Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed February 21, 1980, the Florida Construction Industry Licensing Board (herein sometimes referred to as the Board), seeks to indefinitely suspend the Certified General Contractor License No. CGC007304 held by Robert L. Huffman (herein sometimes referred to as the Licensee or Respondent) and requests that his license not be reissued until Respondent provides to Petitioner proof of compliance with the Collier County Industry Licensing Board. Additionally, Petitioner seeks to impose an administrative fine of five hundred dollars ($500.00) against Respondent. Specifically, Petitioner alleges that Respondent abandoned a construction project without legal excuse in violation of Collier County Ordinance 78-2, 4.1.3 and thereby violated Section 468.112(2)(h), Florida Statutes. Based thereon, Petitioner alleges that Respondent willfully and deliberately disregarded and violated the local applicable building codes and laws in violation of Section 468.112(2)(a), Florida Statutes. Respondent, Robert L. Huffman, entered into a contract with Mack and Lois Trent of Columbus, Ohio, for the construction of a residence in Collier County on February 10, 1978, for a cost of $41,950.00. (Petitioner's Exhibit 1.) Pursuant to the terms of the contract entered into between the parties, Respondent agreed to use his best efforts to deliver the completed residence within one hundred fifty days (150) from the start of construction. The evidence reveals that construction commenced on June 1, 1978. (Respondent's Exhibit 1.) The Trents became dissatisfied at the pace that the Respondent constructed their residence and filed a claim with the local Collier County Construction Board. The Trents did not release the final 10 percent of the contract price to Respondent since, according to the Trents, the house was not completed as scheduled. As a result of the complaint filed by the Trents with the local building officials, Raymond Dulaney, Jr., Building Administrator for the Collier County Building Administration, visited the Trent property on July 23, 1979, and issued a check list of incomplete items to Respondent which was memorialized by letter dated July 23, 1979. (Petitioner's Exhibit 2.) That list contained approximately nineteen (19) items which remained incomplete at the time of Mr. Dulaney's visit to the Trents' residence. When the Trents withheld the construction monies, there was approximately seven thousand dollars ($7,000.00) remaining in the construction loan to be used by Respondent to complete construction of tie Trents' residence. During May of 1979, Respondent and the Trents had a discussion with regard to the rate of progress on their residence. The Trents then advised Respondent that they had planned to utilize the home for rental purposes to offset the mortgage payments. According to the Trents, they sustained a loss of approximately five thousand eight hundred twenty-four dollars and ninety-eight cents ($5,824.98) which amount reflects a rental loss beginning approximately March 1, 1979, until the home was completed during November of 1979, plus travel and other incidental expenses. The Trents rented the home during December of 1979. On October 10, 1979, Respondent and the Trents entered into an agreement respecting the problems connected with the Respondent's construction of the Trents' residence. Based on the agreement, Respondent was released from the building contract and likewise, the Trents were also released from any and all further obligations that they had under the building contract dated February 10, 1978. (See Petitioner's Composite Exhibit 2.) Additionally, Respondent installed a sprinkler system for the Trents at no additional cost. Raymond Dulaney, Jr., related the circumstances surrounding Collier County's investigation and determination of a complaint filed by the Trents against Respondent. Mr. Dulaney confirmed that he forwarded to Respondent a letter dated July 23, 1979, advising of the incomplete items remaining for the final inspection for the Trent residence. The results of the charges filed by the Trents against Respondent resulted in an action by the Collier County Board preventing Respondents from "pulling" building permits. (Petitioner's Exhibits 4, 5, 6, 7, 10 and 11.) A certificate of occupancy was issued for the Trent residence on October 29, 1979. RESPONDENT'S DEFENSE Respondent denied that there was any abandonment of the Trent residence. Instead, Respondent maintains that when the construction funds were withheld by the Trents, there was a delay in construction which Respondent argues cannot be regarded as an abandonment. Respondent acknowledged that there were some problems in getting the subcontractors to complete their phase of the construction which was aggravated by the Trents withholding of construction monies. Finally, Respondent points out that the parties entered into an agreement which resulted in a release of obligations and claims by both parties (Trents and Respondent). That release gave the Trents the right to retain the remaining monies, which amount