The Issue Whether Respondent should be assessed a civil money penalty of $1,000.00 for alleged violations of Sections 450.33(10), and 316.620(3) and (4)(d) and (k), Florida Statutes (1993).
Findings Of Fact Respondent, Michelle A. Blount, is a farm labor contractor licensed in Florida. On January 14, 1994, a vehicle transporting members of Respondent's farm labor crew was involved in an accident in St. Lucie County, Florida which resulted in the death of one passenger and serious injury to eight others. Respondent was hired by Willie J. Lampkin to transport, supervise, recruit and provide a crew for harvesting and loading fruit. Elva Ochoa was employed by Respondent to recruit, transport, supervise and provide a crew, in connection with Respondent's contract with Willie J. Lampkin. On January 14, 1994, ten farm workers were being transported to the groves of Lampkin at the direction of Ochoa. The vehicle used to transport the workers was a pickup truck with a cab covering the bed. It did not have secured seating, the tires were worn out and unsafe, and it did not have any means of communication between the passengers and the driver. The vehicle was not approved or insured to transport workers, nor did it have an inspection certificate on record with the Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent has violated Sections 450.33 and 316.620, Florida Statutes. It is further RECOMMENDED that Respondent be fined $1,000.00 and such fine to paid within thirty days from date of the final order entered by the Division. Should Respondent fail to pay fine, Respondent's license as a farm labor contractor should be suspended until the fine is paid in full. DONE and ENTERED this 19th day of August, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 19th day of August, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Accepted in substance: paragraphs 1-7. Respondent did not submit proposed findings. COPIES FURNISHED: Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Edward A. Dion, Esquire Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Francisco R. Rivera, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307 Hartman Building Tallahassee, Florida 32399-2189 Michelle A. Blount 531 North Dollings Avenue Orlando, Florida 32805
The Issue Whether Royal Roofing and Restoration, Inc. (Respondent or Royal Roofing), failed to secure workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (Petitioner or Department), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact Petitioner is the state agency charged with enforcing the requirement of chapter 440, that Florida employers secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent is a Florida for-profit corporation organized on July 28, 2015, and engaged in the business of roofing and storm damage restoration. The company was formed, and initially conducted business, in Tallahassee, Florida, but expanded to the Panama City area in 2016. Traci Fisher is Respondent’s President and Registered Agent, with a mailing address of 1004 Kenilworth, Tallahassee, Florida 32312. DOAH Case No. 17-0879 On May 4, 2016, Department Compliance Investigator Jesse Holman, conducted a routine workers’ compensation compliance inspection at 374 Brown Place in Crestview, Florida. Mr. Holman observed four men removing shingles from the roof of a residential structure at that address. Mr. Holman first interviewed a worker who identified himself as Dustin Hansel and reported that he and the other three workers on site were a new crew for Respondent, the permit for the job had not yet been pulled, and the workers were not aware of the rate of pay for the job. Mr. Hansel telephoned Respondent’s sales manager, Dillon Robinson, who then spoke directly with Mr. Holman via telephone. Mr. Robinson informed Mr. Holman that Respondent obtained workers’ compensation coverage through Payroll Management Inc. (PMI), an employee-leasing company. Mr. Holman identified the three remaining workers at the jobsite as Milton Trice, Winston Perrotta, and Kerrigan Ireland. Mr. Holman contacted PMI and secured a copy of Respondent’s then-active employee roster. None of the workers at the jobsite, including Mr. Hansel, were included on Respondent’s employee roster. Upon inquiry, Mr. Holman was informed that PMI had no pending employee applications for Respondent. Mr. Holman consulted the Department’s Coverage Compliance Automated System (CCAS) and found Respondent had no workers’ compensation insurance policy and no active exemptions. During Mr. Holman’s onsite investigation, the workers left the jobsite. Mr. Holman could not immediately reach Ms. Fisher, but did speak with her husband, Tim Fisher. Mr. Fisher informed Mr. Holman that the crew was on their way to the PMI Fort Walton office to be enrolled on Respondent’s employee roster. On May 5, 2016, based on his investigation, and after consultation with his supervisor, Mr. Holman issued Respondent Stop-Work Order (SWO) 16-148-1A, along with a Business Records Request (BRR) for records covering the audit period of July 27, 2015 through May 4, 2016. Later that day, Mr. Holman spoke to Ms. Fisher, who informed him the crew did not have permission to begin the work on that date, as she had not yet pulled the permit for the reroof. Ms. Fisher further explained that the crewmembers had been instructed to complete applications with PMI prior to departing Tallahassee for Crestview. Ms. Fisher confirmed the crewmembers were completing applications at PMI Fort Walton that same day. Mr. Holman met with Ms. Fisher the following day and personally served SWO 16-148-1A. Ms. Fisher delivered to Mr. Holman an updated employee roster from PMI which included Mr. Hansel, Mr. Perrotta, and Mr. Ireland; a letter documenting Mr. Trice was not employed by Respondent; and a $1000 check as downpayment on the penalty. Respondent initially submitted business records in response to the BRR on May 23 and 25, 2017. DOAH Case No. 17-1558 On June 8, 2016, Mr. Holman conducted a random workers’ compensation compliance inspection at 532 Rising Star Drive in Crestview. The single-family home at that address was undergoing renovations and Mr. Holman observed three men on the roof removing shingles. None of the men on the roof spoke English, but a fourth man, who identified himself as Jose Manuel Mejia, appeared and stated he worked for Respondent, and that all the workers onsite were paid through PMI at a rate of $10.00 per hour. Mr. Mejia admitted that one of the worker’s onsite, Emelio Lopez, was not enrolled with PMI and explained that Mr. Mejia brought him to the worksite that day because he knew Mr. Lopez to be a good worker. The remaining workers onsite were identified as Juan Mencho and Ramon Gonzalez, both from Atlanta, Georgia. Mr. Mejia produced some PMI paystubs for himself and Mr. Mencho. Mr. Mejia stated that he and his crews also received reimbursement checks directly from Respondent for gas, rentals, materials, and the like. Mr. Holman contacted PMI, who produced Respondent’s then-active employee roster. Mr. Mejia and Mr. Mencho were on the roster, but neither Mr. Gonzalez nor Mr. Lopez was included. Mr. Holman next contacted Ms. Fisher, who identified Mr. Mejia as a subcontractor, but was not familiar with any of the other men Mr. Holman encountered at the worksite. Mr. Holman consulted via telephone with his supervisor, who instructed him to issue an SWO to Respondent for failing to secure workers’ compensation coverage for its employees. Mr. Holman issued SWO 16-198-1A by posting the worksite on June 8, 2016. Department Facilitator Don Hurst, personally served Ms. Fisher with SWO 16-198-1A in Tallahassee that same day. SWO 16-148-1A Penalty Calculation1/ Department Penalty Auditor Eunika Jackson, was assigned to calculate the penalties associated with the SWOs issued to Respondent. On June 8, 2016, Ms. Jackson began calculating the penalty associated with SWO 16-148-1A. Ms. Jackson reviewed the documents submitted by Respondent in response to the BRR. The documents included Respondent’s Wells Fargo bank statements, check images, and PMI payroll register for the audit period.2/ Based on a review of the records, Ms. Jackson identified the following individuals as Respondent’s employees because they received direct payment from