The Issue Whether Respondent T and J Sod Service, Inc. (T and J Sod) is indebted to Petitioner for agricultural products (the sale of sod represented by Trip Tickets 11902 and 11917), and, if so, the amount of the indebtedness. Whether Respondent Great American Insurance Company is liable to Petitioner for any unpaid indebtedness owed Petitioner by T and J Sod.
Findings Of Fact At all times relevant to this proceeding, Harmon Sod was a producer of agricultural products within the meaning of Subsection 604.15(9), Florida Statutes.1 Sod is an agricultural product within the meaning of Subsection 604.15(1), Florida Statutes.2 At all times relevant to this proceeding, T and J Sod was a “dealer in agricultural products” within the meaning of Subsection 604.15(2), Florida Statutes.3 At all times relevant to this proceeding, T and J Sod was licensed as a dealer in agricultural products by the Department. At all times relevant to this proceeding, Great American Insurance Company served as surety for T and J Sod. At all times relevant to this proceeding, T and J Sod was a customer of Harmon Sod. T and J Sod purchased sod from Harmon Sod and thereafter resold and installed the sod to T and J Sod’s customers. Harmon Sod sold to its customers sod on wooden pallets. An integral part of each transaction involved the pallet. If a customer did not give Harmon Sod an empty pallet when it purchased a pallet of sod, Harmon Sod charged the customer for the sod and an additional $5.00 for the pallet. There was a dispute whether T and J Sod purchased the sod represented by Trip Ticket 19902 or by Trip Ticket 11917. Mr. Gonzalez testified that his driver did not sign for the sod on either Trip Ticket and that he did not receive the pallets of sod represented by either Trip Ticket. As to Trip Ticket 11902, the greater weight of the credible evidence established that on Friday, April 25, 2008, Harmon Sod had six extra pallets of Bahia sod. Tommy Wuchte wanted to sell the sod so it would not sit on the pallets over the weekend. Tommy Wuchte testified, credibly, that he called Mr. Gonzalez and asked if could use the sod. Mr. Gonzalez agreed to purchase the six pallets of sod. Tommy Wuchte thereafter delivered the six pallets of sod to T and J Sod and signed his name on the Trip Ticket 11902. As to Trip Ticket 11902, T and J Sod is indebted to Harmon Sod in the amount of $148.50 plus tax in the amount of $9.65 (at the rate of 6.5 percent) for six pallets of sod and $30.00 for six pallets at $5.00 per pallet, for a total of $188.15. As to Trip Ticket 1197, the greater weight of the evidence established that on Tuesday, April 29, 2008, Mr. Gonzalez called Tommy Wuchte and told him that he was sending a contract driver to pick up 18 pallets of Bahia sod. Mr. Gonzalez told Tommy Wuchte that he had fired his regular driver. On April 29, 2008, a contract driver came to the sod farm where Harmon Sod was cutting sod, and told Ronald Wuchte that he was picking up the 18 pallets of sod for T and J Sod. Ronald Wuchte loaded the 18 pallets of sod on the driver’s truck and had the driver sign Trip Ticket 1197. As to Trip Ticket 1197, T and J Sod is indebted to Harmon Sod in the amount of $445.50 plus tax in the amount of $28.96 (at the rate of 6.5 percent) for the 18 pallets of sod and $90.00 for 18 empty pallets at $5.00 per pallet, for a total of $564.46. Harmon Sod had to pay a $50.00 filing fee to file this claim, for which it is entitled to reimbursement from T and J Sod pursuant to Subsection 604.21(1)(a), Florida Statutes. T and J Sod is indebted to Harmon Sod in the total amount of $802.61.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Pursuant to Subsection 604.21(7), Florida Statutes, T and J Sod should be ordered to pay to Harmon Sod the sum of $802.61 within 15 days of the entry of the Final Order. Pursuant to Subsection 604.21(8), Florida Statutes, Great American Insurance Company, as surety, should be ordered to pay to Harmon Sod the sum of $802.61 should T and J Sod fails to timely make that payment. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 5th day of March, 2009.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a Hispanic male. Respondent is an 860-unit apartment complex in Ocala. Petitioner was employed by Respondent as a full-time maintenance technician from 2001 through September 28, 2007. His job responsibilities included performing repairs and general maintenance work on the insides of the apartments. Petitioner’s starting wage in 2001 was $9.00 per hour. He received annual raises from 2001 to 2004, at which point his wage was $11.75 per hour. Petitioner did not receive any raises from 2004 through 2007. He was still earning $11.75 per hour when he was fired on September 28, 2007. Starting in 2004, Respondent did not give raises to any maintenance technicians who were not HVAC-certified. This policy applied equally to all maintenance technicians, including non-Hispanics, and was intended to encourage them to get HVAC- certified. HVAC certification was important to Respondent because the air conditioning systems at the apartment complex were getting older and were requiring more frequent repairs. Respondent provided the necessary study materials for the HVAC certification exam and paid for the exam. Petitioner is not HVAC-certified. He took the certification exam once, but he did not pass. He did not take the exam again, even though Respondent would have paid for him to do so as it did for other maintenance technicians. HVAC certification is not required to perform all types of work on air conditioners, and Petitioner continued to do some work on the air conditioners at the apartment complex after 2004 even though he was not HVAC-certified. Petitioner was characterized as a “fair” employee who did “okay” work. His supervisor, a Hispanic male, testified that there were some jobs that he did not assign to Petitioner, that Petitioner frequently got help from other employees, and that he received a couple of complaints from other maintenance technicians