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 The issue in this case is whether Respondent, Sunburst Construction, Inc. ("Sunburst"), failed to properly maintain workers' compensation insurance coverage for his employees and, if so, what penalty should be assessed.
Findings Of Fact The Department is the state agency responsible for ensuring that all employers maintain workers' compensation insurance for themselves and their employees. It is the duty of the Department to make random inspections of job sites and to answer complaints concerning potential violations of workers' compensation rules. Sunburst is a business created by Cecil Moore and has been in operation for 35 years in the construction industry. At all times relevant hereto, Sunburst was duly-licensed to do business in the State of Florida. Construction work is assigned a Class Code of 5651 for purposes of calculating workers' compensation insurance coverage. On April 30, 2014, the Department’s investigator, Stephanie Scarton, was driving on South Peninsula Drive in Daytona Beach, Florida, when she noticed what appeared to be construction activity going on. As she is charged with doing, Scarton went to find out whether people working at the construction site were legally covered by workers’ compensation insurance. She talked to four people at the job site and made a determination that workers’ compensation coverage was missing. Scarton’s and Sunburst’s statements of the facts surrounding the coverage are significantly different in detail. Each will be set forth below. Scarton’s Version of the Facts According to Scarton, she observed three people working at the site: Two men were engaged in carpentry, specifically, securing bolts to beams on a form used for pouring concrete. One man was grinding a screw or some other metal object. Scarton identified herself to the man who was grinding the metal object. The man was Carlos Barbecho. The man did not speak English very well, but conversed with Scarton, telling her that he (Barbecho) worked for Sunburst. According to Scarton, Barbecho also told her that the other two men, Edlezar “Eddie” Cano-Lopez and Jeronimo Cano-Lopez, also worked for Sunburst. Neither of the two men (who were brothers) spoke English. Barbecho acted as an interpreter for Scarton as she asked the brothers if they worked for Sunburst. They allegedly “shook their heads up and down,” i.e., they nodded affirmation. However, Scarton could not verify exactly what question Barbecho posed to the brothers in Spanish. Meanwhile, another man, Raley, showed up at the site on his bicycle. He reported that he was an independent contractor and was not related to Sunburst. He was doing some pressure washing on the house located at the site. The investigator then went to her vehicle to research Sunburst, finding it to be a duly-registered Florida corporation. She checked the building permit which had been issued by the City of Daytona Beach and found that it had been pulled by Sunburst. She then checked the Coverage and Compliance Automated System (CCAS) used by the Department to track workers’ compensation coverage by businesses and individuals. According to CCAS, there was no coverage for Sunburst but Moore had a personal exemption. When she found there was no coverage for Sunburst but that its employees were working at the job site, Scarton contacted Moore directly via telephone. Barbecho had provided Scarton with Moore’s number. Scarton testified that Moore admitted the men were his employees, but that he believed he had up to 24 hours to obtain workers’ compensation coverage for them. Scarton eventually ascertained that Sunburst did have appropriate workers’ compensation coverage for Barbecho through a leasing company, but neither of the Cano-Lopez brothers was on the policy. Sunburst’s Version of the Facts Moore has owned Sunburst for over 35 years. He has always maintained workers’ compensation coverage for his employees and has never been cited for failing to do so. In April 2014, Sunburst was in the midst of renovations at the South Peninsula Drive job site. Barbecho was the foreman on the job. He had been working for Sunburst for about two years as a foreman or job manager. Moore had obtained workers’ compensation coverage for Barbecho through a leasing company. On April 30, 2014, Barbecho was working at the job site when the Cano-Lopez brothers came up and asked if there was work for them to do. They had been referred to the site by Pillo, a man who had worked with Moore for many years and often found laborers for him. Barbecho called Moore to see if he wanted to hire the brothers or not. Meanwhile, the men stood around talking as they waited for a determination from Moore. Raley had also been at the site on that date. He was preparing to pressure-wash the outside of the house so that it could be painted. Just about the time he was leaving on his bicycle to retrieve a chair from his nearby home, the Cano-Lopez brothers arrived. Raley paid them no mind as he had never seen them before at the job site. When he returned with his chair, Raley met Scarton, who identified herself as an investigator for the Department. Although Raley told Scarton that he was an independent contractor, he was actually doing the pressure- washing because he owed a favor to Moore. Raley watched Scarton talk to the brothers and could see that there was a large communication problem based upon language. Scarton then began talking more to Raley because he spoke English much better than the other men there. Barbecho says he only met the Cano-Lopez brothers the morning that Scarton showed up at the work site. He did not have authority to hire them on behalf of Sunburst, but put a call into Moore to see if he wanted to hire the men. Barbecho maintains that he never told Scarton the men were employees