Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lisa Shearer Nelson, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent's notice of withdrawal. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Gas Sippers, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 6480 20th Street, #106, Vero Beach (Indian River County), Florida 32966 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed October 15, 2009 3:39 PM Division of Administrative Hearings. DONE AND ORDERED this ;J? ay of October, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this _/;JJJ day of October, 2009. . 0..- .t.dmlnlstrallo NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: John Dikov Valley Scooters, LLC 1687 Blythe Island Drive Brunswick, Georgia 31523 2
The Issue Whether the Petitioners should be permitted to establish a "line-make dealership" for Taizhou Zhongneng Motorcycle Company, Ltd. (ZHNG) line-make motorcycles/scooters.
Findings Of Fact This matter was convened for hearing for the above- named parties, concerning the issue referenced above. The hearing was held in Daytona Beach, Florida, on March 18, 2009, as more particularly announced in the Notice of Hearing, which was served on both parties at their last-known addresses of record. Upon convening the hearing at the noticed location, date and time, no party made an appearance. After waiting for nearly one hour, there was still no appearance by either party. There has been no communication from either party before, during or since the hearing regarding any request or reason, concerning the failure to appear. After waiting for the above period of time, without appearances by either party, the hearing was adjourned. No communication has been received to explain the lack of appearances. The Notices of Hearing served on the parties have not been returned as un-deliverable by the United States Postal Service. Since no evidence could be taken, no additional facts may be found.
Recommendation RECOMMENDED that a final order be entered by the Florida Department of Highway Safety and Motor Vehicles, dismissing the Petition in its entirety. The file of the Division of Administrative Hearings is hereby closed. DONE AND ENTERED this 6th day of April, 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 Clerk of the Division of Administrative Hearings this 6th day of April, 2009. COPIES FURNISHED: Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Gene Chang Lance Powersports, Inc. 5200 Ontario Mills Parkway, Suite 100 Ontario, California 91764 David Levison Mega Powersports Corp. 390 North Beach Street Daytona Beach, Florida 32114 Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotan, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 3399-0500
The Issue The central issue in this case is Petitioner's challenge to the request for proposal (RFP) which the Department of Labor and Employment Security (Department) has identified as RFP 94-052-SH. Such protest relates to four specific areas of the RFP.
Findings Of Fact On May 16, 1994, the Department issued RFP 94-052-SH seeking contractor submittals for the maintenance of its Information Management Center (IMC) including IBM, Xerox, and Storagetek mainframe peripherals and standalone printers. The request did not include the mainframe processor. After receiving the RFP and other documents, Petitioner timely filed a notice of intent to challenge provisions of the RFP. On June 6, 1994, Bell timely filed a written formal petition protesting the provisions of the RFP which it alleged favored one prospective bidder over others. Prior to hearing, seven of the eleven challenges to the provisions were resolved by the Department and Bell. Consequently, no findings of fact are submitted as to those provisions. Section 4.4 of the RFP provides, in pertinent part: Staffing--In accordance with the requirement of this Request For Proposal, the proposer shall provide documentation describing the staffing infrastructure to support the requirements listed in this RFP. Documentation should include at a minimum: * * * c. Proposals shall include, 1) the number of experienced, trained staff that will be working on this contract, and 2) the number of additional experienced, trained staff that will be available in the Tallahassee area for backup. More specific than the foregoing, Section 6.2 of the RFP provides: The Contractor shall have Customer Engineers specifically trained for each piece of equipment included in the RFP or maintenance bid located at the IMC in Tallahassee, Florida. These Customer Engineers shall be available to be onsite, 24 hours each day, 7 days each week. There must be a sufficient number of primary Customer Engineers and backups to maintain a minimum staffing level of one primary CE and one backup trained on each component listed in the RFP. Each primary and backup CE must be trained on the equipment to which they are assigned. Training shall be completed before the individual is assigned to service the equipment covered by this proposal. [Emphasis added.] The services specified by this RFP project should require no more than one person devoting two hours per day. Based upon the terms of the RFP, the "number of additional experienced, trained staff that will be available in the Tallahassee area for backup" should be construed to be those who are available