The Issue The ultimate issue for determination is whether the Petitioner's discharge by the Respondent constituted discrimination on the basis of handicap within the meaning of the Florida Human Rights Act.
Findings Of Fact Having considered all of the evidence in the record, the Hearing Officer makes the following findings of fact: Petitioner was hired as a Mechanic II (Electrician) by Respondent on January 25, 1982 in the Plant Engineering Department. The term "Mechanic II" denoted Petitioner's pay grade. The term "Electrician" designated Petitioner's speciality. Petitioner's pay grade was changed to Electrician and the Mechanic II pay grade was eliminated by Respondent for all such employees on or about November 16, 1983. Petitioner's duties as an Electrician included ladder work, running conduit and wire, repairing laundry and laboratory equipment and appliances, changing ballasts, and repairing electrical beds and nurse-call equipment. Petitioner performed all of the duties of an electrician, including ladder work until approximately November 27, 1985. Three months after he was employed in 1982, Petitioner injured his back while repairing electrical beds. Repairing electrical beds required much bending and stooping. Petitioner filed for Worker's Compensation benefits for the injury he sustained in repairing electrical beds. Petitioner suffered an off-the-job injury in 1983. Respondent permitted Petitioner to go on medical leave for two months. Petitioner again injured his back while working at the Hospital on or about November 27, 1985. Due to his injury, Petitioner was on leave of absence from November 30, 1985, through December 11, 1985. Petitioner returned to work but again went on leave of absence from January 9, 1986, through February 17, 1986. Petitioner returned to work subject to a "light duty" restriction imposed by his physician. On or about June 10, 1986, Petitioner's physician released him for full duty subject to a 15 pound restriction on any lifting. In September, 1986, Petitioner's physician indicated that it was "probably best" for Petitioner to work only 4 hours per day. The Respondent again allowed Petitioner to work 4 hours per day even though he occupied a full-time, 8 hour per day position. In early October, 1986, Petitioner was released by his physician to perform full duty work, even though Petitioner was restricted to half days. Frank Kleese, Petitioner's foreman, asked Petitioner to investigate a problem with an overhead light. Petitioner refused Kleese's directive and stated that, even though he had been released for full duty work, he would not climb a ladder unless his doctor approved it. Petitioner argued with Kleese and used "strong language". Petitioner became belligerent. Petitioner received reprimands for insubordination. When Petitioner refused Kleese's second request to do ladder work, Petitioner received a reprimand for refusing to do the job assigned to him. Both reprimands were discussed with Petitioner. Petitioner later presented a doctor's note stating he could "return to full active duty," but could work only half days with no ladder work. As a result of Petitioner's half day schedule, other electricians were required to do more work. The department as a whole fell behind in its work. Furthermore, light duty work was not always available for Petitioner. While working half days in late 1986, Petitioner was late to work on three occasions. Petitioner's reason for being late, as explained to Frank Kleese, his foreman, was that Petitioner's injury made it difficult for him to get out of bed in the morning. In November, 1986, Clark, Kleese, and Kunz met with Petitioner and advised him that he could not remain on half days indefinitely. Petitioner was advised that unless his condition was found to have improved by his upcoming doctor's appointment on December 1, 1986, he would be placed on medical leave. On December 1, 1986, Petitioner visited his physician, Dr. Richard D. Strain, Jr. Dr. Strain stated that there was no reason to think that Petitioner's condition would change quickly. Dr. Strain was going to send Petitioner home and put him on physician therapy (i.e., not allow him to work at all). Petitioner asked Dr. Strain if he could work half days, and Dr. Strain agreed. Kleese, Kunz, and Clark met with Petitioner and informed him that he would be placed on medical leave as a result of the Petitioner's medical condition. Continuation of his half-day status without any foreseeable cutoff date was not acceptable to the Respondent. On December 4, 1986, Respondent Benefits Supervisor Ralph Rettig advised Dr. Strain that Petitioner had been placed on medical leave of absence because there were no part-time positions available in Petitioner's department. Rettig requested Dr. Strain to advise him as to whether Petitioner's condition was the result of his injury at work and whether Petitioner would ever improve to the level where he could work more than half day duty. Dr. Strain responded to Mr. Rettig in a letter dated December 22, 1986, which indicated that Petitioner's condition was partially caused by degenerative changes. Dr. Strain further stated: Mr. Cabany tells me he is unable to work more than a half day, and I think that is a reasonable thing for him to do. Certainly, a man of his elderly years with the degenerative changes that he has, with super imposed trauma, that would be a good way to go. Petitioner went on medical leave beginning December 17, 1986. Prior to the beginning of his leave, Petitioner failed to fill out the leave of absence request form. When this came to Rettig's attention, Rettig requested that Vernon Clark send Petitioner the form. Clark wrote to Petitioner and informed him that he must fill out the leave of absence request form Clark had enclosed. Clark further informed Petitioner that he would have to request renewal of his leave when it expired in mid-January, 1987, in accordance with Respondent policies. During a telephone conversation several days prior to the expiration of Petitioner's leave, Clark reminded Petitioner that he still had not sent in the original request form for the leave he was then under. Clark also reminded Petitioner that, if he wished to extend his leave, Petitioner would have to submit a written request for extension. Petitioner eventually sent in the signed request form for the leave of absence which he was then under. The signed form stated: "If I do not request an extension of my Leave prior to expiration . . . my employment at Memorial Respondent will be terminated. . . ." Petitioner never submitted a request for an extension of his leave, and Petitioner was terminated. In February, 1987, Ralph Rettig became aware of a part-time porter position in the Respondent's Dietary Department. Mr. Rettig contacted Petitioner and asked him to meet with Joseph Marino, Administrative Director of Food and Nutrition Services, with regard to a job in the Dietary Department. Marino offered Petitioner a porter position which required only half days and involved no bending or lifting of heavy objects. Marino explained the duties and responsibilities of the position to Petitioner and showed him the work area. Petitioner refused the position because he felt it was "beneath his dignity". Petitioner said virtually the same thing to Rettig. Hospital Benefits Supervisor Rettig, a quadriplegic, was involved throughout in dealing with Petitioner's medical situation. Rettig testified that he has never witnessed discrimination by the Respondent based upon handicap and felt that the Respondent reasonably accommodated Petitioner's back problem. Eighty percent of an Electrician's work at the Respondent involved the use of a ladder. Petitioner could not do ladder work. Petitioner also could not work on ceilings or do much bending or lifting. Petitioner cannot work at all now, still has pain, and has not worked since leaving the Respondent's employ. Petitioner did not know of any available half-day jobs he could have performed at the Hospital other than the porter position that was offered to Petitioner by Mr. Marino. Prior to his 1985 injury, Petitioner had repeatedly requested to work part time as an Electrician because his wife had arthritis and he needed to care for her. Petitioner was consistently turned down because no such part-time position existed in his department. During his employment with Respondent, a few half-day positions existed throughout the Hospital as PBX Operators, Cashiers, and Porters. No part-time Electrician positions in the Plant Engineering Department where Petitioner was employed were ever available. Petitioner occupied a full-time position even though he worked only part-time. Sandy McNeil, a former Electrician, is now a Systems Technician/Welder who works full days on a part-time basis. Mr. McNeil operates a lathe and works full weeks when needed. Petitioner is not a welder and could not perform the duties required of Mr. McNeil. Richmond Blatch is a painter who works a full week every other week. Petitioner is not a painter and could not perform Mr. Blatch's duties. Tom Nottage, another individual who had been working in the Engineering Department, obtained a courier position with the Hospital. For a brief period, Mr. Nottage worked 2 full days a week in the Engineering Department and 3 days week as a courier. Since mid-January, 1987, Mr. Nottage has worked full-time as a courier. His job requires driving over 25,000 miles per year, lifting mail tubs weighing between 20 and 50 pounds, often lifting heavier packages, and getting in and out of his car between 20 and 40 times per day. Petitioner could not perform the duties required of Mr. Nottage. A part-time position could not be created for an Electrician. Electricians are given jobs which frequently carry through from day to day. Permanently employing someone on a half-day, health-restricted basis presented scheduling