about Petitioner’s work. Respondent does not have an employee handbook, and the only written policy that Respondent has is a policy prohibiting sexual and other harassment. Respondent’s executive director, Laura Smith, testified that she expected employees to use “common sense” regarding what they can and cannot do at work. Respondent utilizes a system of progressive discipline, which starts with warnings (oral, then written) and culminates in dismissal. However, the nature of the misconduct determines the severity of the discipline imposed, and a serious first offense may result in dismissal. On October 5, 2006, Petitioner was given an oral warning for “improper conduct” for visiting with a housekeeper multiple times a day for as long as 20 minutes at a time. The housekeeper also received an oral warning for this conduct. On May 15, 2007, Petitioner was given a written warning for the same “improper conduct,” i.e., wasting time by going into an apartment to visit with a housekeeper. Petitioner acknowledged receiving these warnings, but he denied engaging in the conduct upon which they were based. His denials were contradicted by the more credible testimony of his supervisor and Ms. Smith. Petitioner was fired on September 28, 2007, after a third incident of “improper conduct.” On that day, Petitioner left the apartment complex around 10 a.m. to get gas in his truck. He did not “clock out” or get permission from his supervisor before leaving the apartment complex. Petitioner was away from the apartment complex for at least 15 minutes, but likely no more than 30 minutes. Even though Respondent does not have written policies and procedures, Petitioner understood, and common sense dictates that he was supposed to get his supervisor’s approval and “clock out” before he left the complex on a personal errand. Petitioner also understood the procedure to be followed to get the 14 gallons of gas per week that Respondent provided for maintenance technicians. The procedure required the employee to get the company credit card from the bookkeeper, get the gas from a specific gas station, and then return the credit card and a signed receipt for the gas to the bookkeeper. Petitioner did not follow any aspect of this procedure on the day that he was fired. He had already gotten the 14 gallons of gas paid for by Respondent earlier in the week. Petitioner’s supervisor, a Hispanic male, compared Petitioner’s actions to “stealing from the company” because he was getting paid for time that he was not at the apartment complex working. He also expressed concern that Respondent could have been held liable if Petitioner had gotten in an accident on his way to or from getting gas because he was still “on the clock” at the time. Petitioner testified that he and other maintenance technicians routinely left the apartment complex to fill up their cars with gas without “clocking out” or getting permission from their supervisor. This testimony was corroborated only as to the 14 gallons of gas paid for each week by Respondent. There is no credible evidence that other employees routinely left the apartment complex to do personal errands without “clocking out,” and if they did, there is no credible evidence that Respondent’s managers were aware of it. There is no credible evidence whatsoever that Petitioner’s firing was motivated by his national origin. His supervisor is Hispanic, and he and Ms. Smith credibly testified that the fact that Petitioner was Hispanic played no role in her decision to fire Petitioner. Petitioner claimed that he was “harassed” by Ms. Smith and that she accused him of having sex with a housekeeper in the vacant apartments. No persuasive evidence was presented to support Petitioner’s “harassment” claim, which was credibly denied by Ms. Smith. Petitioner also claimed that he was disciplined differently than similar non-Hispanic employees, namely James Stroupe, Jason Head, and Willie Hutchinson. Mr. Stroupe is a white male. He worked on the grounds crew, not as a maintenance technician. In May 2007, Mr. Stroupe was given a written warning based upon allegations that he was making explosive devices at work, and in September 2007, he was given an oral warning for “wasting time” by hanging out in the woods with Mr. Head. Mr. Head is a white male. He worked on the grounds crew, not as a maintenance technician. In September 2007, he received a written warning for “wasting time” by hanging out in the woods with Mr. Stroupe. Mr. Hutchinson is a white male, and like Petitioner, he worked as a maintenance technician. In September 2007, he was arrested for DUI. Mr. Hutchinson was not disciplined by Respondent for this incident because it did not happen during working hours and it did not affect his ability to perform his job duties as maintenance technician. The grounds department (in which Mr. Stroupe and Mr. Head worked) was responsible for maintaining the landscaping around the apartment complex, whereas the maintenance department (in which Petitioner and Mr. Hutchinson worked) was responsible for maintaining the insides of the apartments. The departments had different supervisors. Petitioner was initially denied unemployment compensation by Respondent after he was fired, but he successfully appealed the denial to an Appeals Referee. Petitioner received unemployment compensation through April 2008. On April 11, 2008, Petitioner started working for Holiday Inn as a maintenance technician. He is employed full time and his wage is $11.50 per hour. Respondent placed an advertisement in the local newspaper after Petitioner was fired in order to fill his position in the maintenance department. The advertisement stated that Respondent was looking for an applicant who was HVAC-certified. Respondent hired Javier Herrera to fill the position. Mr. Herrera, like Petitioner, is a Hispanic male.
Recommendation Based upon the foregoing findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 16th day of September, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2008.