for this project, as opposed to those who may be located in Tallahassee but are assigned to other projects. As the language is clear, this provision is not arbitrary or vague. Section 4.6 of the RFP provides: Value Added Services--The Contractor shall provide a detailed list of additional support services available through this contract. These services shall be considered as part of the contract and made available to the Department at no additional cost. The Department will evaluate the services based on their application to the Department's needs. Monthly equipment pricing should take into consideration any services listed in this section. Areas of interest include services such as: Machine monitoring for enhanced corrective and preventative services; Network Problem Resolution Assistance; Equipment relocation. For each service listed by the Contractor, the following information should be provided to assist the Department in the evaluation of these services: Detailed description of the functions, capabilities, and availability of the service including scope and delivery of benefits; The availability of acquiring the services outside the scope of this contract and, if applicable, the published cost of the service; If the service is being subcontracted, subcontractor information will be required as outlined in section 4.3; References of current customers who use the service. The Department has not specified the types of "value added services" that must be included in the contract cost; nor has it disclosed, among the examples listed, the extent to which the vendor will be responsible for same. As there are literally hundreds of services which could be included, this provision fails to specify which are of importance to the agency. Moreover, by requiring that a vendor include in the contract price the amount necessary to provide the service, the contract price is arbitrarily inflated should a vendor not be required to provide the service. Additionally, a current vendor who can more accurately estimate the level a service will be used, has an advantage over those unfamiliar with past levels of utilization who are required to submit a contract price to include "value added services." As the Department has nothing to gain by requiring that the "value added services" be included in the proposed contract price, and as a current vendor aware of the Department's past need for same has an advantage over others who may bid, this provision is arbitrary and without logic. If additional services are to be required, the Department should specify the services needed and an estimate of the level of use for such services. If the Department merely seeks a laundry list of the "value added services" which a vendor could provide, then the cost for same should be separated from the contract price so that all vendors compete on the same basis. Section 7.21 of the RFP provides: At a minimum, critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40 shall be held in the Contractor's Service Center or warehouse in Tallahassee, Florida. This includes, but is not limited to replacement parts for communica- tions controllers and each type of Head Disk Assembly for all installed disk drives (see Appendix C-list of items that must be maintained in Contractor's Service Center or Warehouse in Tallahassee, Florida). All parts stocked in the Contractor's Service Center or warehouse must be deliverable to the IBM within thirty (30) minutes. High usage replacement parts must be identifiable, in part, based on recommendations by the OEM and approved by the Department. The Department obtained the list of "critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40" from the equipment manufacturers. Such vendors are likely to compete for the subject RFP. The Department intended such list to include any parts necessary to assure that the downtime of the system would be minimized. The Department did not consider the failure rate of such parts and, in the past, has not incurred problems with many of the items listed. In fact, fifty percent of the parts listed have no industry history for failure. Additionally, the Department did not consider the price of the part in determining whether it should be warehoused in Tallahassee. As it relates to this provision, section 7.40 only requires that the maintained equipment is to have "diagnostics and corrective actions performed to eliminate equipment failure downtime as soon as possible but not to exceed two (2) hours." Whether that section requires a correction within two hours or that diagnosis and actions be begun within two hours is unclear. However, the cited section is the sole reference for the parts replacement list standard. Curiously, the list of parts required does not include items which, by history, have a high rate of failure and which could result in downtime to the system; such parts include: a cooling fan, a blower fan for the assembly, and a battery backup for the solid state memory. These parts have a minimal cost and could be readily stocked in Tallahassee. In contrast, the parts which are required by the RFP are relatively expensive. Collectively, the cost of such parts exceeds $60,000 and, given the estimate of the monthly price for this contract, it is less likely such parts would be warehoused in Tallahassee by a vendor who