The Issue Whether Petitioner is entitled to an award of attorney's fees pursuant to Section 57.111, Florida Statutes.1/
Findings Of Fact The Department is the state agency charged with the regulation of workers’ compensation insurance in the State of Florida. The Department issued a Stop Work Order to Petitioner on June 6, 2006. On June 27, 2006, the Department issued an Amended Order of Penalty Assessment, assessing $272,948.96 in penalties against Petitioner. Petitioner timely challenged the Stop Work Order and Amended Order of Penalty Assessment and requested an administrative hearing. A formal hearing was held on October 5, 2006. The Recommended Order, which was entered on November 28, 2006, recommended that the Department enter a final order rescinding the Amended Order of Penalty Assessment and the Stop Work Order. On February 23, 2007, a Final Order was issued by the Agency adopting the findings of fact and conclusions of law set forth in the Recommended Order. On March 30, 2007, Petitioner filed the Petition with a supporting affidavit and fee statement which initiated the instant proceeding. In the Petition, Petitioner seeks relief under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes. There is no dispute that Petitioner is the prevailing party in the underlying case. Petitioner seeks attorney's fees in the amount of $20,197.50. There is no dispute as to the reasonableness of the fees sought. At the time the underlying action was initiated, Petitioner was a sole proprietor located in Jacksonville, Florida, which engaged in the business of cutting trees. There is no dispute that Petitioner is a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes. On June 6, 2006, the Department’s investigator, Michael Robinson, conducted a site visit at a job site where he observed five individuals, four of whom were involved in tree cutting activities. During his June 6, 2006, site visit, Robinson interviewed the four individuals and recorded their responses on a field interview worksheet. The workers identified Nolan as their employer, and answered Mr. Robinson’s questions regarding how long they had been employed by Nolan, and their basis of pay. One of the workers informed Mr. Robinson that he had been employed by Nolan for two weeks; a second worker informed him that he had worked for Nolan for three weeks. Both of these workers informed Mr. Robinson that they were paid on a daily basis. A third worker informed Mr. Robinson that he was paid by the job. The workers were compliant and responsive to Mr. Robinson’s inquiries. Mr. Nolan was not at the jobsite at the time of Mr. Robinson’s site visit, but Mr. Robinson obtained his phone number, called, and left a message. Mr. Nolan promptly returned the call. Mr. Nolan was also compliant and responsive to Mr. Robinson’s questions. Mr. Nolan acknowledged to Mr. Robinson that the four individuals interviewed by Mr. Robinson were his employees and that he had no workers’ compensation insurance. Mr. Nolan also informed Mr. Robinson that his business was a non-construction business entity and was not required to carry workers’ compensation insurance. Mr. Robinson told Mr. Nolan that he was required to have workers’ compensation insurance. Mr. Robinson also searched the Coverage and Compliance Automated System (CCAS) and found no proof of coverage nor an exemption for Nolan. The Stop Work Order On the same day as the site visit, Mr. Robinson conferred with his supervisor, Robert Lambert, to discuss the issuance of a stop work order. Mr. Robinson conveyed to Mr. Lambert that Nolan had four employees who were non- construction workers, and that there was no workers’ compensation coverage. Mr. Robinson did not convey the short duration of employment of two employees or that they were paid daily or by the job. Based upon this information, Mr. Lambert immediately approved a Stop Work Order, which was issued that day. Mr. Robinson also issued a request for business records to Nolan for the purpose of calculating a penalty for lack of coverage. Paragraphs 12 through 24 of the Recommended Order, adopted within the Final Order, found that Mr. Nolan started the business, Great Southern Tree Service, in February or March 2005, as a sole proprietor; that he did not employ anyone in 2003 or 2004; that the nature of the tree trimming business is seasonal and sporadic; that Nolan had fewer than four employees during 2005; and that the only time Nolan had four employees was from May 2006 until June 6, 2006, when two workers worked occasionally for Nolan due to tree damage in the Jacksonville area from a storm. Nolan did not produce business records as requested by the Department because there were no such records to produce. The Amended Order of Penalty Assessment On June 27, 2006, an Amended Order of Penalty Assessment (Amended Order) was issued to Nolan in the amount of $272,948.96, for the time period June 6, 2003 to June 6, 2006. Attached to the Amended Order is a worksheet with the names of the four workers interviewed by Mr. Robinson on June 6, 2006. Using a statutory formula, Mr. Robinson imputed a penalty for the period October 1, 2003 to June 6, 2006, and a penalty of $100 per day for the time period between June 6, 2003 and September 30, 2003. At the time of the issuance of the Stop Work Order and the Order of Penalty Assessment, Mr. Robinson and Mr. Lambert were aware of the statutory requirement that to be considered an employer under the workers’ compensation law, four or more persons must be employed by the same private non-construction employer. However, neither Mr. Robinson nor Mr. Lambert was aware of well-established case law holding that the elements of regularity, continuity, common employment, and duration, should be considered in determining the applicability of the law, and that an occasional increase in the number of workers for some unusual occasion does not automatically result in application of the workers' compensation law.2/
Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 18, 2009, and the Amended Order of Penalty Assessment issued on April 7, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
The Issue The issue is whether Petitioner's request for attorney's fees and costs should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In these cases, Petitioner, Couch Construction, L.P., seeks to impose sanctions against Respondents, Darel Holland (Holland) and Diane Lowery (Lowery), on the ground that they allegedly filed petitions for an improper purpose challenging the issuance of a permit by the Department of Environmental Protection (DEP). In responsive papers filed by Respondents, both deny that the actions were initiated for an improper purpose. The facts in the underlying DEP case involving Holland (OGC Case No. 98-3015) show that on October 30, 1998, Petitioner published a copy of DEP's Notice of Intent to Issue Permit to Petitioner authorizing the construction of a hot mix asphalt concrete plant at 2780 North Highway 95-A, Cantonment, Florida, with potential emissions of up to 29 tons per year of particulate matter. After learning of the proposed action, various citizens in the Cantonment area signed a petition opposing the project. In addition, a local attorney, John T. Reading, Jr., Esquire (Reading), offered to provide them with pro bono assistance as a "community service." Among other things, Reading prepared a form petition challenging the issuance of the permit and requesting a formal hearing. That form was apparently made available to the local citizens so that they could sign and file it, if they chose to do so. Holland says that he did, and it is fair to infer that this form was the source of Lowery's petition as well. Holland lives only 9 blocks from the proposed plant and suffers from a lung disease which has left him with only 58 percent of his lung capacity. Because of his legitimate concerns about the projected amount of particulate emissions and their potential effect on his respiratory system, on November 12, 1998, he filed in proper person a Petition for Formal Administrative Hearing challenging the proposed issuance of the permit. Holland's petition alleged that he was a property owner in the area where the plant would be constructed; that "due to respiratory problems," he would be "substantially affected by the permitted 29 tons of particulate emissions"; that his property "may be substantially reduced in value and peaceful enjoyment" as a result of the permit being issued; and that the petition was not "being interposed merely for the purposes of delay, or any other improper purpose as listed in F.S. 120.57(1)(b)(5)." There was no showing that the petition was filed for an improper purpose or that Holland's concerns were not genuine. Holland's petition also requested an extension of time "to determine which rules or statutes require reversal or modification of the Department's action" and "to obtain counsel" to assist him in his action. On December 21, 1998, DEP entered an order dismissing Holland's petition on the ground that he failed to allege the information required by Rule 28-106.201(2)(e), Florida Administrative Code. It also determined that no good cause had been shown to warrant an extension of time for Holland to determine if any rules or statutes supported his position. He was, however, granted leave to file an amended petition within 15 days from the date of service of DEP's dismissal order (December 23, 1998). This meant that an amended petition had to be filed with DEP no later than January 7, 1999. After learning that his petition had been dismissed, Holland had a brief conversation with Reading about the dismissal and was left with a somewhat vague understanding that Reading "would get an extension" from DEP. Thereafter, on January 12, 1999, or 5 days after the due date, Reading filed with DEP an Amended Petition of Darel Holland for Administrative Hearing. The petition was signed by Reading, and it represented that a copy of the petition had been served on Petitioner's counsel on January 5, 1999. On January 14, 1999, Reading also filed with DEP on behalf of Holland a paper styled Plaintiff's Motion to Enlarge Time in which Reading claimed that "due to circumstances not known," the amended petition had not been timely filed. Reading accordingly requested that DEP authorize the untimely filing. By order dated January 28, 1999, DEP denied the Motion to Enlarge Time and dismissed the amended petition, with prejudice, as being untimely. No appeal from that final agency action was taken. Lowery did not attend the final hearing. However, according to Holland, Lowery lives only 500 feet from the proposed cement plant. She boards horses on her property and frequently has children visit the property to ride their horses. The papers filed in her underlying case (OGC Case No. 98-2932) reflect that the facts in that case