Respondent at times during the audit period: David Rosinsky, Dylan Robinson, Jarod Bell, Tommy Miller, and David Shields. Ms. Jackson determined periods of non-compliance for these employees based on the dates they received payments from Respondent and were not covered for workers’ compensation via PMI employment roster, separate policy, or corporate officer exemption. Ms. Jackson deemed payments to each of the individuals as gross payroll for purposes of calculating the penalty. Based upon Ms. Fisher’s deposition testimony, Ms. Jackson assigned National Council on Compensation Insurance (NCCI) class code 5551, Roofing, to Mr. Miller; NCCI class code 5474, Painting, to Mr. Rosinsky; NCCI class code 8742, Sales, to Mr. Bell and Mr. Robinson; and NCCI class code 8810, clerical office employee, to Mr. Shields. Utilizing the statutory formula for penalty calculation, Ms. Jackson calculated a total penalty of $191.28 associated with these five “employees.” Ms. Jackson next calculated the penalty for Dustin Hansel, Kerrigan Ireland, Milton Trice, and Winston Perrotta, the workers identified at the jobsite as employees on May 4, 2016. The Department maintains that the business records submitted by Respondent were insufficient to determine Respondent’s payroll to these “employees,” thus, Ms. Jackson used the statutory formula to impute payroll to these workers. Ms. Jackson calculated a penalty of $14,970.12 against Respondent for failure to secure payment of workers’ compensation insurance for each of these four “employees” during the audit period. The total penalty associated with these four “employees” is $59,880.48. Ms. Jackson calculated a total penalty of $60,072.96 to be imposed against Respondent in connection with SWO 16-148- 1A. Business Records In compliance with the Department’s BRR, Respondent submitted additional business records on several occasions-- March 21, May 3 and 31, June 7, and August 15 and 24, 2017--in order to establish its complete payroll for the audit period. While the Department admits that the final documents submitted do establish Respondent’s complete payroll, the Department did not issue amended penalty assessment based on those records in either case. The Department maintains Respondent did not timely submit records, pursuant to Florida Administrative Code Rule 69L-6.028(4), which allows an employer 20 business days after service of the first amended order of penalty assessment to submit sufficient records to establish payroll. All business records submitted by Respondent were admitted in evidence and included as part of the record. The undersigned is not limited to the record before the Department at the time the amended penalty assessments were imposed, but must determine a recommendation in a de novo proceeding. The undersigned has relied upon the complete record in arriving at the decision in this case. Penalty Calculation for Ireland, Trice, and Perrotta For purposes of workers’ compensation insurance coverage, an “employee” is “any person who receives remuneration from an employer” for work or services performed under a contract. § 440.02(15)(a), Fla. Stat. Respondent did not issue a single check to Mr. Ireland, Mr. Trice, or Mr. Perrotta during the audit period. Mr. Ireland, Mr. Trice, and Mr. Perrotta are not included on any PMI leasing roster included in the record for the audit period. The uncontroverted evidence, including the credible and unrefuted testimony of each person with knowledge, established that Mr. Ireland, Mr. Trice, and Mr. Perrotta were newly hired for the job in Crestview on May 4, 2016, and began working that day prior to submitting applications at PMI, despite Ms. Fisher’s directions otherwise. Petitioner did not prove that either Mr. Ireland, Mr. Trice, or Mr. Perrotta was Respondent’s employee at any time during the audit period. Petitioner did not correctly calculate the penalty of $44,911.26 against Respondent for failure to secure workers’ compensation insurance for Mr. Ireland, Mr. Trice, and Mr. Perrotta during the audit period. Penalty Calculation for Hansel Ms. Fisher testified that Mr. Hansel has owned several businesses with which Respondent has conducted business over the years. Originally, Mr. Hansel owned a dumpster rental business, now owned by his father. Mr. Hansel also owned an independent landscaping company with which Respondent occasionally transacted business. When Respondent expanded business into the Panama City area, Ms. Fisher hired Mr. Hansel as a crew chief to supervise new crews in the area. The job on May 4, 2016, was his first roofing job. A review of Respondent’s records reveals Respondent issued the following checks to Mr. Hansel during the audit period: December 4, 2015, in the amount of $360, $300 of which was for “dumpster rental” and the remaining $60 for “sod”; May 4, 2016, in the amount of $200 for “sod repair”; May 6, 2016, in the amount of $925 as reimbursement for travel expenses; May 9, 2016, in the amount of $1,011.50 (with no memo); and May 21, 2016, in the amount of $100 for “7845 Preservation.” Mr. Hansel was included on Respondent’s PMI leasing roster beginning on May 13, 2016. Petitioner proved that Mr. Hansel was Respondent’s employee at times during the audit period. Petitioner did not prove that Respondent’s records were insufficient to determine payroll to Mr. Hansel during the audit period, which would have required an imputed penalty. Petitioner did not correctly calculate the penalty of $14,970.42 against Respondent for failure to secure workers’ compensation insurance coverage for Mr. Hansel during the audit period. Sod repair by Mr. Hansel is a service performed for Respondent during the audit period. Reimbursement of travel expenses is specifically included in the definition of payroll for purposes of calculating the penalty. See Fla. Admin. Code R. 69L- 6.035(1)(f) (“Expense reimbursements, including reimbursements for travel” are included as remuneration to employees “to the extent that the employer’s business records and receipts do not confirm that the expense incurred as a valid business expense.”). Dumpster rental is neither work performed on behalf of, nor service provided to, Respondent during the audit period. The correct uninsured payroll amount attributable to Mr. Hansel is $2,296.50. Petitioner correctly applied NCCI class code 5551, Roofing, to work performed by Mr. Hansel based on the observation of Mr. Holman at the worksite on May 4, 2016. With respect to Mr. Hansel’s services for sod and sod repair, Petitioner did not correctly apply NCCI class code 5551. Petitioner did not introduce competent substantial evidence of the applicable NCCI class code and premium amount for landscaping services performed during the audit period.3/ Uninsured payroll attributable to Mr. Hansel for roofing services during the audit period is $2,036.50. The approved manual rate for workers’ compensation insurance for NCCI class code 5551 during the period of non- compliance--May 9 and 21, 2016--is $18.60. The premium amount Respondent would have paid to provide workers’ compensation insurance for Mr. Hansel is $378.79 (One percent of Mr. Hansel’s gross payroll during the non-compliance period--$20.36--multiplied by $18.60). The penalty for Respondent’s failure to secure worker’s compensation coverage insurance for Mr. Hansel during the period of non-compliance is calculated as two times the amount Respondent would have paid in premium for the non- compliance period. The correct penalty for Respondent’s failure to maintain workers’ compensation coverage for Mr. Hansel during the period of non-compliance is $757.58. Penalty Calculation for Salesmen Independent contractors not engaged in the construction industry are not employees for purposes of enforcing workers’ compensation insurance requirements. See § 440.02(15)(d)1., Fla. Stat. Sales is a non-construction industry occupation. The Department calculated a penalty associated with payroll attributable to the following persons identified by Ms. Fisher as independent salesmen: Dylan Robinson, Kevin Miller, Marc Medley, Mike Rucker, Colby Fisher, David Jones, Jarod Bell, Matt Flynn, and Todd Zulauf. Section 440.02(15)(d)1. provides that an individual may be an independent contractor, rather than an employee, as