did not manufacture same. As a result, this provision arbitrarily favors a vendor who manufactures the part since there is no showing that the part is necessary to minimize downtime. Section 7.31 of the RFP provides: The IMC currently utilizes real-time online retrieval of Engineering Changes for some components under maintenance contract in order to decrease EC procurement and installation time in a remedial maintenance situation. The contractor shall provide a similar method by which Engineering Changes can be acquired expeditiously. The foregoing provision fails to acknowledge that a vendor, other than the manufacturer, can only implement engineering changes as coordinated with the OEM. This provision, if construed to recognize that limitation, would not, based upon the language, arbitrarily favor one bidder over another.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Labor and Employment Security enter a final order amending the provisions of RFP 94-052-SH to either delete the inclusion of the price of "value added services" from the contract cost or to specify more information as to the Department's need regarding such services; and to amend the critical parts list to those items that have an industry history for failure and thus contribute to system downtime. DONE AND RECOMMENDED this 30th day of September, 1994, 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 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3527BID Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1-9, 11-15, 20, and 22-27 are accepted. The first sentence of paragraph 10 is accepted; the remainder rejected as incomplete or irrelevant as it is not clear what the intention of the phrase was. The first sentence of paragraph 18 is accepted; the remainder rejected as argument. Paragraph 19 is rejected as argument. Paragraph 21 is rejected as irrelevant. Paragraph 28 is rejected as argument. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1-3, 8 and 11 are accepted. Paragraph 4 is accepted but is irrelevant. With regard to paragraph 5, the last sentence is rejected as irrelevant; the remainder is accepted. Paragraph 6 is rejected as irrelevant. Paragraph 7 is accepted as to the statement of intent but is rejected as the cited provision does not accomplish the Department's stated goal and is therefore not supported by the weight of credible evidence; consequently, an amendment to the provision is necessary. All references to the Comptroller's RFP are rejected as irrelevant to the extent such comments infer that the record in this case supports the cited provision. Accordingly, such references in paragraphs 9 and 10 are rejected. Additionally, the inference in paragraph 9 that the critical parts list rationally relates to parts necessary to keep the system running is rejected as not supported by the credible weight of the evidence. The Department acknowledged or did not refute that many of the parts do not have an industry record for failure additionally, other parts were not listed which do have a failure history and which could cause the system downtime. Except as noted above, paragraph 10 is accepted. Paragraph 12 is accepted but is irrelevant. COPIES FURNISHED: Gregory P. Borgognoni RUDEN, BARNETT, McCLOSKY, SMITH SCHUSTER & RUSSELL, P.A. 701 Brickell Avenue, Suite 1900 Miami, Florida 33131 Edward A. Dion General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2189 Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0300
The Issue Whether Respondents (“Dobson’s” and “Western Surety”) should be required to pay an outstanding amount owed to Petitioner, Doug Lancaster Farms, Inc. (“Lancaster Farms”).
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: Oden Hardy was the general contractor for a project in Apopka, Florida, known as the Space Box project. Dobson’s, a subcontractor on the Space Box project, contracted to purchase 269 trees (including Live Oaks, Crape Myrtles, Elms, and Magnolias) for $53,245.00 from Lancaster Farms. Dobson’s supplied Lancaster Farms with all the information needed to file a “notice to owner” as authorized by section 713.06, Florida Statutes. A truck from Dobson’s picked up the trees and transported them to the site of the Space Box project. Upon arriving with the trees, Dobson’s discovered that there was no means by which the trees could be watered at the site. Rather than attempting to jury rig some manner of watering system as requested by Oden Hardy, Dobson’s transported the trees to its place of business, and the trees remain there. The parties have stipulated that Dobson’s has paid all of the invoices except for Invoice No. 5810, totaling $12,580.00. There is no dispute that the trees at issue are “agricultural products” within the meaning of section 604.15(1). There is also no dispute that Dobson’s is a “dealer in agricultural products” within the meaning of section 604.15(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Doug Lancaster Farms, Inc., against Dobson’s Woods and Water, Inc., in the amount of $12,630.00. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of November, 2020. COPIES FURNISHED: Larry K. Dobson Dobson's Woods and Water, Inc. 851 Maguire Road Ocoee, Florida 34761-2915 Kelly Lancaster Doug Lancaster Farms, Inc. 3364 East County Road 48 Center Hill, Florida 33514 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Kristopher Vanderlaan, Esquire Vanderlaan & Vanderlaan, P.A. 507 Northeast 8th Avenue Ocala, Florida 34470 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
