Findings Of Fact The Petitioner is a manager of real estate specializing in condominiums. It was incorporated in Florida on August 30, 1978, as Property Management, Inc. at the address of its attorney and registered agent, Mr. Michael L. Hyman, Suite 400, 28 W. Flagler Street, Miami, Florida 33130. The corporation was involuntarily dissolved by the Secretary of State on December 5, 1979, for failure to file its annual report and pay its annual report filing fee. Petitioner admits that it was delinquent in submitting its annual report and filing fee, but contends that it was entitled to notice of delinquency prior to involuntary dissolution and reissuance of its corporate name. Through testimony of Petitioner's president and corporate counsel's secretary, who opens and distributes incoming mail, Petitioner established that it had not received any of the three notices discussed below. Rather, Petitioner learned of the dissolution in February, 1980, when it sought telephone service. It then submitted the annual report and filing fee which were received by the Secretary of State on March 17, 1980. By that time the name Property Management, Inc. had been issued to another corporation and was not available. Petitioner was therefore reinstated as Property Management of South Florida, Inc. The following notices relevant to this proceeding were prepared by the Secretary of State: January, 1979: Notices to all Florida corporations that annual reports and filing fees were due by July 1, 1979. September 1, 1979: Reminder notices to delinquent corporations that dissolution would follow if annual reports and filing fees were not submitted within 90 days. December 5, 1979: Certificates of dissolution issued to corporations which failed to submit the reports and filing fees. The above notices were prepared from computer data and were transmitted by ordinary mail. Respondent produced a computer printout with Petitioner's correct name and address showing dissolution on December 5, 1979. However, no evidence was adduced to establish that this notice or either of the preceding notices were actually mailed to Petitioner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's request for return of the name Property Management, Inc. be DENIED. DONE and ENTERED this 29th day of July, 1980, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael L. Hyman, Esquire Suite 400 Roberts Building 28 West Flagler Street Miami, Florida 33130 William J. Gladwin, Jr., Esquire Office of the Secretary of State The Capitol Tallahassee, Florida 32301
Findings Of Fact At all material times, Respondent was a career-service employee of Respondent. She served as a health service representative assigned to the Seminole County Public Health Unit. Her specific task was to investigate and follow up on contacts for sexually transmitted diseases. Petitioner's Employee Handbook, which Respondent received when she was hired, states: You may request annual leave for any purpose desired, but you must obtain Your supervisor's approval before taking annual leave. If an emergency develops, tell your supervisor of the emergency and ask for verbal approval to use annual leave. When you return to work, complete the leave request form for your supervisor's signature. The Handbook also Provides that certain employees are entitled to one eight-hour personal holiday "at a time which is mutually agreeable to the individual and the immediate supervisor." The local policy of the Seminole County Public Health Unit required each employee to request leave by filling out the back of a timesheet. In this manner, the employee would show the type of leave requested, the date and time of the leave, the employee's initials. The form provided spaces for the signature of the supervisor and the date described in detail in the Paragraph 5 below. The back of the timesheet states: "All Leave and Overtime must be requested and approved in advance." The Handbook requires advance approval of annual leave. Although the blanket statement on the back of the timesheet requires advance approval of all leave and overtime, the Seminole County Public Health Unit routinely did not require advance approval for all types of leave. For instance, sick leave, overtime, and annual leave for less than a few hours were normally approved after the fact. On at least two occasions, including one involving Respondent, annual leave for an entire day was also approved after it had beef taken. However, the Seminole County Public Health Unit normally requires advance approval of annual leave for a Period of one day or more. The instructions on the timesheet direct that the date next to the supervisor's signature indicate the date of the request for leave. Consistent with the varying policies governing leave, the date beside the supervisor's signature on the timesheet was used to show the date of approval of a request for annual leave and the date of the request for sick leave and certain other types of leave. By negative implication, the Handbook also requires written approval of annual leave for nonemergencies because it expressly permits "verbal approval" for annual leave for emergencies. There are no requirements in the Handbook or the timesheets for written approval of requests for other forms of leave, and the Seminole County Public Health Unit did not maintain enforceable policies to that effect. Two persons were authorized to approve requests of Respondent for annual leave. The first person was Charlotte Blades, who was the coordinator of the sexually transmitted disease program of the Seminole County Public Health Unit. Ms. Blades was Respondent's immediate supervisor The other person authorized to approve requests for annual leave