follows: In order to meet the definition of independent contractor, at least four of the following criteria must be met: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal regulations; The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual; The independent contractor holds one or more bank accounts in the name of the business entity for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation; The independent contractor performs work or is able to perform work for any entity in addition to or besides the employer at his or her own election without the necessity of completing an employment application or process; or The independent contractor receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists. If four of the criteria listed in sub- subparagraph a. do not exist, an individual may still be presumed to be an independent contractor and not an employee based on full consideration of the nature of the individual situation with regard to satisfying any of the following conditions: The independent contractor performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work. The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform. The independent contractor is responsible for the satisfactory completion of the work or services that he or she performs or agrees to perform. The independent contractor receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis. The independent contractor may realize a profit or suffer a loss in connection with performing work or services. The independent contractor has continuing or recurring business liabilities or obligations. The success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures. Ms. Fisher testified that each of the above-named salesmen sold roofing jobs for her at various times during the audit period on a commission-only basis. The contractors inspect homeowner roofs, draft schematics, use their own equipment (e.g., drones), incur all of their own expenses, and handle the insurance filing for the homeowner’s insurance to pay on the claim. Ms. Fisher further testified that each of the salesmen also sells for other roofing contractors in the Tallahassee area. She pays the salesmen on a per-job basis. Ms. Fisher does not compensate the salesmen for the time involved in inspecting a roof, preparing schematics, or making the sale. Nor does Ms. Fisher reimburse the salesmen for travel to sales jobsites. Ms. Fisher’s testimony was credible, persuasive, and uncontroverted. Respondent introduced in evidence four “Independent Contractor Checklists” allegedly completed by Mr. Robinson, Mr. Medley, Mr. Fisher, and Mr. Flynn. Each form checklist follows the format of section 440.02(15)(d)1., listing the criteria set forth in subparagraphs a. and b. The forms indicate that they each meet all the criteria listed in subparagraph b.: they perform, or agree to perform services for a specific amount of money and control the means of performing the service; they incur the principal expenses related to the service performed; they are responsible for satisfactory completion of the services performed; they receive compensation for the services performed on a per-job or commission basis; they may realize a profit or suffer a loss in connection with performing the services; they have continuing and recurring business liabilities or obligations; and the success or failure of their business depends on the relationship of business receipts to expenditures.4/ In its Proposed Recommended Order, Petitioner conceded the nine men identified by Respondent as independent sales contractors “would not be considered employees of Respondent” because the “salesmen would seem to meet the majority of [the] requirements [of section 440.02(15)(d)1.b.].” Respondent issued Dylan Robinson, Mark Medley, Colby Fisher, Matt Flynn, Kevin Miller, Mike Rucker, Jarod Bell, David Jones, and Todd Zulauf an IRS FORM 1099-MISC for income paid during the 2016 tax year. Respondent did not prove by clear and convincing evidence that the above-named salesmen were Respondent’s employees during the audit period. For SWO 16-148-1A, Respondent did not correctly calculate the penalty because Respondent included a penalty associated with Petitioner’s failure to provide workers’ compensation insurance coverage for Dylan Robinson and Jarod Bell. Penalty in the amount of $20.70 associated with Dylan Robinson and Jarod Bell should not be included in the total penalty. The correct penalty amount for SWO 16-148-1A, based on records submitted by Respondent on or before March 20, 2016, is $929.16. Draft Revised Second Amended Order of Penalty Assessment The additional records submitted by Respondent revealed payments made to persons during the audit period who were not included in the Department’s Second Amended Order of Penalty Assessment. The Department and Respondent disagreed at hearing whether the payments qualified as payroll. At hearing, Petitioner submitted a draft revised second amended penalty calculation for SWO 16-148-1A based on all records received from Respondent. The revised penalty is in the amount of $61,453.50. Ms. Jackson populated the spreadsheet with the name of every individual to whom a check was written on Respondent’s business bank account during the audit period, removing only those payments to individuals and entities which, to Petitioner’s knowledge, were not Respondent’s employees. Respondent’s calculations in the revised penalty suffer from some of the same errors as in the second amended penalty calculation--they include individuals Petitioner did not prove were Respondent’s employees, as well as payments which were not uninsured payroll. For the reasons explained herein, Petitioner did not prove that salesmen David Jones, Dylan Robinson, Jarod Bell, Kevin Miller, Mark Medley, Matt Flynn, Mike Rucker, Tim Fischer, and Colby Fisher were Respondent’s employees during the audit period. Respondent did not accurately calculate the penalty associated with those persons. Respondent made payments to David Shields during the audit period, which the Department argues should be included as payroll. The Department included payments to Mr. Shields in its draft revised second amended order of penalty assessment and assigned NCCI class code “8810” for clerical work. Mr. Shields is a licensed professional roofing contractor who acts as “qualifier” for Respondent’s business. A qualifier is a licensed professional who certifies plans for permit applications submitted by another business. Respondent pays Mr. Shields a flat fee per permit application qualified by him. The record evidence does not support a finding that Mr. Shields provides clerical services to Respondent. Mr. Shields provides some sort of professional services to Respondent, and is likely an independent contractor providing his own materials and supplies, maintaining his own business accounts, and liable for his own business success. Assuming Mr. Shields were Respondent’s employee, the Department introduced no evidence of an appropriate NCCI class code for Mr. Shields’ services. The Department did not prove that payments to Mr. Shields should be included as Respondent’s uninsured payroll during the audit period. Respondent paid Susan Swain a total of $258 during the audit period for clerical work. Ms. Fisher maintained Ms. Swain’s work was casual at first, and the payments reflect a time when she worked on-again, off-again, handling the paperwork for restoration insurance claims. Later, Ms. Swain came to work for Respondent full-time and was added to the PMI leasing roster. Section 440.02(15)(d)5. provides that a person “whose employment is both casual and not in the course of the trade, business, profession or occupation of the employer” is not an employee. The statute defines “casual” employment as work that is anticipated to be completed in 10 working days or less and at a total labor cost of less than $500. See § 440.02(5), Fla. Stat. In its Proposed Recommended Order, the Department argues Ms. Swain’s wages should be included as payroll because the “testimony regarding Ms. Swain does not suggest that she was employed for less than 10 days[.]” However, it was the Department’s burden to prove that Ms. Swain was a statutory employee. The Department did not prove that Ms. Swain’s wages should be