are essentially the same as those involving Holland. On November 12, 1998, Lowery filed in proper person a Petition for Formal Administrative Hearing which was virtually identical to the petition filed by Holland. As an additional ground, however, she alleged that the October 30, 1998, notice published by Petitioner was defective, and she requested that DEP require Petitioner to re-advertise the matter. There was no evidence that this petition was filed for an improper purpose or that Lowery's concerns were not genuine. On December 21, 1998, Lowery's petition was dismissed by DEP because she had failed to comply with the requirements of Rule 28-106.201(4), Florida Administrative Code. Like Holland, she was given until January 5, 1999, in which to file an amended petition. In papers filed by Lowery after this sanction proceeding arose, she denies that she had any knowledge that any further papers in the permit case would be filed on her behalf after the DEP dismissal order was entered. In any event, on January 12, 1999, or five days after the due date, Reading filed on Lowery's behalf with DEP an Amended Petition for Formal Administrative Hearing which was identical to that filed on behalf of Holland. Also, on January 14, 1999, Reading filed a Plaintiff's Motion to Enlarge Time seeking to excuse his tardiness in filing the amended petition. Both papers were served on Petitioner's counsel. On January 28, 1999, DEP entered its Final Order Denying Motion to Enlarge Time and dismissing Lowery's amended petition, with prejudice. No appeal from that final order was taken. Because no appeal was taken by either Respondent, DEP's intent to issue a permit became final, and it is fair to infer that a permit has been issued to Petitioner. On January 7, 1999, or prior to DEP's final order of dismissal, Petitioner's counsel noticed both Respondents for a deposition in Pensacola, Florida, on January 14, 1999. Because Reading had signed the amended petitions, Petitioner's counsel logically served the notices by Federal Express on Reading. However, Reading failed to notify Respondents, and neither he nor Respondents appeared at the deposition or advised counsel prior to the depositions that they would not appear. As a result, Petitioner incurred the costs and fees for having its counsel travel to Pensacola. In addition, Petitioner presumably incurred the cost of a court reporter's appearance fee. Assuming that Petitioner's claim is meritorious, those costs would be the responsibility of Reading, and not Respondents. At the hearing, it was represented that Reading is no longer a member of the Florida Bar. This is because in an unpublished order dated January 7, 1999, the Florida Supreme Court revoked his license to practice law effective 30 days thereafter, or on February 7, 1999. His current address is unknown. Petitioner has asserted that in defending against Respondents' petitions, "the bulk" of its costs and fees are related to the deposition and that a few other undisclosed fees and costs have been incurred. At the final hearing, Petitioner did not specify the amount of fees and costs that it seeks or provide any breakdown of those amounts; rather, it opted to provide an affidavit detailing those costs after this final order is rendered, assuming it prevails in this action.
Findings Of Fact 10. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on September 24, 2010, and the 2nd Amended Order of Penalty Assessment issued on May 5, 2011, 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 Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 10-423-D3, and being otherwise fully advised in the premises, hereby finds that: 1. On September 24, 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. 10-423-D3 to Hal’s Floor Covering, Inc. (hereinafter Hal’s). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Hal’s 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 September 24, 2010, the Stop-Work Order and Order of Penalty Assessment was served on Hal’s by personal service. 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 October 25, 2010, the Department issued an Amended Order of Penalty Assessment to Hal’s in Case No. 10-423-D3. The Amended Order of Penalty Assessment assessed a total penalty of $9,049.83 against Hal’s. The Amended Order of Penalty Assessment included a Notice of Rights wherein Hal’s 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. 4. The Amended Order of Penalty Assessment was served on Hal’s by personal service on February 18, 2011. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On November 12, 2010, Hal’s filed a timely Petition for formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 10-10613. 6. On May 5, 2011, the Department issued a 2nd Amended Order of Penalty Assessment to Hal’s in Case No. 10-423-D3. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $1,502.86 against Hal’s. The 2nd Amended Order of Penalty Assessment was served on Hal’s on May 12, 2011 through the Division of Administrative Hearings. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On May 16, 2011, the Department filed a Notice of Settlement in DOAH Case No. 10-10613. A copy of the Notice of Settlement filed by the Department is attached hereto as “Exhibit D.” 8. On May 16, 2011, Administrative Law Judge Elizabeth W. McArthur entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the May 16, 2011 Order Closing File is attached hereto as “Exhibit E.”