was Bernice Duncan, who was the senior community health nurse of the Seminole County Public Health Unit and Ms. Blades' supervisor. In practice, the written approval of Ms. Blades could be revoked by Ms. Duncan. On one occasion, Respondent requested eight hours' annual leave to attend her son's high school graduation on June 9, 1989. Ms. Blades signed the timesheet on May 23, 1989. Between that date and the date of the leave, Ms. Duncan told Respondent that, although Ms. Blades had signed the timesheet, the leave was not approved. Ultimately, Respondent received approval for leave through 2:30 p.m., rather than 5:00 p.m., on the day of the graduation. In late July or early August, 1989, Respondent submitted a timesheet requesting 32 hours' annual leave from August 28-31, 1989. About one week later, before Ms. Blades or Ms. Duncan had acted on the request, Respondent changed the request to September 1, which was the Friday before Labor Day weekend, and September 13-14, 1989. In addition, she requested leave with pay for September 15, 1989, as her personal holiday. According to the timesheets, Ms. Blades approved the September 1 leave request on August 25, 1989, which was a Saturday. She assured Respondent that she would discuss with Ms. Duncan the remaining requests for leave. Respondent followed up with Ms. Blades several times, explaining that she wanted the leave to attend her son's graduation ceremonies from military basic training in South Carolina. Despite her assurances, Ms. Blades had not mentioned Respondent's request to Ms. Duncan before Ms. Blades became sick and missed work from September 6-9. On the second day of Ms. Blades' absence, Respondent took her request to Ms. Duncan, who said that she had not been aware of Respondent's request. Ms. Duncan told Respondent that Ms. Blades was on sick leave and did not respond further. The following day, Respondent spoke again with Ms. Duncan, who this time assured her that if Ms. Blades were not at work on Monday, September 11, Ms. Duncan would sign the timesheet approving the leave requested for September 13-15. Ms. Blades returned to work on Monday, September 11. When Respondent asked her in the morning to sign the timesheet, Ms. Blades refused to do so and told her that it had not yet been approved. Consistent with her prior conversations with Respondent, though, Ms. Blades did not say that the request had been disapproved. Respondent then left the office for much of the day. When she returned, Ms. Blades and Ms. Duncan were both out. The next day, Tuesday, September 12, Ms. Blades spoke with Respondent, but still declined to say whether the request was approved or rejected. She continued to say merely that the request had not yet been approved. Tuesday afternoon, Respondent told a coworker to tell Ms. Blades that Respondent was going to South Carolina and would be back the following Monday morning. While still in town, Respondent telephoned both supervisors shortly after 8:00 a.m. on Wednesday, but they had not arrived at work yet. Respondent asked the receptionist to remind Ms. Blades that Respondent had gone to South Carolina and would return the following Monday morning. Both messages were delivered to Ms. Blades, who relayed them to Ms. Duncan. Respondent then departed for South Carolina, where she remained through at least September 15. At the time of her departure, Respondent knew that her request for annual leave had not been approved and that she was taking unauthorized annual leave. When she arrived back in the office on September 18, Respondent received a copy of a letter dated September 15 that had been mailed to her the prior Friday. The letter states that Respondent had been separated from State service for abandonment of position, effective at the close of business on September 15, 1989. The second paragraph of the letter contains material misstatements of fact. It states that Respondent had been advised that, due to the present work situation, her leave could not be approved. The letter also states that she did not contact her supervisor that she would be absent. No one ever advised Respondent that her leave could not be approved or in fact was rejected until after her return from South Carolina. Also, Respondent informed both supervisors, directly and through third parties, that she would be absent, where she was going, why, and when she would return. However, she did not contact them during the three-day absence. Concerning the request for leave for a personal holiday, neither Ms. Blades nor Ms. Duncan ever informed Respondent that the date was inconvenient. Under the circumstances, Respondent could reasonably infer that the date was agreeable with Ms. Blades. At no time did Respondent intend to abandon her career-service position. The facts do not support a reasonable inference that Respondent abandoned her job during the three days in question.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Administration enter a Final Order finding that Respondent has not abandoned her position in Career Service employment with the State of Florida. ENTERED this 28th day of February, 1990, in Tallahassee, Florida. ROBERT D. MEALE 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 28th day of February, 1990. COPIES FURNISHED: Linda L. Parkinson Attorney Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 701 Orlando, FL 32801 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Alva J. Barfield 1010 Locust Avenue Sanford, FL 32771