included within Respondent’s uninsured payroll. The largest portion of the penalty assessed by the Department, as well as in the draft revised second amended penalty assessment, against Respondent is in connection with various roofers who were employed by Respondent at times during the audit period. Each of the roofers was included on Respondent’s PMI leasing roster, but received checks directly from Respondent in addition to PMI payroll checks. The Department included all the direct payments to those roofers as payroll for purposes of calculating a penalty in this case. As Ms. Fisher explained, the company bids a reroof on a per job basis--usually a per square foot price. Ms. Fisher adds each roofing contractor’s name to the PMI leasing roster to ensure that each roofer is covered by workers’ compensation insurance for the duration of the job. When the job is completed (which is a matter of just a few days), the contractor reports to Ms. Fisher what amount of the contract price was spent on materials, supplies, or other non-labor costs. Ms. Fisher cuts a check to the contractor for that amount and authorizes PMI to issue payroll checks for the “labor cost” (the difference between the contract price and the non-labor costs). Ms. Fisher refers to this process as “back-charging” the contractors for their materials, maintenance, tools, and other non-labor costs. The Department is correct that the direct payments are payroll to the roofing contractors. See Fla. Admin. Code R. 69L-6.035(1)(b) and (h) (remuneration includes “payments, including cash payments, made to employees by or on behalf of the employer” and “payments or allowances made by or on behalf of the employer for tools or equipment used by employees in their work or operations for the employer.”). The Department would be correct to include these payments in the penalty calculation if they represented uninsured payroll. However, the evidence supports a finding that the direct payments to the roofing contractors were made for the same jobs on which Respondent secured workers’ compensation coverage through PMI. The roofing contractors were covered for workers’ compensation throughout the job, even though they may have received partial payment for the job outside of the PMI payroll checks.5/ The direct payments were not for separate reroofs on which the roofers were not otherwise insured. The Department did not correctly calculate penalties associated with the following roofing contractors: Donald Tontigh, Joseph Howard, Keith Mills, Aaron Kilpatrick, Gustavo Tobias, Jose Mejia, and Tommy Miller. Ms. Fisher also received cash payments from Respondent during the audit period. These payments were made in addition to her payroll through PMI. Ms. Fisher described these payments as “cash tickets,” which were paid outside of her PMI payroll to reimburse her for investments made in the company. For purposes of calculating the penalty in this case, these “cash tickets” are clearly payroll, as that term is to be calculated pursuant to rule 69L-6.035. Similar to the issue with the roofing contractors, the question is whether the payments represent uninsured payroll. Ms. Fisher did not hold a corporate officer exemption at any time relevant hereto. Ms. Fisher testified that she was covered through PMI payroll leasing. In contrast to the roofing contractors, Ms. Fisher’s direct payments do not directly coincide with any particular job or specific time frame during which Ms. Fisher was covered for workers’ compensation insurance through PMI. The evidence was insufficient to determine that the amounts were insured payroll. The Department properly calculated a penalty associated with payroll attributable to Ms. Fisher. Respondent made one payment of $75 to Donald Martin during the audit period. The Department calculated a penalty of $27.90 associated with this payment to Mr. Martin. Ms. Fisher explained that Mr. Martin was a down-on-his-luck guy who came by the office one day complaining that Mr. Hansel owed him some money. Ms. Fisher offered to put him on a roofing crew and wrote him the $75 check to help him out. Ms. Fisher’s testimony was both credible and unrefuted. Mr. Martin was never hired by Respondent, put on any roofing crew, or added to the PMI leasing roster. Mr. Martin was not Respondent’s employee because he did not receive remuneration for the “performance of any work or service while engaged in any employment under any appointment or contract for hire” with Respondent. § 440.02(15)(a), Fla. Stat. Cale Dierking works for Respondent full-time in a clerical position. During the audit period, Respondent paid Mr. Dierking directly by check for $1,306.14. This payment was made outside of Mr. Dierking’s PMI payroll checks. Ms. Fisher testified that she paid Mr. Dierking directly on one occasion when “PMI’s payroll got stuck in Memphis, I believe it was a snow-in situation where payroll checks didn’t come.” Rather than ask her employee to go without a timely paycheck, she advanced his payroll. Ms. Fisher’s testimony was both credible and unrefuted. The payment to Mr. Dierking is clearly payroll. However, Mr. Dierking was covered for workers’ compensation through PMI for the period during which the check was issued. Thus, there is no evidence that it was uninsured payroll. The Department did not correctly calculate a penalty associated with payments to Mr. Dierking. The correct penalty to be assessed against Respondent for failure to secure workers’ compensation coverage for its employees during the audit period in connection with SWO 16-148- 1A is $770.60. Penalty Calculation for SWO 16-198-1A Ms. Jackson calculated a total penalty against Respondent in connection with SWO 16-198-1A in the amount of $19,115.84, as reflected in the Second Amended Order of Penalty Assessment. The Department correctly imputed penalty against Respondent in the amount of $91.68 each for uninsured payroll to Mr. Gonzalez and Mr. Lopez. The evidence supported a finding that these workers were Respondent’s statutory employees on June 8, 2016, and were not enrolled on the PMI leasing roster. The Department did not correctly calculate the penalty associated with salesmen Dylan Robinson, Jarod Bell, Kevin Miller, Mark Medley, Matt Flynn, and Todd Zulauf. The Department did not correctly calculate the penalty associated with roofing contractors Abraham Martinez- Antonio, Edwin Kinsey, Dustin Hansel, Efrian Molina-Agustin, Jose Mejia, Joseph Howard, Keith Mills, Samuel Pedro, and Tommy Miller. The Department did not correctly calculate the penalty against Respondent associated with Mr. Shields, Respondent’s qualifier. Based on a review of Respondent’s complete “untimely” records, the Department discovered direct payments made to additional employees not included on the Second Amended Order of Penalty Assessment. Respondent made a direct payment to Ethan Burch in the amount of $602.50 during the audit period. Ethan Burch is one of Respondent’s full-time clerical employees. The evidence is insufficient to determine whether the payment of $602.50 was insured or uninsured payroll. As such, the Department did not prove it correctly calculated the penalty associated with Mr. Burch. Respondent also made a direct payment to Chelsea Hansel in the amount of $965 during the audit period. Ms. Hansel is another clerical employee. Ms. Hansel’s PMI enrollment was delayed due to some background investigation. Respondent paid Ms. Hansel for work she completed prior to enrollment. The direct payment to Ms. Hansel constitutes uninsured payroll. The Department correctly calculated the penalty associated with the payment to Chelsea Hansel. The correct penalty amount to be imposed against Respondent for failure to secure payment of workers’ compensation coverage for its employees (Gonzalez, Lopez, and Chelsea Hansel) during the audit period in connection with SWO 16-198-1A is $187.80.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that Royal Roofing and Restoration, Inc., violated the workers’ compensation insurance law and, in DOAH Case No. 17-0879, assessing a penalty of $770.60; and in DOAH Case No. 17-1558, assessing a penalty of $187.80. DONE AND ENTERED this 24th day of January, 2018, 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 24th day of January, 2018.