and work load problems. Jobs that do not carry through from day to day are frequently comprised of so-called bench work. Some bench work requires an entire day to complete. There was not always a half-day's worth of bench work available. During his employment with the Respondent, Petitioner had been receiving Social Security pension benefits. In 1987, Petitioner would have been required to reimburse Social Security for a portion of his pension benefits if he earned more than $8,000,00. Half day employment would have afforded Petitioner the ability to earn the maximum allowed by Social Security. Because Petitioner refused to accept a job for which he was physically qualified, the worker's compensation benefits begun as a result of his injury on the job in 1982, were stopped. If Petitioner had accepted the porter position offered to him by Mr. Marino, his worker's compensation benefits would have compensated him for the wage loss resulting from the lower paying job. Petitioner's termination had no effect on the worker's compensation benefits Respondent was paying Petitioner. Respondent would have gained a financial benefit from retaining Petitioner as a part time Electrician because there would have been less of a wage loss to make up through worker's compensation benefits. Glen Mora and Luis Villanueva, two other Electricians, were injured while Petitioner was working half days. Both individuals were allowed to take medical leave, and return to work on light duty until they returned to full duty status. Both individuals in fact returned to full duty status. Petitioner received a merit pay check from Respondent in 1986 even though Petitioner had not achieved the requisite "fully proficient" rating in his evaluation. Vernon Clark, Director of Plant Engineering, intervened on behalf of Petitioner. Mr. Clark recommended that Petitioner receive the merit pay because Petitioner would have received a higher rating had it not been for Petitioner's injury.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Rights Commission issue a Final Order that Respondent is not guilty of discharging Petitioner in violation of the Human Rights Act. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. DANIEL MANRY 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 5th day of October, 1989. APPENDIX Petitioner submitted no proposed findings of fact. Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection NONE The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Included in Findings 1, 2 2-3 Rejected as irrelevant 4-9 Included in Findings 3-10 Included in Finding 35 Included in Finding 11 Included in Finding 25 Included in Finding 26 Included in Finding 31 15-17 Included in Findings 27-30 Included in Finding 17 Included in Finding 36 Included in Finding 32 21-28 Included in Findings 12-21 29 Included in Finding 22 30-31 Included in Findings 33-34 Included in Finding 22 Included in Findings 15, 17 34-35 Included in Findings 23, 24 COPIES FURNISHED: George Cabany 3905 Garfield Street Hollywood, Florida 33021 James S. Bramnick Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P. A. Hollywood Memorial Respondent Suite 3600 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2338 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondents violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers' compensation coverage, as alleged in the Stop-Work Orders, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers' compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondents are gas station/convenience stores located in South Florida. Northlake was created by Nazma Akter on May 6, 2014. MB was created by Ms. Akter on March 23, 2010. Congress Valero was created by Muhammad Saadat on July 21, 2011. Hena was created by Ms. Akter and Abu Ahsan on December 14, 2011. Hayma was created by Ms. Akter on December 14, 2011. Blue Heron was created by Ms. Akter on August 4, 2009. At all times relevant hereto, Respondents were duly-licensed to conduct business in the state of Florida. On February 2, 2015, the Department's Compliance Investigator Robert Feehrer, began a workers' compensation compliance investigation of Gardenia, LLC. Investigator Feehrer called the number listed for Gardenia, LLC, and was provided with a corporate office address. On February 10, 2015, upon arrival at Gardenia, LLC's, corporate office located at 165 US Highway 1, North Palm Beach, Florida, 33408, Investigator Feehrer spoke with Operations Manager Mohammad Hossain. Mr. Hossain stated that Gardenia, LLC, was a paper corporation and existed only for the purpose of paying unemployment taxes on the "six stores." Mr. Hossain went on to provide Investigator Feehrer with a list of Respondents and names of the employees that worked at each store. As an employee of Gardenia, LLC, and Respondents, Mr. Hossain's statements are party opponent admissions and bind Respondents. Lee v. Dep't of Health & Rehab. Servs., 698 So. 2d 1194, 1200 (Fla. 1997). With Mr. Hossain's statements and the list of Respondents' employees, Investigator Feehrer then consulted the Division of Corporations website, www.sunbiz.org, and confirmed that Respondents were current, active Florida companies. Investigator Feehrer then consulted the Department's Coverage and Compliance Automated System ("CCAS") for proof of workers' compensation coverage and exemptions associated with Respondents. Investigator Feehrer's CCAS search revealed that Respondents had no workers' compensation policies and no exemptions. On February 24, 2015, Investigator Feehrer conducted site visits at each of the six stores. Ms. Akter and Mr. Hossain accompanied Investigator Feehrer during these site visits. At all times material hereto, Ms. Akter was a corporate officer or managing member of each of the six Respondents. Muhammed Saadat and Abu Ahsan were corporate officers or managing members of Congress Valero, Hena, and Blue Heron. Kazi Ahamed was a corporate officer or managing member of Congress Valero and Hayma. Kazi Haider and Mohammed Haque were managing members of Hayma. All received compensation from the companies with which they were involved. Although Investigator Feehrer only personally observed one employee working at each location during his site visits, the payroll records revealed that at least four employees (including corporate officers or managing members without exemptions) received compensation for work at each location during the relevant period. Investigator Feehrer required additional information to determine compliance, and with Respondents' permission, contacted Respondents' accountant. Investigator Feehrer met with the accountant at least two times to obtain relevant information prior to March 30, 2015. Upon Ms. Akter's authorization, the accountant provided tax returns and payroll information for Respondents' employees. Information from Ms. Akter and Mr. Hossain also confirmed the specific employees at each of the six stores during the period of March 30, 2013, through March 30, 2015. On March 30, 2015, based on his findings, Investigator Feehrer served six Stop-Work Orders and Orders of Penalty Assessment. The Stop-Work Orders were personally served on Ms. Akter. Mr. Hossain was present as well and confirmed the lists of employees for each of the six stores were accurate. In April 2015, the Department assigned Penalty Auditor Christopher Richardson to calculate the six penalties assessed against Respondents. Respondent provided tax returns for the audit period and payroll transaction details were provided, as well as general ledgers/breakdowns, noting the employees for each Respondent company. Based on Investigator Feehrer's observations of the six stores on February 24, 2015, Auditor Richardson used the classification code 8061 listed in the Scopes® Manual, which has been adopted by the Department through Florida Administrative Code Rule 69L-6.021(1). Classification code 8061 applies to employees of gasoline stations with convenience stores. Classification codes are four-digit codes assigned to various occupations by the National Council on Compensation Insurance to assist in the calculation of workers' compensation insurance premiums. In the penalty assessment, Auditor Richardson applied the corresponding approved manual rate for classification code 8061 for the related periods of non-compliance. The corresponding approved manual rate was correctly utilized using the methodology specified in section 440.107(7)(d)1. and rule 69L-6.027 to determine the final penalties. The Department correctly determined Respondents' gross payroll pursuant to the procedures required by section 440.107(7)(d) and rule 69L-6.027. On January 14, 2016, the Department served the six Amended Orders of Penalty Assessment on Respondents, assessing penalties of $1,367.06 for Northlake, $9,687.00 for MB, $12,651.42 for Congress Valero, $18,508.88 for Hena, $7,257.48 for Hayma, and $4,031.60 for Blue Heron. The Department has demonstrated by clear and convincing evidence that Respondents were engaged in the gasoline station, self-service/convenience store industry in Florida during the periods of noncompliance; that Respondents failed to secure the payment of workers' compensation for their employees, as required by Florida's Workers' Compensation Law; and that the Department correctly utilized the methodology specified in section 440.107(7)(d)1. to determine the appropriate penalties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a consolidated final order upholding the Stop-Work Orders and the Amended Orders of Penalty Assessment in the amounts of $1,367.06 for Northlake Mobile Enterprises, Inc.; $9,687.00 for MB Food and Beverage, Inc.; $12,651.42 for Congress Valero, Inc.; $18,508.88 for Hena Enterprises, Inc.; $7,257.48 for Hayma Enterprises, Inc.; and $4,031.60 for Blue Heron BP, Inc. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 16th day of June, 2016.