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact 1. Following a May 23, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about July 3, 2003, the matter was referred to the Division of Administrative Hearings and scheduled for a disputed-fact hearing on the merits for August 25, 2003. 2. On July 17, 2003, Respondent served by mail its Motion for a Summary Final Order. 3. On August 12, 2003, Respondent served by mail its Supplemental (Second) Motion for a Summary Final Order. 4. On August 14, 2003, Respondent filed and served its Notice of Filing Supplemental Materials In Support of its (Second) Motion for Summary Final Order. 5. The foregoing pleadings and the exhibits attached thereto, together with the "Determination: No Jurisdiction," which is part of the referral package from the Florida Commission on Human Relations, suggest on their face(s) that the Commission, and derivatively, the Division of Administrative Hearings, is without jurisdiction to determine this case. 6. Petitioner did not timely respond in opposition to the Motion for Summary Final Order as permitted by Rule 28-106.204, Florida Administrative Code, and in a telephonic conference call convened by the undersigned on August 19, 2003, Petitioner represented that she had never received that Motion. Petitioner offered to pick it up at Respondent's attorney's office later on August 19, 2003. 7. Petitioner had received the Supplemental (Second) Motion for Summary Final Order, but from her oral representations in the telephonic conference, it appeared that she did not open the envelope containing it. As of August 19, 2003, Petitioner still had, pursuant to rule, until August 26, 2003, to respond in writing. Also, if Respondent's supplemental materials were to be considered, Petitioner had until August 28, 2003, per rule, to respond. 8. The undersigned is without final order authority in this type of proceeding, and accordingly, the pending Motions have been treated as Motions for a Recommended Order of Dismissal. 9. On August 21, 2003, an Order Canceling Merits Hearing and Permitting Future Filings was entered. That Order provided, in pertinent part: The disputed-fact hearing is now scheduled for August 25, 2003, and all jurisdictional issues could be addressed at the commencement of that hearing, but that hearing is subject to cancellation due to Petitioner's failure to file a unilateral pre-hearing statement. Moreover, it is not cost-effective to require both parties to appear with all their witnesses, prepared for a disputed-fact hearing, when a short delay may obviate the need for such a hearing. If that hearing is cancelled, it will be possible to re-schedule this case for trial within the aspirational time frame established by the legislature, if such re- scheduling is necessary. Accordingly, it is ORDERED: 1. The disputed-fact hearing now scheduled for August 25, 2003, is hereby cancelled. 2. The pending motions will be treated as Motions for Recommended Order of Dismissal. 3. Petitioner is permitted to, and until, September 2, 2003, to file, in writing, any response in opposition to Respondent's Motion for a Summary Final Order, and Respondent's Supplemental (Second) Motion for a Summary Final Order, including the Supplemental Materials Filed August 14, 2003. 4. In her response, Petitioner should address all factual and legal arguments posed by Respondent. She may attach exhibits supporting her position. 5. In the event the undersigned requires any further oral argument or advice from the parties, another telephonic conference call will be scheduled for that purpose, and a formal notice of hearing will be issued. 6. In the event no further oral argument or advice is required, the issues presented in the motions and response will be disposed of, pursuant to Rule 28-106.204, Florida Administrative Code, without hearing; and a disputed-fact hearing on the merits will be re-scheduled only if necessary and appropriate. 10. Petitioner did not file any response to dispute any legal or factual issue raised by Respondent. Petitioner did not file any response attacking the validity of any of Respondent's exhibits. Petitioner did not file any response attacking any portion of the Commission's referral package. Therefore, the filed items may be presumed to be authentic, and the pending Motions may be addressed without an evidentiary hearing. 11. Petitioner filed with the Commission a charge of discrimination against Respondent Employer. That charge was assigned FCHR Case No. 2003342, and was dismissed by the Commission on or about December 6, 2002. 12. On October 18, 2002, Petitioner filed with the Commission a second charge of discrimination, the charge of discrimination underlying the instant case. The Commission assigned the instant charge FCHR Case No. 23-00222. 13. This instant charge of discrimination herein states that Petitioner was notified on October 14, 2001, that she would be terminated by the Employer on October 18, 2001. This charge of discrimination was signed by Petitioner on October 18, 2002. Therefore, it could not have been filed with the Commission before October 18, 2002. The date of October 18, 2002, is more than 365 days after October 14, 2001. See Section 760.11(1), Florida Statutes. 14. By a "Determination: No Jurisdiction" entered May 23, 2003, the Commission's Executive Director found and concluded that all jurisdictional requirements for coverage had not been met, to wit: : The Complainant was notified on October 12, 2001, that she would be terminated effective October 18, 2001, and she received a termination letter on October 14, 2001. Thus the 365-day period for filing a claim with the Commission commenced on October 12, 2001. Complainant, however, filed her complaint on October 18, 2002, which is 370 days from the date she first received notice. 6. The Commission does not have jurisdiction over the complaint because it was filed more than 365 days from the date the Complainant received notice that she would be terminated. 