The Issue Whether the Respondent committed the violations alleged in the Second Amended Order of Penalty Assessment filed February 2, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Twin City is a Minnesota corporation that registered to do business in Florida on October 24, 2004. During the times material to this proceeding, Twin City was engaged in the roofing business. On July 8, 2004, an investigator employed by the Department stopped at Twin City's office in Jupiter, Florida, because he had observed vehicles parked around the office that had signs indicating that the company engaged in roofing work. He arrived at the office early, and waited about 15 minutes, when individuals began arriving in the office parking lot. Most of the individuals wore shirts that carried the name "Twin City Roofing." When he consulted the database routinely used by the Department to determine whether businesses operating in Florida had workers' compensation insurance coverage as required by Florida law, the Department's investigator found no record that Twin City had obtained a Florida policy providing workers' compensation insurance coverage for its employees. Twin City did, however, have workers' compensation insurance coverage through the Minnesota Workers' Compensation Assigned Risk Plan, which issued a Standard Workers' Compensation and Employers' Liability Policy covering Twin City only under the Workers' Compensation Law of Minnesota. Pursuant to Section 3.C. of the policy, the policy did not apply in any state other than Minnesota. The Department's investigator issued a Stop Work Order and an Order of Penalty Assessment on July 8, 2004, and personally delivered them to the Twin City office. The Stop Work Order required that Twin City "cease all business operations in this state" and advised that a penalty of $1,000.00 per day would be imposed if Twin City were to conduct any business in violation of the Stop Work Order. Twin City violated the Stop Work Order by continuing to engage in business activities on July 12 and 13, 2005. At the same time he delivered the Stop Work Order and the Order of Penalty Assessment to Twin City's office, the Department's investigator hand-delivered a Request for Production of Business Records for Penalty Assessment Calculation. Identification of Twin City's employees The Department's investigator questioned a number of the individuals he saw in Twin City's parking lot on the morning of July 8, 2005, and asked if they were employed by Twin City. On the basis of a "Turn Around Report" provided later in the day by Twin City, the Department's investigator verified that, except for Aaron Colborn, Jimmy Benegas, and Jaime Andrade, the individuals he questioned in the parking lot were leased employees and that the leasing company provided these employees with workers' compensation insurance coverage, as required by Florida law. Aaron Colborn and Jimmy Benegas were not leased employees, and, based on the admission of Twin City, Aaron Colborn and Jimmy Benegas were employees of Twin City during the period extending from October 24, 2004, through July 8, 2005.3 Jaime Andrade was one of the individuals standing outside the Twin City office on the morning of July 8, 2004. Unlike the other individuals, Mr. Andrade was not wearing a shirt bearing Twin City's name. Mr. Andrade told the investigator that he was a Twin City employee, that he had been employed for only two days, and that he had not yet been paid. His name did not appear on the list of leased employees provided in the Turn Around Report. The Department's investigator included Mr. Andrade as an employee of Twin City based on Mr. Andrade's statements. The evidence presented by the Department is not sufficient, however, to establish that Jaime Andrade was an employee of Twin City during this period. The investigator also spoke with several individuals in the Twin City office during his early-morning visit on July 8, 2004, and during a visit later that morning. The investigator spoke with James Geisen, the president of Twin City, and Jeffrey Willett, Mr. Geisen's stepson, who both identified themselves as Twin City employees. The investigator also observed Karen Geisin, James Geisen's wife, apparently working at a desk in the office, and he assumed that Mrs. Geisen was also an employee of Twin City. Twin City does not dispute that Mr. Geisen and Mr. Willett were employed by Twin City during the time it did business in Florida.4 Mr. Geisen worked in Florida with Twin City for approximately half of the period extending from October 24, 2004, through July 8, 2005, and was paid a salary by Twin City during this period. Mr. Willett worked in Florida with Twin City for approximately half of the period extending from January 1, 2005, through July 8, 2005, and was paid a salary by Twin City during this period. Mr. Geisen and Mr. Willett were, therefore, imputed to be employees of Twin City for the period extending from October 24, 2004, through July 8, 2005. Mrs. Geisen often accompanied her husband to Florida during the period extending from October 24, 2005, through July 8, 2005. She sometimes worked for Twin City in Florida, but she did not receive any salary or other remuneration for her services. Based on the admission of Twin City, however, Mrs. Geisen was an employee of Twin City during the period at issue.5 The employees of Twin City for the period at issue, therefore, were James Geisin, Karen Geisin, Jeffrey Willett, Aaron Colborn, and Jimmy Benegas. Penalty assessment for failure to secure workers' compensation coverage. The penalty for failure to secure the workers' compensation insurance coverage required by Florida law is 1.5 times the premium that would have been charged for such coverage for each employee. The premium is calculated by applying the approved manual rate for workers' compensation insurance coverage for each employee to each $100.00 of the gross payroll for each employee. Twin City failed to provide payroll records on which the Department's investigator could base his calculation of the penalty for Twin City's failure to obtain the workers' compensation insurance coverage required by Florida law within 45 days of the date of the July 8, 2005, request. Based on his observations and because of the lack of payroll records for Twin City, the Department's investigator included as employees in his calculation the six individuals he observed at Twin City on July 8, 2005, who were not identified as leased employees: James Geisen; Karen Geisen; Jeff Willett; Aaron Colborn; Jimmy Benegas, and Jaime Andrade. Because Twin City failed to provide payroll records from which the Department's investigator could determine the gross payroll for these six individuals, the Department's investigator applied Florida's official statewide average weekly wage to determine the gross payroll to be imputed to each of the six individuals. Florida's official statewide average weekly wage was $626.00 per week for the period extending from October 24, 2004, through December 31, 2004, and $651.38 for the period extending from January 1, 2005, through July 8, 2005. The gross payroll imputed to each of the six employees was, therefore, $9,770.70 from October 24, 2004, through December 31, 2004, and $26,380.89 from January 1, 2005, through July 8, 2005. In calculating the premium for workers' compensation insurance coverage, the Department's investigator used the risk classifications and definitions of the National Council of Compensation Insurance, Inc. ("NCCI") SCOPES Manual. Because Twin City provided no payroll records, the Department's investigator classified all six individuals under the highest- rated classification for Twin City's business operations, which was classification code 5551, the classification code assigned to employees of businesses engaged in roofing activities of all kinds. The approved Florida manual rate assigned to Scopes classification code 5551 was $46.17 per $100.00 of payroll for the period extending from October 24, 2004, through December 31, 2004, and $37.58 per $100.00 of payroll for the period extending from January 1, 2005, through July 8, 2005. The Department's investigator used these figures to calculate the workers' compensation insurance coverage premium for each of Twin City's employees as $4,511.13 for the period extending from October 24, 2004, through December 31, 2004, and $9,913.94 for the period extending from January 1, 2005, through July 8, 2005, for a total premium of $86,550.42. The penalty assessment was calculated by multiplying the total premium by 1.5, for a penalty of $129,825.66. Because the evidence establishes that Twin City had five rather than six employees during the period at issue herein, the penalty calculation must be modified as follows: The total penalty must be reduced by $21,637.61 ($6,766.70 + $14,870.91), for a revised total penalty of $108,188.05 ($129,825.66 - $21,637.61).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Twin City Roofing Construction Specialists, Inc., failed to have Florida workers' compensation insurance coverage for five of its employees, in violation of Sections 440.10(1)(a) and 440.38(1), Florida Statutes; Assessing a penalty against Twin City in the amount of $108,188.05, which is equal to 1.5 times premium based on imputed payroll for these five employees and on the approved manual rate for the classification code 5551 for the period extending from October 24, 2004, through December 31, 2004, and from January 1, 2005, through July 8, 2005, as provided in Section 440.107(7)(a), (d), and (e), Florida Statutes; Finding that Twin City engaged in business operations for two days during the pendency of the Stop Work Order issued July 8, 2005, in violation of Section 440.107(7)(a), Florida Statutes, and imposing a penalty of $2,000.00, against Twin City for engaging in business operations on July 12 and 13, 2005, as provided in Section 440.107(7)(a) and (c), Florida Statutes. DONE AND ENTERED this 30th day of August, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2006.
