The Issue Whether the petitioner's application for renewal of his community association manager's license should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Mr. Richter is a licensed community association manager, having been issued license number 1,439 by the Department in 1988. Mr. Richter's community association manager's license was renewed by the Department in 1990 and 1992. Mr. Richter is also licensed by the Department of Business and Professional Regulation as a real estate broker and as a Certified Public Accountant. The Department of Business and Professional Regulation, through its Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency charged with the administration of chapter 468, part VIII, Florida Statutes, and is specifically responsible for reviewing and approving applications for renewal of community association manager's licenses. The Bureau of Condominiums carries out this function. Community association manager's license renewal applications for the 1994 renewal year were required to be postmarked no later than September 30, 1994. On or about September 15, 1994, Mr. Richter mailed his completed 1994 license renewal application to the Department, together with a check made payable to the Department in the amount of $50.00, the required license renewal fee. In late November 1994, Mr. Richter telephoned the Department and inquired about the status of his renewal application. He spoke with Donald Sapp, an employee of the Bureau of Condominiums, who told him that the Department was behind in processing renewal applications for community association manager's licenses. The Department completed processing applications for the 1994 renewal period in mid-January 1995. On February 17, 1995, Mr. Richter telephoned the Bureau of Condominiums and advised Mr. Sapp that he had not received his 1994 license and that the check he wrote for the fee had not cleared his bank. Mr. Sapp stated that he would look into the matter and call Mr. Richter back. On February 21, 1995, Mr. Sapp telephoned Mr. Richter and advised him that the Department had no record of having received his 1994 license renewal application and check. Mr. Sapp asked Mr. Richter to send the Department a copy of his check register for the period including September 15, 1994, a copy of his bank statements for September, October, and November 1994, and a copy of a stop payment order on the check he wrote for the license renewal fee. On February 22, 1995, Mr. Richter sent Mr. Sapp, via Airborne Express, a copy of his check register and of the requested bank statements. He refused to place a stop payment order on his check, however. On March 10, 1995, Mr. Richter sent the Department a replacement check in the amount of $50.00 for the 1994 license renewal application fee. This check was received and, in accordance with standard procedure, deposited by the Department. Mr. Richter completed all of the continuing education hours required for license renewal prior to September 30, 1994. Mr. Richter has proven by a preponderance of the evidence that he timely mailed his 1994 license renewal application and that he should be granted a community association manager's license for 1994-1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order finding that Michael Richter's 1994 community association manager's license renewal application was postmarked prior to the September 30, 1994, deadline and granting Mr. Richter's application for a renewal license for 1994-1996. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of April 1996. PATRICIA HART MALONO 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 2nd day of April 1996.
The Issue The issue is whether the Stop-Work Order and Order of Penalty Assessment entered by Respondent on December 1, 2006, and subsequently amended, should be upheld.
Findings Of Fact Respondent is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of compensation for their employees, who suffer work-related injuries. Petitioner, on December 1, 2006, was operating in the construction industry as a sole proprietor in Florida installing vinyl siding. On December 1, 2006, Respondent's investigator, John Wheeler, investigated Petitioner for compliance with the Florida Workers' Compensation Law at 118 North Coyle Street, Pensacola, Florida (hereinafter "worksite"), during a random inspection. On December 1, 2006, at the worksite, Respondent's investigator interviewed and recorded the names of two individuals applying vinyl siding to new residential construction as Shannon Strength and Don Perez. Utilizing the Scopes Manual published by the National Council on Compensation Insurance and adopted by Florida Administrative Code Rule 69L-6.021 as guidance, Respondent's investigator determined that installation of vinyl siding is within the construction industry and assigned the occupation code 5645 to the Petitioner's activities. Respondent's investigator determined that Mr. Strength had hired Mr. Perez to assist Mr. Strength in applying vinyl siding. Respondent's investigator determined that while Mr. Perez had a valid certificate of election to be exempt from the securing the payment of workers' compensation, Mr. Strength admitted that although he had had a certificate of election to be exempt from the workers' compensation laws, he was aware that it had expired. Using the Department of Financial Services' Coverage and Compliance Automated System, Respondent's investigator was unable to locate a valid certificate of election to be exempt from the requirement of securing the payment of workers' compensation for Petitioner. Using the Department of Financial Services' Coverage and Compliance Automated System, Respondent's investigator was unable to locate proof of securing the payment of workers' compensation by Petitioner. On December 1, 2006, Respondent's investigator issued a Stop-Work Order and Order of Penalty Assessment to Petitioner for failure to meet the requirements of Chapter 440, Florida Statutes, and the Florida Insurance Code, ordering Petitioner to cease all business operations and assessing a penalty of $1000.00 against Petitioner pursuant to Subsection 440.107(7)(d), Florida Statutes. On December 1, 2006, Respondent's Investigator issued to Petitioner a Division of Workers' Compensation Request for Production of Business Records