The Issue The issue is whether Respondent was an employee engaged in the construction industry and required to obtain workers' compensation insurance while working on the roof of the Myakka Animal Clinic and, if so, what penalty should be imposed.
Findings Of Fact On August 24, 1998, Petitioner's investigator observed Respondent working on the roof of the Myakka Animal Clinic in Venice, Florida. At the time, Respondent was regularly employed by Paradise Roofing, Inc., where he had an exemption from workers' compensation insurance coverage. He has never previously been guilty of a violation of the workers' compensation laws. The contract price was $800. However, the evidence is conflicting as to the identity of the party that entered into the contract with the Myakka Animal Clinic. The veterinarian testified that her understanding of the agreement was that Respondent was to do the work, but, if any problems arose, he was not alone, and she could go to Paradise Roofing, Inc., to ensure that the labor and materials were satisfactory. Although there are other indications in the record that Respondent may have been working on his own on this job, there is sufficient conflict in the evidence that Petitioner has failed to prove that Respondent was doing the job as a self- employed person, rather than an exempt employee of Paradise Roofing, Inc. Respondent's understanding of the contractual relationship carries less weight than the veterinarian's understanding of this relationship.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing the Notice and Penalty Assessment Order and any related stop work order. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of April, 1999. COPIES FURNISHED: Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Louise T. Sadler, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Eric Kristiansen 3750 Aba Lane North Port, Florida 34287
Findings Of Fact In the fall of 1976, James McKnight was fire chief for respondent City of Lauderhill. At that time there was a vacancy in respondent's fire department for a fire lieutenant. Respondent's mayor gave Chief McKnight a list of three names which had been given to the mayor by the civil service board. The mayor told the fire chief to pick a person from the list for the fire lieutenant position and said "that he had been advised that the lieutenants were not eligible or allowable to belong to the union." (R17) The names on the list were those of Messrs. Scheiblich, Farmer and Schwartz, in that order, all of whom worked for respondent as firefighters. On September 30, 1976, Chief McKnight summoned Mr. Scheiblich to his office and discussed promoting him to fire lieutenant. The fire chief told Mr. Scheiblich that he could not be active in the union while service as a fire lieutenant and that he would have to resign from the union at the conclusion of his probationary period as a fire lieutenant. Mr. Scheiblich answered that he was under the impression that, although he would have to leave the bargaining unit, he could remain an active member of the union, but that, if a promotion would require his leaving the union, he would rather forego the promotion and remain a member of the union. Chief McKnight said he would consult the city attorney for his advice on whether Mr. Scheiblich's promotion would require his resignation from the union. Chief McKnight telephoned the city attorney, Mr. Titone, who told him that Mr. Scheiblich's serving in the rank of fire lieutenant would necessitate his resigning from the union. This advice was based in part on PERC's decision in its Case No. 8H-RC-756-1240. In that case, On June 23, 1976, PERC voted two to one to exclude fire lieutenants from the bargaining unit; because, as was subsequently explained, in the written order entered in Case No. 8H-RC-756-1240 on October 4, 1986, "the lieutenants manage the men on a day-to-day basis and will provide the basic input for promulgating and evaluating collective bargaining proposals submitted during negotiations." Although the record does not reflect that respondent had made a separate application for determination of the managerial or confidential status of fire lieutenants, respondent's attorney acted in good faith in advising Chief McKnight that Mr. Scheiblich would not be eligible for promotion to fire lieutenant if he was unwilling to resign from the union; and Chief McKnight acted in good faith in following Mr. Titone's advice. Acting on instructions from the mayor, whom he had apprised of the situation, Chief McKnight next interviewed Mr. Farmer. Among the questions he asked Mr. Farmer was one "about having to get out of the union in order to be able to accept lieutenant's promotion; and he said, it was all right with him" (R19) After this interview, Chief McKnight recommended Mr. Farmer's promotion, just as he had earlier recommended Mr. Scheiblich's promotion. The mayor was pleased with Mr. Farmer's selection. He nevertheless told the fire chief to interview the only other person listed, Mr. Schwartz, which Chief McKnight did even though he "couldn't see the necessity." (R29) The question of fire lieutenants' union membership came up in the Schwartz interview, too, and Chief McKnight indicated he was relying on what he had been told by the mayor and by the city attorney. At the time of these events, Mr. Scheiblich was union president and Mr. Schwartz was secretary-treasurer of the union. Chief McKnight and Mayor Cipolloni were aware of this because a letter from Mr. Schwartz, dated August 16, 1976, had so informed them. After Chief McKnight had interviewed Mr. Scheiblich for the fire lieutenant's job, he saw for the first time and read a petition signed by most of the firemen in respondent's employ, including all three persons listed as possibilities for promotion to fire lieutenant. This petition was critical of the management of the fire department, and "was a pretty strong petition. It was ultimately very successful. It got [Chief McKnight] fired." (R18) After reading the petition, Chief McKnight was unsure how long he would remain fire chief, and he told Mr. Scheiblich "to just sit tight [because Chief McKnight] wasn't going to do anything about promoting somebody to lieutenant until [he] was sure whether [he] was still working [for the fire department himself]." (R18-19) The firemen's petition upset Chief McKnight, but did not influence his recommendations for fire lieutenant. Chief McKnight withdrew his recommendation that Mr. Scheiblich be promoted to fire lieutenant, because Mr. Scheiblich would not agree to resign from the union, which respondent's mayor and city attorney had advised Chief McKnight would be necessary. Chief McKnight recommended that Mr. Farmer be promoted to fire lieutenant because his name was next on the list and because Mr. Farmer had no objection to resigning from the union at the end of a probationary period as fire lieutenant. Chief McKnight did not recommend that Mr. Schwartz be promoted to fire lieutenant because he had already recommended Mr. Farmer for the position, and Mayor Cipolloni had indicated he was going to accept the recommendation that Mr. Farmer be promoted. Mr. Farmer was in fact promoted to fire lieutenant, while Messers. Scheiblich and Schwartz were not. The case file reflects that the union filed unfair labor practice charges against respondent and mailed a copy to respondent's counsel on October 8, 1976. In addition to alleging that the circumstances surrounding the promotion of Mr. Farmer amounted to an unfair labor practice, the union alleged that respondent's mayor, Eugene Cipolloni, had sent two letters and made a public statement that constituted unfair labor practices. On or about October 13, 1976, Eugene Cipolloni, respondent's mayor, gave Chief McKnight a verbal directive to change the fire department's temporary shift exchange policy, effective November 1, 1976. Even though respondent's city council had adopted the policy on August 13, 1976, as its Resolution No. 572, the mayor felt a memorandum under the fire chief's signature should suffice to alter the policy. Before the change, the procedure was that a fireman who wanted another fireman to fill in for him made his request in writing and secured the signature of the proposed substitute. These requests then went up through the chain of command and were routinely granted. On one occasion, a fire lieutenant failed to report as a substitute, after agreeing to do so. Since the change in policy, temporary shift exchanges have only been allowed in cases of illness or in other emergencies. This change in policy was ordered by Mayor Cipolloni in retaliation for the filing of the unfair labor practice charges, although ensuring a full complement on each shift was the ostensible reason for the change in policy. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent restore and reestablish the temporary shift exchange policy which obtained before the memorandum posted on October 13, 1976, changed the policy, effective November 1, 1976. DONE and ENTERED this 29th day of July, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William E. Powers, Jr., Esq. General Counsel Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Anthony J. Titone, Esq. City Attorney City of Lauderhill 6299 West Sunrise Boulevard Ft. Lauderdale, Florida 33313 Robert A. Sugarman, Esq. Post Office Drawer 520337 Miami, Florida 33121 APPENDIX The charging party's proposed findings of fact have been adopted, in substance, insofar as relevant, with these exceptions: There was only one opening for fire lieutenant. Chief McKnight had the authority to select the person for promotion only in the sense that he had authority to recommend somebody for promotion. Some of the details of the temporary shift exchange policy set forth in the last paragraph of page four of the charging party's proposed fact findings were recited by Mr. Schwartz in the course of examining witnesses but were not established as part of the evidence adduced at the hearing. Respondent's proposed fact findings Nos. 1, 3(b), 3(d), and 3(f)-(h), have been adopted, in substance. Respondent's proposed fact findings Nos. 2(a)-(e) have been rejected because the evidence as a whole persuaded the hearing officer that the change in temporary shift exchange policy was in retaliation for the filing of unfair labor practice charges. Both the mayor and the fire chief testified that the change was ordered by the mayor himself and that the fire chief merely carried the mayor's order out. The procedure by which the previous policy had been adopted was not followed in amending the policy. The change came at a time of upheaval, after a period of "rumors and commotion," (R19), and at a time when the mayor had just been accused of personally committing unfair labor practices. The mayor's demeanor at the hearing and the evasive manner in which he answered Mr. Schwartz's questions contributed significantly to the hearing officer's conclusion: In testifying, the mayor essentially took the tack that there had been change in the temporary shift exchange policy. The only credible testimony concerning shortcomings under the original policy concerned a single instance in which a fire lieutenant had failed to show up for a shift he had agreed to work, for which dereliction he had been disciplined. Respondent's proposed fact findings No. 3(a) and 3(c) have been rejected because the evidence showed that respondent failed to promote Mr. Scheiblich because he would not agree to resign from the union at the end of a probationary period as fire lieutenant. Respondent's proposed fact finding No. 3(e) has been rejected because Chief McKnight had also been advised by the mayor and the city attorney on the question of the fire lieutenants' managerial status.
