The Issue Whether despondent had violated Section 479.07(1), Florida Statutes, in that no permits were secured for subject sign for the years 1969-1975.
Findings Of Fact No permits were applied for or secured.
The Issue The issues to be determined in this case are whether Respondent should pay the administrative penalty, investigative costs, and attorney's fees, and undertake the corrective actions that are demanded by the Florida Department of Environmental Protection ("Department") in its Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (“NOV”).
Findings Of Fact The Department is the administrative agency of the state of Florida with the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Title 62. Joshua Putnam is a natural person who is currently incarcerated in the Columbia County Correctional Institution. Mr. Putnam has been incarcerated since February 16, 2012, for the theft of diesel fuel. On or about January 20, 2012, Mr. Putnam discharged 25 to 50 gallons of diesel fuel onto the ground in the backyard of a residence located at 433 Lena Street, St. Augustine, Florida (“the property”). The discharge resulted in “contamination,” as defined in rule 62-780.200(9). Mr. Putnam has not initiated a site assessment or remediated the contamination. The property is owned by Tammy Putnam. She and the Department entered into a Consent Order. The Consent Order was not filed with DOAH, but it is reasonable to assume that the Consent Order addresses assessment and remediation of the contamination on her property. The Department states that it provided Mr. Putnam an opportunity to demonstrate that he is financially unable to assess and remediate the contamination, but the Department did not receive all the documentation it requested from Mr. Putnam. Mr. Putnam has not been employed for six or seven years and is currently unable to pay to clean up the contamination or to pay the administrative penalties. Mr. Putnam admitted liability and expressed his intent to remedy the situation as soon as he is released from prison. His current release date is May 5, 2015. While investigating this matter, the Department incurred $1,000 in costs.
The Issue The issues are whether, under section 440.107, Florida Statutes, Petitioner may calculate a penalty assessment for a failure to secure the payment of workers' compensation for one day as though the failure persisted over two years and whether Petitioner may calculate a penalty assessment based on double the statewide average weekly wage (AWW) when the lone uncovered employee earned $10 per hour.
Findings Of Fact Respondent was incorporated in 2008 by Ineido Soler, Sr., and his son, Ineido Soler, Jr. Since the corporation began operations, the wife of Mr. Soler, Jr., Idalmis Pedrero, has served as the office manager of this family-owned company. At all material times, Respondent has contracted with a personnel leasing company to handle employee matters, such as securing the payment of workers' compensation. Ms. Pedrero's responsibilities include informing the employee leasing company of new hires, so the company can obtain workers' compensation coverage, which typically starts the day following notification. On the afternoon of November 22, 2015, Mr. Soler, Jr., telephoned his wife and told her that he and his father had hired, at the rate of $10 per hour, a new employee, Geony Borrego Lee, who would start work the following morning. Customarily, Ms. Pedrero would immediately inform the employee leasing company. However, Ms. Pedrero was working at home because, six days earlier, she had delivered a baby by caesarian section, and she was still recuperating and tending to her newborn. A fatigued Ms. Pedrero did not notify the employee leasing company that day of the new hire. Late the next morning, Ms. Pedrero was awakened by a call from her husband, who asked her if she had faxed the necessary information to the employee leasing company. Ms. Pedrero admitted that she had not done so, but would do so right away. She faxed the information immediately, so that the employee leasing company could add Mr. Lee to the workers' compensation policy, effective the next day, November 24. Uncovered for November 23, Mr. Lee joined three other employees of Respondent and performed roofing work at a worksite. Late in the afternoon of November 23, one of Petitioner's investigators conducted a random inspection of Respondent's worksite and determined that Respondent had secured the payment of workers' compensation for the three other employees, but not for Mr. Lee. The investigator issued an SWO on the day of the inspection, November 23. The SWO contains three parts. First, the SWO orders Respondent to cease work anywhere in the state of Florida. Second, the SWO includes an Order of Penalty Assessment, which does not contain a specific penalty, but instead sets forth the formula by which Petitioner determines the amount of the penalty to assess. Tracking the statute discussed below, the formula included in the SWO is two times the premium that the employer would have paid when applying approved manual rates to the employer's payroll "during periods for which it has failed to secure the payment of compensation within the preceding 2-year period." Third, the SWO includes a Notice of Rights, which advises Respondent that it may request a chapter 120 hearing. On November 24, Petitioner released the SWO after Respondent had secured the payment of workers' compensation for Mr. Lee. On November 25, the investigator hand delivered to Respondent a Request for Production of Business Records for Penalty Assessment Calculation (Request). The Request covers November 24, 2013, through November 23, 2015, and demands records in eight categories: identification of employer, occupational licenses, payroll documents, account documents, disbursements, contracts for work, identification of subcontractors, and documentation of subcontractors' workers' compensation coverage. The Request identifies "payroll documents" as: all documents that reflect the payroll of the employer . . . including . . . time sheets, time cards, attendance records, earning records, check stubs and payroll summaries for both individual employees and aggregate records; [and] federal income tax documents and other documents reflecting the . . . remuneration paid or payable to each employee . . . . The Request adds: The employer may present for consideration in lieu of the requested records, proof of compliance with F.S. 440 by a workers' compensation policy or coverage through employee leasing for all periods of this request where such coverage existed. If the proof of compliance is verified by the Department the requested records for that time period will not be required. The Request warns: If the employer fails to provide the required business records sufficient to enable the . . . Division of Workers' Compensation to determine the employer's payroll for the period requested for the calculation of the penalty provided in section 440.107(7)(d), F.S., the imputed weekly payroll for each