was more than sufficient to complete their house. Respondent noted that the parties entered into the agreement for the construction of their residence on February 10, 1978, and that a notice of commencement could not be issued until June because the Trents had not completed their arrangements for financing. Respondent acknowledged that when the owners withheld construction monies that were due, he was unable to complete the construction of their residence with his own money, resulting in the usual problems with subcontractors in situations where monies were unavailable. Respondent also points out that the house was approximately 90 percent complete when the funds were withheld and that even given the nature of the problems respecting the withholding of construction monies, construction progressed at a normal rate. In support of that statement, Respondent pointed out that in Collier County during the period in question, two hundred twenty to two hundred thirty (220 to 230) days was the average period required for completion of a residence. Respondent met with the Trents' attorney, a Mr. McMahon, on October 9, 1978, at which time he (Respondent) provided attorney McMahon a list of all contractors who were owed monies and a release was signed the following day at Naples Federal Savings and Loan Association. To satisfy the Respondent's agreement to reimburse the Trents at the rate of four hundred dollars ($400.00) per month for every month that their residence was not completed, Respondent gave the Trents a sprinkler system plus a final release of all claims for monies due him as part of the settlement. Respondent has not applied for any permits in Collier County since approximately February of 1979. When Respondent and the Trents entered into their settlement, the terms of the release agreement encompassed a discussion and made provision for rents and all other items due the Trents. Richard McDole, Administrative Director of Code Enforcement for Lee County, Florida, is in charge of taking action on citizens' and other complaints filed against builders in Lee County, Florida. Director McDole was familiar with Respondent's work and had encountered no problems relative thereto in Lee County, Florida.
The Issue Whether Respondent's license as a limited surety agent should be revoked or otherwise disciplined for the reasons alleged in the Amended Administrative Complaint.
Findings Of Fact Petitioner, Department of Insurance and Treasurer, is the agency of the State of Florida which, pursuant to Chapter 648, Florida Statutes, is vested with jurisdiction to regulate licensure of limited surety (bail bond) agents. Respondent, Edward Leon Bolding, Jr., is a licensed limited surety agent, which license is currently under suspension by emergency order issued by Petitioner on June 23, 1997. Petitioner's official licensing data reflect that Respondent, Edward Leon Bolding, Jr., is a white male, born June 26, 1953, Social Security number 265-08-1197, whose address is 13803 Lake Village Place, Tampa, Florida 33624-4414. On April 21, 1997, Edward Leon Bolding II, was charged with two counts of aggravated assault in violation of Section 784.021, Florida Statutes, a third degree felony, in Case No. 97-00004536, Criminal Division, Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The criminal information describes Edward Leon Bolding II as a white male, born June 6, 1953, Social Security number 265-08-1197. The criminal report affidavit filed in criminal Case No. 97-4536 further lists Edward Leon Bolding II with an address of 13803 Lake Village Pl. 33624. The Hillsborough County Sheriff's Office, Detention Department's arrest records for Edward Leon Bolding II describe the defendant as a white male, born June 26, 1953, Social Security number 265-08-1197, and whose address is listed as 13803 Lake VL PL, TAMPA 33624. The arrest records further list next of kin as Edward Bolding, Sr., whose relationship to Edward Leon Bolding II is father. On June 23, 1997, Petitioner filed an Emergency Order of Suspension and an Administrative Complaint against Respondent Edward Leon Bolding, Jr., alleging that Respondent was charged in Case No. 97-00004536 with two counts of aggravated assault, each a felony, in violation of Section 764.021, Florida Statutes. On July 3, 1997, Respondent Edward Leon Bolding, Jr., filed an Answer to the Administrative Complaint which admitted that Respondent was a licensed limited surety agent, born June 6, 1953, Social Security number 265-08-1197, whose address was 13803 Lake Village Place, Tampa, Florida 33624. On July 14, 1997, Edward Leon Bolding II pled guilty to two counts of aggravated assault, each count a felony in violation of Section 784.021, Florida Statutes, in the above- described Case No. 97-00004536, Criminal Division, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. On August 28, 1997, Petitioner filed an Amended Administrative Complaint alleging that Respondent Edward Leon Bolding, Jr., pled guilty to two felony counts of aggravated assault. On October 3, 1997, Respondent filed an Answer to the Amended Administrative Complaint which, as set forth above, denied all allegations except that Petitioner has jurisdiction over limited surety licenses. The Hillsborough County Sheriff's Office's arrest records, the criminal court records in Case No. 97-00004536 of the Thirteenth Judicial Circuit, and the Petitioner's licensure records, all identify Edward Leon Bolding II, defendant, who pled guilty in Case No. 97-00004536, and Edward Leon Bolding, Jr., Respondent in this administrative proceeding, as one and the same person.