH. fS.
You have a right to administrative review'of this action by the Depi:ittment under s cti(:)hS·120.569 and 120.57, Florida
statwte.s,
TGI' dbtainreview;j(0U rn1.1s(nle' a• riijen pe.titiqn req esti.ng t xi!ew. l{,YOU dispute.a material fact contained jn this aetion, you are entitled toa hea.n undersection.s 12tt5t$9,and 120i57(1), Florida }aU,1t $\ t Whi.Qh you rn y b re.pre.sen d by 9pr.msel,: r.es·ent 8:Vidence and afg,ameht an the issue.fii>, examihe wi_tn §_s9!_3.1 sQ mJt Pt PP.$- tl re·qam.m.e.11d d·o:rdet,-ai')d
fil- - J?f.i. .11.s to th .reqg'.tptf.i .l'id cl. o@tr of tpeAdmiHJstrattve Law uqge., lfyo1:1• do: notdJe;pute.,a rµa,_t rii:ii.lJ pt.GQritaip.ed.
in thi1:1..9p [Of1;•YP.l! F.lr eritiU dJQ a.he r.ihQ Yhdet ec.tion 140:5.7(2)•.Florida "Statute.s; at which,tau may be r.epre$el'ltet:f by
counsel, present,cf9t:1Jroenti;uy evidence; and presenta written statement in opposition -to this action.
A,p tftjo,!t f ri:1.h¢a,cing ung f'$eGtiPns 120,.!i.69 a:rrd 120..5].: Florida Statutes,·mustoonfonrrto@le,2 1Q.tit201 . Florida
AtjrrjJ,nii;t rtve ¢ocJ;i. T!;! petitlgn for a h;el:lrin-g, yoµ·i11'U$t$ ncfln either acompleted Election ofProceedinQi;J9rm
;e.:nam.,,
{attached1with any( qµlr ., tmo m :nt -9.r- fPlfitiqi:_ttijqq stlng a;·be,,rif1.. wfiion·g,ntatns:a}the_ name:, address,.and talephbne:nifmber-, and·'facsirrfife number (if aoy) qf'tb, p fi,i.j ,, ·. ' '. iqi::tres$. ,al;idlel pHQO aumoet,_,ahd fa,,qti;tliJij nurtilietPfth_e attomf!yor qtialified representative o.f . ... -. _ (if a,.11y} !Jti!fil!l whqm•s f\l.i¢g9fpl. .c!gi119{; and
0, herp ($$hall,fl§tmad. ;:::c)ii;tatement requesting an adminis ··h'ea,ring iden ify!ng'tfto o,at d!l faets.that at¢ in di$pute. lfJhere E!r non¢, the petitiol'l mu t st,'indJc1:1te; d) a statement ofwhen the petition r re·ceive.d ryotlqe of, ,e gency action;and e) a statem nt inc!□dfngttrs file ru.11TllJ'E3i' fQ the gency action. Jrtnere are no facts· in di pute, the petition must so fridlcate.
You must me the petltio.rffor hearing so that it is reserved by the QepE1rtm nt within twenty-one (21ldayl!!. of your rete[pt of this:agency action. The petltrori mustbe .filed w.Uli' Jufie JCJt1e$, Qi=$ t,gengy p1erk, Departrrieotof Financial Services, 612 Larson B'ullding, 2'00 SasfGairies Street, Tallahassee; Florlda ZS99 Q$QO. .
FAILURE to FtLEA_Pi;:r,tl9N WiTHIN:Ti:fE TW!:N'f'Y-Q.NE'(21) DAY$ c.0Nsrtr1.1rss:A WAIVER oF vouR RIGHT
TO ADMINISTRATIVE REVIEW OF TH,E AtlENCY ACTION,
ISSUING AGENCY NAME ANll ADDRESS
Oivision of Workers' Compensation, Bureau of Compliance; -----------------
Attn: , Telephone: _
l\!lecl.iation unqer sectiqn 120,5.n, Florida S.tc1tutes, is not available,
Oc:tober 2009
NDti!li:fQfRJghts t,lpdated 6/.aCJ OtO
Page,1 of2
State. of Florida,,Oepar.tm.ent of Fit'lr!ncial,,Setv.ices
Division ofW.or ef'c$• C.om ert$ation, Bureau of Com,pliaoce
Penalty Worksheet
Calcu.lation
Metho.!alology •
. TRACYHINOTE'
'._i !mpµt d
:Q445 •:/)3/1612008 1213112008' 2,518.81 25.19 i
9.9EL 251 ;38
37:1,07
; iAWW
6Recof{fs
BU$lN1;$S.5NAME: iRACYB HINOTE OBATHPLAST.ERING owe Case No.. 14-08j,4A
*· IUheemployer,has0.faile.dt-o·pro vlde,·bu1?lnes s·te .rdsstiffii:Jent: 10.enable;h.,fe Dep artme,ntto-detem'liile::the·,en,ip:1yl !' s P.aY©ll, payroll shall:be
·ilJ\puted, to,:be·-UJ1t- l WK1e,avei:age..weeklywageas;defined'.in.s.440,12(2)F,S,multlpliea by·1..5; (440:107(7:)(e)).
""' -P 111Ium,multiplledbystatutoty·factorof'1;5
a• ·Gfeaie1:.pf ji13r1 tyunqer,column ( :or:J::t-OOOdi440,1fJ7(t:i)(1.} ..