employee shall be the statewide average weekly wage as defined in section 440.12(2), F.S., multiplied by 2. The Department shall impute the employer's payroll at any time after ten, but before the expiration of twenty eight business days after receipt by the employer of [the Request]. (FAC 69L-6.028) . . . . On December 11, 2015, Respondent provided the following documents to Petitioner: itemized invoices, including for workers' compensation premiums, from the employee leasing company to Respondent and checks confirming payment, but the invoices and checks are from December 2011; an employee leasing agreement signed by Respondent on August 1, 2014, and signed by the employee leasing company on August 5, 2014; an employee leasing application for Mr. Lee dated November 23, 2015, showing his date of birth as November 20, 1996, his hourly pay as $10, and his hire date as November 23, 2015; and an employee census dated December 1, 2015, showing, for each employee, a date of hire and, if applicable, date of termination. Partially compliant with the Request, this production omitted any documentation of workers' compensation coverage prior to August 1, 2014, and any documentation of payroll except for Mr. Lee's rate of pay. On December 14, 2015, Respondent filed with Petitioner its request for a chapter 120 hearing. On December 30, 2016, Petitioner issued an Amended Order of Penalty Assessment (Amended Assessment), which proposes to assess a penalty of $63,434.48. On the same date, Petitioner transmitted the file to DOAH. Petitioner issued a Second Amended Order of Penalty Assessment on February 16, 2016, which is mentioned in, but not attached to, the Prehearing Stipulation that was filed on April 26, 2016, but the second amended assessment reportedly leaves the assessed penalty unchanged from the Amended Assessment. In determining the penalty assessment, Petitioner assigned class code 5551 from the National Council on Compensation Insurance because Mr. Lee was performing roofing work; determined that the entire two-year period covered in the Request was applicable; identified the AWW as $841.57 based on information provided by the Florida Department of Economic Opportunity for all employers subject to the Florida Reemployment Assistance Program Law, sections 443.01 et seq., Florida Statutes, for the four calendar quarters ending June 30, 2014; applied the appropriate manual rates for class code 5551 to $841.57, doubled, and divided the result by 100--all of which yielded a result of $31,717.24, which, doubled, results in a total penalty assessment of $63,434.48. There is no dispute that the classification code for Mr. Lee is code 5551, the AWW is $841.57, and the manual rates are 18.03 as of July 1, 2013, 18.62 as of January 1, 2014, and 17.48 as of January 1, 2015. Because Petitioner determined that Respondent had failed to provide sufficient evidence of its payroll, Petitioner calculated the penalty assessment by using the AWW of $841.57, doubled, instead of Mr. Lee's actual rate of $10 per hour. Petitioner's calculations are mathematically correct. For the 5.27 weeks of 2013, the penalty assessment is $3198.58 based on multiplying the AWW, doubled, by the manual rate of 18.03 divided by 100 multiplied by 2 and multiplied by 5.27. For the 52 weeks of 2014, the penalty assessment is $32,593.67 based on multiplying the AWW, doubled, by the manual rate of 18.62 divided by 100 multiplied by 2 and multiplied by 52. For the 46.44 weeks of 2015, the penalty assessment is $27,326.48 based on multiplying the AWW, doubled, by the manual rate of 17.48 divided by 100 multiplied by 2 and multiplied by 46.44. Adding these sums yields a total penalty assessment of $63,118.73, which approximates Petitioner's penalty assessment calculation of $63,434.48. (Mistranscription of difficult-to- read manual rates or a different rule for handling partial weeks may account for the small difference.) Respondent challenges two factors in the imputation formula: the two-year period of noncompliance for Mr. Lee instead of one day's noncompliance and the AWW, doubled, instead of Mr. Lee's $10 per hour rate of pay. Underscoring the differences between the two-year period of noncompliance and double the AWW and the actual period of noncompliance and Mr. Lee's real pay rate, at the start of the two-year period, Mr. Lee was three days past his 16th birthday and residing in Cuba, and Mr. Lee continues to earn $10 per hour as of the date of the hearing. The impact of Petitioner's use of the two-year period of noncompliance and double the AWW is significant. If the calculation were based on a single day, rather than two years, the assessed penalty would be less than the statutory minimum of $1000, which is described below, even if double the AWW were used. One day is 0.14 weeks, so the penalty assessment would be $82.38 based on multiplying the AWW, doubled, by the manual rate of 17.48 divided by 100 multiplied by 2 and multiplied by 0.14. If the calculation were based on the entire two years, rather than a single day, the assessed penalty would be about one-quarter of the proposed assessed penalty, if Mr. Lee's actual weekly rate of pay were used instead of double the AWW. Substituting $400 for twice the AWW in the calculations set forth in paragraph 15 above, the penalty would be $760.14 for 2013, $7746.92 for 2014, and $6494.17 for 2015 for a total of $15,001.23. Explaining why Petitioner treated one day of noncompliance as two years of noncompliance, one of Petitioner's witnesses referred to Mr. Lee as a "placeholder" because the real focus of the imputation formula is the employer. The same witness characterized the imputation formula as a "legal fiction," implying that the formula obviously and, in this case, dramatically departs from the much-smaller penalty that would result from calculating exactly how much premium that Respondent avoided by not covering the modestly paid Mr. Lee on his first day of work. Regardless of how Petitioner characterizes the imputation formula, the statutory mandate, as discussed below, is to determine the "periods" during which Respondent failed to secure workers' compensation insurance within the two-year period covered by the Request. The focus is necessarily on the employee found by the investigator to be uncovered and any other uncovered employees. Petitioner must calculate a penalty based on how long the employee found by the investigator on his inspection has been uncovered, determining how many other employees, if any, in the preceding two years have been uncovered, and calculating a penalty based on how long they were uncovered. There is evidence of one or two gaps in coverage during the relevant two years, but Petitioner has failed to prove such gaps by clear and convincing evidence. One of Petitioner's witnesses testified to a gap of one month "probably" from late January to late February 2015. This witness relied on Petitioner Exhibit 2, but it is completely illegible. Ms. Pedrero testified that Respondent had workers' compensation coverage