15. While the Director's foregoing findings/conclusions do not bind this forum's de novo proceeding, the Commission's acknowledgement that the instant charge of discrimination was not filed with it until October 18, 2002, constitutes competent evidence of that filing date and is relevant in this proceeding. 16. Attached to Respondent's first Motion for Summary Final Order is a copy of the instant charge of discrimination which shows the Commission's "October 18, 2002," date stamp. Also attached thereto is a Disciplinary Action Report dated October 12, 2001, which shows that Petitioner saw the report but refused to sign it on the same date of October 12, 2001. This report is, in effect, a notice of termination to take effect on October 18, 2001. Another exhibit to this pleading is Petitioner's October 12, 2001, written request to the Employer for a pre-termination hearing. All of these items indicate that Petitioner had notice on October 12, 2001, that she would be terminated, effective October 18, 2001. 17. No one has explained what effect a pre-termination hearing would have had on the planned termination date. No evidence that a pre-termination hearing was ever held has been presented. 18. Petitioner was effectively terminated by Respondent on October 18, 2001. 19. A "Notice of Determination: No Jurisdiction," entered by the Clerk of the Commission on May 23, 2003, provided: The parties are advised that the Complainant may request that a formal, post- investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 35 days of the date of mailing of this Notice and should be in compliance with the provision of Rule 60Y- 5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form in enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the Petition. This action will not become final until time has expired for Complainant to file a Request for Petition for Relief. Failure of Complainant to timely file a petition for relief will result in dismissal of the complaint pursuant to Rule 60Y-5.006, Florida Administrative Code. 20. Accordingly, the last date for filing a Petiton for Relief on the instant charge was June 27, 2003, per Section 760.11(7), Florida Statutes, and 60Y-5.008, Florida Administrative Code. 21. Petitioner FAXED her Petition for Relief to the Commission. Petitioner's FAX cover sheet indicated that, Ms. Razavi, I am faxing this again, since I'm not aware that you have rec'd it yet. I first sent it on Thurs. 26th to a different fax #. The young lady sitting in for Barbar gave me this one. Thanks. 22. On July 1, 2003, the Commission date-stamped receipt of the foregoing cover letter and the Petition for Relief, which it transmitted to the Division of Administrative Hearings on the same date. 23. An Affidavit of Violet D. Crawford, Clerk of the Florida Commission on Human Relations, states that Petitioner's Petition for Relief was received by way of facsimile to the Commission on June 30, 2003, but that it was clocked-in on July 1, 2003.
Conclusions For Petitioner: Michelle Burt, pro se 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 For Respondent: William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing this cause for lack of jurisdiction. DONE AND ENTERED this 23rd day of September, 2003, in Tallahassee, Leon County, Florida. Lahn alan ELLA JANE P. DAVIS 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 23rd day of September, 2003. 12 COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michelle Burt 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
Appeal For This Case THIS FINAL ORDER CONSTITUTES FINAL AGENCY ACTION UNDER CHAPTER 120, FLORIDA STATUTES. A PARTY WHO IS ADVERSELY AFFECTED BY FINAL AGENCY ACTION IS ENTITLED TO JUDICIAL REVIEW IN ACCORDANCE WITH SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(B)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS FINAL AGENCY ACTION, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE THIS FINAL AGENCY ACTION IS FILED WITH THE AGENCY CLERK (SEE NOTICE OF FILING AND SERVICE BELOW). THE ADDRESS OF THE AGENCY CLERK IS: AGENCY CLERK DEPARTMENT OF ECONOMIC OPPORTUNITY 107 EAST MADISON STREET, CALDWELL BUILDING, MSC 110 TALLAHASSEE, FLORIDA 32399-4128 FAX NUMBER 850-921-3230 Email: James.Bellflower@deo.myflorida.com A DOCUMENT IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST ALSO BE FILED WITH THE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. FINAL ORDER NO. DEO-13-117 AN ADVERSELY AFFECTED PARTY WAIVES THE RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH BOTH THE DEPARTMENT’S AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. NOTICE OF FILING AND SERVICE I HEREBY CERTIFY that the above Final Order was filed with the Department’s undersigned designated Agency Clerk and that true, and correct copies were furnished to the persons listed below in the manner described on the day of November, 2013. i“ W ‘ Ccateausd ames W. Bellflower, Agency Clerk Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, FL 32399-4128 By U.S. Mail: Mr. Alan R. Friend 7600 Sun Island Drive South, No. 505 South Pasadena, FL 33707-4484 David J. Ottinger, Esq. GrayRobinson, P.A. 401 East Jackson Street, Suite 2700 Tampa, FL 33602-5841 Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060
