The Issue The issues to be resolved in this proceeding concern whether the Petitioner corporation's workers' compensation insurance policy was in compliance with the provisions of Chapter 440, Florida Statutes, cited below, despite not having a specific Florida endorsement; whether the Department properly issued a Stop Work Order against the Petitioner and whether the proposed penalty of $240,927.55 was properly assessed.
Findings Of Fact The Petitioner, American Coatings, Inc., is a commercial painting corporation based in Tennessee. It has been in business since 1994 in the State of Tennessee, and through a predecessor entity, since 1985. The Petitioner does business in other states, including the State of Florida, and in fact operates in approximately 14 states. It has done so since the year 2000. It has had no workers' compensation claims from any of its Florida work sites during the entire time it has operated in Florida. On February 19, 2008, the Petitioner was painting portions of the premises at "the Estates of Rockledge" in Rockledge, Florida. It had other operations in Florida in the three years prior to February 28, 2008. When the Petitioner applied for workers' compensation coverage in Tennessee, the Petitioner advised its broker and insurance carrier that it maintained operations in Florida. The workers' compensation carrier and agent provided certificates of workers' compensation insurance for the Petitioner's Florida operations which supported its good faith belief that it had valid workers' compensation insurance in Florida. Respondent presented no evidence that Mr. Carswell and the Petitioner have committed fraud, misrepresentation, or omission concerning the obtaining and maintaining of workers' compensation insurance coverage for its Florida operations. There was no attempt to conceal the fact that the Petitioner had insurable operations in Florida. For the three years prior to February 28, 2008, the Petitioner maintained a policy of workers' compensation insurance for all employees, including those employees that performed operations in Florida. A workers' compensation premium was paid for each employee in question for all periods in the three years preceding February 28, 2008. The Respondent is an Agency of the State of Florida responsible for enforcing the various statutory requirements of Chapter 440, Florida Statutes, including Sections 440.107 and 440.38, Florida Statutes (2007). Its authority includes Section 440.10(1)(a), Florida Statutes, which imposes upon all employers in Florida the obligation to secure the payment of workers' compensation. The Respondent is statutorily charged with the obligation to monitor employers operating in Florida, to ensure that statutory employers maintain appropriate workers' compensation coverage on employees. There is no dispute that the Petitioner, is an "employer" for purposes of Sections 440.02(16)(a) and 440.02(17)(b)2., Florida Statutes (2007). It was operating in the construction industry and regularly employed at least one person. Pursuant to the Division's statutory authority, Investigator Eugene Wyatt of the Department's Division of Workers' Compensation, Bureau of Compliance, visited the subject worksite in Brevard County, Florida, where an apartment complex was under construction. Mr. Wyatt inquired at the general contractor's headquarters trailer and was told that a painting subcontractor known as American Coatings was employing workers on the site. Using the Federal Employer Identification Number, Mr. Wyatt checked with the Department's Coverage and Compliance Automated System (CCAS) data base and learned that American Coatings, Inc. the Petitioner, which did business in Florida as A.C. Painting, Inc., did not have a record of a Florida workers' compensation coverage policy since December of 2003. Upon inquiry of the general contractor's supervisor at the job site, Mr. Wyatt learned that American Coatings, Inc., had furnished proof of insurance to the general contractor. It was shown as a certificate of liability insurance from American Coatings, in evidence as Department's Exhibit 17. Investigator Wyatt contacted the agent who had produced the Certificate of Insurance and asked if a Florida endorsement had been procured for that policy. He was told that the policy had a "an all states" endorsement. Mr. Wyatt then contacted the underwriter and was told that it was a policy for Tennessee and not for Florida (apparently Tennessee rates and codes applied). The investigator then contacted Benjamin Carswell, the President of the Petitioner. He informed him that in his view the company was not in compliance with the Florida requirement that workers' compensation policies covering Florida work and Florida employees be specifically endorsed for the State of Florida. He stated that he would issue a Stop Work Order, which he did on February 19, 2008. (SWO). The SWO was posted at the worksite and served personally on Mr. Carswell on February 21, 2008. After the Petitioner entered into an installment payment plan as to the penalty, the SWO was ended with an Order of Conditional Release, on February 28, 2008. The Petitioner sent a copy of consolidated insurance policy number WC8263193, by fax to Terrence Phillips, the chief of the Respondent's Orlando compliance office. The