for Penalty Assessment Calculation (hereinafter, "Request"). Petitioner responded to the Request and provided Respondent's Investigator with the requested records on December 8, 2007. On December 8, 2006, Respondent issued an Amended Order of Penalty Assessment assessing a penalty of $69,285.11 against Petitioner, based on Petitioner's business records. On August 22, 2007, Respondent issued a Second Amended Order of Penalty Assessment reducing Petitioner's penalty to $58,452.06. Petitioner was issued a Construction Industry Certificate of Exemption from Florida Workers' Compensation Law on February 4, 1995, which Petitioner characterized as a lifetime exemption and which was attached to his Petition for hearing. Respondent's witness, Gregory Mills, testified that pursuant to legislative change of Chapter 440, Florida Statutes, all lifetime exemptions in the construction industry expired on December 31, 1999. Respondent sent a notice to lifetime exemption holders that all lifetime exemptions would expire on December 31, 1999. Mr. Mills testified that pursuant to the legislative change of Chapter 440, Florida Statutes, members of all business models, except corporations and limited liability companies, were excluded from eligibility for a certificate of election to be exempt from the requirement of securing the payment of workers' compensation, and all such exemptions would expire on December 31, 2003. Petitioner's last certificate of election to be exempt was issued on July 12, 2003. Mr. Mills testified that notice was mailed to the last known address of construction industry certificate of election to be exempt holders on September 25, 2003, informing them of the expiration. Pursuant to Respondent's Exhibit 5, Petitioner applied for, was granted, and possessed valid certificates of election to be exempt from the securing of workers' compensation until the expiration of all such exemptions on December 31, 2003. Respondent's investigator issued a Second Amended Order of Penalty Assessment on August 22, 2007, recalculating Petitioner's penalty based solely on Petitioner's payroll and assessing a new penalty of $58,452.06.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order that adopts the Stop-Work Order and Amended Order of Penalty Assessment that assessed a penalty of $58,452.06. DONE AND ENTERED this 21st day of November, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 21st day of November, 2007. COPIES FURNISHED: Shannon L. Strength S & S Home Improvement 1407 Dexter Avenue Pensacola, Florida 32507 Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 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 Petitioner is entitled to have his general contractor’s license re-instated.
Findings Of Fact The Petitioner received a license as a general contractor in 1984. At all times material to this case, the Petitioner was required to renew his license every two years. For the Petitioner, the renewal was due on or before August 31 of even numbered years. For example, the Petitioner’s license due for renewal in 2000 was due August 31, 2000. There are two types of licenses pertinent to this case: active and inactive. The renewal fees associated with these licenses are different. An inactive licensee pays a smaller renewal fee. The Respondent is responsible for maintaining records, collecting the appropriate fees, and processing license renewals for licensees. If a contractor fails to pay the requisite renewal fees when they are due the license automatically goes into a “delinquent status.” This status continues until the licensee makes good on the past due renewal fees and submits a complete renewal application. If the licensee does not remit the appropriate fees and completed application before the next licensing renewal period expires (the next two year cycle), the license becomes “null.” In this case, the Petitioner held an inactive license during the 1998-2000 two year-period. On or before August 31, 2000, the Petitioner should have submitted a complete application and paid the renewal fees to keep his license in good status. The Petitioner did not submit a complete application and did not remit the appropriate fees for renewal on or before August 31, 2000. Consequently, on September 1, 2000, the Petitioner’s license went into the delinquent status noted above. To clear this status the Petitioner was required to renew his license by submitting a complete renewal application with the appropriate fees on or before August 31, 2002. The Petitioner did not do so. Therefore, on September 1, 2002, the Petitioner’s license became “null” as a matter of law. The “null” status cannot be changed by paying unpaid fees. Instead, a licensee may either apply for and seek a new license or seek to re-instate the license. To that end, the Petitioner filed a request for reinstatement on or about June 9, 2006. When the Respondent denied the Petitioner’s request for reinstatement, the instant case ensued. Prior to August 31, 2002, the Petitioner did not contact the Respondent to relate personal tragedies, did not cure the delinquent renewal status, and did not pay the fees necessary to renew his inactive license. The Petitioner’s request for a refund (dated May 18, 2005) of the untimely fees paid in September 2002 was not approved. The Respondent provided no explanation for why the untimely fees were not refunded to the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for reinstatement of his license. The Respondent should, however, refund the Petitioner’s untimely paid fees. S DONE AND ENTERED this 28th day of March, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 March, 2007. COPIES FURNISHED: Rodney Williams 513 Northwest 22nd Avenue Apartment 4 Fort Lauderdale, Florida 33311-7773 Deborah Bartholow Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399-1050 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Martinez, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be determined in this case are whether Respondent Plumb Structures, Inc., violated state laws applicable to workers’ compensation insurance coverage by failing to secure coverage for an employee and, if so, whether the penalty assessed against Respondent by Petitioner Department of Financial Services, Division of Workers’ Compensation (Department) was lawful.