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Department of Insurance and Treasurer, enter a Final Order denying the licenses and eligibility for licensure of Respondent, Edward Leon Bolding, Jr. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1998. COPIES FURNISHED: Dickson E. Kesler, Esquire Division of Legal Services 401 Northwest Second Avenue Suite N-321 Miami, Florida 33128 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
Findings Of Fact As indicated, this case has been presented upon a facts stipulation between the representatives of the parties and the agreement for submission of certain evidential items in aid of the fact stipulation. The exact terms and details of the facts stipulated are as follows:
Recommendation It is recommended that the Respondent, Duval County School Board, allow the Petitioners claim for tenure effective the beginning of the academic year 1977- 78, with full benefits, including back pay. DONE AND ENTERED this 30th day of October, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Patricia A. Renovitch, Esquire General Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32304 Thomas E. Crowder, Esquire Assistant City Attorney 1300 City Hall Jacksonville, Florida 32202
The Issue On April 11, 1996, the undersigned Hearing Officer entered a Final Order in City of St. Petersburg v. Division of Retirement, Case No. 95-5089RU, finding that certain non-rule policies of the DIVISION OF RETIREMENT violated the provisions of Section 120.535, Florida Statutes. In light of legislation being considered by the 1996 Legislature, certain issues asserted by the Petitioner under Section 120.56, Florida Statutes, were not resolved at the time of the entry of the Final Order in Case No. 95-5089RU. The CITY OF PALATKA, the TOWN OF LANTANA, and the CITY OF LARGO (CITIES), Petitioners in the above-referenced consolidated cases now seek a determination that the Respondent, the DIVISION OF RETIREMENT (DIVISION), may not subsequently enforce the non-rule policies which in case No. 95-5089RU were found to be in violation of Section 120.535, Florida Statutes. Petitioners further seek a determination that such non-rule polices, having been determined to be rules within the meaning of Section 120.52(16), Florida Statutes, are invalid under the provisions of Section 120.56, Florida Statutes. The ultimate issues in these cases are: 1) whether certain agency statements made by the Respondent, DIVISION OF RETIREMENT, regarding the application of the provisions of Chapters 175 and 185, Florida Statutes, to pension plans for municipal firefighters and police officers are "rules" as defined by Section 120.52(16), Florida Statutes; and, 2) if so, whether the agency statements impermissibly enlarge, modify, or contravene the statutory provisions of Chapter 175 and 185, Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes. Specifically, the issues in these cases relate to the criteria required of local law pension plans by the Legislature to qualify for the distribution of premium tax monies. Chapters 175 and 185, Florida Statutes, provide for pension plans for firefighters and police officers, and authorize two types of pension plans. "Chapter plans" are created by state law, and "local law plans" are created either by special act of the Legislature or by municipal ordinance. The gist of the petitions filed by the CITIES in these cases is that the DIVISION is attempting to impose, without express statutory authority, the same requirements relating to terms, conditions, and benefits on local law plans that the DIVISION requires of chapter plans. Specifically, the alleged non-rule policies of the DIVISION of which the CITIES complain are: 1) the definition of "credited service"; 2) the definition of "average final compensation"; 3) the disallowance of a Social Security offset and worker's compensation benefit offset; 4) the interpretation of "disability retirement"; and 5) the prohibition on prospectively reducing pension benefits to coincide with future available funding. As set forth below, the requirements specified by the Legislature for local law plans to receive premium tax monies have been the subject of extensive litigation. In rejecting a challenge to the constitutionality of these statutes, the Court in City of Orlando v. State Department of Insurance, 528 So.2d 468 (Fla. 1st DCA 1988) stated: Chapters 175 and 185 create a purely voluntary program whereby municipalities may receive state-collected taxes, imposed on property and casualty insurance premiums, with which to fund retirement programs for local police and