information page of this policy showed that only Tennessee was listed in item 3A of the policy. Item 3C stated that the policy was in effect in all other states, however, except for North Dakota, Ohio, Washington, West Virginia, and the states listed in item 3A. Item 4 listed various occupational classifications with their codes and the premium rates for each. The codes were for the State of Tennessee. The effect of these terms was that Florida was included in the category for "all other states." Florida Law requires that Florida be listed as a state in item 3A, and requires a policy to utilize Florida class codes, rates, rules, and manuals, in order for an employer to be compliant with workers' compensation coverage requirements of Chapter 440, Florida Statutes. Investigator Wyatt determined that compliance was deficient and that a penalty should be calculated and assessed. He therefore served a request for production of business records on Mr. Carswell on February 21, 2008. The business records were necessary to construct the payroll amounts and number of employees at issue, so that the penalty, based upon the Petitioner's Florida Payroll, could be calculated. Mr. Carswell believed in good faith, throughout all times pertinent to this matter that his company was compliant with Florida workers' compensation coverage requirements. After compliance was called into question, however, he also obtained an additional workers' compensation insurance policy, apparently obtained on or about February 20, 2008. It showed that coverage was effective, related back to May 1, 2007. Based upon this additional policy, the Petitioner provided Investigator Wyatt with an additional certificate of insurance for this policy. On March 6, 2008, Investigator Wyatt learned that the SWO was a duplicate and had to be substituted. A new SWO was issued as an amended SWO. A Second Amended Order of Penalty Assessment and an Amended Order of Conditional Release from SWO, under the second SWO number of 08-092-D4, was issued. Investigator Wyatt calculated the penalty by reviewing the business records supplied by the Petitioner and determining what each employee had been paid between February 23 and December 31, 2005; during all of 2006; during all of 2007 and between January 1, and February 22, 2008. Each employee's payroll, for each year or portion thereof, was divided by 100 and multiplied by an actuarial figure known as the "approved manual rate," which is related to the job duties the employee performed. In the case at hand, all the employees were engaged in commercial painting and, therefore, their classification codes were all 5474. Each trade, occupation or profession has a particular code assigned to it by the National Council on Compensation Insurance (NCCI) and each code has its own rate, the codes and rates being adopted in the Respondent Agency's Rules. The product of one one-hundredth of the gross payroll, and the approved manual rate, constitutes the "evaded premium." In effect this is the insurance premium the employer should have paid during the years it did not actually secure the appropriate payment of workers' compensation for its Florida Employees (proper Florida or Florida-endorsed coverage). Each employee's premium added together was then multiplied by the statutory factor of 1.5 in order to determine the total penalty amount the Respondent seeks to assess. The penalty amount herein was calculated using the correct Florida Approved Manual Rate and class codes. The Respondent established that its calculations indicated that, for the Florida employees of the Petitioner, based upon its Florida payrolls for the three year period in question, the total workers' compensation premium, under the Florida rate, would be in the amount of $160,618.15. Based upon that Florida workers' compensation premium amount, when multiplied by the statutory factor of 1.5 times that amount, the Respondent arrived at a total proposed assessed penalty of $240,927.55. The Petitioner established, through the testimony of Mr. Carswell that, for the time period at issue, for the Florida employees and payroll, the Petitioner had paid workers' compensation premiums of $111,682.21 for the coverage it had in effect. It acknowledges that this was not paid pursuant to Florida rates, rather it was based upon Tennessee rates. It is the position of the Petitioner that the difference in premiums. between the above Florida premium amount, and the premium that the Petitioner actually paid, was $48,935.94. The Petitioner maintains that this differential is what really should be determined to be the unpaid or "evaded" premium, based upon Florida rates, and, if that amount was multiplied by 1.5 then the total penalty actually due should be $73,403.91. An initial penalty payment of $24,092.76 has already been made by the Petitioner. Periodic penalty payments, assessed beginning March 2008, and continuing, have been paid in the amount of $36,139.40. The total penalty already paid by the Petitioner, as of the hearing date, is thus $60,232.16. The Petitioner contends that the actual penalty to be paid should be based upon the differential between the correct total premium due, when using the correct Florida manual rate, and the total premium actually paid by the Petitioner, which, when applied in the above-referenced calculation results in the penalty due of $73,402.91. This would then be reduced by $60,232.17, the amount already paid, for a total remaining amount due of $13,171.75, as of the hearing date.