Findings Of Fact Petitioners', Joseph and Shelly Grainger, are husband and wife. They have one five year old son, Christopher Grainger. Joseph Grainger is the primary wage-earner for the family. At present, Joseph Grainger is unemployed due to a back problem. His previous employment was with a parcel shipping company. Due to his unemployment, Mr.Grainger is receiving approximately $653.00 a month in unemployment benefits. He will receive unemployment benefits until December, 1990, when his unemployment benefits terminate. As a recipient of unemployment benefits, Mr. Grainger must actively seek employment and is considered to be employable by the State. Proposed Rule 10C-1.11 Florida Administrative Code, implements federal and State law requiring the Department to furnish Aid to Families with Dependent children to indigent families whose principal wage-earner is unemployed (AFDC- UP). The law and the proposed Rule require the principal wage-earner to participate in the Job opportunities and Basic Skills program (JOBS). Florida has mandated that the spouse of the principal wage-earner also participate in the JOBS program, if funds are available. For AFDC-UP purposes, the Graingers constitute a three person assistance group. The assistance group determines the amount of benefits an applicant1 may receive if the applicant qualifies under the myriad eligibility requirements of the AFDC-UP program. The assistance group also sets the amount of income an assistance group may not exceed and still qualify for AFDC-UP. In this case, the Graingers' income limit is $294.00. Clearly, because of the amount of unemployment benefits Mr. Grainger is receiving, the Graingers do not now qualify for AFDC benefits and are not now receiving AFDC benefits which will be impacted by the proposed Rule. Since the Graingers are not now qualified for the AFDC-UP program and Mr. Grainger is employable, they have not established that they will suffer an injury from the proposed Rule's implementation of sufficient immediacy to entitle them to a hearing under s 120.54, Florida Statutes. See Agrico Chemical v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, (Fla. 1st DCA 1979); Florida Department of Offender Rehabilitation v. Jerrv, 353 So.2d 1230 (Fla. 1st DCA 1978); and Village Park Mobile Home Association v. State Department of Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987). Accordingly, the Graingers do not have standing to challenge the proposed rule. Based on the foregoing Findings of Fact and Conclusions Of Law and being otherwise fully advised in the premises, IT IS ORDERED that the Petitions filed in Case Nos. 90-5157RP and 5158R are dismissed and the Division's files closed. DONE and ORDERED this 2nd day of October, 1990, in Tallahassee, Florida. DIANA CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. COPIES FURNISHED: Cindy Huddleston Florida Legal Services, Inc. 2121 Delta Way Tallahassee, Florida 32303 Scott LaRue Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Liz Cloud, Chief Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue Whether respondents owe petitioner money on account of sales of potatoes?
Findings Of Fact In order to finance his 1991 crops, petitioner Daniel Methvin of Hastings, had to borrow money at the end of the year before. To do that, he was told, he needed to execute contracts for the sale of the potatoes he intended to grow. He had been glad to have future contracts for the 1990 season, when a glut of potatoes pushed the price below three dollars a hundredweight (cwt). Respondent J.P. Mach Agri-Marketing, Inc. (or the company of which it is a subsidiary) had honored those contracts and paid considerably more than the market price for potatoes then. On November 24, 1990, Mr. Methvin executed a contract entitled "Sales Confirmation" agreeing to sell 10,000 cwt of "REPACK REDS", Petitioner's Exhibit No. 1 ("92% US #1 INCH AND 1/2 MIN. AT LEAST 95% SKIN, Id.) to J.P. Mach, Inc. during the period April 28 to May 31, 1991, at $6.50 per cwt. Petitioner's Exhibit No. 1. Consolidating smaller, earlier agreements, Mr. Methvin executed another contract entitled "Sales Confirmation" agreeing to sell 45,000 cwt of Atlantics ("85% U.S. #1") to J.P. Mach, Inc. during the period April 28 to May 31, 1991, at $5.75 per cwt, guaranteeing the potatoes would be suitable for chips. Petitioner's Exhibit No. 2. With these contracts (or, as to the chipping potatoes, their predecessors) as collateral, Mr. Methvin raised the funds necessary to plant. Both contracts between Mr. Methvin and J.P. Mach, Inc. had "act of god clauses" excusing Mr. Methvin's nondelivery of potatoes he failed to harvest on account of, among other things, tornadoes or hail. As it happened, tornadoes and hail prevented Mr. Methvin's reaping all he had sown. Petitioner only harvested 6,300 cwt of red potatoes and approximately 43,000 cwt of Atlantic potatoes. Another result of the bad weather was extremely high market prices, at some times exceeding $20 per cwt. On April 27, 1991, J.P. Mach visited Mr. Methvin's farm and the two men discussed incentives to keep Mr. Methvin from "jumping his contract," i.e., selling his potatoes to others at the market price. In the course of their conversation, Mr. Methvin said he needed to realize $450,000 from that year's potatoes; and Mr. Mach replied, "I will help you out", and "I will keep you in business." There was general talk of incentives and bonuses. Eventually, Mr. Mach said he would pay a premium over the contract price if Mr. Methvin fulfilled the original contracts to the fullest extent possible, by delivering all the potatoes he had; and Mr. Mach began remitting premium prices, as promised. On June 1, 1991, however, Mr. Methvin advised Mr. Mach of his intention to sell what remained of his harvest, some 1100 cwt of Atlantics, on the open market. When he carried through on this, Mr. Methvin realized approximately $200,000. Even at that, he lost $40,000 that season. Meanwhile Mr. Mach and his companies were sued for $550,000 for failure to deliver potatoes; and were not paid another $172,000 for potatoes they shipped to chip plants and others to whom they had promised still more potatoes. (Mr. Methvin was not the only grower who defaulted on contracts to ship potatoes to J.P. Mach, Inc.) As of June 1, 1991, Mr. Mach, his companies or his agents had paid Mr. Methvin "about $200,000," which was more than the contract price of the potatoes Mr. Methvin had loaded. Neither Mr. Mach nor his companies paid Mr. Methvin anything after June 1, 1991. At hearing, Mr. Methvin calculated the value of the loads as to which nothing had been remitted as of June 1, 1991, as "a few hundred more than $36,000," assuming the contract price plus the premium. But Mr. Mach and his companies or employees recalculated the price of the loads he had paid for by eliminating the premium, since Mr. Methvin had not, as promised on his side, delivered all his potatoes. J.P. Mach, Inc. was duly licensed during the 1990 season. After its license lapsed, a new license was issued to J.P. Mach Agri-Marketing, Inc. on April 24, 1991. A $50,000 certificate of deposit was filed with First Performance Bank as a condition of licensure.