of Sunburst. He does not remember being asked to ask the brothers, in Spanish, whether they were employees of Sunburst. The men had arrived on the job site just minutes prior to Scarton’s arrival, and Barbecho had not really talked to them at all other than to give a casual greeting. Edlezar Cano-Lopez says he is not now nor has he ever been an employee of Sunburst. He has never done any work for or received any money from Moore or Sunburst. (He was hoping that Moore would pay him for his time traveling to Tallahassee and appearing at the final hearing, but there was no specific agreement in that regard.) When Moore got a call from Scarton, he told her that he did not know who the Cano-Lopez brothers were, that they were not his employees, and that he had coverage for all of his bona fide employees. He has no recollection of telling Scarton that he believed he had 24 hours to get the workers covered by insurance. Scarton asked Moore to come to the job site and he complied with her request. At the job site, Scarton served Moore with a Stop Work Order (SWO) and explained that he needed to cease doing business until it was addressed. The basis of the SWO was that two putative employees, the Cano-Lopez brothers, did not have workers’ compensation insurance coverage. The Stop Work Order and Penalty Assessment At the same time, Scarton made a request for business records in order to determine what penalty should be assessed. The request had a list of various types of documents needed by the Department to make its penalty assessment. Moore was given 20 days to produce the records to the Department. Moore contacted his bank about obtaining the requested records. He was told that it would take five to seven days to pull the records together, but in fact it took more than three weeks. The records were therefore not timely submitted to the Department. Based upon the absence of business records, the Department calculated a penalty assessment which imputed income to the Cano-Lopez brothers for a period of three years. This assessment was in accordance with the Department’s rules and guidelines. A penalty assessment of $61,568.36 was imposed on Sunburst. After the penalty assessment was calculated by the Department, the requested business records were eventually received from the bank by Moore. The records contained summaries of statements, but did not include check images. The check images were provided at a later date. However, the check images showed a large number of checks made out to “cash” so the Department could not really ascertain whether any of them were for payroll or not. Moore explained that his employee leasing company required cash, so each week he would find out what amount was needed and issue a check made payable to “cash” and obtain the needed funds. Moore’s explanation is plausible. The Department did not take heed of the business records provided by Moore because they did not arrive within the prescribed 20-day window. The Department’s auditor did, however, create a draft penalty assessment based upon the records.1/ The Cano-Lopez Brothers The dispositive issue in this case appears to be the employee status of Eddie and Jeronimo Cano-Lopez. Eddie testified at final hearing (through an interpreter) that he has never been an employee of Sunburst. He and his brother were at the job site on April 30 for the purpose of obtaining employment, but they were never hired and have never been paid for doing any work for Sunburst. There are no check images or other business records that reflect Sunburst ever paid the Cano-Lopez brothers for doing work. Moore did not hire them and did not know they were at the work site on April 30 until advised by Barbecho and Scarton that very day. Moore’s denial that he told Scarton he was intending to add the Cano-Lopez brothers to his insurance coverage within 24 hours is credible. Scarton inspects 45 to 55 business sites per month and could easily be confused about who told her they were adding employees. After 35 years in the industry, it is unlikely Moore would be confused about the requirements for coverage of his employees. The foreman, Barbecho, met the Cano-Lopez brothers for the first time on April 30 at the job site. He knew that in order to work for Sunburst, the brothers would first have to fill out an application. In fact, the Cano-Lopez brothers filled out an application after the SWO had been entered. The applications were delivered to Sunburst’s employee leasing company the next day in hopes of alleviating the SWO. But as the SWO was still in place, the Cano-Lopez brothers never engaged in work for Sunburst, and have not to this day. And in the words of the Department’s investigator, “An employee is someone who is being paid by the business.” Scarton testimony, transcript page 46. The Department calculated its penalty assessment as follows: It ascertained the average wage for construction laborers and assigned that figure to each of the Cano-Lopez brothers. The appropriate class code was assigned. A period of three years of non-compliance was imputed, per rule. The gross payroll for that three-year period was assigned to each of the brothers. The gross payroll amount was divided by 100. The resulting sum was multiplied by the manual rate, resulting in a premium. The premium was then multiplied by 1.5 to reach the penalty amount. The calculation of the penalty was based upon the mistaken presumption that the Cano-Lopez brothers were employees of Sunburst. It is clear from the evidence presented that neither Eddie nor Jeronimo Cano-Lopez were ever employees of Sunburst. Scarton’s recollection of the events (without the benefit of any contemporaneous note) was refuted by the testimony of Moore, Barbecho, Raley, and Eddie Cano-Lopez, thus her testimony does not constitute clear and convincing evidence.