Findings Of Fact 15. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on November 18, 2008, the Amended Order of Penalty Assessment issued on January 16, 2009, and the 2™4 Amended Order of Penalty Assessment issued on May 21, 2009 which are 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 Stop-Work Order and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-385-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On November 18, 2008, 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. 08-385-1A to M & M Roofing, LLC. 2. On December 8, 2008, the Stop-Work Order and Order of Penalty Assessment was served by personal service on M & M Roofing, LLC. 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 January 16, 2009, the Department issued an Amended Order of Penalty Assessment in Case No. 08-385-1A to M & M Roofing, LLC which assessed a total penalty of $153,187.40 against M & M Roofing, LLC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 4. On May 21, 2009, the Department issued a 2°4 Amended Order of Penalty Assessment in Case No. 08-385-1A to M & M-Roofing, LLC which assessed a total penalty of $153,556.44 against M & M Roofing, LLC. A copy of the 2° Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 5. The Employer timely requested a Formal Hearing on or about February 27, 2009. A copy. of the Request for Hearing is attached hereto as “Exhibit D” and incorporated herein by reference. 6. On March 23, 2009, the request for formal hearing was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge for a formal hearing. The matter was assigned to Judge Cleavinger and assigned case number 09-1578. 7. A formal hearing was scheduled for May 27, 2009, in Pensacola, Florida. A copy of the Notice of Hearing is attached hereto as “Exhibit E”. 8. A Motion to Continue Hearing was filed by the Department on April 30, 2009. 9. An Amended Motion to Continue Hearing was filed by the Department on May 5, 2009. The motion stated that Petitioner had been contacted and did not oppose the Motion. 10. An Order Granting Continuance and Re-Scheduling Hearing was entered on May 18, 2009. The hearing was re-scheduled for June 30, 2009, in Pensacola, Florida. A copy of the Order Granting Continuance and Re-Scheduling Hearing is attached as “Exhibit F”. 11.. A Letter of Request for Continuance was filed by M & M Roofing, LLC on June 22, 2009. 12. The Request for Continuance was denied on June 23, 2009. The Order Denying Continuance of Final Hearing is attached as “Exhibit G”. 13. A final hearing was held on June 30, 2009. M & M Roofing, LLC failed to appear at the hearing. 14. An Order Relinquishing Jurisdiction and Closing File was entered on July 2, 2009. A copy of the Order Relinquishing Jurisdiction and Closing File is attached as “Exhibit H”. |
The Issue The issues are whether Petitioner violated Chapter 440, Florida Statutes, and the Insurance Code by not securing workers’ compensation insurance or workers’ compensation exemptions, and if so, what penalty should be assessed.
Findings Of Fact Respondent is the state agency responsible for enforcing the requirement of workers’ compensation law that requires employers to secure payment of compensation for their employees. On June 26, 2006, Petitioner was operating in the construction industry installing drywall. At approximately 10:30 a.m., Respondent’s investigator, Vicki Chamelin, conducted a workers’ compensation compliance check at 5574 Hampton Hill Circle, Tallahassee, Florida. While at the site, Ms. Chamelin recorded the names of the workers who claimed to be or were claimed to be employed by Petitioner. The names of these individuals were Brandon Roberts, Kelvin Williams, Charles Carter, Willie Oliver, and Jerry Pompey. Next, Ms. Chamelin consulted Respondent’s Coverage and Compliance Automated System (CCAS). She then spoke with Christine Conley, branch manager of U.S. Labor, Inc./USA Staffing, the company that Petitioner contracted with to provide workers’ compensation coverage. Ms Chamelin concluded that Petitioner had not secured the payment of workers’ compensation for Brandon Roberts, Kelvin Williams, and Jerry Pompey. After consulting with her supervisor, Ms. Chamelin issued a Stop Work Order and Order of Penalty Assessment (hereinafter “Stop Work Order”). The Stop Work Order commanded Petitioner to cease business operations and assessed a $1000 penalty against Petitioner. In addition to the Stop Work Order, Ms. Chamelin served Petitioner with a Request for Business Records for Penalty Assessment Calculation (hereinafter “Request”). After serving Petitioner with the Stop Work Order and Request, Ms. Chamelin again verified with Christine Conley which employees were and were not covered by U.S. Labor, Inc./USA Staffing’s workers’ compensation insurance. U.S. Labor, Inc./USA Staffing is a staffing company whose employees must apply and be approved by USA Staffing prior to placement with client companies. Pursuant to the contract between USA Staffing and Petitioner, an employee is not covered by workers’ compensation insurance unless the employee applies to and is approved by USA Staffing prior to starting work. If an approved employee of USA Staffing does not work for USA Staffing for between two and four weeks, USA Staffing deactivates the employee from their payroll and notifies the client company. Inactivated employees are not covered by USA Staffing’s workers’ compensation insurance policy. Ms. Conley advised Ms. Chamelin that Kelvin Williams, Brandon Roberts, and Jerry Pompey were not being leased by Petitioner from USA Staffing on June 26, 2006. USA Staffing’s payment records reflected that no payroll was being run by USA Staffing for Brandon Roberts between the dates of April 6, 2006, and June 26, 2006. U.S. Staffing’s payment records reflected that no payroll was being run by USA Staffing for Kelvin Williams between the dates of March 2, 2006, and June 26, 2006. Jerry Pompey was never an employee of USA Staffing. In order to reactivate an employee, a client company must call USA Staffing and reactivate the employee prior to that employee commencing work with the client company. Ms. Chamelin called USA Staffing to investigate the coverage status of Jerry Pompey, Brandon Roberts, and Kelvin Williams before Petitioner called USA Staffing to reactivate the individuals. Petitioner did not provide Respondent with any of the documents identified in the Request. Because Petitioner failed to provide Respondent with the requested business records, Ms. Chamelin properly imputed Petitioner’s penalty. First, Ms. Chamelin imputed Petitioner’s payroll. Next, Ms. Chamelin divided the imputed payroll amount by 100, multiplied the quotient by the approved manual rate to arrive at the premium the Petitioner would have paid, then multiplied the product by 1.5. Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty by paying 10 percent of the total penalty with the balance due in equal monthly installments over 60 months. Petitioner was issued an Order of Conditional Release From Stop-Work Order after entering into the Payment Agreement Schedule for Periodic Payment of Penalty and demonstrating compliance with the coverage requirements of Chapter 440, Florida Statutes (2005). Respondent issued a Second Amended Order of Penalty Assessment to Petitioner. The Second Amended Order of Penalty Assessment adjusted Petitioner’s assessed penalty to $10,270.76.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order, affirming the Stop Work Order and Second Amended Order of Penalty Assessment that assessed a penalty of $10,270.76. DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of March, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Stanley Roberts Forever Ready Drywall 272 Robert Willis Road Cairo, Georgia 39827 Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
Findings Of Fact 1. On November 8, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-155-D2OPA to DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC. for a total assessed penalty of $32,116.65. The Order of Penalty Assessment included a Notice of Rights wherein DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC. was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On December 8, 2010, the Order of Penalty Assessment was served by personal service on DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. On December 29, 2010, DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC. filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on January 6, 2011, and the matter was assigned DOAH Case No. 11-0033. A copy of the petition is attached hereto as “Exhibit 2” and incorporated herein by reference. 4. On March 22, 2011, the Petitioner filed with DOAH a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)(), Florida Statutes. A copy of - the Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)(i), Florida Statutes is attached hereto as “Exhibit 3” and incorporated herein by reference. 5. On March 30, 2011, the Department a received copy of an Order Granting Petitioner’s Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)(i), Florida Statutes. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 4” and incorporated herein by reference. 6. The factual allegations contained in the Order of Penalty Assessment, issued on November 8, 2010, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition received from DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC., as well as the Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that:
The Issue The issues are whether subject matter jurisdiction exists in this proceeding, and, if so, whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner is the agency responsible for the School District of Hendry County, Florida (the District). Petitioner employed Respondent in the District as a custodian from July 8, 1997, until April 4, 2006. A custodian is an educational support employee as defined in Subsection 1012.40(1)(a), Florida Statutes (2005). The alleged grounds for the termination of Respondent's employment may be fairly summarized as involving two unauthorized absences during the workdays of March 15 and 16, 2006. On March 17, 2006, the principal met with Respondent in the principal's office. The assistant principal and head custodian were also present. Respondent declined the opportunity to have a union representative present. By letter dated April 24, 2006, the District superintendent provided Respondent with written notice that Petitioner had terminated Respondent's employment on April 4, 2006 (written notice of termination). By letter dated April 28, 2006, Respondent's counsel requested an administrative hearing (the request for hearing). Respondent challenges the subject matter jurisdiction in this proceeding.1 The facts relevant to Respondent's jurisdictional challenge are undisputed.2 Petitioner did not request the assignment of an ALJ within the statutorily prescribed 15-day time limit. When Petitioner did request DOAH to assign an ALJ, the 60-day time limit for commencing the hearing had already expired.3 Petitioner requested the assignment of an ALJ on August 7, 2006, approximately 101 days after receiving the request for hearing from Respondent.4 Subsection 120.569(2), Florida Statutes (2005), required Petitioner to request the assignment of an ALJ within 15 days of the date Petitioner received the request for hearing. The timeline for conducting the administrative hearing is prescribed in the Collective Bargaining Agreement 2004-2007 between the District School Board of Hendry County and the Hendry County Support Personnel Association (the CBA). Subsection 1012.40(2)(c), Florida Statutes (2005), provides, in relevant part: In the event a district school superintendent seeks termination of an employee, . . . [t]he appeals process shall be determined by the appropriate collective