since 2011, except for a gap, which she thought had occurred prior to August 2014, which is the start date of the current policy. This conflicting evidence does not establish by clear and convincing evidence any gap, and, even if a gap had been proved, no evidence establishes the number of uncovered employees, if any, during such a gap, nor would such a gap justify enlarging the period of noncompliance for Mr. Lee. Ms. Pedrero testified that her mother-in-law, Teresa Marquez cleaned the office and warehouse on an occasional basis, last having worked sometime in 2015. Respondent never secured workers' compensation coverage for Ms. Marquez, but she did no roofing work and appears to have been a casual worker, so her periods of employment during the two-year period covered by the Request would not constitute additional periods for which Respondent failed to secure workers' compensation insurance. Based on the foregoing, Petitioner has proved by clear and convincing evidence only a single day of noncompliance, November 23, concerning one employee, Mr. Lee, within the relevant two-year period for the purpose of calculating the penalty assessment. Likewise, Petitioner has proved by clear and convincing evidence a rate of pay of only $10 per hour for the purpose of calculating the penalty assessment. At no time has Respondent provided payroll records of all its employees for November 23, 2015. Respondent Exhibit E covers payroll for Respondent's employees for a two-week period commencing shortly after November 23, 2015. But the evidence establishes that Mr. Lee's rate of pay was $80 for the day, which, as discussed below, rebuts the statutory presumption of double the AWW.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order determining that Respondent has failed to secure the payment of workers' compensation for one employee for one day within the two-year period covered by the Request and imposing an administrative penalty of $1000. DONE AND ENTERED this 19th day of July, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2016. COPIES FURNISHED: Jonathan Anthony Martin, Esquire Trevor S. Suter, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Daniel R. Vega, Esquire Robert Paul Washington, Esquire Taylor Espino Vega & Touron, P.A. 2555 Ponce De Leon Boulevard, Suite 220 Coral Gables, Florida 33134 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue The issue presented for decision herein is whether or not the Respondent failed to have in effect written procedures for the implementation of policies and procedures; failed to provide adequate training, staff, recreation areas and facilities as required pursuant to Sections 400.141 and 393.067(5), Florida Statutes, and Rule Sections 10D-38.08; 10D-38.19(2)(c) and (9), (10) and (12), Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. Petitioner, Department of Health and Rehabilitative Services, seeks to impose an administrative fine in the amount of $300 based on allegations set forth more particularly in its Administrative Complaint 1/ filed October 28, 1983, alleging, inter alia, that Respondent failed to have written procedures for the implementation of policies and procedures as enumerated in Rule 10D- 38.08, Florida Administrative Code; that Respondent filed to provide adequate inservice training or professional direct care and other personnel; failed to have recreation and facilities designed and constructed as required by Rules 10D-38.10 and failed to have age-appropriate recreation equipment and supplies to meet patients' direct interests and needs in sufficient quantities and varieties to carry out objectives of its program. Based thereon, it is alleged that Respondent violated minimal standards as required by Petitioner's rules and regulations under Chapters 393 and 400, Part I, Florida Statutes. Respondent, Woodhouse, Inc., has a license to operate Woodhouse, 1001 NE Third Avenue, Pompano Beach, Florida, an intermediate care facility for the mentally retarded. Woodhouse was newly established during approximately April of 1983. On May 17 through 18, 1993, Petitioner conducted a survey of the facility by personnel from its Miami Office of Licensure and Certification. Results of that survey revealed that Respondent did not have into effect written procedures for the implementation of its policies and procedures. These policies dealt with items such as health, hygiene, grooming, equippage and an absence of needed staff including a recreational therapist and a qualified mental retardation employee on its staff. On June 29, 1983, Petitioner conducted a re-survey by members of the initial team who surveyed Respondent's facility during May of 1983 and, at that time, most of the items cited as violations had been corrected. The areas needing improvement related to the specifics as to how the policies and procedures were to be implemented by Respondent. The other area cited as still being in noncompliance was the absence of a trained recreational therapist and a qualified mental retardation employee on Woodhouse's staff. Marcia Trivigno is the Executive Director in charge of the overall administration of Woodhouse. Ms. Trivigno is the person in charge of and who authored the Respondent's Procedures Manual and of making the ultimate decisions respecting the hiring of staff for Woodhouse. Ms. Trivigno compiled and authored the Respondent's manual by reviewing the Policies and Procedures Manual of two other area facilities and based on recommendations from Petitioner's staff. Following the Petitioner's initial survey during May of 1983, Ms. Trivigno made a good faith effort to correct all areas cited as deficiencies during the initial survey. Initially, Ms. Trivigno experienced difficulty securing a trained recreational therapist. She temporarily used a part-time recreational therapist who left the Respondent's staff to work full-time in another position. Ms. Trivigno was successful in hiring a recreational therapist on June 24, 1983, approximately five days prior to Petitioner's re-survey. Respondent's staff sought the advice and consent of Petitioner's survey team members and implemented, to the extent possible, the deficiencies cited as relates tot he Policies and Procedures Manual. (Testimony of Marcia Trivigno and Angela Catarino.) It is not unusual for a newly established intermediate care facility to be cited for multiple violations during an initial survey by Petitioner's staff. During the initial survey, members of Petitioner's staff advise a client as to problem areas and offer ways to correct or otherwise remedy problem areas. In those instances, the usual procedure is for a plan of correction to be implemented by members of the facility and the survey teams. (Testimony of Laverne Dixon, Petitioner's staff person in charge of the surveys conducted at Respondent's facility of 1983.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Administrative Complaint filed herein be DISMISSED. DONE AND RECOMMENDED this 30th day of May 1984 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1984.