The Issue Whether the final agency action of the Department of Management Services, Division of Retirement, dated February 22, 2012, complied with section 175.361, Florida Statutes (2012),1/ concerning the dissolution and distribution of the City of Belleair Bluffs Firefighters' Pension Trust Fund.
Findings Of Fact The Pension Trust Fund is a defined benefit pension plan under chapter 175, Florida Statutes. The City participated in the chapter 175 premium tax program with the creation of the Pension Trust Fund. The legislature expressly declared that the purpose of chapter 175 was to establish "minimum standards for the operation and funding of such plans, hereinafter referred to as firefighters' pension trust funds." § 175.021(2), Fla. Stat. Further, the legislature directed that the firefighter pension plans be "managed, administered, operated, and funded in such manner as to maximize the protection of the firefighters' pension trust funds." § 175.021(1), Fla. Stat. Section 175.061 creates a board of trustees for a firefighters' pension trust fund as the legal entity empowered to bring and defend lawsuits, and is "solely responsible for administering the trust fund." § 175.061(1) and (4), Fla. Stat. The board of trustees is directed by statute to act as a fiduciary for the pension trust fund's beneficiaries and participants. §§ 175.071(1) and 112.656, Fla. Stat. The law is clear that a board of trustees is independent of a municipality. §§ 175.071 and 175.311, Fla. Stat. Further, a board of trustees comprises two trustees elected by the firefighters, two trustees who are residents of the municipality appointed by the City Commission, and a fifth member chosen by the majority of the four members. § 175.061(1)(a). Finally, a board of trustees derives its authority and fiduciary duties from chapters 175 and 112. The Board of Trustees in this case was created by and derived its authority under chapter 175. On September 1, 2009, the City’s residents voted to consolidate its fire services with City of Largo. As a result, the Largo Fire Department has provided the City with fire protection since September 30, 2009. Moreover, it was undisputed that the Pension Trust Fund closed as of September 30, 2009. Following the consolidation of the two fire services, City officials and the Board of Trustees began negotiations concerning how to proceed with the Pension Trust Fund. The record shows that the discussions evolved from the Pension Trust Fund being merged with the Largo Firefighters' Pension Fund to discussions concerning the Pension Trust Fund's dissolution and distribution. The negotiations between the City and the Board of Trustees regarding the dissolution and distribution of the Pension Trust Fund discussed a number of alternatives. The record shows that the City and Board of Trustees discussed options such as payment of accrued benefits, a substituted trust managed by the City, and payment of lump sum cash payments in conjunction with a share plan or service distribution payment. The share plan or service distribution plan would have paid a firefighter's accrued benefits plus additional money based on the number of years a firefighter served the City. However, as of early September 2011, the City and the Board of Trustees had not reached an agreement on the dissolution and distribution of the Pension Trust Fund. The key meeting for resolution of this case is the Board of Trustees' meeting on September 9, 2011. The Board of Trustees' meeting minutes and transcript from the September 9, 2011, meeting, show the Board of Trustees' intent to make a decision in strict compliance with section 175.361. Mr. Dehner, the Board of Trustees' attorney, clearly advised the Board that it take a final action in compliance with section 175.361. The record shows that the Board of Trustees voted to accept distribution of accrued benefits only, and voted to have its actuary provide the City with the information showing the amount of additional funds necessary to fund the Pension Trust Fund's distribution. Section 175.361(1) provides that a board of trustees inform a municipality if additional assets are required to fund distribution of the nonforfeitable benefits. The conclusion that the Board of Trustees took a final action in compliance with section 175.361 is confirmed by Mr. Langere's testimony. The record shows that the Board directed Mr. Patrick Donlan of Foster and Foster, its actuary, to provide the City with two options as to the costs for the distribution. The first option concerned the cost of a proposal by the City to dissolve the Pension Trust Fund. The City's proposal, as it was characterized by the Board, consisted of eight firefighters receiving lump sum cash payments of their accrued benefits with a share plan. The share plan would pay the eight firefighters additional money based on each firefighter's years of service. The remaining four firefighters in the Pension Trust Fund would receive insured annuities. The Board of Trustees also directed Mr. Donlan to determine the cost of Board's action in selecting dissolution and distribution of the Pension Trust Fund by purchasing eight annuities and four lump sum cash payments. The transcript for the Board of Trustees' meeting shows the following: SECRETARY WATERS: I make a motion that if the City does not act favorably to the City proposal, what we've been calling "City Proposal - Proposal Number One," then the Board requests that the City pay in accordance with the 9/9/11 letter from Foster & Foster updated as of 9/16/11. The motion received a second, and was unanimously approved by the Board of Trustees. The letter from Mr. Donlan, dated September 9, 2011, set out the Pension Trust Fund's current value and the amount of additional funds required from the City in order to fund the distribution of the accrued benefits with the purchase of eight insured annuities and four lump sum cash payments. Moreover, Mr. Donlan's letter determined the amount of funds required from the City to finance the distribution. Finally, the September 9, 2011, letter set out the costs of a "share plan" allocation. The Board of Trustees' action at the September 9, 2011, meeting, directed the actuary to update the distribution costs using a September 16, 2011, date. The reason for the changed date is that the cost of purchasing annuities varies based on the prevailing interest rates on a particular date. The Board of Trustees chose September 16, 2011, as the date for determining the cost of purchasing the annuities, because the date was the closest date to the City Commission's next scheduled meeting on September 19, 2011. On September 16, 2011, Mr. Donlan wrote Ms. Sullivan, and provided the City with the market value of the Pension Trust Fund on September 15, 2011, and the costs to fund the distribution of the Pension Trust Fund under two scenarios: 1) the City's "Share Plan or Service Distribution Plan"; and 2) the accrued benefit plan approved by the Board of Trustees. The letter shows that, at the time, the current value of the Pension Trust Fund was insufficient to distribute the accrued benefits. Consequently, under either option, the City would be required to pay additional funds in order to distribute the accrued benefits. Mr. Donlan outlined the City's costs under the City's proposed share plan or service distribution plan. Under the City's proposal, eight firefighters would receive lump sum cash payments of their accrued benefits and "service distributions" based on the years of service, and four firefighters would receive insured annuities. Mr. Donlan's letter noted that if the City adopted this proposal, the decision would allow the City to access additional state money to pay for the service distributions. Under the “share plan or service distribution plan,” the City would be required to provide $1,024,786.00 to fund the distribution. The second cost option outlined by Mr. Donlan detailed the cost of funding the Board of Trustees' decision that eight firefighters receive insured annuities, and four firefighters receive lump sum cash payouts. Unlike the “share plan or service distribution plan,” state money would not be available to pay for the accrued benefit plan.3/ The actuary's letter clearly states that under the accrued benefit plan, the City would be required to provide $1,265,330.00 to fund the distribution of the Pension Trust Fund. On September 19, 2011, Mr. Daniel Waters, the Board of Trustees' Secretary, informed the City Commission in writing that the Board of Trustees had met and "accepted a motion concerning the method of payout to the former Belleair Bluffs Firefighters' Pension Members." Further, Mr. Waters informed the City Commission about the costs of the Board's adopted annuity plan, and provided a copy of the actuary's September 16, 2011, letter. The record shows that on September 26, 2011, the City Commission held a special meeting concerning the Pension Trust Fund. The City Commission's minutes show that the City had its actuary prepare documentation showing the financial