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, finding that the Petitioner failed to fully secure the payment of workers' compensation for its employees in the manner prescribed by the above-referenced authority and that a penalty in the amount of $73,402.91 is due, less a credit of $60,232.16 already paid, and with credit applied to the above amount for penalty payments made since January 28, 2009. DONE AND ENTERED this 5th day of May, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 5th day of May, 2009. COPIES FURNISHED: Robert L. Dietz, Esquire Zimmerman, Kiser & Sutcliffe, P.A. Post Office Box 3000 Orlando, Florida 32802 Thomas H. Duffy, Esquire Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Honorable Alex Sink Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was licensed as a registered general contractor by the State of Florida, Construction Industry Licensing Board, having been issued license number RG 0014645. Respondent's address is 2533 Green Road, Tallahassee, Florida 32308. On or about October 30, 1985, Willie McFarland (McFarland) contracted with Virgil Fleming (Fleming) to perform certain improvements to Fleming's home located at 9008 Broken Lance, Tallahassee, Florida. The contract price was $24,600.00. There was no contract between Fleming and Respondent. Fleming paid McFarland $16,500.00 of the contract price. Most of this money was paid in advance of work being performed. MoFarland was not, at any time material to this proceeding, a licensed contractor in the State of Florida and both Fleming and Respondent knew that he was not a licensed contractor. McFarland was not authorized to pull a permit to complete the work and Fleming, upon finding this out, started to pull the permit as a homeowner but changed his mind. Respondent agreed to pull, and did pull, the permit for this job, after checking on McFarland and with the understanding that he would have to be involved with McFarland on the job. Without the permit, McFarland could not have continued with the job. Fleming did not pay any money to Respondent for pulling the permit or for anything else and there was no evidence that McFarland paid any money to Respondent for pulling the permit or anything else. McFarland partially completed the work contracted for with Fleming. The Respondent went to the job site on several occasions but was unable to make contact with McFarland. Respondent did make contact with McFarland on one (1) occasion after he had pulled the permit and obtained some promises from McFarland concerning the job but McFarland did not "live up" to those promises. There was credible testimony from Respondent that McFarland was not an employee of Respondent's business but that one of the conditions for pulling the permit required McFarland to be an employee of Respondent only on this job. Respondent had no knowledge of the financial arrangements between McFarland and Fleming until after the permit was pulled and McFarland had "skipped." The parties have been unable to locate McFarland.
Findings Of Fact The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2). Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry. Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00 P.M. on that date. Pratt was never given any reasons for his termination. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.
Findings Of Fact Genaro H. Rodriguez, Petitioner, was employed by Y.A.C. Electric Corporation, Respondent, as an electrician on the City of Miami Fire Station #5 project during the period February 1976 through September 1977. He did not work on this project every working day during this period. During most of the period involved Petitioner held a Dade County license as a journeyman electrician. Before the job was completed he was licensed as a master electrician. Petitioner was the electrical foreman on the job for Respondent. This project came under the Prevailing Wage law. While working on this project Petitioner was paid $6.50 per hour and later $6.75 per hour. The prescribed prevailing wage for electricians on this project was $10.75 per hour. The difference between the amount Petitioner received while working on this project and the prevailing wage he should have received is $2,429.65. F. Bilboa and Associates was the general contractor on this project and Y.A.C. Electric Corporation was a subcontractor for the electrical work. At the commencement of the project Respondent advised its employees that they would be paid less than the prevailing wage while the work was in progress and when the work was completed they would be paid the difference in a lump sum between what they had been paid and the prevailing wage. Respondent had been a subcontractor with General Electric as prime contractor on an earlier prevailing wage job and pursuant to a similar agreement the prime contractor paid the lump sum difference to the workers to satisfy the prevailing wage law at the completion of the project. In this case, Respondent has been unable to collect what is owed him by the prime contractor and has, therefore, not fulfilled his agreement with Petitioner.