The Issue Whether Respondent had violated Section 479.07(1), Florida statutes, in that no permits were secured for subject sign for the years 1973, 1974 and 1975.
The Issue The issue for determination in this proceeding is whether Florida Administrative Code Rule 61D-6.011 is an invalid exercise of delegated legislative authority, in violation of section 120.52(8).
Findings Of Fact Petitioner, FHBPA, is a Florida not-for-profit corporation created to advance, foster, and promote the sport of thoroughbred horse racing in the State of Florida. FHBPA’s membership includes over 200 Florida-licensed horse trainers and over 5,000 Florida-licensed horse owners, and has associational standing to file and prosecute actions on behalf of its members. Respondent has not challenged FHBPA’s standing to bring this proceeding. Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (PMW), is the state agency charged with the regulation of pari-mutuel wagering in the State of Florida, pursuant to section 20.165 and chapter 550, Florida Statutes. The question to be decided in this proceeding is what the Legislature meant when it amended section 550.2415(7) in 2015, and whether rule 61D-6.011 carries out the legislative directive it contains. Before the 2015 legislative session, section 550.2415 stated, in pertinent part: (3)(a) Upon the finding of a violation of this section, the division may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not exceeding $5,000; require the full or partial return or the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section in no way prohibits a prosecution for criminal acts committed. * * * (7)(e) The division may, by rule, establish acceptable levels of permitted medications and shall select the appropriate biological specimens by which the administration of permitted medication is monitored. * * * The division shall adopt rules to implement this section. The rules may include a classification system for prohibited substances and a corresponding penalty schedule for violations. Except as specifically modified by statute or by rules of the division, the Uniform Classification Guidelines for Foreign Substances, revised February 14, 1995, as promulgated by the Association of Racing Commissioners International, Inc., is hereby adopted by reference as the uniform classification system for class IV and V medications. (Emphasis added). During the 2015 legislative session, the Legislature substantially amended section 550.2415. Ch. 15-88, § 1, Laws of Fla. Not all of the changes made are germane to the challenge at issue here, but the amendments to subsections (3) and (7) are critical: (3)(a) Upon the finding of a violation of this section, the division may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not exceeding the purse or sweepstakes earned by the animal in the race at issue or $10,000, whichever is greater; require the full or partial return of the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section does not prohibit a prosecution for criminal acts committed. * * * (7)(a) In order to protect the safety and welfare of racing animals and the integrity of the races in which the animals participate, the division shall adopt rules establishing the conditions of use and maximum concentrations of medications, drugs, and naturally occurring substances identified in the Controlled Therapeutic Medication Schedule, Version 2.1, revised April 17, 2014, adopted by the Association of Racing Commissioners International, Inc. Controlled therapeutic medications include only the specific medications and concentrations allowed in biological samples which have been approved by the Association of Racing Commissioners International, Inc., as controlled therapeutic medications. * * * (c) The division rules must include a classification system for drugs and substances and a corresponding penalty schedule for violations which incorporates the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc. The division shall adopt laboratory screening limits approved by the Association of Racing Commissioners International, Inc., for drugs and medications that are not included as controlled therapeutic medications, the presence of which in a sample may result in a violation of this section. (Emphasis added). The title page of the ARCI Document states, “Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule.” Each of the remaining pages of the ARCI Document, including those pages that encompass the ARCI Recommended Penalties, identifies the ARCI Document as the “Uniform Classification Guidelines for Foreign Substances.” The Notes Regarding Classification Guidelines, found at page ii, states that “Where the use of a drug is specifically permitted by a jurisdiction, then the jurisdiction’s rule supersedes these penalty guidelines.” (Emphasis added). Rules 61D-6.011 and 61D-6.008 were amended in 2016, in response to the amendments to section 550.2415. Rule 61D-6.008 addresses permitted medications allowed for horses, and rule 61D- addresses the penalties to be imposed for drug violations. Relevant portions of rule 61D-6.011 provide: The penalties in this rule shall be imposed when the stewards or the Division finds that the following substances have been identified by the state laboratory in a urine sample or blood sample collected from a horse participating in a pari-mutuel event: (a) Any medication listed in subsection 61D-6.008(2), F.A.C. [1.-3. provide penalty ranges for first, second, and third offenses] The penalty for any medication or drug which is not described in subsection (1) above shall be based upon the classification of the medication or drug found in the Uniform Classification Guidelines for Foreign Substances, revised December 2014, as promulgated by the Association of Racing Commissioners International, Inc., which is hereby incorporated and adopted herein by reference, https://flrules.org/Gateway/ reference.asp?No=Ref-06400, www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399. The penalty schedule shall be as follows: Class I substances: First violation of this chapter Second violation of this chapter Third or subsequent violation of this chapter Class II substances: First violation of this chapter $3,000 to $5,000 fine and suspension of license 90 days to one year, or revocation of license; $4,000 to $5,000 fine and suspension of license of no less than one year, or revocation of license. $5,000 to $10,000 fine and revocation of license. $250 to $1,000 fine and suspension of license zero to 180 days; Second violation of this chapter Third or subsequent violation of this chapter Class III substances: First violation of this chapter Second violation of this chapter Third or subsequent violation of this chapter Class IV or V substances: First