implications for the City under four different scenarios.4/ Further, the City Commission minutes show that the City Commission failed to take any action, other than to authorize Mayor Arbutine "to write a letter requesting a 90-day extension in order to keep the Share Plan alive while continuing to come to an agreement." Consequently, the City did not provide the additional funds of $1,265,330.00 necessary to distribute the Pension Trust Fund as determined by the Board. On September 29, 2011, Mayor Arbutine wrote the Department seeking its assistance with resolving a problem with the termination of the Pension Trust Fund. Mayor Arbutine's letter outlined the City's liability to fund the options presented by the Board of Trustees. Specifically, Mayor Arbutine lamented that the Board of Trustees' decision would harm the City financially, and that he did not accept that "the City's only option is to pay for whatever method the Board decides is best for the plan members." Consequently, the Mayor asked the Department to take no action pursuant to section 175.361 to effect the dissolution of the Pension Fund for 90 days. The Board did not distribute the Pension Trust Fund on or before September 30, 2011. The Department received information from the City and the Board of Trustees’ decision concerning the Pension Trust Fund's dissolution and distribution. The Department reviewed materials and interviewed the parties. Based on its review, the Department, on February 22, 2012, wrote the City that the Department "has determined that the method of distribution of the asset value as determined by the Board of Trustees is required under section 175.361, Florida Statutes." Further, the Department states the following: In conjunction with this letter, the Department is also corresponding with the Board of Trustees, copy enclosed, instructing them to have the plan actuary prepare an updated financial analysis of the City's required contribution, with a 30-day lock-in period price for the purchase of annuities. This will allow the City of Belleair Bluffs to secure the necessary resources to make the required cash contribution to the plan. The Department provided the City with notice that the February 22, 2012, letter, constituted final agency action, and set out the City's administrative hearing rights. On March 14, 2012, the City filed its Petition for Formal Administrative Hearing with the Department.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that the Board of Trustees complied with section 175.361, Florida Statutes, and that the City be directed to comply with the Department's determination to effectuate the distribution of the Pension Trust Fund through the purchase of eight insured annuities and four lump sum cash payouts for the specific plan members. The undersigned retains jurisdiction to award reasonable attorneys' fees and costs pursuant to section 175.061(5), Florida Statutes, upon the entry of a final order. DONE AND ENTERED this 7th day of December, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 December, 2012.
The Issue Whether Respondent, Gulf Coast Site Prep, Inc., failed to comply with the coverage requirements of the Workers’ Compensation Law, chapter 440, Florida Statutes, by not obtaining workers’ compensation insurance for its employees, and, if so, what penalty should be assessed against Respondent pursuant to section 440.107, Florida Statutes (2014).1/
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. Respondent, Gulf Coast Site Prep., Inc., is a Florida for-profit corporation organized on March 3, 2008. Respondent’s registered business address is 952 TR Miller Road, Defuniak Springs, Florida. Ashley Adams is Respondent’s President and Registered Agent. On March 27, 2015, the Department’s investigator-in- training, Jill Scogland, and lead investigator, Sharon Kelson, conducted a random workers’ compensation compliance check at Lot 34 in the Driftwood Estates residential subdivision in Santa Rosa Beach, Florida. Ms. Scogland observed two men on site. David Wayne Gibson was operating a front-end loader spreading dirt on site. Colby Smith was shoveling dirt on site. While Ms. Scogland was inspecting the site, a third man, Ashley Adams, arrived driving a dump truck with a load of dirt. Mr. Adams identified himself as the owner of Gulf Coast, and stated that he had an exemption from the requirement for workers’ compensation insurance and that he thought Mr. Gibson did as well. Mr. Adams advised Ms. Scogland that he hired both Mr. Gibson and Mr. Smith to work at the site.2/ At hearing, Respondent challenged the evidence supporting a finding that Respondent hired Mr. Gibson.3/ Specifically, Respondent argues that Ms. Scogland’s testimony that Mr. Adams told her he hired Mr. Gibson is unreliable because Ms. Scogland did not include that information in her field notes. Respondent claims that Ms. Scogland’s status as investigator-in-training on the date of the inspection is indicative of her unreliability. To the contrary, Ms. Scogland’s testimony regarding both the persons and events on the date of the inspection was clear and unequivocal. While Ms. Scogland admitted her field notes were not as detailed on the date in question as they are for more recent inspections, she was confident that her investigation of the facts was thorough. The fact that Ms. Scogland did not write down what Mr. Adams said does not render her testimony unreliable. The undersigned finds Ms. Scogland’s testimony to be clear and convincing. Ms. Scogland reviewed the Department of State, Division of Corporations’ online information and identified Mr. Gibson as President and Registered Agent of David Wayne Gibson Tractor Service, Inc. According to Ms. Scogland, the online records indicated the corporation had been administratively dissolved in September 2013. Ms. Scogland next accessed the Department’s Coverage and Compliance Automated System (CCAS) and determined that Mr. Gibson had obtained a workers’ compensation coverage exemption for himself, but the exemption had expired on February 15, 2015. The information contained in CCAS is information on new policies, cancellations, etc., reported to the Department by insurance agencies as required by administrative rule. Next, Ms. Scogland accessed the Division of Corporations’ website, verified Gulf Coast as an active corporation, and identified Mr. Adams as the sole officer of Gulf Coast. Ms. Scogland then accessed CCAS and determined that, although Gulf Coast did not have workers’ compensation coverage, Mr. Adams had an active exemption effective from February 12, 2014 through February 12, 2016. Mr. Adams had a prior exemption that expired on April 14, 2013, but had no valid exemption in place between April 14, 2013 and February 12, 2014. After contacting her supervisor, Michelle Lloyd, Ms. Scogland served Mr. Adams, on behalf of Gulf Coast, with a site-specific Stop-Work Order for failure to ensure workers’ compensation coverage for its employees. Ms. Scogland also served Mr. Adams with a Request for Production of Business Records for Penalty Assessment Calculation. The request was for Gulf Coast’s payroll, account, and disbursement records, as well as records identifying its subcontractors, payments thereto, and workers’ compensation coverage thereof, from March 28, 2013 through March 27, 2015 (the penalty period).4/ Mr. Adams did not provide any records to the Department in response to the records request. The Department’s penalty auditor, Eunika Jackson, was assigned to calculate the penalty to be assessed against Gulf Coast for failure to secure workers’ compensation insurance during the penalty period. The penalty to be assessed against an employer for failure to secure workers’ compensation coverage is two times the amount the employer would have paid in workers’ compensation insurance premiums when applying approved manual rates to the employer’s payroll during the penalty period. § 440.107(7)(d), Fla. Stat. Ms. Jackson consulted the Scopes Manual, which is published by the National Council on Compensation Insurance (NCCI), and identified class code 6217--Excavation and Drivers-- as the appropriate construction class code for the work being performed at the worksite. Respondent contests the assignment of class code 6217 to Mr. Adams, who was driving a dump truck and delivering a load of dirt to the site. Respondent admits that Mr. Gibson’s operation of the front-end loader was properly classified as Excavation and Drivers. NCCI Scopes Manual provides the following with regard to classification code 6217: Includes burrowing, filling or backfilling. * * * Code 6217 is applied to specialist contractors engaged in general excavation including ditch digging, burrowing, filling or backfilling provided such operations are not otherwise classified in the manual. The operations involve the removal of earth, small boulders and rocks by power shovels, trench diggers or bulldozers and piling it at the jobsite for backfill. The material may also be removed by dump trucks for fill in some other area. Code 