firefighters. In exchange for receipt of these funds, the legislature has established certain criteria under which the funds must be operated and managed. Id. at 469. The dispute in these cases once again focuses on ascertaining what specific criteria the Legislature has established for the operation and management of such local pension plans in order to determine whether a local law plan complies with the applicable statute for purposes of receiving state-collected tax funds. Petitioners, CITY OF PALATKA, TOWN OF LANTANA, and CITY OF LARGO, take the position that Respondent, DIVISION OF RETIREMENT, has made non-rule policy statements, and required compliance therewith, which go beyond the specific and express criteria established by the Legislature for participation in the program. Petitioners contend that such statements are "rules" which unlawfully enlarge, modify, or contravene the provisions of Chapters 175 and 185, Florida Statutes, and therefore violate the provisions of Section 120.56, Florida Statutes, because the statements constitute invalid exercises of delegated legislative authority. Petitioners further contend that even though the DIVISION pursuant to Section 120.535(5), Florida Statutes, has, subsequent to the filing of these cases, promulgated proposed rules embodying these non-rule polices, the polices nonetheless may not be retroactively applied to deny the Petitioners their premium tax monies for calendar year 1995 to which they are otherwise entitled. Respondent, DIVISION OF RETIREMENT, takes the position that the DIVISION has complied with the provisions of Section 120.535(5), Florida Statutes, and may apply the non-rule policy statements which are now proposed rules to require compliance from the Petitioners. The DIVISION further contends that the non- rule policy statements, which have now been promulgated as proposed rules, merely construe and apply the provisions of Chapters 175 and 185, Florida Statutes, in the manner intended by the Florida Legislature, and therefore are not invalid under Section 120.56, Florida Statutes. The validity of the proposed rules which were promulgated by the DIVISION on July 12, 1996, is the subject of two separate pending administrative challenges brought pursuant to Section 120.54, Florida Statutes, and filed on July 30, 1996, by the Florida League of Cities and the City of St. Petersburg in cases Nos. 96-3560RP and 96-3561.
Findings Of Fact Parties Petitioner, the CITY OF PALATKA, is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes, respectively. Petitioner, TOWN OF LANTANA is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes. Petitioner, CITY OF LARGO, is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes. Respondent, DIVISION OF RETIREMENT (DIVISION), is the agency of the State of Florida vested with the statutory authority to administer the voluntary program under which municipalities receive state-collected taxes imposed on property and casualty insurance with which to fund local plans pursuant to Chapters 175 and 185, Florida Statutes. Prior to 1993, the Florida Department of Insurance was the state agency responsible for the administration of Chapters 175 and 185, Florida Statutes. History Chapters 175 and 185, Florida Statutes, relating to pension plans for firefighters and police, authorize two types of retirement or pension plans. One type is called "chapter plans" and the other is known as "local law plans." Chapter plans are created under state law, and the provisions of Chapters 175 and 185, Florida Statutes, control the plans' terms, conditions and benefits. Local law plans are purely voluntary and are created either by special act of the Legislature, or by municipal ordinance. The special act or municipal ordinance contain the provisions relating to the terms, conditions, and benefits of the local law retirement plan. Both chapter plans and local law plans receive funds from the state-collected premium tax on property and casualty insurance. The Petitioner CITIES have voluntarily participated on a continuing basis in the program created under Chapters 175 and 185, Florida Statutes, whereby the CITIES have received state-collected taxes imposed on property and casualty insurance premiums with which to fund its local plans for firefighters and police. The CITIES have received such premium tax monies until calendar year 1995. In 1986 the Legislature significantly amended Chapters 175 and 185, Florida Statutes. See Chapters 86-41 and 86-42, Laws of Florida. Chapter 86-41 pertained to municipal firefighters; Chapter 86-42 pertained to municipal police officers. As indicated above, the constitutionality of these statutes was upheld in City of Orlando v. State Department of Insurance, supra. In Section 1 of each act, the Legislature added substantially the same legislative intent language: Therefore, the Legislature declares that it is a proper and legitimate state purpose to provide a uniform retirement system for the benefit of firefighters as hereinafter defined, and intends, in implementing the provisions of s. 14, Art. X of the State Constitution as they relate