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in an Administrative Complaint signed May 1, 1987. The Administrative Complaint alleges that the Respondent has violated Section 489.129(1)(m), Florida Statutes, which authorizes disciplinary action when a contractor is "...guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting." (There is also a factual allegation that the Respondent abandoned a project, but the Respondent is not charged with a violation of Section 489.129(1)(k), Florida Statutes, which authorizes disciplinary action for abandonment of a construction project.) Subsequent to the hearing, the Respondent filed a proposed recommended order containing proposed findings of fact. Specific rulings on those proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order. As of the date of this recommended order, the Petitioner has not filed a proposed recommended order.
Findings Of Fact Based on the parties' stipulations and on the evidence presented at the hearing, I make the following findings of fact. Findings based on stipulations Petitioner is the State agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes. At all times relevant hereto, Respondent was licensed by said Board [Construction Industry Licensing Board] as a registered residential contractor. At all times relevant hereto, Respondent had been issued by said Board, and held, license number(s) RR 0042259. Respondent's address of record is in Apalachicola, Florida. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Ms. Springer and Ms. Ibbotson, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer. The details of the contracted work were generally as follows: Contract entered into on or about: 9-86. Job located in: Eastpoint, Florida. Job generally consisted of: add to Customer's house. Respondent's said contracting business thereafter began said job. Findings based on evidence at hearing Work on the subject project began on or about September 16, 1986. On or about October 24, 1986, Gerald Siprell, the Franklin County Building Inspector, visited the work site and issued an oral stop work order because the building permit issued for the project did not contemplate a new deck. Mr. Siprell advised Respondent that it would be necessary to obtain a plan for the new deck certified by an engineer, since the project site was located in a velocity zone. Only one stop work order was issued on the project. Mr. Siprell first issued the order orally, and it was later reduced to writing. The reason given was "improper permit." The stop work order applied only to the new deck. It did not apply to any of the other work under the contract. Mr. Siprell explained to Ms. Springer that the stop work order applied only to the new deck, and that the other work could proceed. Sometime in early November of 1986, Ms. Springer refused to allow Respondent's workers to proceed with the interior work. Ms. Springer cited Mr. Siprell's stop work order as the basis for her refusal to allow the work to proceed. Respondent's workers returned to the project the following day and Ms. Springer was again told that the stop work order applied only to the new deck. Nevertheless, Ms. Springer again refused to allow the workers to continue the job, so they collected their tools and departed. Less than a week later, Ms. Springer hired Denis Varnes, one of the Respondent's workers, to complete the job. Respondent did not abandon the job. Rather, Ms. Springer, by her actions, prevented Respondent from completing the job. As of the time Ms. Springer stopped Respondent's work on the project, she had advanced the sum of $6,500.00 to the Respondent. The reasonable value of the work performed by Respondent and of the materials left at the job site by Respondent is greater than the $6,500.00 advance. Respondent's conduct under the subject contract did not constitute fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting.