bargaining process . . . . Section 8.074 in the CBA prescribes the procedures for conducting a hearing if one is requested by a terminated employee. The procedures prescribed in the CBA are substantially the same as those in Subsections 1012.33(3)(f)4.a. and b. and 1012.33(6)(a)1. and 2., Florida Statutes (2005). In relevant part, the CBA provides: The Employee shall be entitled to a hearing at the Board's election in accordance with one of the following procedures: A direct hearing conducted by the Board within sixty (60) days of receipt of the Employee request. The hearing shall be conducted in accordance with the provisions of FS. 120.57(1)(a)1. A majority vote of the membership of the Board shall be required to sustain the Superintendent's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within sixty (60) days of receipt of the Employee's request in accordance with FS. Chapter 120. The recommendation of the hearing officer shall be made to the Board. A majority vote of the Board shall be required to sustain or change the hearing officer's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. This is the exclusive procedure for termination, except that the Employee shall have the right for Judicial Appeal under FS. 120.68. The Association shall be notified when any Association member is to be terminated. Petitioner's Exhibit 11. Petitioner elected to refer the request for hearing to DOAH in accordance with Section 8.074b. of the CBA. However, Petitioner did not refer the matter to DOAH until August 7, 2006, approximately 101 days after receiving the request for hearing. By waiting more than 60 days to refer the matter to DOAH, Petitioner prevented DOAH from conducting the hearing within the 60-day time limit prescribed in the CBA and incorporated by reference in Subsection 1012.40(2)(c), Florida Statutes (2005). Respondent did not raise his jurisdictional challenge until the administrative hearing was conducted on September 20, 2006. The sole issue that Respondent included in the Joint Pre-Hearing Stipulation filed with DOAH on September 19, 2006, is whether Petitioner had just cause to terminate the employment of Respondent. If the requirement to conduct the hearing within the 60-day time limit were jurisdictional, judicial authority discussed in the conclusions of law would make it unnecessary for Respondent to raise the issue before the hearing. If the requirement were procedural, judicial authority discussed in the conclusions of law would require Respondent to show that the failure to comply with the 60-day time limit prejudiced Respondent by impairing the fairness of the proceeding or the correctness of the agency action. For reasons stated in the conclusions of law, both the 15-day time limit for referring the matter to DOAH and the 60-day time limit for conducting the hearing are procedural rather than jurisdictional. The untimely referral and hearing did not prejudice Respondent. Petitioner had just cause to terminate the employment of Respondent. Respondent engaged in two unauthorized absences from work on March 15 and 16, 2006. The two absences exceeded 4.5 hours. Respondent worked at LaBelle High School (LaBelle) on March 15 and 16, 2006. Respondent worked during each day from 2:00 p.m. until 10:00 p.m. The workday included one unpaid meal break for 30 minutes and two 15-minute paid breaks. The breaks could be taken at any time during the workday and could be combined into a single one-hour break. Respondent was required to sign in and out on a form (sign-out sheet) when Respondent left campus during any period of his workday other than the unpaid 30-minute meal break. Respondent was absent from work on March 15, 2006, for a period in excess of three hours and was absent from work the next day for approximately one hour and fifty minutes. The absences were unauthorized because each exceeded one hour and because Respondent did not complete the sign out sheet when he left campus. Rather, Respondent made entries in the sign out sheet indicating he was present from 2:00 p.m. until 10:00 p.m. On March 15, 2006, Respondent left work for a period that exceeded three hours. Respondent borrowed a carpet cleaning machine from LaBelle in accordance with school policy. Respondent took the machine home, as he was authorized to do, but remained absent from work for a period that exceeded three hours. The second unauthorized absence occurred on March 16, 2006, when Respondent was absent from work from approximately 5:30 p.m. until about 7:20 p.m. The principal of LaBelle was attending a baseball game at school that evening and was unable to locate Respondent on campus during three separate searches. The searches included Respondent's work area and bathrooms. The work cart assigned to Respondent was not moved during the three searches. At approximately 7:45 p.m., the principal observed that Respondent's truck had been returned to its parking space. Respondent had a history of leaving campus during the workday. The principal had previously established the sign-out sheet protocol so that others would be able to locate Respondent during the workday. The head custodian also required each custodian to leave a note disclosing when a custodian leaves campus and the reasons for the absence. The head custodian would be able to read the note when he arrived at work the next morning and would be able to explain the circumstances of the absence if asked by a school administrator. Respondent did not comply with the required protocol on March 15 or 16, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as an educational support employee. DONE AND ENTERED this 11th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th of December, 2006.