Page,2 on
State of Flor.id , De r:tmeot of Fioan iaJ services
Division ofWotkers' Compensation, Bureau of'Compliance
Penalty Worksheet
BUSINESS NAII/I_E: TIY\PY B HINOTE OBA TH PLASTERING owc,,case No. 11-oaa,.1A
...r'.EFF'.NEtSON' ' ,.:='i:, lAm'wpiWitl:\cl 5445 03/01/201f '03l14"/2011 :·.·..
·'"""'I.
Employee; Name | Oalculatlon ;Methodology, | (a) {b) . ... .. (¢} . (d) {e} Class Per,iod of · Gross . CdturnnJc;f • ;A.pprovei:i C:ade Non-C:onjpli<!nce. P rroll " i1M. . IViamial·Rate | (fl Premium (d) .x (Iii} | (g) Pertalfy.. (t}x1.5 | |
'JACOBRO.GERS.t | ·:·-·:-). AlmWpWµted | 5:M5 03/01/20.11 | 03/1412DH. 400.00 4,00 6.77 ! | 27.08 | 40:s2 |
Re.c9rds
4.00.1 6,711• 27,:08.. ,. ·. 4,0.62
·r--_,-N-T.H.-.•·O-·...N-.y......-P-H-T·<-s-··- - - - ; .-..,.,:_.., -p□-t-e..d._, 5_44_5---.-o-.-1"""12-s,-2-0-11... :.--0t.,./2,_.51.. 2.0.-1-1 r---6-'.7_,1.,..·.1·_ ,6"":7""'"170;1--6.
l;lec rds J . . } . I
fOMM¥-LONG : r=ed 5445 '01/21/2011 01/2'1/2011 , 3.001 6:77···.I•. 0•.. 330.47
ijecords l J·
:I 24i138;81 •1,..-1-;7.-.4-5,"""70"••1--......----2,-6.1..B 5._'/f
If the en,plo)l;E!r hia ;t.i_ileplo pro11iit,1rti!-lslne : rds sufficlenua enabte· the'Department ta d erajin:e the eil:iplayers payroil, payroll shall be
ltJ.lp.11tedto be;the,staiewide average.weeldy wage,as.defli:\ed in sA4tl.12(2) F:S.mulliplie.d by 1)5, (440..101(7)(e):).
** Pr,er;rJiun1moltipfied'..by,st.itutery factor.or 1.5
*** Greater of.pe11al!:Y U!lder,C(llucrm,(g). r:>r $1 ODO. s440.107{d)(t)
TOTAL PENALTY for Parts 1, 2, 3, 4. 5: $2.61:ti. 7
Sheila Sexton
From: Sent: To: Subject:
TrackingUpdates@fedex.com Wednesday, June 29, 2011 2:16 PM Sheila Sexton
FedEx Shipment 794919508217 Delivered
This tracking update has been requested by:
Company Name: FL DEPT OF FINANCIAL SERVICES
Name: E-mail:
Sheila Sexton sheila.sexton@myfloridacfo.com
Our records indicate that the following shipment has been delivered:
Reference:
Ship (P/U) date: Delivery date: Sign for by: Delivery location: Delivered to: Service type: Packaging type: Number of pieces: Weight:
43 43 30 10 000 B2
Jun 28, 2011
Jun 29, 2011 1:09 PM
Signature not required LYNN HAVEN, FL
Residence
FedEx Standard Overnight FedEx Envelope
1
0.50 lb.
Special handling/Services: Deliver Weekday
Residential Delivery Tracking number: 794919508217
Shipper Information Sheila Sexton
FL DEPT OF FINANCIAL SERVICES
200 E Gaines St Tallahassee
FL
us
32399
Recipient Information Tracy B. Hinote
1441 SOUTH BLVD CHIPLEY
FL
us
32428
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1
-----Original Message-----
From: Rondia [mailto:rondiah@yahoo.com] Sent: Wednesday, November 23, 2011 11:55 AM To: Julie Jones
Subject: Tracy Hinote
EXHIBIT
F
We are no longer in need of a hearing and are in agreement with the final audit and agree to pay the penalty amount of 2628.57 as stated on the penalty worksheet received on 6/28/11. Thank you, Tracy Hinote.
| Issue Date | Proceedings |
|---|---|
| Jan. 03, 2012 | (Agency) Final Order filed. |
| Dec. 08, 2011 | Order Relinquishing Jurisdiction and Closing File. CASE CLOSED. |
| Nov. 28, 2011 | Joint Motion to Relinquish Jurisdiction filed. |
| Nov. 10, 2011 | Amended Notice of Hearing (hearing set for January 12, 2012; 9:30 a.m.; Tallahassee, FL; amended as to Date). |
| Nov. 02, 2011 | Order of Pre-hearing Instructions. |
| Nov. 02, 2011 | Notice of Hearing (hearing set for December 12, 2011; 9:30 a.m.; Tallahassee, FL). |
| Oct. 25, 2011 | Unilateral Response to Initial Order filed. |
| Oct. 18, 2011 | Initial Order. |
| Oct. 17, 2011 | 3rd Amended Order of Penalty Assessment filed. |
| Oct. 17, 2011 | Agency referral filed. |
| Oct. 17, 2011 | Request for Administrative Hearing filed. |
| Oct. 17, 2011 | Stop-work Order filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 30, 2011 | Agency Final Order |