Recommendation For all of the foregoing reasons, it is recommended that the Construction Industry Licensing Board issue a final order in this case dismissing all charges against Respondent. DONE AND ORDERED this 7th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4397 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: The Petitioner did not file any proposed findings of fact. Findings proposed by Respondent: Paragraph 1: Accepted (including all subparts.) Paragraph 2: Accepted. Paragraph 3: All but last sentence accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as constituting subordinate and unnecessary details. Paragraph 8: Accepted in substance, with some subordinate and unnecessary details omitted. Paragraph 9: Accepted. Paragraphs 10, 11, and 12: Accepted in substance, but most details omitted as subordinate and unnecessary. Paragraph 13: Accepted. COPIES FURNISHED: David L. Swanson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Russell, Esquire Watkins & Russell 41 Commerce Street Apalachicola, Florida 32320 Mr. Fred Seely Executive Director Construction Industry Licensing Board 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 5, 2010, the Amended Order of Penalty Assessment issued on May 13, 2010, and the 2nd Amended Order of Penalty Assessment issued on October 6, 2010, attached as “Exhibit A”, “Exhibit C”, and “Exhibit G“, 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 requests for administrative hearing received from GGR, L.L.C., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On April 5, 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. 10-111-D4 to GGR, L.L.C. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein GGR, L.L.C. 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 April 13, 2010, the Stop-Work Order and Order of Penalty Assessment was personally served on GGR, L.L.C. 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 April 27, 2010, GGR, L.L.C. filed a Response to Stop-Work Order and Request for Hearing (“Petition”) with the Department which contested the Stop-Work Order and Order of Penalty Assessment issued by the Department. A copy of the Petition is attached hereto as “Exhibit B”. 4. On May 13, 2010, the Department issued an Amended Order of Penalty Assessment to GGR, L.L.C. The Amended Order of Penalty Assessment assessed a total penalty of $329,549.82 against GGR, L.L.C. 5. On May 24, 2010, the Amended Order of Penalty Assessment was served by certified mail on GGR, L.L.C. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On June 21, 2010, GGR, L.L.C. filed a Response to Amended Order of Penalty Assessment (“Amended Petition”) with the Department which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-4762. A copy of the Amended Petition is attached hereto as “Exhibit D”. 7. On September 17, 2010, GGR, L.L.C. filed a Notice of Voluntary Dismissal of its Amended Petition with the Division of Administrative Hearings in DOAH Case No. 10-4762. On September 23, 2010, Administrative Law Judge J. D. Parrish entered an Order Closing File in DOAH Case No, 10-4762. A copy of the Notice of Voluntary Dismissal and Order Closing File are attached hereto as “Exhibit E” and “Exhibit F”, respectively. 8. On October 6, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to GGR, L.L.C. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $284,375.20 against GGR, L.L.C. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein GGR, L.L.C. was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2nd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 9. On October 18, 2010, the 2nd Amended Order of Penalty Assessment was served on GGR, L.L.C. by certified mail. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit G” and incorporated herein by reference. 10. GGR, L.L.C. failed to respond to the 2nd Amended Order of Penalty Assessment, resulting in the issuance of this Final Order.
The Issue Whether the Respondent was required to carry workers' compensation insurance coverage for its employees and, if it failed to do so, whether the Amended Notice and Penalty Assessment Order is correct.
Findings Of Fact At all times material to this case, the Petitioner, the Department of Labor and Employment Security, Division of Workers’ Compensation was the state agency charged with the responsibility of administering compliance with state laws governing workers’ compensation (WC). The Respondent, A. J. Interiors, Inc., is a Florida corporation doing business at 1825 Mears Parkway, Margate, Florida. At all times material to this case, Robert Barnes was an investigator employed by the Department to perform compliance investigations for WC. On July 6, 2000, Investigator Barnes performed a random construction site inspection at a new construction project located at 16687 Jog Road, Delray Beach, Florida. While at that location, Investigator Barnes observed two men wearing T-shirts bearing the company name "A. J. Interiors, Inc." along with its telephone number. The men were installing metal framing in order to hang and finish drywall. The field interview with the two men, identified in this record as Sergio and Jaime Gonzalez, revealed that neither was covered by WC insurance. This information was later confirmed by Investigator Barnes. Additionally, neither man had obtained an exemption from coverage as the sole proprietor of a business. Based upon the field interview of the two men, a review of Department records, and contact with the Respondent's insurance agent, Investigator Barnes correctly determined that the men were the Respondent’s "employees” as that term is defined by the WC law. The men did not supply materials to the job site but agreed to perform work based upon a price described as a "per board" industry standard rate. In other words, the men would hang the drywall at a flat rate (established by and consistent with the local industry standard) for each job accepted through the Respondent. If the work were completed, the men expected to be paid by the Respondent. The men did not contract with or work for the general contractor of the job. The only requirement for payment was the performance of the work. The only risk incurred by the workers related to their relationship with the Respondent. Having concluded that the workers were not covered by WC and were not exempt, Investigator Barnes caused a stop work order to be issued against the Respondent. In conjunction with that order, the Department requested copies of the Respondent's business records. A review of the "vendor accounts” supplied by the Respondent established that its workers were paid amounts presumably based upon the number of boards hung per job identified. The payments were not always the same amount as the number of boards hung for a given job could vary. Additionally, the Respondent allowed workers to receive "draws" against the expected payments for uncompleted jobs. The Respondent’s claim that the workers were independent contractors has not been deemed credible. Based upon the testimony of the Respondent's witness all of the workers performed as outlined by the men interviewed by Investigator Barnes. The Respondent did not have a valid WC policy during the three years preceding the stop work order. The Amended Notice and Penalty Assessment Order prepared by Investigator Barnes accurately calculates the amounts owed by the Respondent for the three-year period.