The Issue Whether Petitioner, Moncrief Bail Bonds, Inc., conducted business operations in the State of Florida without obtaining workers' compensation coverage, meeting the requirements of Chapter 440, Florida Statutes (2005), in violation of Subsection 440.107(2), Florida Statutes (2002 through 2005). If so, what penalty should be assessed by Respondent, Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes (2005),1 and Florida Administrative Code Rule, Chapter 69L.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. Petitioner is a corporation domiciled in Florida, and engaged in the business of issuing bail bonds. On August 3, 2005, Respondent's investigator, Robert Cerrone, visited Petitioner's office location at 3910 South John Young Parkway, Orlando, Florida, on a referral from his supervisor. He interviewed a number of persons at the office site. Cerrone documented his investigation in the narrative of his Initial Investigative Report. Based upon these field interviews, Respondent determined that the workers were employed by Petitioner. Cerrone contacted Petitioner's president, Russell Bruce Moncrief, and inquired whether Petitioner had secured the payment of workers' compensation, to which Moncrief responded that he had never secured the payment of workers' compensation for his business. Subsequent to the site visit, it was determined that Petitioner did not have a State of Florida workers' compensation insurance policy to provide workers' compensation coverage for any of its workers. Florida law requires that an employer who has four or more employees, engaged in non-construction work in Florida, obtain a Florida workers' compensation policy. Petitioner was an employer, with four or more employees, all of whom were paid remuneration, during all times material to the instant case. Florida Administrative Code Rule 69L-6.019(2) requires that in order for an employer to comply with Subsections 440.10(1)(g) and 440.38(7), Florida Statutes, any policy or endorsement used by an employer to prove coverage of workers' compensation for employees engaged in Florida work, must be issued by an insurer that holds a valid certificate of authority in the State of Florida. Chapter 440, Florida Statutes, allows an individual to apply for an election to be exempt from workers' compensation benefits. Only the named individual on the application is exempt from carrying workers' compensation insurance coverage. During the relevant time period, there were no current, valid exemptions for Petitioner. 11. Subsections 440.107(3) and 440.107(7)(a), Florida Statutes, authorize Respondent to issue Stop-Work Orders to employers unable to provide proof of workers' compensation coverage. Failure to provide such proof is deemed "an immediate serious danger to public health, safety, or welfare " On August 3, 2005, Respondent issued and served on Petitioner a SWO and Order of Penalty Assessment for failing to obtain coverage that meets the requirements of Chapter 440, Florida Statutes, and the Insurance Code, Chapter 624, Florida Statutes. Also at that time, Cerrone issued a Request for Production of Business Records for Penalty Assessment to Petitioner, seeking business records for the period August 3, 2002, through August 3, 2005. Employers conducting business in Florida are required to keep business records that enable Respondent to determine whether the employer is in compliance with the workers' compensation law. Petitioner complied with the records request and provided Respondent with the requested payroll records for the time period between August 3, 2002, and August 3, 2005. Utilizing the records provided, and applying the statutorily mandated penalty calculation methodology, the penalty for Respondent was calculated by assigning a class code to the type of work conducted by the employees, utilizing the manual approved by rule. The approved manual rate was multiplied by the wages paid to the employee per one hundred dollars, and the product therof was then multiplying by 1.5. The Amended Order, which assessed a penalty of $51,499.34, was personally served on Petitioner on August 4, 2005. On August 12, 2005, Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty, and was issued an Order of Conditional Release from the SWO by Respondent. Petitioner made a down payment of ten percent of the assessed penalty, provided proof of compliance with Chapter 440, Florida Statutes, by obtaining six exemptions for officers of the corporation, and agreed to pay the remaining penalty in 60 equal monthly installments. The entities listed on the Amended Order penalty worksheet were Petitioner's employees, during the relevant period, and none had valid workers' compensation exemptions or workers' compensation coverage. At the hearing, Petitioner attempted to provide an alternative class code for the calculation of the penalty that significantly reduced his penalty. Petitioner alleged that his workers were misclassified by Respondent as Class Code 7720, police officers and drivers, when in fact they should have been classified under Class Code 8810, clerical office employees. Petitioner contends that the calculation of the penalty imposed is inaccurate. Specifically, six of Respondent's employees, although these individuals held bail bonds licenses, performed only clerical duties and did not go into the field to