Petitioner: DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' COMPENSATION
Respondent: ELITE RESTORATION AND CONSTRUCTION, LLC
Judges: JAMES H. PETERSON, III
Agency: Department of Financial Services
Locations: Brooksville, Florida
Filed: Jul. 05, 2017
Status: Closed
Recommended Order on Tuesday, February 20, 2018.
Latest Update: Jul. 27, 2018
Summary: The issue in this case is whether Elite Restoration and Construction, LLC (Respondent), violated the provisions of chapter 440, Florida Statutes,1/ by failing to secure the payment of workers’ compensation, as alleged in the Stop-Work Order and Second Amended Order of Penalty Assessment; and, if so, what is the appropriate penalty.Clear and convincing evidence proved that the Stop-Work Order and 2nd Amended Penalty Assessment were appropriate sanctions against Respondent for failure to secure wo
Summary: The issue in this case is whether Elite Restoration and Construction, LLC (Respondent), violated the provisions of chapter 440, Florida Statutes,1/ by failing to secure the payment of workers’ compensation, as alleged in the Stop-Work Order and Second Amended Order of Penalty Assessment; and, if so, what is the appropriate penalty.Clear and convincing evidence proved that the Stop-Work Order and 2nd Amended Penalty Assessment were appropriate sanctions against Respondent for failure to secure workers' compensation insurance for its employees.
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TempHtmlFILED
JUL272018
Chief Financial Offi
Docketed by
CHIEF FINANCIAL OFFICER
JIMMY PATRONIS
STATE OF FLORIDA
DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' COMPENSATION,
DOAH CASE NO.: 17-3814
Petitioner, DFS CASE NO.: 16-396-D1-WC
V.
ELITE RESTORATION AND CONSTRUCTION, LLC,
Respondent.
FINAL ORDER
THIS CAUSE came on for consideration of and for final agency action on a Recommended Order ( " RO").
After reviewing the record, including all testimony and admitted exhibits, considering applicable law, and otherwise being fully apprised in all material premises, the Recommended Order is hereby adopted, except as modified below.
The first sentence of the second paragraph of the RO's Preliminary Statement is modified to replace " July 7, 2017" with " July 5, 2017".
The first sentence of the third paragraph of the RO' s Preliminary Statement is modified to replace " served" with " issued".
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Filed July 27, 2018 1:05 PM Division of Administrative Hearings
Findings of Fact paragraph 3 is modified by replacing "Respondent's sole shareholder, owning 100% of the stock." with "Respondent's interest holder, owning 100% of the interest."'
Conclusions of Law paragraph 39 is modified to replace the case citation with the
following: "See §§ 440.10(l)(a), .38(l), and .107(1), Fla Stat." This conclusion is as or more reasonable than the conclusion it replaces?
Accordingly, Elite Restoration and Construction, LLC, is assessed a penalty of
$16,671.14. Within 30 days from the date of this Final Order, Respondent must pay the penalty in full, less any payments made to date, or execute a payment agreement with the Department of Financial Services to pay the penalty by installments.
DONE and ORDERED this Gs 7 day of , 2018.
A a
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The RO's finding is not supported by competent substantial evidence. Respondent is not a corporation; it is a limited liability company, a distinct type of business entity. See § 605.0102(31)(1), Fla. Stat. ("`Interest holder' means: A member of a limited liability company.").
The case cited in the RO, C & L Trucking Y. Corbin, 546 So. 2d 1185 (Fla. 5th DCA 1989) ("C&L"), does not provide support for the conclusion because the case does not address the duties of an employer under chapter 440, Florida Statutes. Rather, C&L's focus is on section 440.39(3)(a), Florida Statutes, vesting workers' compensation insurers with a statutory right of subrogation. The case addresses whether the insurer properly perfected its subrogation lien. The subrogor premised her defense on the insurer's
failure to "strictly comply" with the notice requirement set forth in section 440.39(3)(a), Florida Statutes. The court rejected the defense and upheld the insurer's subrogation claim.
NOTICE OF RIGHT TO APPEAL
A party adversely affected by this final order may seek judicial review as provided in section 120.68, Florida Statutes, and Florida Rule of Appellate Procedure
9.190. Judicial review is initiated by filing a notice of appeal with the Agency Clerk, and a copy of the notice of appeal, accompanied by the filing fee, with the appropriate district court of appeal. The notice of appeal must conform to the requirements of Florida Rule of Appellate Procedure 9.110(d), and must be filed (i.e., received by the Agency Clerk) within thirty days of rendition of this final order.