Findings Of Fact On September 29, 1975 Respondent, R. J. Hunt Construction Company, through its President and qualifying general contractor, Richard J. Hunt, entered into a contract with Richard McCarty to construct two Second Story Additions to Palm Ocean Villas, Pompano Beach, Florida for a price of $53,700. The contract provided that the contractor would complete the building within 8 weeks of the issuance of a building permit and, if not completed, a 5 percent penalty would be deducted until December 10, 1975 and thereafter, if not complete, an additional 5 percent of the contract price would be deducted each week until complete. Building permits were issued on October 3 and 6, 1975 and work proceeded satisfactorily until the end of the 8 weeks contract period on December 1, 1975 when the project was 90 percent to 95 percent complete. At this time the contractor stopped work on the project and transferred his employees to another job. One of the contract provisions not completed was the application of waterproofing on a deck. Despite Hunt's assurances that he would get a subcontractor to complete this waterproofing, it still had not been completed by Christmas and McCarty employed a contractor to apply the waterproofing material in early January for which he paid $1,000 allowed by the contract. Subsequent thereto McCarty received notice of liens filed against his property from 4 subcontractors. These were American Metal Products Company, J. P. Electric Company, Ole Eds Construction, and Margate Plumbing. In order to get a certificate of occupancy it was necessary for McCarty to pay some of these subcontractors. American Metal Products installed an aluminum railing around the balcony for which they filed a notice of lien for $1,200 and subsequently filed a petition in bankruptcy. The present status of this lien was not ascertained. J. P. Electric Company had split their draw into three parts and they were paid by Hunt $700 for the initial work. When they refused to allow final inspection Hunt asked McCarty to pay them and take it off his last draw. McCarty paid $2,000 to J. P. Electric, leaving a balance owed of $781.92. Hunt also asked McCarty to pay Margate Plumbing and take this payment off the draw. Margate had been paid $1,000 upon completion of the rough work. In order to get occupancy McCarty paid Margate $1,800 which satisfied the lien of Margate. Ole Ed installed the septic tank and drain field for which they have filed a lien for $2,500 which is unpaid to date. Numerous miscellaneous items included in the contract for which McCarty advanced funds to keep work progressing amounted to $671.54. Hunt also requested McCarty to order the appliances which were included in the contract price since he (McCarty) could get them at contractor's price. For these appliances (stoves, air conditioners and refrigerators) McCarty expended $2,373.28. Total expenditures made by McCarty are as follows: McCarty paid to Hunt in draws $48,400.00 McCarty paid to J. P. Electric 2,000.00 McCarty paid to Margate Plumbing 1,800.00 McCarty paid for waterproofing deck 1,000.00 Misc. items paid for by McCarty 671.54 Appliances for which McCarty paid 2,373.28 Total paid by McCarty under contract $56,244.82 Balance owed to subcontractors. American Metals Corporation $ 1,200.00 J. P. Electric 781.92 Ole Ed's Construction 2,500.00 Total cost of project $61,736.74 At the time licensee stopped work on the project the railing around the balcony had not been installed, top decking had not been approved by building inspectors and waterproofing of deck had not been done. Extra costs not included in the contract price which were agreed to by McCarty included $300 to $500 extra for larger electric wire and $400 to $500 for larger septic tank than contract called for. These costs totaled approximately $800 which would bring the total contract price to $54,500. The working foreman on the job for the first three or four weeks of the contract, who testified on behalf of Respondent, was unfamiliar with all terms of the contract or with the finances of Hunt. When the existing roof was removed for the second floor addition to be added, conduits had to be replaced and some 2 x 12 joists had to be replaced. This work unexpectedly increased the cost of the contract to the contractor. The septic tank could not be placed where originally intended, and as a result, about 100 fee of sidewalk had to be torn up and replaced. Further, a larger septic tank than originally planned had to be installed. This latter increase was agreed to and paid for by McCarty. One character witness testified that Richard J. Hunt enjoys a good reputation in the construction industry.
The Issue The issues are whether Respondent was substantially justified in issuing an initial Stop Work Order and Order of Penalty Assessment against Petitioner for failing to comply with a Business Records Request, followed by an Amended Stop-Work Order and an Amended Order of Penalty Assessment to Petitioner for alleged noncompliance with workers’ compensation coverage requirements, and if so, is an award of attorneys’ fees and costs appropriate.