violation of this chapter Second violation of this chapter $500 to $1,000 fine and suspension of license of no less than 180 days, or revocation of license; $1,000 to $5,000 fine and suspension of license of no less than one year, or revocation of license $300 to $500 fine; $500 to $750 fine and suspension of license zero to 30 days, or revocation of license; $750 to $1,000 fine and suspension of license zero to 180 days, or revocation of license. $100 to $250 fine; $250 to $500 fine and suspension of license zero to 10 days; Third violation of this chapter $500 to $1,000 fine and suspension of license zero to 60 days. The Division may consider mitigation or aggravation to deviate from these penalty guidelines. * * * Absent mitigating circumstances, the stewards or the Division shall order the return of any purse, prize, or award from any pari-mutuel event for redistribution when a positive test for a drug or medication described in paragraphs (1)(a), (1)(b), (2)(a), or (2)(b) is reported by the state laboratory and confirmed through the hearing process. The stewards or the Division may order the return of any purse, prize, or award for redistribution when the positive test of a drug or medication reported by the state laboratory is not described in paragraphs (1)(a), (1)(b), (2)(a), or (2)(b) of this rule. In the event the stewards or Division orders the return of the purse, prize, or award for redistribution as described in this subsection, the reason(s) for the redistribution shall be provided in writing. (Emphasis added). Rule 61D-6.011 varies from the penalty provisions in the ARCI Recommended Penalties in several respects. First, in the drug classification tables in the ARCI Document, which the rule incorporates by reference, there are columns to identify the drug or substance; trade name, if any; drug class; and penalty class. Not all drugs in a drug class are in the same penalty class. For example, all class 1 drugs are in penalty class A, with the exception of cocaine, morphine, and strychnine, which are in penalty class B. The majority of class 2 drugs are also in penalty class A, with the exception of caffeine, carisoprodol, diazepam, hydroxyzine, ketamine, levamisole, lidocaine, mepivacaine, and romifidine, which are in penalty class B. Class 3 drugs are generally split between penalty classes A and B, and class 4 drugs include both penalty classes B and C. Similarly, class 5 drugs are split between penalty classes C and D. It is clear from the text of the ARCI Document that the drug classifications and the penalty guidelines are intended to work together as a comprehensive approach to the impermissible drugging of racing horses. In the Recommended Penalty and Model Rule portion of the ARCI Document, there are separate penalties recommended for licensed trainers and for owners. For trainers, class A penalties include a minimum fine of $10,000 or 10% of the total purse, whichever is greater, absent mitigating circumstances, to a maximum of $25,000 or 25% of the purse with aggravating factors for a first offense. For a second offense in any jurisdiction, the fine amount is $25,000 or 25% of the total purse, whichever is greater, absent mitigating circumstances, and may increase with aggravating circumstances to a maximum of $50,000 or 50% of the purse, whichever is greater. For a third offense in any jurisdiction, the minimum fine is $50,000 or 50% of the total purse, whichever is greater, absent mitigating circumstances, and may increase with aggravating circumstances to a maximum of $100,000 or 100% of the purse, whichever is greater. For owners, the first and second offenses include disqualification and loss of purse. The penalty for a third offense includes disqualification, loss of purse, and a $50,000 fine. For owners and trainers, the monetary penalties may exceed the maximum permitted under section 550.4215(3), which authorizes a fine not exceeding the purse or sweepstakes earned by the animal, or $10,000, whichever is greater. The parties have submitted the House and Senate Bill analyses that address the amendment to section 550.2415 at issue here.1/ The House of Representatives Final Bill Analysis for CS/HB 239 includes the following statements: The bill changes the maximum fine for violations from $5,000 to $10,000 or the amount of the purse, whichever is greater. The bill also reduces the time for the division to begin administrative prosecutions for violations from 2 years to 90 days. The bill requires the division to adopt the Association of Racing Commissioners International (ARCI) rules regarding the medications, drugs, and naturally occurring substances given to race animals, including a classification system for drugs that incorporates ARCI’s Penalty Guidelines for drug violations, and updates current methodologies used in testing procedures. . . . * * * Effect of Proposed Changes * * * The bill requires that the penalty schedule for violations must incorporate the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the ARCI. These guidelines are “intended to assist stewards, hearing offices and racing commissioners in evaluating the seriousness of alleged violations of medication and prohibited substance rules. ” The bill analysis for CS/SB 226 contains similar provisions stating that the ARCI Penalty Guidelines must be incorporated into a rule adopted by Respondent. The penalty guidelines included in rule 61D-6.011 do not incorporate the ARCI Recommended Penalties. The PMW’s website includes a listing of statutes and rules, with links to the rules. Included in that list is a statement that “The Association of Racing Commissioners International, Inc. ‘Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule’ is adopted and incorporated by rule.” Notwithstanding this statement, the ARCI Recommended Penalties are not incorporated into rule 61D-6.011 or any other rule identified in this proceeding. The rule provides for consideration of a number of aggravating and mitigating circumstances, when warranted, that allow for deviation from the identified penalty guidelines. As noted above, rule 61D-6.011(1) refers to the medications listed in rule 61D-6.008. Rule 61D-6.008 provides in pertinent part: Permitted medications for horses: The prescription medications defined in this rule shall be permitted under the conditions set forth to conserve and protect the health of the horse which is entered to race. All such medications shall be procured and administered by a licensed veterinarian, except where a valid prescription or dispensing occurs in compliance with the requirements of Chapter 474, F.S. The following permitted medications at concentrations less than or equal to the following schedule shall not be reported by the racing laboratory to the