apprehend persons in violation of their bail bond or court order. Their rate of compensation was based on their experience and knowledge, rather than their job descriptions. Petitioner introduced evidence that the current workers' compensation policy, which exempts six employees, is less than the premium calculated by Respondent. Class Code 7720, utilized by Respondent, is the most appropriate code for bail bondsmen regardless of whether their duties were mostly performed in the office. Furthermore, all of the individuals on the penalty worksheet classified under Class Code 7720 possess surety agent (bail bond) licenses, and are thus able to function as bail bondsmen in their full capacity, including, but not limited to apprehending individuals. At the final hearing, Petitioner provided information that six of its employees had obtained workers' compensation exemptions, four of which listed the employee's duties as "bail bondsman" and two as "clerical." Petitioner also alleged that his workers were independent contractors, but did not provide evidence to support that assertion.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a Final Order, as follows: Petitioner failed to secure worker's compensation coverage for its employees, as required by statute; and Petitioner be assessed a penalty of $51,499.34. DONE AND ENTERED this 16th day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2007.
The Issue Whether the Department of Financial Services, Division of Workers' Compensation, correctly assessed and collected an assessment of penalty against Respondent.
Findings Of Fact On March 25, 2008, the Agency's investigator, Torry McClellan, conducted a compliance check at 6472 Tracy Lane, Tallahassee, Florida, to verify compliance with the workers' compensation statutes. At the worksite, Mr. McClellan observed three men carrying out carpentry work. Mr. McClellan interviewed John Harrell and Bradley Sheffield, II, and requested proof of workers' compensation coverage. John Harrell did not have proof of a current valid election to be exempt from workers' compensation. The Agency's Coverage and Compliance Automated System (CCAS) lists active workers' compensation policies and exemptions throughout Florida. Utilizing CCAS, Mr. McClellan was unable to locate a current valid election to be exempt from the requirement of securing the payment of workers' compensation for John Harrell. John Harrell's previous exemption had expired in 2003. Mr. McClellan was also unable to locate proof of either John Harrell or Respondent LLC securing the payment of workers' compensation through the purchase of an insurance policy or by any other means. Mr. McClellan testified that John Harrell admitted, and Horace Bradley Sheffield, Sr., confirmed, to Mr. McClellan that John Harrell was a subcontractor of Respondent Horace Bradley Sheffield Builders LLC, on March 25, 2008. Mr. Sheffield Sr.'s statement is accepted in evidence as an admission by Respondent LLC via its corporate principal and agent. Mr. Harrell's alleged statement is not even supplemental hearsay, pursuant to Section 120.57 (1) (c), Florida Statutes. On March 25, 2008, Mr. McClellan issued and served a Stop-Work Order and Order of Penalty Assessment on Respondent through Horace Bradley Sheffield, Jr., for failure of Respondent to meet the requirements of Chapter 440, Florida Statutes, and the Florida Insurance Code. Thereby, the LLC was ordered to cease all business operations, and a $1,000.00 penalty was assessed against the LLC, pursuant to Section 440.107(7)(d)1., Florida Statutes. On March 25, 2008, Mr. McClellan also issued and served on Respondent a Division of Workers' Compensation Request for Production of Business Records for Penalty Assessment Calculation. Respondent complied with the Department's request and submitted the required records. Utilizing the SCOPES Manual, published by the National Council of Compensation Insurance and adopted by Florida Administrative Code Rule 69L-6.021 as guidance, Mr. McClellan determined that carpentry is within the construction industry and assigned Occupation Code 5651 to Respondent's activities. Based on Respondent's business records, Mr. McClellan issued an Amended Order of Penalty Assessment, and served it on Respondent LLC through Horace Bradley Sheffield, Sr., on April 11, 2008, in the amount of $1,000.00, which is an amount greater than the calculated amount due per Respondent LLC's payroll. One thousand dollars is the statutory minimum. At some point, Respondent paid the $1,000.00, in order to get the Stop-Work Order lifted but did not withdraw the request for hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services that affirms, approves, and adopts the Stop-Work Order and Second Amended Order of Penalty Assessment at $1,000.00, and which permits the Agency's retention of the $1,000.00 penalty. DONE AND ENTERED this 28th day of August, 2008, in Tallahassee, Leon County, Florida. S 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 28th day of August, 2008. COPIES FURNISHED: Douglas Dolan, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Horace Sheffield Horace B. Sheffield Builders, LLC 4564 Ambervalley Drive Tallahassee, Florida 32312 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
The Issue Whether the Department may revoke and/or refuse to renew Mr. Moore's Certificate?