Findings Of Fact Respondent is the state agency charged with enforcing the requirements of Section 440.107, Florida Statutes, requiring that employers in Florida secure the payment of workers’ compensation insurance coverage for their employees. Petitioner is a Florida corporation that conducts business in Florida, with headquarters in Pensacola, Florida. Petitioner’s business involves the transportation of vehicles, utilizing a fleet of approximately 61 tractor-trailers and accompanying auto transport trailers. Michelle Newcomer is a compliance investigator for Respondent. Her duties focus on conducting inspections/investigations of Florida businesses to ensure compliance with Florida’s workers’ compensation coverage requirements. She also issues Stop Work Orders (SWOs) and Orders of Penalty Assessment (OPAs) when Respondent believes a business is non-compliant with Florida’s workers’ compensation law. Ms. Newcomer and her supervisors are familiar with the definition of "independent contractor" set forth in Sections 440.02(15)(d)1a and 440.02(15)(d)1b, Florida Statutes. However, they never tested Petitioner’s claim that its truck drivers were independent contractors and not employees against the criteria in that definition. On March 16, 2009, Ms. Newcomer received information from an anonymous source that Petitioner was not in compliance with the workers’ compensation laws in Florida. The anonymous source asserted that Petitioner’s drivers were being misclassified as independent contractors. Ms. Newcomer performed a search of Respondent’s database. She learned that Tracie Hedges and George Hedges, as corporate officers, were exempt from having workers’ compensation insurance. She found that Petitioner had no workers’ compensation coverage for any employees. On March 18, 2009, Ms. Newcomer visited Petitioner’s office. Upon arrival, she met Ms. Hedges. During the meeting, Ms. Newcomer inquired about the company, its operations, and its truck drivers. Ms. Hedges told Ms. Newcomer that Petitioner had about 50 to 60 truck drivers who were independent contractors. Seeing only one other employee, Ms. Newcomer left and terminated her investigation. On April 8, 2009, Ms. Newcomer received a referral from Respondent’s Employee Assistance Office. The referral indicated that one of Petitioner’s former drivers, Mike Borders, had suffered an injury while working for Petitioner, but was not receiving workers’ compensation benefits. The referral included a copy of one of Mr. Borders’ pay stubs. Upon reviewing Mr. Borders’ pay stub, Ms. Newcomer noticed that federal income tax withholding was deducted along with various deductions for Social Security and Medicare. The federal payroll deductions were identical to those any employer would deduct from an employee’s wages. Ms. Newcomer performed another search of Respondent’s database, finding that Petitioner had workers’ compensation insurance through Allstates Employer Services, effective March 17, 2009. Ms. Newcomer then contacted Allstates Employer Services and requested a copy of Petitioner’s employee roster. When she received the roster, Mr. Borders’ name was not on the roster. Ms. Newcomer next interviewed Mr. Borders, inquiring about Mr. Borders’ relationship with Petitioner. She wanted to know the following: (a) whether he drove Petitioner’s vehicle; (b) whether he signed any employment contracts; and (b) whether he considered himself Petitioner’s employee. Mr. Borders responded as follows: (a) he considered himself an employee of Petitioner; (b) he had signed an employment application; (c) he drove Petitioner’s truck; and (d) he took orders from Petitioner as to when and where to pick up the cars that needed to be transported. After speaking with Mr. Borders, Ms. Newcomer conducted further review via various state databases. She researched the database maintained by the Florida Department of State, Division of Corporations, to determine the relationship of Petitioner to Transport TK 131, LLC, another company listed on Mr. Borders’ pay stub. This search revealed 21 limited- liability companies using the Transport TK name. Ms. Newcomer learned that Transport TK 131’s managing member was Gary Hedge. Ms. Newcomer believed that Mr. Hedge also was a principal of Petitioner. Ms. Newcomer also reviewed the database maintained by the Florida Department of Revenue to determine who was paying the unemployment compensation tax for Petitioner’s drivers. She learned that Transport TK 131, LLC, listed two to three employees for purposes of unemployment withholdings. The same was true for all of the other Transport TK companies. Ms. Newcomer believed her investigation presented numerous inconsistencies with statements made by Ms. Hedge. Ms. Newcomer presented her findings to her supervisors. They gave her approval to investigate Petitioner. Ms. Newcomer prepared a Business Records Request Form 1 (BRR#1) for Petitioner and Transport TK 131, LLC. Both BRRs requested the companies to provide payroll information for employees and any forms of workers’ compensation coverage for its employees for the period January 21, 2009, through April 21, 2009. The BRRs also made the following request: Record Category #12--For each independent