to municipal firefighters' pension trust fund systems and plans, that such retirement systems or plans to be managed, administered, operated, and funded in such manner as to maximize the protection of the firefighters' pension trust funds. This chapter hereby establishes minimum standards for the operation and funding of municipal firefighters' pension trust fund systems and plans. After the enactment of Chapters 86-41 and 86-42, Laws of Florida, the Department of Insurance undertook rulemaking to implement the provisions of the acts. The City of St. Petersburg and the Florida League of Cities challenged the proposed rules under Section 120.54, Florida Statutes. The Department's proposed rules were upheld by the DOAH Hearing Officer. On appeal, the First District Court of Appeal reversed the order of the Hearing Officer, and held that the majority of the department's proposed rules were invalid because statutory provisions governing chapter pension plans, which were not made specifically and expressly applicable by the Legislature to local firefighter and police plans, did not preempt municipal power with respect to local law plans. Florida League of Cities, Inc. v. Department of Insurance, 540 So.2d 850 (Fla. 1st DCA 1989) review denied 545 So.2d 1367 (Fla. 1989), [hereinafter referred to as the "Rules Case"]. From 1988 to 1991, the Department of Insurance engaged in litigation with numerous municipalities regarding compliance of local law plans with the provisions of Chapters 175 and 185, Florida Statutes. The Department settled these cases and continued to distribute premium tax funds to these local law plans with the understanding that the disputed issues of statutory compliance would be better resolved through rulemaking. The Department of Insurance conducted staff workshops to discuss rulemaking; however, the Department did not thereafter initiate formal rulemaking under Chapter 120, Florida Statutes, with regard to any compliance requirements for local law plans under Chapters 175 and 185, Florida Statutes. In 1993 the Legislature transferred statutory responsibility for the administration of Chapters 175 and 185, Florida Statutes, from the Department of Insurance to the DIVISION. The legislative transfer effected a transfer of all programs as well as personnel. Since the legislative transfer in 1993, the DIVISION has made a continuous and good faith effort to present these issues to the Legislature for clarification and resolution. Indeed, during the 1996 Session, HB 1951 and SB 2484 were introduced which specifically addressed and clarified the issues presented in these cases. On October 19, 1995, the City of St. Petersburg in case No. 95-5089RU filed a Petition challenging certain non-rule policies of the DIVISION under Sections 120.535 and 120.56, Florida Statutes. On April 11, 1996, the Final Order was entered in case No. 95-5089RU, holding that the DIVISION's non-rule policies violated the provisions of Section 120.535, Florida Statutes. The Final Order did not resolve the Section 120.56, Florida Statutes, issues. On May 10, 1996, the City of St. Petersburg filed a Notice of Appeal in case No. 95-5089RU as to the Section 120.56, Florida Statutes, issues, and that matter is now pending before the First District Court of Appeal, in case No. 96-1817. As indicated above, HB 1951 and SB 2484, specifically addressing the issues raised in these cases, were introduced during the 1996 Session Florida Legislature. On April 30, 1996, HB 1951 was passed by the Florida House of Representatives, but died along with SB 2484 in the Florida Senate on May 4, 1996. The 1996 Legislature failed to enact any legislation addressing or otherwise clarifying the issues raised in these proceedings. On May 31, 1996, the DIVISION noticed a rules workshop addressing these issues in the Florida Administrative Weekly. On June 12, 1996, the DIVISION disseminated proposed rules. On June 21, 1996, the DIVISION conducted the rules workshop. On July 12, 1996, the DIVISION published proposed rules and amendments, 60Z-1.004, 60Z-1.006, 60Z-1.026, 60Z-1.027, 60Z-1.028, 60Z-2.017, 60Z-2.018, and 60Z-2.019, which address the issues raised in these cases. On July 30, 1996, the City of St. Petersburg, and the Florida League of Cities, pursuant to Section 120.54, Florida Statutes, filed Petitions challenging the DIVISIONS's proposed rules. The Section 120.54 Petitions are now pending before the Division of Administrative Hearings in cases Nos. 96-3560RP and 96-3561RP. Stipulated Facts The following facts are undisputed by the parties: The DIVISION takes the position that Sections 175.032 and 185.02, Florida Statutes, (Definitions), apply to local law plans, including the definitions of "aggregate years of service" and "salary." It is the position of the DIVISION that firefighters disabled from duties of a fireman as defined in Section 175.032, Florida Statutes, are eligible for disability benefits. It is the position of the DIVISION that local law plan benefits may not be offset by social security or workers compensation benefits. It is the position of the DIVISION