Findings Of Fact Petitioner is the state agency responsible for the enforcement of the workers’ compensation insurance coverage requirements established in Chapter 440, Florida Statutes (2007).1 Respondent is a Florida corporation with its office in Hudson. Timothy Frees is Respondent’s vice president and registered agent. On September 25, 2007, Lloyd Hillis, an investigator for the Department, was performing “spot checks” of contractors and subcontractors at job sites in certain subdivisions in Land ‘O Lakes to determine compliance with the worker’s compensation laws. Mr. Hillis stopped at a house where he observed a worker installing sliding glass doors. The worker identified himself to Mr. Hillis as Timothy Frees and stated that he worked for Plumb Structures, Inc. Upon checking relevant records maintained by the Department on his laptop computer, Mr. Hillis determined Mr. Frees was not covered by workers’ compensation insurance. The computerized records showed Mr. Frees had obtained an exemption from coverage for a period of time, but the exemption had expired on August 4, 2005. Subsection 440.05(3), Florida Statutes, provides that each corporate officer of a corporation engaged in the construction industry may elect to be exempt from the requirements of Chapter 440, Florida Statutes, and Subsection 440.05(5), Florida Statutes, provides that, upon written notice of such election, the Department will issue a certificate of exemption which is valid for two years. The Department’s records indicated that the Department mailed Mr. Frees a “Notice of Expiration of Certificate of Election to be Exempt” on June 16, 2005. It was undisputed that no application to renew the certificate of exemption for Mr. Frees beyond August 4, 2005, was sent to the Department until after September 25, 2007. Before leaving the job-site, Mr. Hillis issued a stop- work order against Plumb Structures and hand-delivered it to Mr. Frees. Mr. Frees was also given a Request for Production of Business Records for Penalty Assessment Calculation. Business records were requested for the period from August 4, 2005, the expiration date of Mr. Frees’ exemption, to September 25, 2007, the date of the stop-work order. Mr. Frees produced some business records for the Department, including a pay stub from Bill the Window Man, Inc., for which Mr. Frees said he worked as a subcontractor in 2005, showing year-to-date earnings through December 8, 2005, of $13,526; a W-2 Wage and Tax Statement issued by Plumb Structures showing 2006 income to Mr. Frees of $27,675; and a single pay stub from 2007 showing a year-to-date income from Plumb Structures of $17,460. These business records were not sufficient to determine Mr. Frees’ wage for these years because they did not indicate his hourly rate of pay. Therefore, the Department imputed his wage by using the statewide approved manual rate for the class code applicable to installation of doors. On September 27, 2007, the Department issued an Amended Order of Penalty Assessment against Plumb Structures for $8,774.75. Respondent does not dispute the Department’s imputed wage for Mr. Frees, but Respondent does dispute that Mr. Frees was an employee of Plumb Structures following the expiration of the certificate of exemption. With regard to work done by Mr. Frees in 2005, Respondent also argues that the evidence only shows Mr. Frees was an employee of Bill the Window Man, Inc. Mr. Frees told the Department’s investigator that “he” was a subcontractor to Bill the Window Man in 2005, but Mr. Hillis assumed, and the Department contends, that Mr. Frees meant that Plumb Structures was the subcontractor to Bill the Window Man. The pay stubs of Bill the Window Man were made out to Timothy Frees, not Plumb Structures. The Department’s evidence on this point does not meet the standard of proof applicable in this case, which is “clear and convincing evidence.” Respondent’s argument that Mr. Frees was not an employee of Plumb Structures in 2006 and 2007 is based solely on Respondent’s interpretation of the applicable law and is addressed below.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order that assesses a penalty against Respondent of $7,649.72. DONE AND ENTERED this 9th day of April, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 9th day of April, 2008.