Recommendation It is, accordingly, RECOMMENDED: That petitioner's complaint be denied. DONE and ENTERED this 3rd day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1992. COPIES FURNISHED: Daniel Methvin Route 1, Box 92 Palatka, Florida 32131 Jeffrey P. Mach, President J. P. Mach Agri-Marketing, Inc. P.O. Box 7 Plover, Wisconsin 54467 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agricutlure 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Should discipline be imposed by Petitioner against Respondent's licenses as a life agent (2-16), life and health agent (2-18), and health agent (2-40), held pursuant to Chapter 626, Florida Statutes (2004)?
Findings Of Fact Respondent in accordance with Chapter 626, Florida Statutes (2005), currently holds licenses as a life agent (2- 16), life and health agent (2-18), and a health agent (2-40). On June 24, 2003, in an Administrative Complaint brought by Petitioner against Respondent, also under Case No. 64776-03-AG, accusations were made concerning violations of Chapter 626, Florida Statutes (2003). On October 4, 2004, the parties resolved the earlier case through a settlement stipulation for Consent Order. On October 20, 2004, the Consent Order was entered. In pertinent part the Consent Order stated: The Settlement Stipulation for Consent Order dated October 11, 2004, is hereby approved and fully incorporated herein by reference; * * * (c) Respondent agrees that he has a continuing obligation for claims, which may not have arisen or otherwise be known to the parties at the time of the execution of the Settlement Stipulation for Consent Order and this Consent Order Respondent shall be responsible for satisfying claims that were covered under the Plans sold by Respondent, up to the amount covered by such Plan, less any applicable deductibles or co-payments. Respondent may attempt to negotiate with the providers for compromised amounts, but any such compromise must result in the release of the consumer from any responsibility for the amounts that would have been covered under the terms of such Plan, less any applicable deductibles or co-payments; * * * (f) Within ninety (90) days following the issuance of this Consent Order, the Respondent shall complete the Section 626.2815(3)(a), Florida Statutes, continuing education requirement relative to unauthorized entities; * * * Within thirty (30) days of the issuance of this Consent Order, Respondent agrees to pay to the Department, a fine, in the amount of ONE THOUSAND AND 00/100 ($1,000.00) DOLLARS. Within ninety (90) days following the issuance of this Consent Order, Respondent shall satisfy any unpaid claims for persons insured under the Local 16 Plans he sold, including claims which may not have arisen or otherwise be known to the parties at the time of the execution of the Settlement Stipulation for Consent Order and this Consent Order. Respondent shall only be responsible, however, for satisfying claims that were covered under the Plans sold by Respondent, up to the amount covered by such Plan, less any applicable deductibles or co- payments. Respondent may attempt to negotiate with the providers for compromised amounts, but any such compromise must result in the release of the consumer from any responsibility for the amounts that would have been covered under the terms of such Plan, less any applicable deductibles or co- payments; Within one hundred (100) days following issuance of this Consent Order, the Respondent shall provide proof to the Department that the full amount of claims or losses under all contracts or health plans solicited or sold by Respondent on behalf of Local 16 have been paid or satisfied. Failure of the Respondent to comply with this paragraph shall constitute a material breach of this Consent Order, unless otherwise advised in writing by the Department; Respondent in the future shall comply with all the terms and conditions of this Consent Order; and, shall strictly adhere to all provisions of the Florida Insurance Code, Rules of the Department, and all other laws of the State of Florida. The Respondent shall give the Department full and immediate access to all books and records relating to the Respondent's insurance business, upon request; If, in the future, the Department has good cause to believe that the Respondent has violated any of the terms and conditions of this Consent Order, the Department may initiate an action to suspend or revoke the Respondent's license(s) or appointments, or it may seek to enforce the Consent Order in Circuit Court, or take any other action permitted by law; Respondent paid the $1,000.00 administrative fine required by the Consent Order, but the payment was 20 days late. Respondent completed the continuing education on unauthorized entities. He completed the course on June 3, 2005, beyond the deadline called for in the Consent Order by a number of months. Respondent took the course at Florida Community College in Jacksonville, Florida, an institution that he was familiar with. He took the course to be completed on June 3, 2005, because it was the earliest course available at that school. Respondent was unfamiliar with other schools who may have offered the course at a time that would meet the due date set forth in the Consent Order. Consistent with the expectations in the Consent Order, Petitioner's employees have reviewed their files to determine whether Respondent has satisfied unpaid insurance claims in relation to the insurance plan for Local 16. Those employees involved in that review are Kerry Edgill, a legal assistant in the Legal Division in charge of complaint settlements and Pamela White who works with the Division of Consumer Services as a senior management analyst. Neither employee found any evidence that Respondent had satisfied the unpaid insurance claims as called for in the Consent Order. In correspondence from Respondent to Petitioner's counsel in this case, dated December 6, 2004, there is no indication that the unpaid insurance claims have been satisfied. Respondent in his testimony explained the extent to which he had attempted to determine who had outstanding unpaid insurance claims. Respondent went to the location where Local 16 union members were employed. His contact with union members had to be outside the building proper. He spoke to several members at that time. This contact took place on June 1, 2005. Respondent identified the persons contacted as