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 rescinding the Stop-Work Order and Amended Penalty Assessment. DONE AND ENTERED this 5th day of January, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 5th day of January, 2015.
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
The Issue Whether Petitioner properly issued a Stop-Work Order and Penalty Assessment against Respondent for failing to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact Petitioner is the state agency responsible for enforcing the Florida Workers' Compensation Law, chapter 440, Florida Statutes, including those provisions that require employers to secure and maintain payment of workers? compensation insurance for their employees who may suffer work- related injuries. Respondent is an active Florida limited liability company, having been organized in 2006. Howard?s Famous Restaurant is a diner-style restaurant located at 488 South Yonge Street, Ormond Beach, Florida. It seats approximately 60 customers at a time, and is open for breakfast and lunch. In 2006, Edward Kraher and Thomas Baldwin jointly purchased Howard?s Famous Restaurant. They were equal partners. Mr. Baldwin generally handled the business aspects of the restaurant, while Mr. Kraher was responsible for the food. At the time the restaurant was purchased, Mr. Baldwin organized That?s Right Enterprises, LLC, to hold title to the restaurant and conduct the business of the restaurant. Mr. Baldwin and Mr. Kraher were both identified as managing members of the company.1/ On June 27, 2007, a 2007 Limited Liability Company Annual Report for That?s Right Enterprises, LLC, was filed with the Secretary of State. The Annual Report bore the signature of Mr. Kraher, and contained a strike-through of the letter that caused the misspelling of Mr. Kraher?s name. Mr. Kraher testified that the signature on the report appeared to be his, but he had no recollection of having seen the document, or of having signed it. He suggested that Mr. Baldwin may have forged his signature, but offered no explanation of why he might have done so. Although Mr. Kraher could not recall having signed the annual report, and may have had little understanding of its significance, the evidence supports a finding that Mr. Kraher did, in fact, sign the annual report for That?s Right Enterprises, LLC, as a managing member of the business entity. From March 9, 2009, through March of 2011, Mr. Kraher and Mr. Baldwin received salaries as officers, rather than employees, of That?s Right Enterprises, LLC. Their pay was substantially equivalent during that period. The paychecks were issued by the company?s accountant. Mr. Kraher denied having specific knowledge that he was receiving a salary as an officer of That?s Right Enterprises, LLC. Since Mr. Baldwin left the company, Mr. Kraher has continued to use the same accountant, and has continued to receive his salary as an officer of That?s Right Enterprises, LLC. On March 24, 2011, after having bought out Mr. Baldwin?s interest in the company by paying certain company- related debt owed by Mr. Baldwin, Mr. Kraher filed an annual report for That?s Right Enterprises, LLC. In the annual report, which was prepared and filed at his request, Mr. Kraher assumed control as the sole member and registered agent of the company. Mr. Baldwin was removed as a managing member and registered agent, and other changes were made consistent therewith. Mr. Kraher denied any understanding of the significance of his operating as the same corporate entity, but rather thought he was “buying a new LLC.” On March 8, 2012, Petitioner's investigator, Carolyn Martin, conducted an inspection of Howard?s Famous Restaurant. Ms. Martin introduced herself to one of the waitresses working at the restaurant. The waitress called Mr. Kraher from the kitchen to speak with Ms. Martin. Mr. Kraher identified himself as the owner of the restaurant for the past six years. Ms. Martin asked Mr. Kraher for evidence that Respondent?s employees were covered by workers? compensation insurance. Mr. Kraher retrieved a folder containing the restaurant?s insurance policies and information. Ms. Martin reviewed the folder, and determined that Respondent did not have workers? compensation insurance. Mr. Kraher, who was very cooperative with Ms. Martin throughout the inspection, was genuinely surprised that the restaurant employees were not covered by workers? compensation insurance. He had taken out “a million-dollar insurance policy” that he thought covered everything he needed to have. While Ms. Martin was at the restaurant, Mr. Kraher called his insurance agent who, after reviewing his file, confirmed that Respondent did not have workers? compensation