Findings Of Fact During 1982, 1983, 1984, part of 1985 and 1986, Mr. Moore acted as a farm labor contractor as those terms are defined in Section 450.28(1), Florida Statutes, and Rule 38B-4.02, Florida Administrative Code. Mr. Moore also acted as a crew leader as defined in Section 443.036(12), Florida Statutes, with a crew of approximately 16 to 20 farm workers. During 1982 through 1986 Mr. Moore failed to file quarterly unemployment compensation tax reports with the Department. When questioned by the Department about why he was not filing quarterly reports Mr. Moore would begin filing them. He would not continue filing them, however, and he paid no taxes due with the reports he filed. During 1982 through 1986 Mr. Moore failed to pay unemployment compensation taxes which totalled $6,831.27, including penalties, interest and filing fees, as of February 1, 1988. This amount will increase every month after January, 1988, that the debt is not paid because of the accrual of interest. By letter dated August 18, 1987, the Department gave Mr. Moore notice that it intended to revoke his Certificate. By letter dated December 16, 1987, the Department gave Mr. Moore notice that it intended to refuse to renew the Certificate. The Department gave Mr. Moore an opportunity to explain why he should be allowed to retain his Certificate. The Department also attempted to work with Mr. Moore to give him an opportunity to pay the delinquent taxes. At least two representatives of the Department have discussed the payment of delinquent taxes with Mr. Moore in the past. Mr. Moore would agree to make payments to the Department as a result of these discussions. For a while Mr. Moore would make payments. Within a short period of time after beginning payments, Mr. Moore would stop.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order revoking and refusing to renew Mr. Moore's Certificate. DONE and ENTERED this 22nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 22nd day of March, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, ROOM 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399-0658 ROBERT L. MOORE P. O. BOX 61 HASTINGS, FLORIDA 32045 ROD WILLIS, BUREAU CHIEF BUREAU OF AGRICULTURAL PROGRAMS P. O. BOX 1698 TALLAHASSEE, FLORIDA 32302-1698 HUGO MENENDEZ, SECRETARY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152 KENNETH HART GENERAL COUNSEL 131 MONTGOMERY BUILDING 2562 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
Findings Of Fact At all times pertinent to the allegations contained in Ms. Cheren's April 15, 1988 letter of denial of renewal, Petitioner, Earlen Braddy operated Earlen's ACLF home at 2840 47th Avenue South, St. Petersburg, Florida. Respondent, DHRS, is the state agency responsible for licensing ACLF's in Florida. Ms. Braddy has operated the ACLF in question at the current location for about four years during which time she has had as many as five residents at one time. Currently, and for the past year, she has had only three residents in the facility which she also occupies as her home. One current resident has been with her since she opened. On December 4 and 9, 1986, while Ms. Braddy was operating her ACLF in a licensed status, her facility was inspected by representatives of Respondent's Office of Licensure and Certification on its yearly survey. During the survey, the inspectors found several deficiencies, all of a Class III, (least serious) category, in such areas as Administration; Management and Staffing Standards, (6 deficiencies); Admission Criteria and Resident Standards, (3 deficiencies); Food Service, (12 deficiencies); Physical Plant, (5 deficiencies); Fire Safety, (1 deficiency); and Other Administrative Rule Requirements, (4 deficiencies). Though most deficiencies related to the failure to keep or provide the surveyors with the paperwork required to be kept by statute and the rules of the Department, some of the deficiencies related to resident care. These deficiencies were identified to Ms. Braddy in person by the inspectors at the time of discovery and again at the out-briefing. She was also advised as to how to correct them and where to secure assistance in doing so, if necessary. Nevertheless, and notwithstanding the uncorrected deficiencies identified in the December, 1986 survey and the March, 1987 follow-up, the Petitioner's license was renewed in April, 1987. Follow-up surveys were conducted in March, June, and October, 1987, at the next annual survey in 1988, and at its follow-ups. While some deficiencies originally