J & S CONCRETE, INC.
CASE NO. 11-313-D7-WC
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:
On November 17, 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. 11-313-D7 to J & S CONCRETE, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein J & S CONCRETE, 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 November 17, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on J & S CONCRETE, 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 November 23, 2011, J & S CONCRETE, INC. timely filed a request for administrative hearing (hereinafter "Petition") with the Department. A copy of the petition is attached hereto as "Exhibit B" and incorporated herein by reference.
On December 5, 2011, the Department issued an Amended Order of Penalty Assessment to J & S CONCRETE, INC. The Amended Order of Penalty Assessment assessed a total penalty of $45,720.65 against J & S CONCRETE, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein J & S CONCRETE, 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 December 7, 2011, the Department served by personal service the Amended Order of Penalty Assessment to J & S CONCRETE, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit C" and incorporated herein by reference.
On January 20, 2012, the Department referred the matter to the Division of Administrative Hearings for assignment to an Administrative Law Judge._
On February 20, 2012, the Department issued a 2nd Amended Order of Penalty Assessment to J & S CONCRETE, INC. The 2nd Amended Order of Penalty assessed a total penalty of $6,416.73 against J & S CONCRETE, INC. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein J & S CONCRETE, INC. was advised that any
request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2nd 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 May 24, 2012, J & S CONCRETE, INC. entered into a Settlement Agreement.
Under the Settlement Agreement, J & S CONCRETE, INC. must pay a total penalty of
$6,413.73, or enter into a Periodic Payment Agreement within thirty (30) days of the execution of the Settlement Agreement. The Agreement also provides that the petition be dismissed with prejudice upon the execution of the Settlement Agreement. A copy of the Settlement Agreement is attached hereto as "Exhibit D" and incorporated herein by reference.
On May 24, 2012, Administrative Law Judge Lynne A. Quimby-Pennock issued an Order Closing File and Relinquishing Jurisdiction as a result of the executed Settlement Agreement. A copy of the Order is attached hereto as "Exhibit E" and incorporated herein by reference.
On May 29, 2012, the 2nd Amended Order of Penalty was served via certified mail on Michael J. Rich, Esq., counsel for J & S CONCRETE, INC. A copy of the 2nd Amended Order of Penalty is attache hereto as "Exhibit F" and incorporated herein by reference.
As of the date of this Final Order, J & S CONCRETE, INC. has failed to comply with the conditions of the Settlement Agreement. The Department has received no payment from J & S CONCRETE, INC. in this matter, nor has J & S CONCRETE, INC. entered into a Periodic Payment Agreement at this time.
FINDINGS OF FACT
The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on November 17, 2011, the Amended Order of Penalty Assessment issued on December 5, 2011, and the 2nd Amended Order of Penalty Assessment issued on February 20, 2012, attached as exhibits 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 J & S CONCRETE, 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
The Executed Settlement Agreement, 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:
J & S CONCRETE, INC. shall immediately pay the entire penalty balance of
$6,413.73 m full to the Department of Financial Services for deposit into the Workers' Compensation Administration Trust Fund;
J & S CONCRETE, 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 J & S CONCRETE, INC. has come into compliance with the coverage requirements of Chapter 440; Florida Statutes and has paid the remaining penalty balance of $6,413.73 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 11+c- day of + , 2012.
Florida Bar No. 78974 Assistant General Counsel
200 E. Gaines Street Tallahassee, FL 32399-4229