contractor who performs any service with regard to the completion of a contractual obligation of the employer listed above, at any time during the period specified above: all contracts for work, licenses, invoices, ledgers, payments made pursuant to that contract, and any other documents that support the status of an independent contractor under section 440.02(15)(d), F.S. The request for records did not give the companies the option of creating and providing affidavits or other documents to support the status of independent contractors if no written contracts for work existed. The BRRs were sent to Petitioner and Transport TK 131, LLC, by certified mail on April 22, 2009. Petitioner failed to provide all of the requested records within the required five-day time period. Accordingly, Respondent issued a SWO and an OPA to Petitioner. Ms. Newcomer posted the SWO and OPA at the worksite on May 5, 2009. While Ms. Newcomer was at Petitioner’s headquarters, Ms. Hedges provided her with some records, including Petitioner’s QuickBooks registry, showing all checks written for a three-month period. Ms. Hedges also answered Ms. Newcomer’s questions about the records, including questions about DTS, LLC, a company described by Ms. Hedges as a payroll account. Ms. Hedges explained that before August 2008, Petitioner paid DTS, LLC, for work performed by “employees” of the Transport TK companies. DTS, LLC, would then pay the truck drivers. However, when DTS, LLC, ran out of checks in August 2008, Petitioner began paying the Transport TK employees directly. The documentation and information provided by Ms. Hedges, resulted in the SWO being revoked for Transport TK 131, LLC. The revocation was based on a showing that Transport TK 131, LLC, and other Transport TK companies did not have bank accounts. The SWO against Petitioner, for failing to produce sufficient records, remained in place, pending further review. Ms. Newcomer continued to have discussions with Ms. Hedges relative to Petitioner’s business. Ms. Newcomer discussed the case again with one of her supervisors. She explained that Petitioner was paying individuals that were reported as employees of the Transport TK companies. She also stated that Petitioner pays its corporate officers, Bradley Hedges, Gregory Hedges and Teri Forret, who did not have workers’ compensation exemptions and were not covered by Allstates Employer Services workers’ compensation coverage. Ms. Newcomer and her supervisor decided to amend the SWO to add the charge of failure to provide workers’ compensation coverage for employees. On May 6, 2009, Respondent sent the SWO, the Amended Stop Work Order (ASWO,) and a Business Records Request Form 2 (BBR#2) to Petitioner by certified mail. Petitioner received the documents the next day. Ms. Newcomer had a meeting with Ms. Hedges on May 8, 2009. During the meeting, Ms. Hedges explained that DTS, LLC, is just a bank account, used to pay the employees of the Transport TK companies. Ms. Hedges also stated that Petitioner has full control of its customer contracts and directs the drivers where to go for work. On May 11, 2009, Ms. Newcomer received Petitioner’s Quickbook report for the period of the BBR#2 records request. On May 13, 2009, Ms. Newcomer staffed the case with Respondent’s legal counsel. On May 14, 2009, Ms. Newcomer received some contracts between Petitioner and truck drivers who owned and operated their own trucks. Respondent calculated Petitioner’s penalty using the Quickbooks report, in conjunction with W-2 documents provided for tax years 2007 and 2008. As of May 18, 2009, Petitioner’s penalty was $1,496,680.40. Ms. Newcomer requested and received approval to issue an Amended Order of Penalty Assessment (AOPA) for that amount. The AOPA was served on Petitioner by hand delivery on May 19, 2009. Ms. Newcomer did not include Petitioner’s office staff/dispatchers, including Ms. Hedges, in calculating Petitioner’s penalty. Ms. Newcomer was able to confirm that those individuals had workers’ compensation coverage through the employee leasing company. Ms. Newcomer did not include the owner/operator truck drivers in calculating Petitioner’s penalty. Ms. Newcomer had copies of contracts indicating that they were independent contractors. Ms. Newcomer did include the 50 to 60 truck drivers who drove Petitioner’s trucks in calculating the penalty. Ms. Newcomer knew that Petitioner was paying those individuals by check and that their pay-stubs showed various deductions, including withholdings for federal income taxes, Social Security, Medicare, and even deduction options for various forms of Individual Retirement Accounts, both standard and “Roth” versions. For some of the drivers, Petitioner deducted child support payments. If Ms. Newcomer had asked more questions or talked to more drivers, she would have learned that Petitioner made the deductions from the checks of drivers who drove Petitioner’s trucks at their request and in exchange for a smaller commission. Petitioner did not make the deductions as an employer. Ms. Newcomer also learned that all individuals driving Petitioner’s trucks signed employment applications. Apparently, Ms. Newcomer did not believe Ms. Hedges when she explained that the