identified were thereafter corrected, many were not. Another annual survey of the facility was conducted on February 16, 1988, prior to the issuance by the Department of the yearly renewal license. At this survey, again, numerous Class III deficiencies were identified including: Administrative, (5 deficiencies); Admission, (3 deficiencies); Food Service, (9 deficiencies); Physical Plant, (1 deficiency); Fire Safety, (3 deficiencies); and Other Administrative, (3 deficiencies). Many of these were carried over uncorrected from the previous year's survey, (December, 1986) and its follow- ups, and some were new. Some of the former remained uncorrected through the June, 1988 follow-up to the February, 1988 survey. In August, 1988, the Department filed three Administrative Complaints against the Petitioner seeking to impose monetary civil penalties against her. All three resulted in Final Orders being entered. In the last of the three, Petitioner was alleged to have committed five violations of the statutes and Departmental rules, all of which relate to Petitioner's alleged failure to "provide or make available for review documentation" in five certain areas. Petitioner and Respondent agree that these areas are those primarily involved in the uncorrected deficiencies outlined in the survey reports and upon which the Department relies to support denial of Petitioner's renewal. Petitioner readily agrees that the deficiencies cited by the Department both in the survey reports and in the Administrative Complaints existed at the time of identification and, in many cases, for some time thereafter. While Petitioner now claims all deficiencies have been corrected, her accountant, Mr. Schaub, indicates that at least one, that relating to the failure to document and keep on file scheduled leisure time, had not been accomplished previously and was not now being accomplished. As to the others, those requirements which were not being complied with at the time of the surveys are now being met. Some identified deficiencies were not actually defects. The documentation was being kept, but due to Petitioner's inability to keep up with it, was not made available to the surveyors. Mr. Schaub is convinced that Petitioner has a paperwork problem and needs help with it. She spends her time taking care of the residents without much help and does not keep up with the required paperwork. As he describes it, she is being "choked with red tape" due to the paperwork requirements imposed by the Department whose rules do not differentiate much in the requirements for record keeping between large facilities and very small ones as this is. In his opinion, however, and also in the opinion of the surveyors who visited the facility, the residents appeared to be clean, appropriately dressed, well fed, and content. Ms. Braddy contends that at the present, all the actions the rules require are being taken and while in the past she may not have done everything correctly, she has made the effort to comply with the instructions she received from the Department. She has recently hired an individual to help her and stay with the residents while she is gone. Before he came to work, she received some assistance from her children who, without pay, helped her from time to time. She believes her facility is now operating within the Department's requirements and there has been no survey conducted since June, 1988, to indicate whether this true or not.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Earlen Braddy, be issued a conditional license to operate an Adult Congregate Living Facility for a period of 6 months at which time, if all deficiencies are not corrected, the application for renewal be denied. RECOMMENDED this 12th day of December, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3025 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY THE PETITIONER None submitted. BY THE RESPONDENT 1. - 7. Accepted and incorporated herein Accepted and incorporated herein though the problem appears to be more a question of inability rather than unwillingness. Rejected as contra to the state of the evidence. Mr. Schaub indicated she would continue to have paperwork problems but with help could master the problem Not a Finding of Fact but a comment of the state of the evidence. COPIES FURNISHED: Gardner Beckett, Esquire 123 8th Street North St. Petersburg, Florida 33701 Edward Haman, Esquire Office of Licensure and Certification Legal Counsel Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 27th day of October, 2000.