The Issue The issue is whether respondent, Eugene Martinez, should have a $1,500 civil penalty imposed for allegedly violating Sections 450.33(5) and and 450.35, Florida Statutes (1989)
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on the morning of January 29, 1990, when Larry Coker, a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made a routine inspection of a citrus harvesting crew working in an orange grove owned by Adrian Chapman and located one-half mile east of State Road 39 in DeSoto County, Florida. The purpose of the inspection was to determine whether the crew and its supervising contractor were in compliance with state regulations. Upon entering the premises, Coker observed a crew of approximately seventeen workers harvesting fruit in the citrus grove. An individual by the name of Martin R. Olvera was operating a high lift at the work site. Coker approached Olvera and asked him who was the farm labor contractor for the crew. Olvera responded that the licensed farm contractor was respondent, Eugene Martinez, but that Martinez had authorized him (Olvera) to supervise the crew that day in Martinez's absence. Olvera acknowledged that he was being paid $40 per day by respondent to supervise the loading of fruit and transport the workers from LaBelle to the grove. Division records reflect that Olvera is not licensed by the Division to perform those activities. A few minutes after Coker completed his inspection, respondent arrived at the work site. He readily acknowledged that Olvera was acting as a farm labor contractor without a license. By allowing Olvera to supervise a crew without a proper license, respondent used an unregistered farm labor contractor in contravention of the law. Olvera had transported the workers to the field that day in respondent's 1973 Ford bus. Respondent acknowledged that he did not have the proper liability insurance on the vehicle or the required inspection sticker. Both are required by law and agency rules. After being issued a citation that morning, respondent obtained the necessary insurance on his vehicle that afternoon. A vehicle inspection was obtained two days later. In addition, respondent initiated the necessary paperwork for Olvera to become a registered farm labor contractor. Because of those prompt efforts to satisfy Division requirements, respondent asked that he be given leniency on any civil fine. He has been unable to work since losing his right leg in an accident in May 1990 and is presently experiencing financial problems. There is no evidence that respondent has ever been disciplined by the Division for a violation of the law or agency rules.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent Eugene Martinez has violated Sections 450.33(5) and (9) and 450.35, Florida Statutes (1989). It is further recommended that respondent be fined $600, such fine to be paid within thirty days from date of the final order entered by the Division. DONE and ENTERED this 9 day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX Petitioner: Partially adopted in findings of fact 1 and 2. Partially adopted in finding of fact 3. Partially adopted in finding of fact 4. Note - Where a finding of fact has been partially used, the remainder has been rejected as being unnecessary, cumulative, subordinate, irrelevant or not supported by the evidence. COPIES FURNISHED: Frances R. Rivera, Esquire The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, FL 32399-0657 Mr. Eugene Martinez P. O. Box 2194 LaBelle, FL 33935 Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Steven D. Barron, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658
Findings Of Fact At all times material hereto Respondent, Randolph Roundtree (Roundtree), held a Florida farm labor contractor certificate of registration. By complaint filed on behalf of thirteen seasonal agricultural workers in the United States District Court for the Southern District of Florida (District Court), hearing Case No. 84-8235-CIV-JAG, damages were sought against Roundtree for violation of the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) under the provisions of 28 USC Sections 1331 and 1337. On November 20, 1985, an order by default was entered against Roundtree which found that he had intentionally violated the MSAWPA in that he had: Failed to post in a conspicuous place at the work site a notice setting forth the rights and protections afforded the workers ... Failed to keep payroll records for each weekly pay period showing as to each Plaintiff his total earnings, all withholding from earnings, net earnings, hours worked, wages per hour, the number of units of work performed and the rate per unit ... Failed to provide each Plaintiff at the end of each weekly pay period with a statement of all sums paid to them on account of the labor of each Plaintiff, an itemized statement of the amount withheld from such payments and the purpose for each withholding * * * Failed to pay the Plaintiffs their wages when due Violated, without justification, the terms of the working agreement made with the Plaintiffs... On November 20, 1985, a final judgment in the sum of 3,000 per plaintiff was entered against Roundtree, and that judgment remains unsatisfied. By certified letter dated April 21, 1987, Petitioner, Department of Labor and Employment Security (Department), advised Roundtree that his failure to comply with the MSAWPA, as demonstrated by the District Court action, likewise constituted a violation of the provisions of Chapter 450, Part III, Florida Statutes, and that the Department intended to revoke his certificate of registration. Roundtree filed a timely request for formal hearing. At hearing, the proof established that, as to the plaintiffs in the District Court action, Roundtree violated the provisions of Chapter 450, Part III, Florida Statutes, by: Failing to display prominently at the site where the work was performed by the farmworkers, and in all vehicles used by him for the transportation of farmworkers, a copy of his application for a certificate of registration, and a written statement showing the rate of compensation he received from the grower and the rate of compensation he was paying the farmworkers. Failing to keep a payroll slip for each weekly pay period showing as to each farmworker his total earnings, all withholdings from earnings, net earnings, hours worked, wages per hour, number of units of work performed, and the rate per unit. Failing to provide each farmworker at the end of each weekly pay period with a statement of all sums paid to them on account of labor of each worker, and an itemized statement of the amount withheld from such payments and the proofs for each withholding. Failing to pay the farmworkers their wages when due. Violating, without justification, the terms of the working agreement he made with the farmworkers.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Roundtree's Florida farm labor contractor certificate of registration be REVOKED. DONE and ENTERED this 26th day of August, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building, Suite 117 2562 Executive Center Circle Tallahassee, Florida 32399-0658 Randolph Roundtree Post Office Box 118 South Bay, Florida 33493 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
Findings Of Fact Herbert W. Mize is a compliance officer for the Petitioner, the Department of Labor and Employment Security. On January 14, 1986, Mr. Mize was performing field checks in Hillsborough County. He arrived at a citrus grove, staying on the outside due to the canker problem. Ten to fifteen workers were up on ladders among the citrus trees. The Petitioner, Marvin James, was driving a vehicle loading up citrus. Mr. Mize asked Mr. James who was crew leader on the job at that time. Mr. James stated that he was the crew leader. A 1977 Dodge van was parked nearby. Mr. James told Mr. Mize that it was his van and that he drove workers to work that day in his van. The same 1977 Dodge van had previously been insured by Mr. James by the U.S. Fire Insurance Company, but Mr. James did not have insurance on the 1977 Dodge van on January 14, 1986. P. Ex. 4, 5, and 6. Mr. Mize gave a notice of noncompliance to Mr. James, and Mr. James acknowledged that he had seen it by signing it at the bottom. P. Ex. 3. Relevant to this case, Mr. James was informed by Mr. Mize that he was in noncompliance with state law by failure to carry and exhibit proper certificate of registration as a farm labor contractor and by failure to obtain adequate vehicle insurance. Id. Mr. James testified that he was very familiar with the law requiring farm labor contractor registration and vehicle insurance to transport workers since he had been a crew leader since 1978. Mr. James testified that on January 14, 1987, he was working for Carl Junior Mears, but only to load citrus, and that he did not transport workers in his van and did not supervise workers in the grove. His testimony is rejected as not credible for the following reasons: Mr. James testified that he was "under his van working" when Mr. Mize came up. He gave no explanation why he was working on his van instead of loading citrus as he testified at another point. Mr. Mears admitted that Mr. James did direct and supervise workers in the grove from time to time, and also admitted that Mr. James "sent" workers to him. Both of the worker witnesses presented by Mr. James testified that they had known James for a number of years, which indicates that they have had some sort of formal working relationship with him. If Mr. James in fact had told Mr. Mize that he was not the crew leader, it would have been logical for Mr. Mize to have then asked "well, who is the crew leader?" But Mr. James insisted that he did not tell Mr. Mize where the crew leader was because Mr. James said Mr. Mize did not ask. This is not believable. Mr. James testified that Mr. Mears was the crew leader, and that he was available in the grove on January 14, 1986. Considering the fact that Mr. James was familiar with the requirements of the law, if it were true that Mr. Mears was present in the grove, it would logically be expected that Mr. James would have tried to be helpful and would have voluntarily told Mr. Mize who Mr. Mears was and where he was even if Mr. Mize had somehow failed to ask. It is particularly unbelievable that Mr. James would not have, on his own, told Mr. Mize where Mr. Mears was located since Mr. James admitted that Mr. Mize that day cited him for crew leader violations, and Mr. James signed the citation. P. Ex. 3. The demeanor of Mr. Mize indicated credibility, while the demeanor of Mr. James indicated a lack of credibility. Mr. Mears paid Mr. James for his services as a crew leader. On January 14, 1986, Mr. James drove workers to the citrus groves in his 1977 Dodge van and he was supervising them as a crew leader, both for pay from Mr. Mears. Mr. James was not registered on January 14, 1986 as a crew leader, and did not have insurance on the 1977 Dodge van he used to transport workers.