employment applications were used as forms to comply with the Federal Motor Vehicle Carrier Safety Act for drivers of trucks with Petitioner’s name. Ms. Newcomer never attempted to find out whether the drivers of Petitioner’s trucks were independent contractors pursuant to oral contracts. She did not ask Ms. Hedges questions that track the definition of “independent contractor” status in Sections 440.02(15)(d)1a and 440.02(15)(d)1b, Florida Statutes. In other words, Ms. Newcomer did not try to ascertain whether and/or to what extent Petitioner or the truck drivers controlled or directed the manner in which the work was done. Ms. Hedges told Ms. Newcomer that Petitioner’s corporate officers had filed for workers’ compensation exempt status by delivering exemption application forms to one of Respondent’s offices in 2005. Ms. Hedges did not have a receipt showing delivery of the forms. Ms. Newcomer could not find the names of two of these officers in the state’s database of corporate officers electing exempt status. Therefore, Ms. Newcomer included the two corporate officers in the penalty calculation. Apparently, Ms. Newcomer never considered that Ms. Hedges was telling the truth about the exemption forms and that, pursuant to statute, the exemptions became effective 30 days after Ms. Hedges delivered them to Respondent even though Respondent never processed them. Ms. Newcomer also did not go back to Mr. Borders to question him about his claim of being Petitioner’s employee as opposed to an independent contractor, using the definition of independent contractor set forth in Sections 440.02(15)(d)1a and 440.02(15)(d)1b, Florida Statutes. Additionally, Ms. Newcomer did not attempt to interview any other individuals that drove Petitioner’s vehicles to determine whether they considered themselves employees or independent contractors. On or about June 5, 2009, Petitioner requested an administrative hearing to challenge the ASWO and AOPA. The hearing was held on November 3, 2009. On January 29, 2010, Administrative Law Judge P. Michael Ruff issued a Recommended Order, finding that Petitioner was compliant with Florida’s workers’ compensation coverage and recommending that a final order be entered dismissing the ASWO and AOPA. On April 28, 2010, Respondent entered a Final Order adopting Judge Ruff’s legal and factual findings. The parties stipulate as follows: (a) Petitioner is the prevailing party in the underlying case; (b) Petitioner was a small business at the time the ASWO and AOPA were served; and (c) The reasonableness of the amount of attorney’s fees and costs claimed by Petitioner, namely $50,000, is not in dispute.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel M. Kilbride, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing file was predicated upon Respondent's notice of withdrawal without prejudice of protest. Accordingly, it is hereby ORDERED that the proposed transfer of the assets and franchise of Saturn of St. Petersburg, Inc. to Crown Automotive Man: ent, Inc. is denied. DONE AND ORDERED this hg day of September, 2009, in Tallahassee, Leon County,Florida. - /J / Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed September 15, 2009 3:28 PM Division of Administrative Hearings. J1J:Ji. Filed with the Clerk of the Division of Motor Vehicles this day of September, 2009. NOTICE OF APPEAL RIGHTS inayak, UDell:er&t..Admlniltralor Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: John Barrett Saturn Corporation 100 Renaissance Center Drive MC: 482-A06-C66 Detroit, Michigan 48265-1000 Robert C. Byerts, Esquire Myers & Fuller P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Daniel M. Kilbride Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432-02 Tallahassee, Florida 32399-0504 2 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section 3
The Issue The issues are whether Petitioner's Petition for Relief is untimely, and if not, whether Respondent committed an unlawful employment act against Petitioner contrary to Section 760.10, Florida Statutes.
Findings Of Fact S.M.A.R.T. is a company that provides mechanics, electricians, avionics inspectors, sheet metal laborers, and other technical employees to aircraft maintenance and repair companies on a temporary basis. In 1996, S.M.A.R.T. supplied Respondent with temporary contract laborers at Respondent's aircraft maintenance facility in Lake City, Florida. For example, S.M.A.R.T. supplied Respondent with approximately 25 percent of its 450 mechanics. Respondent did not maintain personnel files or conduct performance evaluations on S.M.A.R.T.'s contract laborers. Respondent provided S.M.A.R.T. with the number of man-hours that contract laborers worked so that S.M.A.R.T. could pay its employees. In 1996, Petitioner worked for S.M.A.R.T. as a contract laborer at Respondent's Lake City facility. Petitioner's work as a parts researcher required him to make sure that Respondent's customers, owners and operators of aircraft, had the right parts for their aircraft. On March 28, 1996, S.M.A.R.T. terminated Petitioner's employment due to a lack of work at Respondent's Lake City facility. Being laid off from a contract job as a parts researcher at a specific site was not unusual when an aircraft