Findings Of Fact 6. The factual allegations in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2"4 Amended Order of Penalty Assessment, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions 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 Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2°4 Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-283-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On October 8, 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. 09-283-1A to CHARLES M. EIDENS, JAMES A. HABAN , RITA ZARNIK, AND RICHARD E. EIDENS, d/b/a PAINT BUSTERS OF THE EMERALD COAST, INC., A DISSOLVED FLORIDA CORPORATION, AND PAIN T BUSTERS OF THE EMERALD COAST, INC. (“PAINTBUSTERS”). The Stop- Work Order and Order of Penalty Assessment is attached as “Exhibit 1” and fully incorporated by reference. The Stop-Work Order and Order of Penalty Assessment was personally served on October 8, 2009, on PAINTBUSTERS. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein PAINTBUSTERS 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. 2. On November 13, 2009, the Department served by certified mail an Amended Order of Penalty Assessment on PAINTBUSTERS. The Amended Order of Penalty Assessment is attached hereto as “Exhibit 2” and fully incorporated herein by reference. The penalty assessed on PAINTBUSTERS was $98,242.15. The Amended Order of Penalty Assessment included a i Notice of Rights wherein PAINTBUSTERS was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 3. On November 24, 2009, PAINTBUSTERS submitted a Request for F ormal Hearing (“Petition”). The Petition was forwarded to the Division of Administrative Hearings (“DOAH”) and assigned DOAH case number 09-6634. 4. On January 8, 2010, the Administrative Law Judge granted the Department’s Motion to Amend Order of Penalty Assessment. The 2°4 Amended Order of Penalty Assessment superseded the original Amended Order of Penalty Assessment and increased the penalty to $98,336.87. A copy of the 2"! Amended Order of Penalty Assessment is attached hereto as “Exhibit 3” and fully incorporated by reference. 5. On March 25, 2010, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File in Case No. 09-6634 as a result of PAINTBUSTERS failing to comply with DOAH’s request for a Status Report. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 4” and fully incorporated herein by reference.
Findings Of Fact 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 11, 2010, the Amended Order of Penalty Assessment issued on August 3, 2010, the 2™4 Amended Order of Penalty Assessment issued on November 9, 2010, and the 3" Amended Order of Penalty Assessment issued on December 15, 2010, and attached as “Exhibit A” “Exhibit B” “Exhibit D” 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 Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition from DIAGONAL TILE AND MARBLE, INC., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2™ Amended Order of Penalty Assessment, and the 3 Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On June 11, 2010, 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. 10-317-D3 to DIAGONAL TILE AND MARBLE, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein DIAGONAL TILE AND MARBLE, 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 June 11, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on DIAGONAL TILE AND MARBLE, 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 August 3, 2010, the Department issued an Amended Order of Penalty Assessment to DIAGONAL TILE AND MARBLE, INC. The Amended Order of Penalty Assessment assessed a total penalty of $16,241.92 against DIAGONAL TILE AND MARBLE, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein DIAGONAL TILE AND MARBLE, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 4. On August 31, 2010, the Amended Order of Penalty Assessment was served by process server on DIAGONAL TILE AND MARBLE, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On August 31, 2010, DIAGONAL TILE AND MARBLE, INC. timely filed a request for administrative hearing (hereinafter “Petition”) with the Department. The Petition was forwarded to the Division of Administrative Hearings on September 29, 2010, and the matter was assigned DOAH Case No. 10-9374. A copy of the petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On November 9, 2010, the Department issued a 2" Amended Order of Penalty Assessment to DIAGONAL TILE AND MARBLE, INC. The 2"! Amended Order of Penalty Assessment assessed a total penalty of $12,793.30 against DIAGONAL TILE AND MARBLE, INC. 7. On November 15, 2010, upon motion by the Department, the Administrative Law Judge entered an order accepting the 2’ Amended Order of Penalty Assessment and allowing it to supersede any previously entered Order of Penalty Assessment. A copy of the 2™ Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On December 15, 2010, the Department issued a 3" Amended Order of Penalty Assessment to DIAGONAL TILE AND MARBLE, INC. The 3! Amended Order of Penalty Assessment assessed a total penalty of $2,268.83 against DIAGONAL TILE AND MARBLE, INC. The 3 Amended Order of Penalty Assessment included a Notice of Rights wherein DIAGONAL TILE AND MARBLE, INC. was advised that any request for an administrative proceeding to challenge or contest the 3 Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 3" Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 9. On January 18, 2011, upon motion of the parties, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit E” and incorporated herein by reference. 10. On September 10, 2011, the 3 Amended Order of Penalty Assessment was served by certified mail on DIAGONAL TILE AND MARBLE, INC. A copy of the 314 Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 11. DIAGONAL TILE AND MARBLE, INC. failed to answer the 3 Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes.