Recommendation For these reasons it is recommended that the Department of Labor and Employment Security enter its final order finding that the Respondent, Marvin James, on January 14, 1986, violated section 450.30(1), Fla. Stat., by failing to have a certificate of registration in full force and effect and in his possession and violated section 450.33(5), Fla. Stat., by failing to have a policy of insurance on his 1977 Dodge van used to transport farmworkers, and assessing a civil penalty of two thousand dollars ($2,000). DONE and ENTERED this 13th day of July, 1987. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1704 The following are rulings upon findings of fact by number or paragraph number as proposed by the parties which have been rejected. Findings of fact proposed by the Petitioner: None. Findings of fact proposed by the Respondent: Paragraph 2: Rejected for the reasons stated in finding of fact 7. Paragraph 3: Rejected for the reasons stated in fending of fact 7. Paragraph 4: Mr. Mize had no need to talk to workers in the grove since Mr. James admitted he was the crew leader, and did not tell Mr. Mize then that Mr. Mears was the crew leader. Paragraph 5: Mr. Mize testified that he saw workers on ladders, and made it clear that his number was only an estimate. Paragraph 6: Rejected for the reasons stated in finding of fact 7. Paragraph 7: Rejected for lack of testimony in the record as to these facts. Paragraph 8: Rejected in the conclusions of law. COPIES FURNISHED: Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Marvin James 1501 Island Avenue Dade City, Florida 33525 Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building, Room 117 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue By amended petition for hearing, the Petitioner requested a hearing on the Department's determination that the Petitioner is obligated to refund to the Department the sum of $53,724.00, which the Department asserts is the amount by which the Petitioner was overpaid pursuant to Wagner-Peyser Contract No. SA016. For numerous reasons recited in its Petition and argued in its post-hearing brief, the Petitioner contends that it should not be required to refund the disputed sum. At the formal hearing, both parties presented the testimony of witnesses and both parties offered exhibits in support of their respective positions. Following the hearing, a transcript was prepared and the parties were allowed until November 19, 1988, within which to file their proposed recommended orders. Thereafter, upon joint motion of the parties, the period for filing post-hearing briefs and/or proposed recommended orders was extended until December 6, 1988. Both parties timely filed post-hearing briefs in a format more customary to appellate than to administrative hearing proceedings. The parties' briefs have been carefully considered during the formulation of this recommended order. Specific rulings on the factual assertions of the parties are contained in the appendix to this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. In November of 1984 the Petitioner and the Respondent entered into a contract which has the following title: GOVERNOR'S WAGNER-PEYSER 10% DISCRETIONARY FUNDS FIXED-UNIT PRICE CONTRACT CONTRACT NO. SA016 "STATEWIDE FARMWORKERS JOB PLACEMENT PROJECT" Paragraph 1.A. of the subject contract contains the following description of the project activities: The Florida AFL-CIO United Labor Agency will operate a statewide job placement program to meet the increased employment needs of migrants/farmworkers and related workers in- volved in the processing of agricultural pro- ducts. The Agency will coordinate and work with farmworker advocacy organizations in Apopka and Dade City, Florida, to recruit and identify participants. Unsubsidized employ- ment opportunities will be developed with unions, apprenticeship programs, and private sector employers. The employment resources of the Agency will be coordinated and inte- grated with those of the Job Service and local PICs. Paragraph 2.A. of the subject contract contains a "work activity plan" described as follows: To recruit and provide employability counseling to migrants/farmworkers; To place 230 migrants/farmworkers into unsubsidized, non-agricultural employment with a duration of 30 days or more; To integrate the employment resources of unions and the United Labor Agency with those of the Job Service. Prepare and submit a final narrative report to DLET documenting the success and failures of the project. Paragraph 2.B. of the subject contract contains the following description of the performance units applicable to the contract: The contractor will make up to 230 place- ments in unsubsidized employment over the course of the contract period at $726.00 each, for a total amount not to exceed $166,980.00. A placement will be defined as employment by a participant engaged in work for at least 35 hours per week, in a job paying at least the minimum wage, for a period of at least 30 calendar days. At Paragraph 2.D. of the subject contract, under the subcaption "ACTIVITY/PAYMENT SCHEDULE OF PERFORMANCE UNITS," the contract provides, in pertinent part: The contractor will be advanced $37,062.00. The advance will be repaid monthly by deducting $6,177.00 per month from the amount of deliverables produced over a six month period, beginning with the November 1984 invoice and being completed with the April 1985 invoice. There will be one performance unit for this contract, and it will be for placement at the rate of $726.00 each. Paragraph 14.e. of the subject contract reads as follows: The Contractor is responsible for fulfilling all terms and conditions of this Contract. While the DLET shall monitor the Contrac- tor's performance under the Contract, the Contractor remains solely responsible for its performance. The DLET monitoring of the Contract shall not constitute a waiver or modification of any term or condition. Terms and conditions may only be modified by written contract amendment as specified herein. One of the documents used in the administration of the subject contract was a Form BRI-100, which was designed so that three individuals had to sign the form to certify that a valid job placement had been accomplished. The required signatures were those of the employer, the farmworker/employee, and a representative of the Petitioner. Early in the administration of the contract the Petitioner began to have problems obtaining employer signatures on Form BRI- 100, especially where employment was obtained through union hiring halls. At the behest of the Petitioner, the Respondent deleted the requirement that the employer sign the form and permitted the form to be signed by a representative of the union hiring hall. During the course of the Petitioner's performance of the subject contract, one of the Petitioner's employees submitted fraudulent documentation on numerous occasions. The fraudulent documentation purported to be evidence of successful job placements under the contract. The fraudulent documentation was submitted to the Respondent and the Respondent paid money to the Petitioner on the basis of the fraudulent documentation. A post-performance audit revealed that 74 of the job placements for which the Petitioner was paid were in fact fictitious placements supported by fraudulent documentation. As a result of the fraudulent documentation, the Petitioner was paid $726.00 for each of 74 fictitious job placements, a total of $53,724.00. The $53,724.00 which was paid on the basis of fraudulent documentation was paid to the Petitioner solely because at the time of making the payment the Respondent believed that the Petitioner had made 74 placements which, in fact, were never made. The Respondent's belief that the 74 placements had been made was based on the fact that the Petitioner submitted fraudulent documentation claiming payment for 74 job placements that had not been made. In fairness to the Petitioner it should be noted that at the time the fraudulent documentation was submitted the officers and managing agents of the Petitioner did not know that one of their employees was preparing fraudulent documentation. Further, as soon as the officers and managing agents of the Petitioner discovered that one of their employees had been submitting fraudulent documentation, they candidly reported the problem to the Respondent. The employee who prepared the fraudulent documentation described above did not abscond with the proceeds derived from his fraudulent actions. The $53,724.00 that was paid on the basis of the 74 fictitious job placements was paid to and retained by the Petitioner. The Respondent did very little in the way of monitoring the subject contract. More extensive monitoring might well have resulted in earlier detection of the fraudulent documentation submitted by Petitioner's employee.