Division as a violation of Section 550.2415, F.S. [list of medications and concentration levels for each one]. Thus, subsection (1) of rule 61D-6.011 addresses violations where too much of a permitted medication is found in a race day sample, whereas subsection (2) addresses violations based upon prohibited medications. Petitioner presented the testimony of Scott Hay and Edward Martin in support of its contention that the penalty guidelines adopted by PMW are arbitrary and capricious. Dr. Scott Hay is a veterinarian who has worked with thoroughbred racehorses since 1988. He is a member of the American Association of Equine Practitioners, the American Veterinary Medical Association, and the Florida Veterinary Association. He serves as co-chair on the scientific advisory committee for the Racing Medication and Testing Consortium, which worked on the development of the ARCI Document. Dr. Hay was familiar with the ARCI Document and described the process used to determine threshold levels for medications. He testified that the scientific advisory committee relied extensively on the expertise of some of its members to determine the appropriate levels of medications that would be appropriate under the drug classifications. On the other hand, while he is familiar with PMW’s rules and was involved in the rulemaking workshops when the rules were first amended after the 2015 statutory change, he did not believe that he made any comments on these particular rules during that process. He did not provide any testimony that provided information on what methodology PMW used when formulating its penalty guidelines. Mr. Martin works for the Association of Racing Commissioners International as its president and has done so since 2005. He testified that the Racing Medication and Testing Consortium is a consortium of racing industry organizations that advises ARCI and regulatory entities on medication and anti-doping policies. He described the process by which the scientific advisory committee meets and considers recommendations on changes to policies. According to Mr. Martin, the scientific advisory committee relies on the collective judgment of the pharmacologists, chemists, toxicologists, and veterinarians to provide advice and expertise about appropriate public policy. The controlled therapeutic medication schedule is an attempt to provide some consistency in the regulation of some commonly used medications that are considered appropriate for equine care. The schedule recommends a threshold for testing, and only if that threshold is exceeded, is there a violation of the rules of racing. Mr. Martin pointed to the reference in rule 61D-6.011 to rule 61D-6.008. He testified that what “struck him” about the Florida rules is that rule 61D-6.008 encompasses the controlled therapeutic list, but rule 61D-6.011(1) appears to provide the same penalty for any violation of a substance itemized in 61D- 6.008. This treatment is not consistent with ARCI’s penalty schedule, but Mr. Martin did not know whether Florida made a conscious decision to impose a different recommended penalty than what is contained in the ARCI Document, and did not know the intent of the drafters with respect to the rule.
The Issue Whether the Order of Fine was properly imposed.
Findings Of Fact The Watsons admit that they placed a large amount of fill dirt on their property. The property upon which the fill was placed is a vacant lot (Lot 13) that is contiguous to the property upon which the Watsons reside. The Watsons also admit that they did not obtain a permit from Lake County that authorized them to place the fill dirt on Lot 13. Lake County Code Enforcement Special Master Charles Johnson issued an Order of Enforcement on September 14, 2007, which required the Watsons to remove the fill dirt or to obtain a “proper permit” within 14 days. The Watsons appealed the Order of Enforcement to the circuit court, which remanded the case to the Special Master to allow the parties an opportunity to file written memoranda in support of their positions. Following the remanded an identical Order of Enforcement was issued by the Special Master on May 10, 2008. The Watsons did not want to remove the fill dirt. Therefore, after the 2007 Order of Enforcement was issued, Mr. Watson contacted Lake County staff to obtain a permit. Mr. Watson said he spoke to Jennifer Meyers, the development processing coordinator in the Public Works Department to obtain a permit for lot grading, but she told him that department only issued development orders for subdivisions. Mr. Watson spoke to Carmen Carroll in the Building Services Division about obtaining a building permit for lot grading. She told him the County did not issue building permits for lot grading. Ms. Carroll stated at the hearing that her division had never issued a building permit for lot grading, alone. Lot grading is often involved in a building permit, but only as a part of a proposal to construct a building. Mr. Watson said he arranged in September 2007 to meet on site with an engineer from the Public Works Department, but the engineer cancelled the meeting without an explanation. Mr. Watson claims that Lake County thwarted his efforts to obtain the proper permit for the fill dirt through the failure of its employees to tell him what permit to get. Lake County bears some responsibility for the confusion that existed about the "proper permit" that was needed. However, the Watsons' efforts to obtain a permit fell short of reasonable. Mr. Watson says he told the Lake County employees he needed a permit to satisfy the Order of Enforcement, but his testimony on this point was vague. It was not made clear that all of these County employees understood the circumstances of the Order of Enforcement and the daily fine the Watsons were facing. There is no evidence that Mr. Watson, when confronted with the responses from Ms. Meyers and Ms. Carroll, requested to speak to their supervisors or asked them to contact the County Attorney's office so that the issue could be resolved. There is no evidence that the Watsons sought information about the proper permit from the code enforcement staff of the County. There is no evidence that Mr. Watson contacted the Lake County Attorney's office until many months later. Mr. Watson said that after the 2008 Order of Enforcement was issued, he saw no purpose in speaking again with Lake County staff about obtaining a permit because he thought it would be a waste of time. That was not reasonable behavior. It was not reasonable for the Watsons to let daily fines accumulate for months because they were frustrated by the statements made by some County employees. Furthermore, the Watsons' attorney, Allison Strange, immediately began settlement negotiations with the County's