that a municipality with a local law pension plan is prohibited from prospectively reducing pension benefits so as to coincide with available funding. The premium tax monies for calendar year 1995 are withheld from each of the Petitioner CITIES by the DIVISION. Prior to 1994 the DIVISION, or its predecessor agency, the Department of Insurance, have never withheld Chapter 175 or 185 insurance tax premium moneys from the CITIES. It is the position of the DIVISION that all municipal pension plans submitted for review must comply with the non-rule policies at issue in the present case in order to receive Chapter monies pursuant to Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that the pension plans of the Petitioner CITIES do not fulfill the requirements of Section 175.351, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the pension plans of the Petitioner CITIES do not fulfill the requirements of Section 185.35, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the term "credited years of service" as used in Section 175.351(4) and 185.35(1)(d), Florida Statutes, is to be defined in accordance with the term "aggregate number of years of service" and "aggregate number of years of service with the municipality" under Sections 175.032(1)(a) and 185(1)(b), Florida Statutes, respectively. It is the position of the DIVISION that it has the authority under Chapters 175 and 185, Florida Statutes, and Chapter 60Z, Florida Administrative Code, to withhold Chapter 175 and 185 premium tax money to plans not in compliance with Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that it has the authority to release payment of Chapter 175 and 185 premium tax moneys to plans not in compliance with Sections 175.351 and 185.35, Florida Statutes, provided the municipality is making good faith efforts to bring the violations into compliance.
The Issue The issue is whether Respondent's untimely request for an administrative hearing is excused by the doctrine of equitable tolling.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. To enforce this requirement, the Department performs random inspections of job sites and investigates complaints concerning potential violations of workers' compensation rules. On January 16, 2018, Hemant Balgobin, a Department compliance inspector, conducted a compliance investigation at a job site in Bartow, Florida. The inspection resulted in a determination by Mr. Balgobin that Respondent was the responsible entity supervising the job site, and three individuals employed by Respondent did not have the required workers' compensation coverage. On January 17, 2018, a Stop-Work Order and Request for Production of Business Records was served on Ms. Morales. After the business records produced by Ms. Morales were reviewed by the Department, on May 21, 2018, the Department served her with a Penalty Assessment proposing to assess the company a penalty in the amount of $55,187.12. The Penalty Assessment contained a Notice of Rights, which stated that, if Ms. Morales wished to contest the penalty, she must file a "petition for hearing so that it is received by the Department within twenty-one (21) calendar days of your receipt of this agency action." It also stated that the petition "must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0300." Finally, the Notice of Rights stated in bold capital letters, "FAILURE TO FILE A PETITION WITHIN TWENTY-ONE (21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THIS AGENCY ACTION." This meant that a petition had to be filed and in the hands of the Agency Clerk no later than June 11, 2018. The petition was not filed until June 15, 2018. Because the petition was filed four days late, the Department issued an Order to Show Cause, which required Ms. Morales to show cause why her petition should not be dismissed. In her response, Ms. Morales asserted that she did not have a fax number for filing a petition, so she contacted Mr. Balgobin, who told her to fax it to him and "they would fax it to the right person." She essentially contends that this statement led her to believe that by filing the petition with Mr. Balgobin, it would be treated as a timely filing. The Department construed this conversation as possibly excusing the late filing and forwarded the matter to DOAH to resolve that narrow issue. The record shows that on June 14, 2018, or after the filing deadline was missed, Ms. Morales telephoned Mr. Balgobin to ask "who to send it to," as there was no email or fax number in the Notice of Rights. She testified that he told her to fax the petition to the Fort Myers office and it would be forwarded to Tallahassee. After speaking with Mr. Balgobin, she prepared a petition and then faxed it to the Fort Myers office the following day, June 15, 2018. In his testimony, Mr. Balgobin did not say whether he spoke with Ms. Morales on June 14, 2018, or if he told her to fax the petition to him. However, it is reasonable to find that he did, because she faxed a petition to the Fort Myers office on June 15, 2018, and it then was forwarded by that office to Tallahassee. However, all of these events