James, Luther, Gregory, and Michael. Michael's last name may have been Williams, as Respondent recalls. Of the persons Respondent spoke with on June 1, 2005, none of them had an unpaid insurance claim which needed to be satisfied. Respondent provided correspondence to a person or persons whose name(s) was or were not disclosed in the testimony. The June 6, 2005, correspondence was addressed to the Amalgamated Transit Union, in reference to insurance claims for Local 16. Respondent's Exhibit Numbered 17 is a copy of that correspondence. In the body of the correspondence it stated: June 6, 2005 Amalgamated Transit Union Local 1197 P.O. Box 43285 Jacksonville, FL 32203 Re: Claims for Local 16 To union members and trustees, This letter is to follow up me meeting members at the station on June 1, 2005 to discuss any issues or concerns that you may be or have had relating to the unpaid claims with Local 16 National Health Fund. Although, I feel I am not responsible for the issue I would gladly help assist with resolving any problems or concerns that you may have. Should any members have any correspondents that need immediate attention please forward them to me at: David Bright, P.O. Box 441963, Jacksonville, FL 32222. Should you need to speak to me I can be reached at 904-207-0141. Thanks for your cooperation in this long due matter! In relation to what Respondent refers to as accounts for Local 16 which he was servicing, that refers to insurance coverage, it involved a couple of hundred insureds. Respondent in his testimony acknowledged that union members had insurance claims that were unpaid.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 626.611(7) and (13), and 626.621(2) and (3), Florida Statutes (2004), finding no violation of Section 626.611(9), Florida Statutes (2004), or 626.9521, Florida Statutes (2004), and suspending Respondent's respective licenses as a life agent (2-16), life and health agent (2-18), and health agent (2-40), for a period of six (6) months. DONE AND ENTERED this 7th day of October, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2005.
The Issue Whether Respondents have engaged in the unauthorized practice of insurance in the State of Florida, and if so, the penalties that should be imposed. Respondents raise as an affirmative defense the assertion that the provisions of the Employee Retirement Income Security Act (ERISA) 29 U.S.C. Section 1001, et seq., preempt the regulation of Respondents' activities in the State of Florida by the Florida Insurance Code.
Findings Of Fact Petitioner, the Florida Department of Insurance, is charged with the duty of enforcing the Florida Insurance Code. These duties include the regulation of entities engaged in the business of insurance within the State of Florida.1 Respondent Consolidated Local Union 867 (Local 867) is an unincorporated "labor organization" under the Labor Management Relations Ac-t, also known as the Taft-Hartley Act, 29 U.S.C. Section 152(4) and (5) and is an "employee organization" as defined by Section 1002(4) of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. Sections 1001, et seq. The principal office of Local 867 is at 333 North Broadway, Jericho, New York. Respondent Consolidate Welfare Fund (CWF) was established effective October 1, 1988, by a Trust Agreement entered into by persons purporting to be trustees of Local 867 and by persons purporting to be trustees of employers.2 The stated purpose of CWF was to provide medical, surgical, and hospital care benefits to its participants in the event of sickness, accident, disability, or death. During the years 1989 through 1991, Local 867 and CWF contracted to provide participating Florida residents specified health and hospitalization benefits so that those participants would be indemnified against the enumerated health care costs necessitated by injury or illness. In exchange, Respondents received the payment from those participants of an established fee or premium. CWF was initially fully insured by Empire Blue Cross & Blue Shield (Empire), an insurance company based in the State of New York. Since July 1, 1990, CWF has been fully self- insured. CWF is operating at a substantial deficit ($4,196,480 at the time of the formal hearing), and substantial claims from Florida consumers remain unpaid. The loss ratio at which CWF operated was, at the time of the formal hearing, approximately 122% with health claims exceeding premiums received. Neither Local 867 or CWF ever held a Certificate of Authority to engage in any aspect of the insurance business as required by Section 624.401, Florida Statutes. At no time pertinent to these proceedings was Empire the holder of a certificate of authority to transact business in the State of Florida. Local 867 is governed by a constitution which has been filed with the Secretary of the United States Department of Labor (Secretary of Labor). Its constitution creates Consolidated Local Union 867 and provides, in pertinent part, as follows: ARTICLE III JURISDICTION This organization has jurisdiction to organize, admit to membership and represent all workers, including without limitation, automobile sales, service and maintenance employees, delivery and oil truck drivers, and miscellaneous employees and all such other persons as may from time to time be determined by the Executive Board. ARTICLE IV OBJECT AND PURPOSE To unite in one organization, regardless of religion, race, color, and sex, nationality or national origin, workers eligible to become, members, To organize unorganized workers and improve their working conditions. To advance, maintain, and protect, at all times, the welfare and interest of the members of this Union. ARTICLE V MEMBERSHIP A. Any person who is employed in a capacity which makes him eligible for Union membership and who is not a member of an organization whose philosophy runs counter to democratic American principles may apply for membership in this Union. The CWF Trust Agreement provides, in pertinent part, as follows: The sole purpose of the Fund is to provide welfare benefits permitted by law to employees and their beneficiaries to the extent that the Trustees determine feasible and to defray the expenses of doing the same. It is intended that the Fund promulgated hereto shall be a "multi- employer plan" . . . within the meaning of ERISA. There were at one time between 1989 and the date of the formal hearing approximately 98 employer groups in Florida affiliated with Local 867 or CWF with approximately 1,000 covered employees. Local 867 is a party to collective bargaining agreements with various employers in different states. There was evidence that Local 867 has relations with employee groups in approximately 15 states, including Florida. These collective bargaining agreements typically pertained to wages, hours of