The Issue The central issue in this case is Petitioner's challenge to part III of the licensure examination as set forth in his letter dated September 8, 1994.
Findings Of Fact Petitioner, Robert E. Rosser, is a candidate for licensure as a general contractor. Petitioner has taken the examination to become a licensed general contractor consecutively over the last four years. As a result of the twelve attempts at the examination, Petitioner has passed parts I and II on two separate test dates. In his attempts to pass the examination Petitioner has enrolled in and studied for the examination with two approved construction schools. Petitioner scored a 68 on part III of the general contractor's examination for the June 16, 1994 test date. Petitioner timely challenged questions related to part III (Project Management) of the general contractor's examination given on June 16, 1994. Petitioner attended a review session and claimed that as to question 2 his scratch sheet from the examination demonstrates he had used formulas properly and that he had inadvertently marked the incorrect response on the answer grid sheet. The minimum score required to pass part III of the examination was 70. For each of the challenged questions in part III (2, 4, 7, 9, 11, 17, 18, and 20) Respondent presented competent evidence to support the correct answer as scored by the Department. The Petitioner did not present credible evidence to dispute the accuracy of the answers which had been deemed correct by the Department. Based upon those answers, the Petitioner's score sheet was tabulated correctly. The questions challenged were clearly and unambiguously worded and contained sufficient factual information to reach a correct answer. The examination was open book and applicants were allowed to use reference materials. All current techniques were considered before the correct answer was chosen. All knowledge needed to reach a correct answer was within a candidate's expected range of expertise. The Department's scoring of part III was not arbitrary, capricious, or devoid of logic. For each of the challenged questions, the correct answer was scored at a higher percentage than the answers marked by Petitioner. In fact, for question 4, for example, 79 percent of the examinees scored the correct answer while only 3 percent marked the same answer as Petitioner.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Bureau of Testing enter a final order dismissing Petitioner's challenge to the general contractor's examination. DONE AND RECOMMENDED this 23rd day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 23rd day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5214 Rulings on the Petitioner's proposed findings of fact: Petitioner did not number the paragraphs denoted as "STATEMENT OF FACTS AND FINDINGS". The lettered paragraphs are addressed as listed; but where no letter identified the paragraph, the rulings are as to the paragraphs in the order of presentation. Paragraph [A] is accepted. Paragraph [B] is accepted to the extent it identifies Petitioner as a candidate otherwise rejected as not supported by the weight of the credible evidence. Petitioner's citation to Rule 21E-16.005 is an error. It is accepted that the minimum passing grade for the challenged part is 70 percent out of 100 percent. Paragraph [C] is accepted in substance; however, Petitioner's citation to Rule 21E-16.003 is an error. The next paragraph is rejected as contrary to the weight of the credible evidence. The next paragraph is accepted as a correct statement of procedural review. The next paragraph is rejected regarding question 4 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 7 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 9 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 11 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 17 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 18 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 20 is rejected as not a statement of fact or contrary to the weight of the credible evidence. Paragraph [D] is accepted as statement of procedural information but is not supported by the evidence. Paragraph [E] is accepted as statement of procedural information but is not supported by the evidence. The next paragraph is merely an address for the Department and is not a statement of fact. Paragraph [F] is accepted as statement of procedural information but is irrelevant. Paragraph [G] is accepted as statement of procedural information but is irrelevant. The next paragraph is merely an address for the Division and is not a statement of fact. Paragraph [H] is accepted as statement of procedural information but is irrelevant. Paragraph [I] is accepted as statement of procedural information but is irrelevant. Paragraph [J] is accepted as statement of procedural information but is irrelevant. Paragraph [K] is rejected as contrary to the record in this case since an order of prehearing instruction was not entered in this case and interrogatories were not served. Paragraph [L] is rejected as irrelevant, not a statement of fact, and contrary to the record. Moreover, Petitioner's scratch sheets have been received as Petitioner's exhibit 1. Paragraph [M] is rejected as argument or contrary to the weight of credible evidence. Paragraph [N] is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph [O] is rejected as contrary to the weight of credible evidence. Paragraph [P] is rejected as contrary to the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 4 through 11 are accepted. Paragraph 1 is accepted as statement of procedural information. Paragraph 2 is accepted as to the substance but is not a statement of relevant fact. Paragraph 3 is accepted as to the substance but is not a statement of relevant fact. COPIES FURNISHED: Robert E. Rosser P.O. Box 560541 Miami, Florida 33256-0541 William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Richard Hickok Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-6310