occurred after the deadline for filing a petition. There is no credible evidence that Mr. Balgobin gave Ms. Morales a specific date when the petition was due, and he made no statements that caused her to miss the deadline. In fact, on the few occasions that he spoke with Ms. Morales throughout this process, he always reminded her to read the Notice of Rights. It is not the practice of compliance inspectors (or any other employee in the Fort Myers district office) to tell persons when their petitions must be filed. At hearing, Ms. Morales also contended that one reason for the delay in filing a petition was because the Notice of Rights listed only a street address in Tallahassee, and not a fax number or email address. She explained that she attempted to telephone the Agency Clerk in Tallahassee to secure that information, but was unsuccessful. She gave no explanation as to why the petition was not sent by mail to the Tallahassee address pursuant to the instructions in the Notice of Rights. The undersigned has not credited Ms. Morales' assertion that she was confused on where and how to send a petition, given the clear instructions in the Notice of Rights. Ms. Morales also spoke by telephone with Ms. Almas, a Department regulatory consultant in the Fort Myers office. The record is confusing on the gist of those conversations because Ms. Morales was unclear about when the calls occurred, and whether the calls related to the deadline for filing business records to take advantage of a penalty discount, filing her request for a hearing, or filing a response to the Order to Show Cause. The record is clear, however, that Ms. Almas telephoned Ms. Morales six days after the Stop-Work Order was issued in January 2018 to remind her that all business records must be filed within ten days in order to be eligible for a discount. According to Ms. Almas, a second telephone conversation took place on May 31, 2018, when Ms. Morales contacted her to ask why she did not receive a discount on the penalty. At hearing, Ms. Morales contended that during that call, Ms. Almas provided her with a specific date on which the petition must be filed, and that she timely filed her petition in accordance with those instructions. However, she could not recall the date allegedly given to her by Ms. Almas. Ms. Almas denied giving Ms. Morales a specific due date for the petition and says she only referred her to the Notice of Rights. She also denied providing any misleading information that would cause Ms. Morales to late-file her petition. On this issue, Ms. Almas' testimony is credited. Finally, Ms. Morales acknowledged that she read the Notice of Rights and she understood she had 21 calendar days in which to request a hearing. She admitted that nothing prevented her from filing a petition in a timely manner, but she "was just trying to see how [she] would do it," since this was the first time she was involved in an administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing Respondent's request for a hearing as untimely. DONE AND ENTERED this 7th day of January, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2019.
Findings Of Fact Respondent is a certified roofing contractor having been issued license number RC0021181. His address as stated at the June 30, 1982, hearing is 11360 SW 47th Terrace, Miami, Florida 33165. On or about August 2, 1976, Mildred Buckaloo contracted with Respondent, who was then doing business as Roddy Roofing Company, to re-roof her residence in Miami. Respondent completed the job with some agreed changes in the contract. The customer was not satisfied with the job and Respondent returned in September to reinstall lead flashing and replace a facia board. Ms. Buckaloo subsequently complained that the roof leaked, and accused Respondent of improper sexual advances. Respondent agreed to return to the job site, but sought to be accompanied by a third person. This was never arranged and Ms. Buckaloo's death apparently resulted in the dispute remaining unresolved. Respondent admitted that he failed to obtain a building permit for the Buckaloo job as required by Section 301.1(k), Metropolitan Dade County Code. Respondent claims that although he has no documents, he did obtain the project inspection required by Section 201.1(3)(b) of this Code. In this regard, Respondent stated that he ran into Dade County building inspector Gene Kirby in a restaurant and got Kirby to come to the job site and make the inspection. Building inspector Kirby testified at the second hearing and denies making the inspection. He did not know Respondent in 1976 but believes he first met him around 1980. Due to the long period of time which has elapsed since the alleged inspection, it cannot be found that either witness lied. However, the absence of any record to document the inspection indicated that it was not performed.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter its Final Order suspending Respondent's roofing contractor's license for a period of six months. DONE and ENTERED this 1st day of October, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1982.