legal staff in which the parties contemplated Lake County's issuance of a permit in a couple of weeks. The Watsons put an end to those discussions when they refused to provide engineering support for their lot grading proposal. The County was concerned about a steep slope on the northwest part of Lot 13 and fill dirt in the drainage easement. The Watsons proposed to install a retaining wall called a “Sierra Slope System.” Mr. Watson claimed that the proposal was “rejected” by the County, but the County simply told the Watsons that the proposal would have to be submitted by a licensed engineer in order to be evaluated. That was a reasonable request, but Mr. Watson did not want to spend the money for an engineer. The Watsons never applied for a permit for the fill dirt before the Order of Fine was issued. Taking all of the relevant evidence into account, it is found that the Watsons were not prevented by Lake County from obtaining a permit for the fill dirt. A claim not raised by the Watsons until the hearing in this appeal is that they do not owe any fines because Lake County abated the daily fines during settlement negotiations in May 2008 and the abatement was never lifted. On May 22, 2008, Ms. Strange sent a letter to Assistant County Attorney LeChea Parsons indicating their agreement about abating the fines: I appreciate your agreement to abate the issuance of any fines against Mr. and Mrs. Watson until Lake County has had adequate time to perform its inspections and issue the development order or permit, as ordered by the Special Master. Per our discussion this morning, it seems that Tuesday, June 10, 2008 would provide sufficient time and that no fine would accrue prior to then. The parties agree that one purpose of the May 2008 letter was to try to resolve the matter before the Watsons' deadline for filing an appeal of the Order of Enforcement. A Lake County employee made an inspection of Lot 13 and the County told the Watsons, through their attorney, Ms. Strange, of the County's concerns about the existing grading. The Watsons responded with their proposal for the Sierra Slope System. However, when the Watsons refused to submit their proposal through an engineer the negotiations broke down and the Watsons filed the appeal. The County contends that it only agreed to abate the fines until June 10, 2008. The fact that the Watsons did not raise the issue of the abatement until the hearing in this case suggests that at the time of the settlement negotiations in 2008, the Watsons did not think the fines had been abated beyond June 10, 2008. Taking all the relevant record evidence into account, the most reasonable meaning to ascribe to the parties' representations and actions is that the abatement of fines was to last until June 10, 2008, because that was considered sufficient time to get a permit and was the last day to settle the dispute before an appeal was filed. When the Watsons refused to submit engineering plans and filed the appeal, the negotiations were terminated and so was the abatement of fines. The County claims that because the Watsons never came into compliance with the Order of Enforcement, the offer of the abatement of fines had no effect. However, just because the negotiations were unsuccessful does not void the period of abatement. The fines were abated from May 27, 2008 (the deadline for compliance set out in the Order of Enforcement) through June 10, 2008, a period of 15 days. It does not appear from the record that the Watsons had further contact with Lake County officials about obtaining a permit until October 2009. During this period, the parties were in litigation over the Order of Enforcement. In an email dated October 15, 2009, Mr. Watson asked Ms. Marsh to tell him what “proper permit” he needed. Ms. Marsh replied that the proper permit would be a building permit. Even after being so informed, Mr. Watson still did not apply for a building permit. On September 14, 2009, the Watsons' property was inspected by Lake County Code Enforcement Inspector Jessica Jorge who observed that the fill had not been removed. An Affidavit of Non-Compliance was prepared, but it does not appear from the record that it was referred to the Special Master. On April 22, 2010, Ms. Jorge inspected the property again and she observed that the fill had still not been removed. Ms. Jorge checked the records of the County and determined that no permit had been issued for the fill. Ms. Jorge executed an Affidavit of Non-Compliance, which was presented to Special Master Johnson. On May 12, 2010, Special Master Johnson, without a hearing, entered the Order of Fine. He ordered the Watsons to pay a fine for non-compliance during the period from May 27, 2008 (the deadline for compliance) through April 22, 2010 (the date of inspection), which is 695 days, at the rate of $50.00 per day, plus the $500 fine assessed in the Order of Enforcement. The total fine imposed was $35,250. Lake County Code of Ordinances Section 8-10(a)(2) sets out factors the Special Master is to consider in determining the amount of the daily fine: In determining the amount of the fine, if any, the special master shall consider the following factors: The gravity of the violation; Any actions taken by the violator to correct the violation; Any previous violations committed by the violator. Special Master Johnson could not remember whether he applied these factors before issuing the Order of Fine. The factors will be considered now. The gravity of the violation is not great. There was no evidence presented of actual harm done to neighboring properties and no evidence that there were complaints from neighbors. The potential for erosion and drainage issues existed, but the County did not show that actual problems occurred or that the potential for harm was significant. The actions taken by the Watsons to correct the noncompliance have been discussed above. The Watsons made efforts to comply, but stopped short of reasonable efforts because they did not submit any kind of permit application and were not willing to employ an engineer to produce a grading plan. The Watsons claim they could have complied with the Order of Enforcement by getting approval for a lot grading plan under an new ordinance, but Lake County prevented them from doing so. In September 2008, the Lake County Code was amended to add procedures for approving lot grading plans. The Watsons were not aware of the new ordinance when it was adopted. The County did not inform them that about the new ordinance. Ms. Marsh said she did not inform Mr. Watson because she was unaware of the new ordinance. The record does not show when the Watsons learned about the new ordinance, but it was after the Order of Fine was issued. When the Watsons learned about the