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order finding that the Petitioner has received $53,724.00 to which it is not entitled under the subject contract and ordering the Petitioner to repay that amount to the Respondent. DONE AND ENTERED this 20th day of January, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2755 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Brief of Petitioner does not contain any section specifically identified as proposed findings of fact. It does contain a distinct section captioned "STATEMENT OF THE FACTS," which I have treated as the Petitioner's proposed findings. The page numbers below refer to pages of the Brief Of Petitioner. Page 2: All but last four lines are rejected as subordinate and unnecessary background details. The last four lines are accepted in substance. Page 3: All but last five lines are accepted in substance. The last full paragraph on the page is rejected as unnecessary commentary. Page 4: First fourteen lines (plus last line on page 3) accepted in substance, but with most details omitted as unnecessary. The remainder of page 4 and the top four lines of page 5 are rejected as subordinate and unnecessary details, as for the most part irrelevant, and as containing implications contrary to the greater weight of the evidence. Page 5: First full paragraph is rejected as constituting subordinate and unnecessary details; I have found that little was done to monitor the contract performance. The last four lines are rejected as argument or unnecessary commentary rather than findings of fact. Page 6: First twenty lines rejected as irrelevant and as unnecessary details. Paragraph beginning at sixth line from bottom is accepted in substance. Page 7: Top four lines (and last line of page 6) rejected as Irrelevant. Lines five through twenty-two are for the most part rejected as irrelevant or as not supported by persuasive competent substantial evidence, with exception of proposed finding that an employee committed fraud and that Petitioner promptly reported the fraud when it was discovered. Last four lines rejected as irrelevant. Page 8: First full paragraph is rejected as being for the most part irrelevant and as in part contrary to the greater weight of the evidence. Second full paragraph is rejected as argument or unnecessary commentary. Third full paragraph is rejected as Irrelevant. Last four lines accepted in substance with some unnecessary details omitted. Page 9: Top two lines rejected; the greater weight of the evidence is that all "disallowed costs" were caused by the fraud of one employee. First full paragraph rejected as irrelevant. Second full paragraph is rejected as for the most 12 part irrelevant, although some details have been included. Last three lines rejected as irrelevant. Page 10: Rejected as irrelevant. Findings proposed by Respondent: The Brief Of Respondent does not contain any section specifically identified as proposed findings of fact. It does contain a distinct section captioned "STATEMENT OF THE CASE AND FACTS," which I have treated as the Respondent's proposed findings of fact. The page numbers below refer to pages of the Brief Of Respondent. Page 2: Rejected as subordinate and unnecessary background details. Page 3: Rejected as subordinate and unnecessary background details. Page 4: First paragraph accepted in substance. The remainder of this page is accepted in substance with some details and some argumentative passages omitted. Page 5: Accepted as correct statement, but omitted as unnecessary details. Page 6: First paragraph rejected as constituting subordinate and unnecessary details. Second paragraph rejected as constituting subordinate and unnecessary details. Third paragraph rejected as constituting subordinate and unnecessary details. Last paragraph accepted in substance with unnecessary details omitted. Page 7: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Sidney L. Matthew, Esquire Gorman & Matthew, P.A. Post Office Box 1754 Tallahassee, Florida 32302 David J. Busch, Esquire Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, Esquire General Counsel Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 =================================================================
Findings Of Fact Respondent is a registered farm labor contractor with social security number 264-86-0916 and certificate number 4-3266-K 86 I. On or about February 11, 1986 and October 28, 1986, Respondent recruited, transported and hired farmworkers for a fee and directed, controlled and supervised their work. Specifically, he hired and supervised Stanley Hawthorne and Zephrin Augustine as crewleaders, neither of whom had valid and current certificates of registration at that time. Respondent contracted for the employment of farmworkers with farm labor contractors in February and October, 1986 before said contractors displayed to him a current certificate of registration issued by Petitioner.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order assessing an administrative penalty of $1000.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1987. COPIES FURNISHED: Moses Williams, Esquire Department of Labor and Employment Security Montgomery Building, Suite 117 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658 Isaac Hawthorne Highlands Harvest Corp. Post Office Box 2094 Lake Placid, Florida 33852 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building, Suite 206 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire Department of Labor and Employment Security General Counsel Montgomery Building, Suite 131 2562 Executive Center Circle, East Tallahassee, Florida 32399-0658
The Issue The issue is whether respondent should have a $1,000 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by contracting for the employment of an unregistered farm labor contractor.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on May 1, 1989, when Don R. Symonette, who is a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a farm owned by Ovid Barnett on State Road 846 some seven or eight miles east of Immokalee, Florida. The testimony as to what transpired during the course of the inspection is sharply in dispute. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. As Symonette drove by the farm that day, he observed a crew of approximately eighteen workers picking bell peppers in a field. Thereafter, Symonette drove his vehicle onto the premises for the purpose of determining if pertinent statutes and Division rules were being followed. He initially observed one Abel Flores (Abel) standing by a pickup truck in the same field where the laborers were harvesting the peppers. Abel is the brother of respondent, Alfredo Flores (Alfredo). Symonette and Abel were acquainted from several meetings over the prior years. Symonette asked Abel what he was doing, and Abel answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Abel also volunteered that he was being paid by Alfredo and received approximately $40 per day in compensation. Abel further acknowledged, and the Division records show, that he is not certified as a farm labor contractor. At that point, Symonette decided to give Abel the benefit of the doubt and to interview respondent, who was supervising a crew in an adjacent field. During the course of the interview, Alfredo advised Symonette that he (Alfredo) was the supervisor in charge of the crew and it was he who had contracted with the farm to supply the workers. Even so, Symonette concluded that because Abel was the only person standing in the other field, he was "supervising" the other crew and was doing so without a certificate of registration. Accordingly, Symonette cited Alfredo for using an unregistered contractor. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Alfredo with using an unregistered farm labor contractor. On June 7, 1990, Symonette performed a "payroll audit" by sending by mail a form to Ovid Barnett requesting information regarding Abel's employment. On an undisclosed date, the form was returned to Symonette and contains what purports to be Barnett's signature However, the contents of the completed form are hearsay in nature and cannot serve as the basis for a finding of fact. Moreover, even if the response was not hearsay, it fails to disclose the nature of Abel's employment with the farm and whether the hourly compensation allegedly given Abel was being paid at the time the form was completed in June 1990 or when the inspection occurred thirteen months earlier. All compensation received by Abel was from his employer, Ovid Barnett. In some cases, he was paid by check from the farm, and in other cases, he was paid by his brother who had in turn been paid by the farm. To bolster the contention that Abel was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel's job was to drive trucks between the field and the packing house when the inspection occurred, and as such, it was necessary for Abel to stand by his truck while the workers loaded the truck with produce. As a driver, Abel had the responsibility of overseeing the loading of produce on his truck and, when necessary, to direct the workers on how to properly do so. It is noted that at hearing, Symonette did not describe the activities being performed by Abel except that Abel was simply "standing" around his truck and "appeared" to be supervising the work crew. Accordingly, it is found that Alfredo was not using an unregistered farm labor contractor on May 1, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint, with prejudice. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. Copies Furnished: Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Moses E. Williams, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Alfredo Flores P. O. Box 1611 Immokalee, FL 33934 Steven D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658