Findings Of Fact At all times relevant, Dimitria Schmidt was employed by the Department of Health and Rehabilitative Services (HRS) as a Children, Youth and Family (CYF) Senior Counselor in HRS District VII, in Orlando, Florida. In a letter dated February 5, 1992, Ms. Schmidt's supervisor and program operations administrator informed her that she was considered to be on leave without authorization and would continue to be considered such until she contacted her supervisor and provided written certification of her condition from a physician. This was followed with a letter dated February 10, 1992 informing Ms. Schmidt that she was deemed to have abandoned her position based on failure to report to work on February 5, 6, 7, and 10, 1992 and failure to contact her supervisor. The letter cited Rule 22A-7.10(2), F.A.C. and provided the right to petition the Department of Administration for a review of the facts in accordance with that rule. In a letter dated February 20, 1992, Ms. Schmidt timely made her appeal to the Department of Administration and referred to her attorney, Dominick Salfi, in Altamonte Springs, Florida. Based on certain medical reports, HRS District VII Administrator, Paul Snead, rescinded the notice of abandonment on April 9, 1992, and reinstated Ms. Schmidt to her same position, but, at her request, in a different unit with a different supervisor. The agency intends to restore the employee to her prior status with respect to all benefits to which she would have been entitled without the break in service. This includes, but is not limited to back pay, leave, retirement benefits, and bumping rights. The agency no longer contends that Ms. Schmidt abandoned her position, and considers the notice of February 10, 1992 a nullity. Ms. Schmidt contends that she is entitled, in addition to the above, to reimbursement in the approximate amount of $2,634.00, for attorney's fees, for travel to Tallahassee to see the HRS Secretary, for telephone calls and postage, for mortgage late fees, and hospital and other medical costs which Ms. Schmidt claims were the result of stress from harassment by her supervisor. Of the $2,634.00 total, $254.00 relate to attorney's fees incurred when Ms. Schmidt's mortgage was foreclosed. She has not paid those fees yet. She has paid $658.55 to attorney Dominick Salfi, as follows: $100.00 for consultation on 1/13/92 (a month prior to the abandonment notice) $400.00 for consultation on 2/13/92 (directly related to the abandonment notice) $116.00 for copies of medical records provided to her attorney (invoice from West Lake Hospital undated, and ambiguous as it references 11 pages, at $1.00 a page, plus $5.00 research fee, for a total of $116.00) $42.55 for consultation on 4/23/92 and long distance telephone call on 5/15/92.
Recommendation Based on the foregoing, it is hereby, recommended that the Department of Administration enter its final order dismissing Dimitria Schmidt's petition and remanding the matter to the Department of HRS for the immediate payment of back pay and restoration of benefits, consistent with the parties' agreement. RECOMMENDED this 9th day of June, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Dimitria D. Schmidt 429 Number 3 Sheoah Blvd. Winter Springs, FL 32708 Dominick Salfi, Esquire HRS-Dist. 7 Legal Office South Tower, Ste. S-827 400 W. Robinson Street Orlando, FL 32801 James Sawyer, Esquire HRS-Dist. 7 Legal Office South Tower, Ste. S-827 400 W. Robinson Street Orlando, FL 32801 John Slye, Esquire HRS Bldg. One, Ste. 407 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John A. Pieno, Secretary Dept. of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Dept. of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John M. Carlson, Esquire Dept. of Administration 438 Carlton Building Tallahassee, FL 32399-1550 MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1992.