new ordinance, they submitted a Lot Grading Plan in October 2011. The plan was prepared by a licensed engineer. The Watsons' Lot Grading Plan was approved by the County on January 10, 2012. On that date, the Watsons finally came into compliance with the Order of Enforcement. Although the County's failure to inform the Watsons is relevant to the mitigation of fines, it does not excuse the Watsons' failure to apply for a permit for the fill dirt. If they had applied for a permit, the new ordinance would likely have been used by the County. The Watsons also claim they were misled by the County to believe that they did not need to obtain a permit for the fill until they were ready to build a house on the property. However, that representation was part of a settlement proposal which would have required the Watsons to terminate their lawsuits. The Watsons did not terminate their lawsuits, so it is unreasonable for the Watsons to rely on the County’s representation. It appears that the Watsons, convinced that the Order of Enforcement was wrong, were not willing to expend the money necessary to get a permit. In addition, obtaining a permit would have undermined their argument in the ongoing litigation over the Order of Enforcement that no permit was needed. There was no evidence presented regarding previous code violations by the Watsons. Section 8-10(a)(2) allows for as daily fine up to $1,000.00 per day. Special Master Johnson set the daily fine at the very low end of this range. Taking the factors into account, $50.00 a day is a reasonable daily fine amount.1/
Findings Of Fact 8. The factual allegations contained in the Order of Penalty Assessment issued on September 22, 2009, which is fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-235-D3-OPA, and being otherwise fully advised in the premises, hereby finds that: 1. On July 8, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Request for Production of Business Records for Penalty Assessment Calculation in Division of Workers’ Compensation Case No. 09-235-D3- OPA to JUAN MERLO D/B/A MERLO HARVESTING. 2. On July 8, 2009, the Request for Production of Business Records for Penalty Assessment Calculation was served by personal service on JUAN MERLO D/B/A MERLO HARVESTING. A copy of the Request for Production of Business Records for Penalty Assessment Calculation is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On September 22, 2009, the Department issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-235-D3-OPA to JUAN MERLO D/B/A MERLO HARVESTING. The Order of Penalty Assessment assessed a total penalty of $104,004.19 against JUAN MERLO D/B/A MERLO HARVESTING. The Order of Penalty Assessment included a Notice of Rights wherein JUAN MERLO D/B/A MERLO HARVESTING was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On September 25, 2009, the Order of Penalty Assessment was served by certified mail on JUAN MERLO D/B/A MERLO HARVESTING. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On October 13, 2009, JUAN MERLO D/B/A MERLO HARVESTING filed a petition for administrative review with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on October 22, 2009, and the matter was assigned DOAH Case No. 09-5854. 6. On December 14, 2009, JUAN MERLO D/B/A MERLO HARVESTING filed A Notice of Voluntary Dismissal with the Division of Administrative Hearings. A copy of the Notice of Voluntary Dismissal is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On December 16, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue Whether Respondent had violated section 479.07(1), Florida Statutes, in that no permits were secured for subject sign for the years 1973-1975.
Findings Of Fact 13. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on December 15, 2009, the Amended Stop-Work Order issued on January 5, 2010, the Amended Order of Penalty Assessment issued on January 8, 2010, the 2nd Amended Order of Penalty Assessment issued on March 11, 2010, and the 3rd Amended Order of Penalty Assessment issued on March 31, 2010, attached as “Exhibit A”, “Exhibit C”, “Exhibit D“, “Exhibit E”, and “Exhibit F”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from KALT CONSTRUCTION, INC., the Stop-Work Order and Order of Penalty Assessment, the Amended Stop-Work Order, 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: 1. On December 15, 2009, 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. 09-507-D3 to KALT CONSTRUCTION, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein KALT CONSTRUCTION, 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. 2. On December 15, 2009, the Stop-Work Order and Order of Penalty Assessment was personally served on KALT CONSTRUCTION, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On December 31, 2009, KALT CONSTRUCTION, INC. filed a petition for administrative review (“Petition”) with the Department which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-0353. A copy of the Petition is attached hereto as “Exhibit B”. 4. On January 5, 2010, the Department issued an Amended Stop-Work Order to KALT CONSTRUCTION, INC. 5. On January 9, 2010, the Amended Stop-Work Order was served by certified mail on KALT CONSTRUCTION, INC. A copy of the Amended Stop-Work Order is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On January 8, 2010, the Department issued an Amended Order of Penalty Assessment to KALT CONSTRUCTION, INC. The Amended Order of Penalty Assessment assessed a total penalty of $173,448.64 against KALT CONSTRUCTION, INC. 7. On January 25, 2010, the Amended Order of Penalty Assessment was filed with the Division of Administrative Hearings. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On March 11, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to KALT CONSTRUCTION, INC. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $70,939.06 against KALT CONSTRUCTION, INC. 9. On March 18, 2010, the 2nd Amended Order of Penalty Assessment was filed with the Division of Administrative Hearings. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 10. On March 31, 2010, the Department issued a 3rd Amended Order of Penalty Assessment to KALT CONSTRUCTION, INC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $66,864.41 against KALT CONSTRUCTION, INC. 11. On April 5, 2010, the 3rd Amended Order of Penalty Assessment was filed with the Division of Administrative Hearings. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 12. On April 12, 2010, counsel for KALT CONSTRUCTION, INC. filed a Voluntary Dismissal of KALT CONSTRUCTION, INC.’s Petition with the Division of Administrative Hearings. As a result, Administrative Law Judge Carolyn S. Holifield entered an Order Closing File, relinquishing jurisdiction of this matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit G”.