Findings Of Fact 1. On October 7, 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. 10-432-D3 to J & L CONSTRUCTION SERVICES, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein J & L CONSTRUCTION SERVICES, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On August 3, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on J & L CONSTRUCTION SERVICES, INC. .A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. On November 15, 2010, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-432-D3 to J & LCONSTRUCTION SERVICES, INC. assessing a total penalty in the amount of $90,803.79. The Amended Order of Penalty Assessment included a Notice of Rights wherein J & L CONSTRUCTION SERVICES, INC. - was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 4. On August 3, 2011, the Amended Order of Penalty Assessment was served by personal service on J & L CONSTRUCTION SERVICES, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit 2” and incorporated herein by reference. 5. On August 24, 2011, J & L CONSTRUCTION SERVICES, 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 26, 2012, and the matter was assigned DOAH Case No. 12-0411. A copy of the petition is attached hereto as “Exhibit 3” and incorporated herein by reference. . 6. On February 2, 2012, the Petitioner served on Respondent the Department’s First Interlocking Discovery Requests via overnight mail. 7. On March 7, 2012, the Petitioner filed with DOAH a Motion to Compel Discovery Responses. A copy of the Motion to Compel Discovery Responses (without Exhibits) is attached hereto as “Exhibit 4” and incorporated herein by reference. 8. On March 14, 2012, the Petitioner filed a Unilateral Motion to Continue Administrative Hearing. A copy of the Unilateral Motion to Continue Administrative Hearing is attached hereto as “Exhibit 5” and incorporated herein by reference. 9. On March 26, 2012, per the Administrative Law Judge’s Order, the Petitioner attended a Telephonic Conference with the Judge regarding the outstanding Motion to Compel Discovery Responses and the Unilateral Motion to Continue. 10. On March 26, 2012, the Petitioner filed a Motion to Relinquish Jurisdiction. A copy of the Motion to Relinquish Jurisdiction (without Exhibit) is attached hereto as “Exhibit 6” and incorporated herein by reference. 11. On April 11, 2012, the Department received a copy of an Order Closing File and Relinquishing Jurisdiction. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit 7” and incorporated herein by reference. 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, issued on October 7, 2010 and the Amended Order of Penalty Assessment, issued on November 15, 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 J & L CONSTRUCTION SERVICES, INC., as well as the Stop- Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment and being otherwise fully advised in the premises, hereby finds that:
Findings Of Fact 8. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on January 4, 2010, and the Amended Order of Penalty Assessment issued on February 24, 2010, 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 Order of Penalty Assessment, served in Division of Workers’ Compensation Case No. 10-001-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On January 4, 2010, the Department issued a Stop-Work Order and Order of Penalty Assessment to POWELL & SONS ROOFING, INC. 2. On January 15, 2010, the Stop-Work Order and Order of Penalty Assessment were served on POWELL & SONS ROOFING, INC by certified mail. A copy of the Stop-Work Order and Order of Penalty Assessment are attached hereto as “Exhibit A” and incorporated herein by reference. 3. On February 24, 2010, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-001-1A to POWELL & SONS ROOFING, INC. The Amended Order of Penalty Assessment assessed a total penalty of $1,000.00 against POWELL & SONS ROOFING, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein POWELL & SONS ROOFING, 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, 4. On March 4, 2010, the Amended Order of Penalty Assessment was served by personal service on POWELL & SONS ROOFING, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 18, 2010, POWELL & SONS ROOFING, INC. filed a request for Administrative Review (“Petition”), requesting review of the Amended Order of Penalty Assessment. The petition for administrative review was forwarded to the Division of Administrative Hearings on May 20, 2010, and the matter was assigned DOAH Case No. 10- 2789. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by : reference. 6. On June 22, 2010, POWELL & SONS ROOFING, INC. filed a Motion to Withdraw Petition with the Division of Administrative Hearings. A copy of the Motion to Withdraw Petition is attached hereto as “Exhibit D” and incorporated herein by reference. 7. On July 1, 2010, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E” and incorporated herein by reference.