6217 includes excavation in connection with building foundations, swimming pools, landscape gardening and waterproofing operations. * * * This classification also is applied to specialist contractors engaged in grading land and landfilling, provided these operations are not otherwise classified in this manual. This classification includes ditch digging, burrowing, filling or backfilling, and operations such as scraping, cutting, piling or pushing the earth to rearrange the terrain. These operations utilize equipment such as bulldozers, motor graders and carryalls. [emphasis supplied]. Mr. Adams’ operation of the dump truck falls squarely within the definition of Excavation and Drivers. The material in the dump truck was fill for the site under excavation, a purpose which is directly addressed in the manual under code 6217. Under Respondent’s interpretation, fill removed from the site by a dump truck would be an excavation activity, but would no longer be excavation when the dump truck arrived at another site (or at another location on the same site) with the fill. That interpretation is illogical. No evidence was introduced to support a finding that typical operation of a dump truck in preconstruction was classified by a different code in the Scopes Manual. It is found that Ms. Jackson properly applied the Scopes Manual in assigning code 6217 to the work being performed by Mr. Adams on the site. Having no payroll records from Gulf Coast, Ms. Jackson had to impute the statewide average weekly wage as Respondent’s payroll for Mr. Adams and his subcontractor, Mr. Gibson. The average weekly wages were calculated based on the Workers’ Compensation and Employers Liability approved rate manual also published by NCCI and adopted by the Department by administrative rule. Ms. Jackson calculated a penalty of two times the workers’ compensation insurance premiums that would have applied to the purchase of insurance for Mr. Adams and Mr. Gibson during periods of non-compliance during the penalty. The period of non-compliance for Mr. Adams was April 15, 2013 to February 11, 2014, during which time his exemption had lapsed. The period of non-compliance for Mr. Gibson was February 16, 2015 to March 27, 2015, during which his exemption had expired. § 440.107(7)(e), Fla. Stat. Utilizing the penalty calculation worksheet adopted by Florida Administrative Code Rule 69L-6.027, Ms. Scogland calculated a penalty of $12,181.42. On May 20, 2015, the Department issued an Amended Order of Penalty Assessment against Gulf Coast in the amount of $12,181.42. The Department correctly calculated the penalty based on the statutory formulas and adopted rules governing workers’ compensation insurance.
Recommendation Having considered 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 upholding the Stop-Work Order and Amended Penalty Assessment against Respondent, Gulf Coast Site Prep., Inc., for its failure to secure and maintain required workers’ compensation insurance for its employees. DONE AND ENTERED this 14th day of January, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 14th day of January, 2016.
The Issue Whether Petitioner, who on November 17, 1999 (two days prior to the final hearing in this case) was certified by Respondent to be eligible to receive, effective June 1, 1999, firefighter supplemental compensation pursuant to Section 633.382, Florida Statutes, is entitled to any further relief from Respondent in this administrative proceeding (which was initiated by Petitioner after he had received Respondent's June 2, 1999, notice of its preliminary determination that Petitioner was not entitled to firefighter supplemental compensation).
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In August 1994, Petitioner applied to Respondent for entry in the Firefighters Supplemental Compensation Program (1994 Application). The application materials that Respondent received were a completed and signed Firefighters Supplemental Compensation Program Transcript Request form; a copy of Petitioner's transcript from North Carolina Central University (reflecting that he had graduated on May 10, 1986, with a Bachelor of Science degree in biology), along with a cover letter to Respondent from the Office of the University Registrar; a job description; and a letter to Respondent from Petitioner, which read as follows: Enclosed [y]ou will find information regarding my educational earnings. I received a Bachelor of Science (Biology) in May, 1986 from North Carolina Central University in Durham. Additionally, I have earned 29 credits at Miami Dade Community College [a]nd I [a]m [a] Paramedic. Please [r]eview [t]his information and include me in the supplemental compensation program. I[']d [l]ike to thank you in advance for your time and consideration. The job description that was included in the application materials Respondent received was for the classification of Fire Fighter and read as follows: NATURE OF WORK: Skilled fire-fighting work in combating, extinguishing and preventing fires, and in the operation and maintenance of fire department equipment, apparatus and quarters. Work involves responsibility for protecting life and property by fire-fighting and rescue activities, usually under close supervision. Employees of this class are required to learn and participate in the operation of fire apparatus and equipment, and the performance of hazardous tasks under emergency conditions which may require strenuous exertion under such handicaps as smoke and cramped surroundings. Although fire-fighting and rescue activities are the primary responsibilities of this class, the major portion of time is spent in drilling and studying methods, techniques and organization, and in routine duties in the care and maintenance of fire department property and equipment. Employees of this class may be assigned to duty as communications officer, chief driver and aide, and fire prevention inspector, which involves the application of specialized abilities and knowledge developed through experience and training. Specific orders and directions are given by superior officers, but the work requires initiative and a thorough individual understanding of fire- fighting methods. ILLUSTRATIVE EXAMPLES OF WORK PERFORMED: (The examples of work as listed in this class specification are not necessarily descriptive of any one position in the class. The omission of specific statements does not preclude management from assigning specific duties not listed herein if such duties are a logical assignment to the position. Examples of work performed are not to be used for allocation purposes.) Attends training courses; participation in fire drills and attends classes in fire- fighting and first aid; reads and studies assigned materials related to fire-fighting and prevention. Responds to fire alarms with a company; operates pumps, aerial ladders and auxiliary equipment; lays and connects hose; holds nozzles and directs fog or water streams; raises and climbs ladders; uses chemical extinguishers, bars, hooks, lines and other equipment. Performs general maintenance work in the upkeep of fire department property; cleans and washes walls and floors; makes minor repairs to property and equipment; washes, hangs, and dries hoses; washes, cleans, polishes and tests apparatus. Performs limited fire prevention activities; inspects commercial and residential properties for the existence of fire hazards, and seeks removal of such hazards through education and persuasion. When assigned to the Rescue Division the Fire-Fighter should be able to accurately and efficiently evaluate and gather patient assessment information; interpret assessment finding; formulate a working diagnosis (i.e. possible M.I.); plan, prioritize and implement necessary treatment as per Rescue protocol and/or physician direction via the radio; evaluate treatment outcome and re- assess the patient's status; plan and implement additional treatment or modifications as indicated by re-assessment and follow-up evaluation. When assigned as a fire inspector, inspects buildings and premises; reviews plans for compliance with fire regulations specified in the City of Miami Building Code; checks on complaints; and may aid investigation of arson cases when assigned to fire prevention duties. Performs other related work as required. DESIRABLE KNOWLEDGE, ABILITIES AND SKILLS: (The knowledge, skills and abilities identified in this class specification represent those needed to perform the duties of this class. Additional knowledge, skills and abilities may be applicable for individual positions in the employing departments.) Some knowledge of the street system and physical layout of the City of Miami. Ability to learn a wide variety of fire- fighting duties and methods within a reasonable working test period. Ability to establish and maintain effective working relationships with other employees and the general public. Ability to understand and follow oral and written instructions. Ability to perform limited mechanical work involved in maintaining fire-fighting