employment, seniority, holidays, vacations, adjustment of disputes, contributions to the CWF for plan benefits, and contributions to the Consolidated Welfare Fund Security Division for pension coverage. By the agreement executed by Local 867 and these various employer groups, more than one employer was required to make contributions to the CWF for plan benefits. Respondents introduced as their Exhibit 3 an agreement dated July l, 1989, between Consolidated Local Union 867, ". . . acting on behalf of itself and the employees covered by this Agreement, now employed or hereafter employed by the Employer and HIG Assoc. Inc. . . ." of Plainview, N.Y. (HIG was referred to in the agreement as the "Employer")." HIG recognized Local 867 as its "duly authorized representative and exclusive bargaining agent" for all full-time employees. Respondents introduced as their Exhibit 19 an agreement dated February 1, 1991, between Consolidated Local Union 867, "acting on behalf of itself and the employees covered by this Agreement, now employed or hereafter employed by Employer and Business Marketing Consultants, 333 N. Broadway, Suite 2000A, Jericho, NY 11753 (hereinafter called the "Employer"). Business Marketing Consultants (BMC) recognized Local 867 as its "duly authorized representative and exclusive bargaining agent" for full time employees. The relationship between Respondents and Florida residents was typically initiated by a Florida employer seeking to obtain group insurance benefits for its employees. CWF provides life, health, accident, and death benefit insurance coverage to Florida employees similar to that offered by traditional insurance companies, frequently at costs lower than those insurance companies for equivalent coverage. The actual solicitation and marketing of the insurance benefits offered by CWF was carried out by licensed insurance sales persons and insurance brokers. For the transactions testified to at hearing, the purpose of the contact between the employer and the insurance agent was to discuss insurance, not the unionization of the employer's employees. In each instance about which there was testimony, the agent would describe the plan offered by Respondents, which offered rates below those quoted by other programs. The employers secured the benefits by applying for membership in an association such as HIG or BMC whereby the employer group became members of the association for the purpose of "all labor relation matters" as they affected "all full time employees" and agreed to the "terms and conditions" of an agreement between the association and Local 867. For the employer groups in Florida, forms styled "Application for Membership and Ratification" were submitted pertaining to Mishkin, Horowitz and Boas, P.A., Gross and Telisman, P.A., and Key Colony Homeowners Association, Inc. A separate "Application for Membership and Ratification" was executed by HIG and by Key Colony Homeowners Association, Inc. (on November 17, 1989), Gross and Telisman, P.A. (on November 28, 1989), and by Mishkin, Horowitz and Boas, P.A. (on December 7, 1989). These agreements were identical with the exception of the dates and the parties. By each application, the employer group applied for membership in HIG, appointed HIG as its exclusive bargaining agent for all labor relation matters as they affect all full-time employees, and agreed "to the terms and conditions of a certain Collective Bargaining Agreement by and between HIG and Consolidated Local Union 867 . . . dated March 1, 1989, covering all full-time employees." No agreement between Consolidated Local Union 867 and HIG Associates dated March 1, 1989, was introduced as an exhibit in this proceeding. Consequently, while it may be reasonably inferred that the agreement dated March 1, 1989, was similar to Respondents' Exhibit 3 dated July 1, 1989, Respondents failed to establish the terms and conditions to which these employer groups agreed. A separate "Application for Membership and Ratification" was executed by BMC and by Key Colony Homeowners Association, Inc., on October 1, 1990, and by Mishkin, Horowitz and Boas, P.A. on September 27, 1990, and on April 21, 1991. These agreements were entered after the entry of the immediate final order on September 10, 1990, and were identical with the exception of the dates and the parties. By each application, the employer group applied for membership in BMC, appointed BMC as its exclusive bargaining agent for all labor relation matters as they affect all full-time employees, and agreed "to the terms and conditions of a certain Collective Bargaining Agreement by and between BMC and Consolidated Local Union 867 . . . dated September 1990, covering all full-time employees." Although it appears from the evidence presented that a similar form was submitted on behalf of Wickstorm Publishers, that form was not introduced into evidence. The employees who wished to be covered by the Respondents' plan were required to become a member of Local 867. A portion of the monthly payments paid by these employees for this coverage was for union dues. Irving W. Mishkin of Mishkin, Horowitz & Boas, P.A. signed a card applying for membership in Local 867 in order to qualify for the plan benefits. Mr. Mishkin never requested a copy of Local 867's constitution, never asked how he could exercise his right to vote for union officers, never requested Local 867 to name a shop steward, and never asked for a copy of the agreement between Local 867 and BMC. Mr. Mishkin was aware that the invoice he received each month included an amount for union dues. Donald Haug, the general manager of Key Club Number Two, a constituent of Key Colony Homeowners Association, was aware that all covered employees would have to become members of Local 867 to qualify for the health plan benefits and that invoices covering contributions for health coverage also included an amount for union dues. There was no commonality of interest among the Florida participants in the CWF plan. Respondents were unable to establish that the relationship between the consumers in Florida and Respondents was anything other than the relationship between an insurer and an insured. The relationship between Florida consumers and Respondents consisted only of the payment of premiums and the filing of claims. There was no evidence that either Respondent engaged in any traditional union activity on behalf of any member in the State of Florida. During the course of the investigation into Respondents' activities, Petitioner received no complaint that there was not a shop steward at the pertinent places of business or that there were no union elections. There was no evidence that any Florida employee requested and was refused a copy of any collective bargaining agreement or a copy of Local 867's constitution. All complaints from Florida employers