owner or operator stopped sending planes to the facility and the temporary labor company had no other work available for its employee. After being laid off by S.M.A.R.T., Petitioner was unemployed for a time. In November 1996, Kitty Hawk Air Cargo (Kitty Hawk) was Respondent's customer at the Lake City facility. Pursuant to a contract between Respondent and Kitty Hawk, some of Kitty Hawk's aircraft were being changed into freighters. Kitty Hawk had a separate contract with Allen Aircraft Radio Corporation (AAR) for customer-supplied parts. Under the contract, AAR acted as a parts vendor and supplied Kitty Hawk with parts researchers. Respondent did not have a role in Kitty Hawk's choice of AAR as a supplier of parts. Sometime after he was laid-off by S.M.A.R.T., Petitioner applied for employment with AAR as a parts researcher. Petitioner had an interview with AAR for a job at Respondent's Lake City facility. After the interview, Petitioner was under the impression that AAR had hired him for that job. Petitioner subsequently learned that he did not have a job with AAR. AAR never told Petitioner why he was not hired. Petitioner did not know the name, age, or qualifications of the person that AAR hired for the position at issue here. Petitioner did not know whether AAR had hired anyone for the position he was seeking. AAR's contract with Kitty Hawk terminated in 1996 except for aircraft then in Respondent's facility. The last of Kitty Hawk's aircraft departed Respondent's facility in March 1997. At that time, any employees of AAR at the Lake City facility would have either been laid off or transferred to another AAR job site. Respondent hired Dick Perkins on July 20, 1995, as a Manager of A & P Mechanics. Since that time, AAR has promoted Mr. Perkins to Director of Maintenance. Mr. Perkins had no involvement with AAR when it was working on Kitty Hawk's aircraft at the Lake City facility. Mr. Perkins had no responsibility over the Kitty Hawk contract in 1996. Petitioner did not personally overhear Mr. Perkins make a statement about him. Rather, Petitioner relies on statements allegedly made by Mr. Perkins, overheard by Doug Yormick, repeated to Tom Welcome, then relayed to Petitioner. At times relevant to this case, Mr. Yormick and Mr. Welcome were employees of S.M.A.R.T. Competent evidence indicates as follows: (a) Mr. Perkins does not know Petitioner; (b) Mr. Perkins never made a statement to anyone that he did not want that "old son-of-a-bitch" working on Respondent's property; (c) Mr. Perkins never made any statement relating to Petitioner's age; (d) Mr. Perkins never talked with anyone at AAR regarding the person AAR would hire as a parts researcher; (e) Mr. Perkins never talked with Keith Wild/Wilder, Bob Sorrentino, or Bob Sonne/Sonner at AAR. After November 19, 1999, Petitioner worked for several other companies, including but not limited to, Piping Design Systems in Orlando, Florida, and a company in Mexico.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by T. Kent Wetherell, II, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing file was predicated upon Respondent's notice of withdrawal. Accordingly, it is hereby ORDERED that the Dealer Agreement between JH Global Services, Inc. and Golf Cart Connection, Inc. is terminated. DONE AND ORDERED this I fP: I '1 day of September, 2009, in Tallahassee, Leon County, Florida. CARL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed September 15, 2009 3:32 PM Division of Administrative Hearings. Filed with the Clerk of the Division of Motor Vehicles this /ifll day of September, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Les Levy c/o Golf Cart Connection, Inc. 1220 Camp Avenue Mount Dora, Florida 32776 Jane Zhang JH Global Services, Inc. 52 Pelham Davis Circle Greenville, South Carolina 29615 T. Kent Wetherell, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 2 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432-02 Tallahassee, Florida 32399-0504 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section 3
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s withdrawal of his objection to the establishment of a new dealership, filed April 5, 2011. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Scott Koster d/b/a Sunrise Scooters, Inc., be granted a license for the sale of motorcycles manufactured by Taizhou Chuan! Motorcycle Manufacturing Co. Ltd. (CHUA) at 1923 South Federal Highway, Fort Lauderdale (Broward County), Florida 33316, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 19, 2011 12:28 PM Division of Administrative Hearings DONE AND ORDERED this Sh day of April, 2011, in Tallahassee, Leon County, Sandra C. Lambert, Seon Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motor Vehicles this_+Y day of April, 2011. alias Virogsl ‘Ramninistrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: Noel Farbman USA Wholesale Scooters, Inc. 4316 North Dixie Highway Oakland Park, Florida 33334 * eel \ “FotattainimbA eango 1elsa ,AByeniV ini Scott Koster Sunrise Scooters, Inc. 300 Southwest 7 Street Fort Lauderdale, Florida 33316 Gloria Ma EI Sol Trading, Inc. 19877 Quiroz Court City of Industry, California 91789 Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