and rescue apparatus, equipment and tools. Physical strength, endurance, agility and freedom from serious physical defects as shown by a physical examination. Coordination and dexterity. DESIRABLE BASIC TRAINING AND EXPERIENCE: Graduation from high school or State of Florida Equivalency Certificate OR Equivalent combination of training and experience. By letter dated August 23, 1994, Respondent advised Petitioner that it had determined that he was not qualified to receive supplemental compensation. The letter, which was received by Petitioner on September 6, 1994, read as follows: After reviewing your transcript, it has been determined that you do not possess an appropriate Major Study Concentration Area to qualify for the Firefighters Supplemental Compensation Program at the Bachelor level. Rule 4A-37.084, Florida Administrative Code, does not list Biology as a "Major Study Concentration Area." Rule 4A-37.084, Florida Administrative Code, states: "4A-37.084 Definitions. For purposes of this part, terms used in Rules 4A-37.082-4A- 37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined as follows: 'Bachelor's Degree' means a Bachelor of Arts or Bachelor of Science degree conferred by an accredited post-secondary institution provided the major study concentration area is readily identifiable and applicable as fire related. A firefighter may receive Supplemental Compensation based on possession of a Bachelor's Degree regardless of whether or not an Associate Degree was previously earned. In no event shall receipt of a transcript for an Associate Degree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation. The major study concentration area, at least 18 semester hours or 27 quarter hours, [must] be readily identifiable and applicable as fire related. Specific Authority 633,45(2)(a) FS. Law Implemented 633.382(2) FS. History-New 01-03-90." 1/ At this level of the Firefighters Supplemental Compensation Program it has been determined that your Bachelor Degree is not readily identifiable and applicable as fire related, per Rule 4A-37.084, Florida Administrative Code. Pursuant to Section 120.57, Florida Statutes, and Rule Chapters 4-121 and 28-5, Florida Administrative Code (F.A.C.), you have a right to request a proceeding to contest this action by the Department. You may elect a proceeding by completing the attached Election of Rights form or filing a Petition. Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail, the Petition or Election should be addressed to the Florida Department of Insurance, at 612 Larson Building, Tallahassee, Florida 32399-0300. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered to 448 Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0300. The Petition of Election must be received by, and filed in the Department within twenty-one (21) days of the date of your receipt of this notice. If a proceeding is requested and there is no dispute of fact, the provisions of Section 120.57(2), Florida Statutes, would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request. If you dispute material facts which are the basis for this agency's action, you may request a formal adversarial proceeding pursuant to Section 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapters 4-121 and 28-5, F.A.C. and contain: A statement identifying with particularity the allegations of the Department which you dispute and the nature of the dispute; An explanation of what relief you are seeking and believe you are entitled to; Any other information which you contend is material. These proceedings are held before a State hearing officer of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request the hearing be conducted in Tallahassee. Unless a Petition or Election or your written submission challenging this action is received by the Department within twenty-one (21) days from the date of the receipt of this notice, the right to a proceeding shall be deemed waived. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding. Any request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. Petitioner did not file a "Petition or Election or . . . written submission challenging this action [described in Respondent's August 23, 1994 letter]" within 21 days of the date of his receipt of the letter. He next corresponded with Respondent in May of 1999, when he applied for a second time for entry in the Firefighters Supplemental Compensation Program. Along with a completed and signed Application for Initial Entry into Supplemental Compensation Program (Second Application), he sent Respondent a copy of his transcript from North Carolina Central University and an "official job description for current position held: FIREFIGHTER/PARAMEDIC," which was different than the job description that had accompanied his 1994 Application and which read as follows: Firefighter Definition: The term firefighter is used to describe all individuals assigned to the various areas within the City of Miami Fire Department. The responsibilities of a Firefighter are very diverse and require specialized training in many areas. Fire Suppression: These individuals are responsible for protecting life and property by means of fire extinguishment. This individual must have a working knowledge of pumps, water friction and resistance tables as well as ropes, foams and nozzles, infra- red cameras and basic building construction and style. Throughout the fire service, physical fitness is important. Hazardous Material Team: Work involves protecting life and property from toxic substances. Must have a working knowledge of fundamental chemistry and chemical interactions with each other. Must be able to identify Department of Transportation Placards to determine substances being transported by vehicles. Additionally, individuals must be familiar with explosive ranges of gases and mixture that have the potential to explode or cause harm to others. Must understand hazardous materials containment areas and the various levels of protective clothing w[o]rn. Emergency Medical Services: Work involves protecting life through use of basic life support and advance life support methods. Individuals involved in these services work under the license and management of a medical director. Paramedics are generally assigned to these positions when possible. Individuals should be able to accurately gather and interpret patient information to formulate a working diagnosis and provide necessary treatment as per protocol or physician[']s direction. Personnel [are] responsible for calculating and administering various drugs under stressful conditions (i.e. cardiac arrest and major trauma) and reporting patient status and treatment via radio to the medical director. A working knowledge of anatomy and physiology, medical terms and conditions is required. Fire Prevention Bureau: Work involves inspecting buildings and premises; reviewing plans for compliance with fire regulations specified in the City of Miami Building Code; checking on complaints; investigating arson cases and conducting public education throughout the City of Miami. Petitioner did not indicate, in submitting his Second Application, that he was seeking anything other than prospective entry in the Firefighters Supplemental Compensation Program. Respondent preliminarily determined that Petitioner's Second Application should be denied because his "Major Study Concentration Areas of Biology does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code, for entry in the program," and so advised Petitioner, who subsequently requested an administrative hearing on the matter. Respondent, however, subsequently changed its mind regarding Petitioner's eligibility for the program and, by letter dated November 17, 1999 (two days prior to the final hearing in this case) advised Petitioner that, "[u]pon [f]urther review of [his] application, it had "found [Petitioner] to be eligible" and that he would receive supplemental compensation effective June 1, 1999. Respondent also prepared and sent to Chief James Fisher of the City of Miami Fire Rescue an Official Acceptance Notification, which read as follows: James E. Kemp, Social Security Number, . . ., has met the eligibility requirements for entry into the Firefighters Supplemental Compensation Program. Effective June 1, 1999, Mr. Kemp will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.085 for possession of a Bachelor's degree. Mr. Kemp will be eligible to receive up to $110.00 a month until such time as he may become ineligible in accordance with Rule 4A- 37.087. Please insure that the referenced firefighter's name and the amount of Supplemental Compensation paid, appears on your Quarterly Report (form FSTE-3). If any further information is needed, please do not hesitate to contact us. (A copy of this Official Acceptance Notification was sent to Petitioner.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding that Petitioner is not entitled to the additional relief he is seeking. DONE AND ENTERED this 5th day of January, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2000.
