Findings Of Fact 1. On January 4, 2011, 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. 11-002-D7 to MANUEL VALDEZ. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein MANUEL VALDEZ 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 January 14, 2011, the Stop-Work Order and Order of Penalty Assessment was served on MANUEL VALDEZ via certified mail. 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 February 2, 2011, the Department issued an Amended Order of Penalty Assessment to MANUEL VALDEZ. The Amended Order of Penalty Assessment assessed a total penalty of $42,521.76 against MANUEL VALDEZ. The Amended Order of Penalty Assessment included a Notice of Rights wherein MANUEL VALDEZ 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 February 14, 2011, the Amended Order of Penalty Assessment was served via process server on MANUEL VALDEZ. A copy of the Amended Order of Penalty Assessment and Proof of Service is attached hereto as “Exhibit 2” and incorporated herein by reference. 5. On February 18, 2011, MANUEL VALDEZ 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 August 1, 2011, and the matter was assigned DOAH Case No. 11-3850. A copy of the petition is attached hereto as “Exhibit 3” and incorporated herein by reference. 6. On September 7, 2011, the Petitioner filed with DOAH a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)(i), Florida Statutes. A copy of the Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)@), Florida Statutes is attached hereto as “Exhibit 4” and incorporated herein by reference. 7. On September 29, 2011, the Department a received copy of an Order granting Petitioner’s Motion to Deem Matters Admitted and to relinquishing jurisdiction pursuant to Section 120.57 (1)(i), Florida Statutes. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 5” and incorporated herein by reference. 8. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment issued January 4, 2011 and February 2, 2011, respectively, 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 MANUEL VALDEZ, 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:
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 8. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 25, 2010, the Amended Order of Penalty Assessment issued on April 16, 2010, the Order to Show Cause issued on December 17, 2010, and the Order Relinquishing Jurisdiction and Closing File issued on January 3, 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, the Amended Order of Penalty Assessment, the Order to Show Cause, and the Order Relinquishing Jurisdiction and Closing File served in Division of Workers’ Compensation Case No. 10-079-D7, and being otherwise fully advised in the premises, hereby finds that: 1. On March 25, 2010, the Department issued a Stop-Work Order and Order of Penalty Assessment to MATCHTECH, INC. 2. On March 29, 2010, the Stop-Work Order and Order of Penalty Assessment was served by certified mail on MATCHTECH, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 16, 2010, the Department issued an Amended Order of Penalty Assessment to MATCHTECH, INC. The Amended Order of Penalty Assessment assessed a total penalty of $17,613.20 against MATCHTECH, INC. 4. On April 22, 2010, the Amended Order of Penalty Assessment was served by certified mail on MATCHTECH, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On May 7, 2010, MATCHTECH, 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 June 2, 2010, and the matter was assigned DOAH Case No. 10-3038. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On December 17, 2010, the Administrative Law Judge issued an Order to Show Cause requiring MATCHTECH, INC. to show cause why this action should not be relinquished to the agency for failure to appear at a scheduled deposition. A copy of the Order to Show Cause is attached hereto as “Exhibit D” and incorporated herein by reference. 7. On January 3, 2011, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit E” and incorporated herein by reference.
Findings Of Fact 10. . The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 23, 2009, the Amended Stop-Work Order issued on July 24, 2009, and the Amended Order of Penalty Assessment issued on July 27, 2009 which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Stop-Work Order, and the Amended Order of Penalty Assessment, served in Division of Workers’ Compensation Case No. 09-168-D1-09-WC, and being otherwise fully advised in the premises, hereby finds that: 1. On June 23, 2009, the DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION (hereinafter “(DEPARTMENT”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-168-D1- 09-WC to THUNDER DEVELOPMENT CORPORATION. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein THUNDER DEVELOPMENT CORPORATION 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 June 23, 2009, the Stop-Work Order and Order of Penalty Assessment was served by posting on THUNDER DEVELOPMENT CORPORATION. On June 26, 2009, the Stop-Work Order and Order of Penalty Assessment was served by certified. mail on THUNDER DEVELOPMENT CORPORATION. Copies of the Stop-Work Order and Order of Penalty Assessment are attached hereto as “Exhibit A” and incorporated herein by reference. 3. On July 24, 2009, the DEPARTMENT issued an Amended Stop-Work Order in Case No. 09-168-D1-09-WC to THUNDER DEVELOPMENT CORPORATION. The Amended Stop-Work Order included a Notice of Rights wherein THUNDER DEVELOPMENT CORPORATION was advised that any request for an administrative proceeding to challenge or contest the Amended Stop-Work Order must be filed within twenty-one (21) days of ‘receipt of the Amended Stop-Work Order in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On July 30, 2009, the Amended Stop-Work Order was served by certified mail on THUNDER DEVELOPMENT CORPORATION. A copy of the Amended Stop-Work Order is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On July 27, 2009, the DEPARTMENT issued an Amended Order of Penalty Assessment in Case No. 09-168-D1-09-WC to THUNDER DEVELOPMENT CORPORATION. The Amended Order of Penalty Assessment assessed a total penalty of $445,134.86 against THUNDER DEVELOPMENT CORPORATION. The Amended Order of Penalty Assessment included a Notice of Rights wherein THUNDER DEVELOPMENT CORPORATION 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. 6. On August 31, 2009, the Amended Order of Penalty Assessment was served by certified mail on THUNDER DEVELOPMENT CORPORATION. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On August 17, 2009, THUNDER DEVELOPMENT CORPORATION filed a petition for administrative review with the DEPARTMENT. The petition for administrative review was forwarded to the Division of Administrative Hearings on August 25, 2009, and the matter was assigned DOAH Case No. 09-4647. 8. On September 17, 2009, THUNDER DEVELOPMENT CORPORATION filed a Notice of Voluntary Dismissal with the Division of Administrative Hearings. 9. On September 21, 2009, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File which relinquished jurisdiction to the Department. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