or employees pertained to unpaid claims. On or about September 10, 1990, the Petitioner filed the Notice and Order to Show Cause against the Respondents which triggered this administrative proceeding and which included an immediate final order for the Respondents to cease and desist subscribing new health plan participants in Florida pending the resolution of this administrative proceeding. On October 22, 1990, Respondents filed an action in the United District Court, Northern District of Florida, Tallahassee Division (CIV. No. 90-40228-WS) seeking an order which declares that certain portions of the Florida Insurance Code have been preempted by ERISA and which enjoins Petitioner from proceeding against the Respondents in this administrative proceeding. That action was pending as of the date of the formal hearing. In a proceeding brought in the United States District Court of the Southern District of New York by the Secretary of Labor against Consolidated Welfare Fund and others, a consent order was entered June 13, 1991, which imposed a moratorium on the payment of claims by CWF. Because of that moratorium, the CWF claims are not being processed or paid. Even without this moratorium, the evidence establishes that CWF is not financially capable of satisfying its claimants and its viability is questionable. There was no evidence that any advisory opinion has been issued by the United States Department of Labor or that any order has been entered by a court of competent jurisdiction which determines that Petitioner is precluded from regulating the activities of Respondents in the State of Florida because the provisions of ERISA preempt the Florida Insurance Code. The Secretary of Labor has not found any of the agreements pertinent to this proceeding to be collective bargaining agreements. There was no evidence that the Secretary of Labor has promulgated any other requirements relating to the definition of the term "multiemployer plan" under ERISA, 29 U.S.C. Section 1002(37)(A). Those responsible for the maintenance and operation of the benefit plan offered by Respondents had substantial experience within the insurance industry. Entities with substantial experience in the business of insurance aided in the marketing and operation of CWF. Those responsible for the maintenance, operation, administration, and marketing of the benefit plan offered by Respondents were compensated in the form of commissions or administrative fees and salaries that were paid from membership dues, pension contributions, and welfare fund contributions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondents engaged in the unlawful transaction of the business of insurance in the State of Florida without the requisite certificate of authority, which orders Respondents to cease and desist from the unauthorized transaction of insurance in the State of Florida, and which imposes an administrative fine against said Respondents in the total amount of $10,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1992. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992.
The Issue Whether a non-rule policy adopted by the Agency for Health Care Administration that retroactively applies a statute that became effective in May of 2001 constitutes an unpromulgated rule.
Findings Of Fact The Respondent, Agency for Health Care Administration, is the state agency charged with the responsibility of regulating skilled nursing facilities within the State of Florida pursuant to Chapter 400, Florida Statutes. The Petitioner, HHCI Limited Partnership, operates or controls three licensed skilled nursing facilities identified in this record: Harborside Healthcare-Pinebrook, Harborside Healthcare-Sarasota, and Harborside Healthcare- Naples. All of these facilities are subject to the provisions of Chapter 400, Florida Statutes. During the 2001 session the Florida Legislature amended Section 400.121(3), Florida Statutes. Such amendment became effective on May 15, 2001. The amendment provides, in pertinent part: The agency shall revoke or deny a nursing home license if the licensee or controlling interest operates a facility in this state that: Has had two moratoria imposed by final order for substandard quality of care as defined by Title 42, C.F.R., part 483, within any 30-month period; Is conditionally licensed for 180 or more continuous days; Is cited for two class I deficiencies arising from unrelated circumstances during the same survey or investigation; or Is cited for two class I deficiencies arising from separate surveys or investigations within a 30-month period. Since May 15, 2001, the Respondent has not promulgated or enacted any formal rule or written policy statement regarding its interpretation of or the implementation of Section 400.121(3)(d), Florida Statutes (2001). To support its position in this cause, the Respondent relies on the plain and unambiguous language of the statute and maintains it is mandated to comply with the law. Moreover, it maintains the statute does not direct rule-making. On October 2, 2001, the Respondent filed Administrative Complaints against the Petitioner. Each of the facilities identified above was served. As to each complaint the Respondent alleged that Section 400.121(3)(d), Florida Statutes (2001), authorized the proposed action (the revocation of the license to operate). More important, as to each complaint, the Respondent acknowledges that the actions complained of, i.e. the acts constituting the underlying offenses, occurred prior to May 15, 2001. None of the cited facilities has been served with a notice of a class I deficiency that would have occurred subsequent to May 15, 2001. The three license revocation cases were forwarded to the Division of Administrative Hearings for formal proceedings and were assigned DOAH Case Nos. 01-4124, 01-4125, and 01-4126. The allegations in DOAH Case No. 01-4124 against Harborside Healthcare-Pinebrook aver that the facility was cited for class I deficiencies in July and September of 2000. Notwithstanding the foregoing, in February of 2001, the Respondent issued a standard license to that facility. In DOAH Case Nos. 01-4125 and 01-4126, the facilities face administrative action because they are controlled by HHCI Limited Partnership. In framing the allegations against Harborside Healthcare-Sarasota and Harborside Healthcare-Naples, the Respondent relies on the class I deficiencies cited against Harborside Healthcare- Pinebrook set forth above. Following the entry of the Administrative Complaints, the Respondent notified residents of the facilities that actions were pending to revoke the licenses of the facilities. Such notice further advised the residents that the facilities would be closed in approximately 60 days. The Petitioner's attempt to obtain injunctive relief against the Respondent failed.