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2013)1/, by failing to obtain workers? compensation insurance coverage, as alleged in the Stop-Work Order and Amended Order of Penalty Assessment; and, if so, the appropriate penalty.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement that employers secure the payment of workers? compensation insurance coverage, pursuant to chapter 440, Florida Statutes, for their employees. Respondent is a Florida-limited liability company engaged in business operations for the time period of March 16, 2010, through March 15, 2013. Mark Markisen is the managing member of Respondent listed with the State of Florida, Division of Corporations. On March 15, 2013, Jack Gumph, an investigator with the Department, conducted a random on-site compliance inspection of a construction site for a single family residence. Gumph determined that the general contractor for the job was Gulf Shore Homes and that it had subcontracted with Tradewinds Design for certain work inside the home. As Gumph interviewed the different workers present on the worksite, he spoke with Mark and Brett Markisen, who informed him that they worked for Tradewinds Design. Gumph observed Brett Markisen installing a wine cabinet in the home. Gumph confirmed through the Department?s online records that Gulf Shores Homes and Tradewinds Design had current workers? compensation insurance coverage on March 15, 2013. Based on this initial information, Gumph left the worksite. On March 19, 2013, Gumph subsequently learned from a conversation with Mark Markisen that Mark and Brett Markisen were not employees of Tradewinds Design. Rather, Tradewinds had subcontracted with Respondent, Cabinetry by Design of Collier County, L.L.C., to build and install the wine cabinets. Mark Markisen stated that he was the managing member of Cabinetry by Design of Collier County, L.L.C., and that he had selected to be exempt from workers? compensation insurance coverage. Gumph confirmed that Mark Markisen had selected to be exempt from workers? compensation insurance coverage. However, because Respondent did not have worker?s compensation coverage for Brett Markisen, the Department issued a Stop-Work Order on March 19, 2013, and Request for Production of Business Records for Penalty Assessment Calculation on April 8, 2013. Mark Markisen possessed an exemption from the workers? compensation insurance coverage requirement during the penalty period of March 16, 2010, through March 15, 2013. Brett Markisen did not possess an exemption from the workers? compensation insurance coverage requirement during the penalty period. Brett Markisen was employed by Respondent throughout the penalty period. During the penalty period, Brett Markisen received approximately $187,000.00 from Respondent. The amount of this money attributed to wages is unclear, based on the fact that Mark Markisen indicated that some of the payments reflected loans, not wages. Respondent was an “employer” as defined in chapter 440, Florida Statutes, throughout the penalty period. On March 15, 2013, Brett Markisen was Respondent?s “employee” working on the installation of cabinets in the single family residence.2/ On March 15, 2013, Respondent failed to provide workers? compensation insurance coverage for Brett Markisen. Respondent also failed to provide coverage during the penalty period of March 16, 2010, through March 15, 2013. Therefore, the Department properly entered a Stop-Work Order on March 19, 2013. Respondent failed to provide sufficient business records in order to establish a payroll. Therefore, the Department correctly imputed payroll against Respondent. The Amended Order of Penalty Assessment used the proper class code for the calculation of the penalty, concerning the installation of cabinets, and correctly followed the procedure set out in section 440.107(7)(d)1, Florida Statutes, and Florida Administrative Code Rule 69L-6.028.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order upholding the Stop-Work Order and Amended Order of Penalty Assessment, assessing a penalty against Respondent in the amount of $21,436.61. DONE AND ENTERED this 30th day of December, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 30th day of December, 2013.
Findings Of Fact At all times material hereto, Joe A. Cabrera (Petitioner) was, and is currently, a certified firefighter in the State of Florida and employed with the City of Miami. On or about November 1, 1993, Petitioner applied for entry into the Firefighters Supplemental Compensation Program (Program). He executed a transcript request form for the Program, requesting Miami-Dade Community College (Miami-Dade), Miami, Florida, to forward an official copy of his transcript to Respondent. Miami-Dade complied with Petitioner's request. Petitioner's transcript showed all courses completed and indicated that he was awarded an Associates of Arts degree from Ranger Junior College in Texas on May 7, 1982. It does not identify a major associated with his degree. Furthermore, Petitioner's transcript reflected that subsequent to the issuance of his Associates of Arts degree, he completed in excess of 30 hours of fire-related courses at Miami-Dade. By letter dated November 12, 1993, Respondent denied Petitioner's application for entry into the Firefighters Supplemental Compensation Program on the basis that he failed to possess an eligible associate degree in accordance with Section 633.382, Florida Statutes, and Rule 4A-37.085, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Joe A. Cabrera entry into the Firefighters Supplemental Compensation Program at the associate degree level. DONE AND ENTERED this 22nd day of June 1994 in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 22nd day of June 1994. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (Petitioner's proposed findings are not numbered, so they are addressed paragraph by paragraph.) Paragraph 1. Partially accepted in Finding of Fact 5. Paragraph 2. Partially accepted in Findings of Fact 1, 3 and 4. Respondent's Proposed Findings of Fact. Partially accepted in Finding of Fact 1. Partially accepted in Finding of Fact 2. Partially accepted in Finding of Fact 5. 4 & 5. Partially accepted in Finding of Fact 3. 6. Partially accepted in Finding of Fact 4. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, nor supported by the evidence, argument, or conclusion of law. COPIES FURNISHED: Kathleen M. Phillips, Esquire Kaplan & Bloom, P.A. Suite 214, Plaza Bank Building 3001 Ponce de Leon Boulevard Coral Gables, Florida 33134 Daniel T. Gross, Esquire Department of Insurance and Treasurer Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Kathleen M. Phillips, Esquire Kaplan & Bloom, P.A. Suite 214, Plaza Bank Building 3001 Ponce de Leon Boulevard Coral Gables, Florida 33134 Daniel T. Gross, Esquire Department of Insurance and Treasurer Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The petition herein was filed by the Petitioner with PERC on February 11, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by notice dated May 3, 1976. (Hearing Officer's Exhibit 2). The City of Boca Raton is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation, Transcript of Record */ , Page 6). The Petitioner is an employee organization within the meaning of Florida Statutes, Section 447.002(10). (Stipulation, TR 6, 7). The Petitioner has requested recognition as the bargaining agent of employees set out in the petition, and the Public Employer has denied the request. (Stipulation, TR 7). There is no contractual bar to holding an election in this case, and there is no pertinent collective bargaining history which affects the issues in this case. (Stipulation, TR 7, 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer contends that the unit described in the petition is inappropriate, and that the Petitioner has made no appropriate showing of interest with respect to any appropriate collective bargaining unit. The Public Employer's Fire Department is divided into five divisions. The employees in the proposed collective bargaining unit all work under the Administrative Division, and are supervised by an assistant chief. The other divisions are the Training Division, Operations Division, Staff and Line Support Division, and Fire Prevention Division. The Public Employer operates four fire stations. Station No. One is the Department's headquarters. Fire fighters and emergency medical personnel are housed at headquarters as are all communications personnel, including the persons in the proposed collective bargaining unit. None of the persons in the proposed unit are stationed at the Public Employer's other fire stations. Dispatchers and Alarm Operators are supervised either by the Assistant Chief in charge of the Administrative Division, or by the company officer in- charge of the shift at the headquarters station. Dispatchers are not certified fire fighters, and they do not perform the duties of certified fire fighters. Fire fighters work what is called a twenty-four-hour-on, forty-eight-hour-off shift. Dispatchers work an eight-hour shift which revolves so that one or more dispatchers are continuously on duty. Dispatchers and fire fighters have a different pension plan, and different employee benefits. Fire fighters make a larger contribution to theirs pension plan than do dispatchers, and are covered by their plan from the first day of employment. Dispatchers are not covered until after the passage of six months. The City provides hazardous duty insurance for fire fighters, but not for dispatchers. Dispatchers have a six- months probationary period. Fire fighters have a one-year probationary period. Although dispatchers do not perform the work of fire fighters, fire fighters are trained to serve as dispatchers, and do frequently perform the dispatchers' functions. The dispatchers and fire fighters work closely together. There are occasional social functions attended by fire fighters and dispatchers which no other city employees attend. Dispatchers receive the same basic employment benefits that are received by clerical employees of the Public Employer. They have the same pension plan, vacation and sick leave policies, and they serve the same probationary period. Dispatchers and clerical employees receive similar salaries. The only promotions available to dispatchers within the City of Boca Raton would be to clerical positions with a higher pay grade. There are no promotions available within the Fire Department. Dispatchers do not perform typing, filing, and other general clerical duties. Their function is not, however, unique to the City. The Police Department also employs dispatchers, and police and fire dispatchers have the same job description. (Public Employer's Exhibit 7). The Public Employer is presently engaged in collective bargaining with three employee organizations representing three certified bargaining units. There is a unit of "blue collar" employees, a unit of sworn police officers, and a unit of certified fire fighters. ENTERED this 3rd day of August, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James C. Crossland, Esquire Muller & Mintz, P. A. Suite 600, One Hundred Biscayne Blvd. Miami, Florida 33132 Richard F. Krooss, President Fire Fighters of Boca Raton, No. 1560 Post Office Box 565 Boca Raton, Florida 33432 Curtis L. Mack, Chairman Public Employees Relations Commission Suite 300 - 2003 Apalachee Parkway Tallahassee, Florida 32304 =================================================================