The Issue The issues are whether Respondent maintained workers' compensation coverage for certain employees, and, if not, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. (2002). Respondent is a corporation domiciled in Florida and engaged in the business of installing motorized aluminum hurricane shutters and security systems. On June 3, 2003, four of Respondent's workers installed aluminum shutters on a single-family residence located at 20799 Wheelock Drive, No. 909, Heron's Glen, North Fort Myers, Florida. Respondent did not have workers' compensation insurance for the four employees. In addition, Respondent failed to maintain workers' compensation coverage for the benefit of ten employees from June 21, 2002, through June 27, 2003 (the relevant period). Respondent stipulated that Respondent was an employer during the relevant period, and that Respondent failed to maintain workers' compensation coverage for five employees identified in the record as Ricardo Mendez, Pedro Rojas, Willie Marrow, Eric Mendez, and Izarate Cartas. Respondent further stipulated that Petitioner correctly assessed the penalty amounts for those employees. The remaining five individuals that Respondent contends were not employees are identified in the record as Jessica Mendez, Gelacio Zarate, Manual Mendez, Jesus Espinoza, and David Mobley. Respondent asserts, in relevant part, that these individuals were "casual labor" and not "employees" within the meaning of Section 440.02(15)(d)5, Florida Statutes (2002). Under the Workers' Compensation Law in effect on June 21, 2002, an "employee" did not include a person if the employment satisfied the conjunctive requirements of being casual and not in the course of the trade, business, profession, or occupation of the employer. § 440.02(15)(d)5, Fla. Stat. (2002). Section 440.02(5), Florida Statutes (2002), defined the term "casual," in relevant part, to be work that satisfied the conjunctive requirements of being completed in ten working days or less, without regard to the number of persons employed, and at a total labor cost of less than $500. Ms. Mendez and Mr. Zarate were Respondent's employees during the relevant period. Respondent paid each more than $500, and each individual performed services that were in the course of the trade, business, profession, or occupation of Respondent. Ms. Mendez worked as an assistant to the wife of the president and sole shareholder of Respondent. The wife maintained accounts and pulled permits for Respondent. Ms. Mendez assisted the wife by answering telephone calls and accompanying the wife when the wife pulled permits for Respondent. Respondent paid Ms. Mendez $760 during the relevant period. Respondent paid Mr. Zarate $800 during the relevant period to help build large roll-down, accordion, or panel shutters. Building shutters is an activity required in the course of Respondent's business. Mr. M. Mendez and Mr. Espinoza were Respondent's employees during the relevant period. Although Respondent paid each person less than $500, Mr. M. Mendez and Mr. Espinoza each performed cleanup work for Respondent. The amount of cleanup required depended on the number of roll-down shutter installations Respondent had at a given time. Constructing roll-down shutters produces a lot of paper and scraps that must be cleaned up to keep the shop clean. Mr. M. Mendez and Mr. Espinoza each performed services directly related to the construction of shutters by Respondent. Respondent argues that Mr. Mobley was either casual labor or an independent contractor. Mr. Mobley did not satisfy the statutory requirements for either classification. Mr. Mobley did not satisfy the requirements for casual labor. Mr. Mobley was an electrician who installed motorized shutters for Respondent. Mr. Mobley secured electrical permits needed for Respondent to do the electrical work essential to Respondent's business. Mr. Mobley accompanied Respondent's president to the construction site, ran the electrical, and wired the motor for the shutter that Respondent was assembling. Although Mr. Mobley worked for Respondent for only three days, Respondent paid Mr. Mobley approximately $1,200. Under the Workers' Compensation Law in effect during the relevant period, Section 440.02(15)(c), Florida Statutes (2002), required an "independent contractor" to satisfy all of the following requirements in Section 440.02(15)(d)1, Florida Statutes: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. Mr. Mobley satisfied some of the definitional elements of an independent contractor. He maintained a separate business as a sole proprietor not required to obtain a federal identification number, and incurred principal expenses related to the service or work he performed for Respondent. There is insufficient evidence to find that Mr. Mobley satisfied the remaining requirements for an independent contractor. The evidence was insufficient to show that Mr. Mobley could be held liable for failure to complete the work or services he performed for Respondent, had continuing or recurring business obligations, or that the success or failure of his business depended on the relationship of receipts to expenditures. The evidence is clear that Mr. Mobley would not have performed work for Respondent if he were to have suffered a loss. Mr. Mobley was Respondent's employee during the relevant period. Mr. Mobley failed to satisfy the definition of either casual labor or an independent contractor.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that affirms, approves, and adopts the Amended Stop Work and Penalty Assessment Order. DONE AND ENTERED this 9th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2004. COPIES FURNISHED: Marshall L. Cohen, Esquire Marshall L. Cohen, P.A. Post Office Box 60292 Fort Myers, Florida 33906-0292 Andrea L. Reino, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times pertinent to this proceeding, Respondent was a registered farm labor contractor whose Social Security number is 266-30-9569. Respondent worked as a farm labor contractor only during the potato season which usually begins in March or April. Therefore, Respondent did not apply for certification as a farm labor contractor until March 31, 1986 even though his previous certification as a farm labor contractor had expired on December 31, 1985. There was credible evidence that Respondent had been using a 1968 Chevrolet vehicle to transport farm workers which carried a valid inspection sticker and was covered by Respondent's liability insurance. The 1968 Chevrolet "broke down" and was replaced by a 1974 Dodge Van on May 6, 1986 which had passed inspection on May 6, 1986 and added to Respondent's liability insurance policy on the same date. There was credible evidence that a valid inspection certificate and insurance certificate for the 1974 Dodge Van had been furnished to Petitioner's local office in Palatka on May 1986 but was not received in Petitioner's Tallahassee Office where the official files are maintained until a later date. On May 6, 1986, Respondent was cited for failure to have the 1974 Dodge Van properly insured and inspected. There were other violations cited but the Petitioner resolved those in favor of Respondent. There was credible evidence that Respondent had operated as a farm labor contractor for a substantial number of years without being cited for any violations under the Farm Labor Registration Law, Chapter 450, Part III, Florida Statutes. Respondent is a farm labor contractor as that term is defined in Section 450.2(1), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, enter a Final Order dismissing all charges filed against the Respondent. Respectfully submitted and entered this 9th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Security Tallahassee, Florida 32301 Willis Glover 21 North Main Street Crescent City, Florida 32012 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