Filing with the Department's Agency Clerk may be accomplished via U.S. Mail, express overnight delivery, hand delivery, facsimile transmission, or electronic mail. The address for overnight delivery or hand delivery is Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. The facsimile number is (850) 488-0697. The email address is Julie.Jones@myfloridaefo.com.
Copies furnished to:
Elite Restoration and Construction, LLC
c/o Brian Johnson, Owner 7185 West Village Drive Homosassa, Florida 34446
Dustin Metz
Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
CHIEF FINANCIAL OFFICER STATE OF FLORIDA
Department of Financial Services Division of Legal Services
200 East Gaines Street
Tallahassee, FL 32399-4229
Return Service Requested
Elite Restoration and Construction, LLC
c/o Brian Johnson, Owner 7185 West Village Drive Homosassa, Florida 34446
M
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Docket for Case No: 17-003814
Issue Date |
Proceedings |
Jul. 27, 2018 |
Agency Final Order filed.
|
Jul. 27, 2018 |
Notice of Substitution of Counsel (Dustin Metz) filed.
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Jul. 27, 2018 |
Notice of Substitution of Counsel (Dustin Metz) filed. FILED IN ERROR
|
Feb. 20, 2018 |
Recommended Order (hearing held October 30, 2017). CASE CLOSED.
|
Feb. 20, 2018 |
Recommended Order cover letter identifying the hearing record referred to the Agency.
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Dec. 19, 2017 |
Department's Proposed Recommended Order filed.
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Dec. 05, 2017 |
Respondent`s Proposed Recommended Order filed.
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Nov. 20, 2017 |
Transcript of Proceedings (not available for viewing) filed. |
Oct. 30, 2017 |
CASE STATUS: Hearing Held. |
Oct. 23, 2017 |
Joint Pre-hearing Stipulation filed.
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Oct. 16, 2017 |
Department's Notice of Intent to Use Summaries filed.
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Sep. 25, 2017 |
Order Rescheduling Hearing (hearing set for October 30, 2017; 9:00 a.m.; Brooksville, FL).
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Sep. 20, 2017 |
Department's Agreed Motion for Leave to Amend Order of Penalty Assessment filed.
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Sep. 05, 2017 |
Status Report filed.
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Aug. 24, 2017 |
Order Granting Continuance (parties to advise status by September 5, 2017).
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Aug. 22, 2017 |
Petitioner's Agreed Motion to Continue Final Hearing filed.
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Aug. 21, 2017 |
Notice of Service of Petitioner's Good Faith Request Letter to Respondent filed.
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Aug. 04, 2017 |
Notice of Taking Telephonic Deposition Duces Tecum filed.
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Jul. 19, 2017 |
Order (enclosing rules regarding qualified representatives).
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Jul. 19, 2017 |
Order of Pre-hearing Instructions.
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Jul. 19, 2017 |
Notice of Hearing (hearing set for September 6, 2017; 9:30 a.m.; Brooksville, FL).
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Jul. 14, 2017 |
Notice of Service of Department of Financial Services' First Interlocking Discovery Requests filed.
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Jul. 14, 2017 |
Petitioner's Agreed Response to Initial Order filed.
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Jul. 07, 2017 |
Initial Order.
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Jul. 05, 2017 |
Penalty Audit Summary Report filed.
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Jul. 05, 2017 |
Amended Order of Penalty Assessment filed.
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Jul. 05, 2017 |
Agreed Order of Conditional Release from Stop-Work Order filed.
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Jul. 05, 2017 |
Stop-Work Order filed.
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Jul. 05, 2017 |
Request for Administrative Hearing filed.
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Jul. 05, 2017 |
Agency referral letter filed.
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Orders for Case No: 17-003814
Issue Date |
Document |
Summary |
Jul. 27, 2018 |
Agency Final Order
|
|
Feb. 20, 2018 |
Recommended Order
|
Clear and convincing evidence proved that the Stop-Work Order and 2nd Amended Penalty Assessment were appropriate sanctions against Respondent for failure to secure workers' compensation insurance for its employees.
|