insurance. Mr. Kraher immediately asked his agent to bind a policy, and paid his first six-month premium using a business credit card. A copy of the policy was quickly faxed by the agent to Ms. Martin. Ms. Martin took the names of Respondent?s employees, which included two kitchen staff and four wait staff. Some of the employees worked in excess of 30 hours per week, while others worked part-time. Ms. Martin went to her vehicle and completed a Field Interview Worksheet. Ms. Martin reviewed the Coverage and Compliance Automated System (CCAS), which is the statewide database for workers? compensation information, to confirm Respondent?s status in the workers? compensation system. Using the CCAS, Ms. Martin confirmed that Respondent had no workers? compensation coverage on file for any employee of the company. She also accessed the Florida Division of Corporations website to ascertain Respondent?s corporate status. After having gathered the information necessary to determine Respondent?s status, Ms. Martin contacted her supervisor and received authorization to issue a consolidated Stop-Work Order and Order of Penalty Assessment. The Stop-Work Order required Respondent to cease all business operations statewide. The Order of Penalty Assessment assessed a penalty, pursuant to section 440.107(7)(d), equal to 1.5 times the amount the employer would have paid in premium when applying the approved manual rates to the employer's payroll for the preceding three-year period. The consolidated order was hand- delivered to Mr. Kraher on behalf of Respondent at 11:00 a.m. on March 8, 2012. At the time she delivered the consolidated Stop-Work Order and Order of Penalty Assessment, Ms. Martin also hand- delivered a Request for Production of Business Records for Penalty Assessment Calculation. The Request required that Respondent produce business records for the preceding three-year period, from March 9, 2009, through March 8, 2012. Respondent was given five days in which to provide the records. On or about March 12, 2012, Mr. Kraher produced three boxes of business records to Ms. Martin. Those records were forwarded by Ms. Martin, and placed in the queue for review by the penalty auditor. The records were reviewed by Petitioner?s penalty auditor, Lynne Murcia, and were found to be insufficient to establish the actual compensation paid to Respondent?s employees for the preceding three year period. Therefore, pursuant to section 440.107(7)(e), salaries were imputed for each of the six employees based on the statewide average weekly wage. Ms. Murcia used the “Scopes Manual” published by the National Council on Compensation Insurance to ascertain the classification of Respondent?s business, based upon the nature of the goods and services it provided. Class code 9082, titled “Restaurant NOC,” is described as “the „traditional? restaurant that provides wait service.” Ms. Murcia correctly determined that Howard?s Famous Restaurant fell within class code 9082. The salaries of Respondent?s six employees, as employees of a class code 9082 restaurant, were imputed as though they worked full-time for the full three-year period from March 9, 2009, to March 8, 2012, pursuant to section 440.107(7)(e). The total imputed gross payroll amounted to $1,130,921.64. The penalty for Respondent?s failure to maintain workers? compensation insurance for its employees is calculated as 1.5 times the amount Respondent would have paid in premium for the preceding three-year period. The National Council on Compensation Insurance periodically issues a schedule of workers? compensation rates per $100 in salary, which varies based on the Scopes Manual classification of the business. The workers? compensation insurance premium was calculated by multiplying one percent of the imputed gross payroll ($11,309.21) by the approved manual rate for each quarter (which varied from $2.20 to $2.65, depending on the quarterly rate), which resulted in a calculated premium of $26,562.06. The penalty was determined by multiplying the calculated premium by 1.5, resulting in the final penalty of $39,843.18. On March 28, 2012, Petitioner issued an Amended Order of Penalty Assessment assessing a monetary penalty amount of $39,843.18 against Respondent. Respondent subsequently provided Petitioner with additional payroll records regarding the six employees. The records had been in the possession of Respondent?s accountant. The records, which included Respondent?s bank statements and payroll records for the six employees, were determined to be adequate to calculate the actual employee salaries for the preceding three-year period. Ms. Murcia revised her penalty worksheet to reflect that payroll was now based on records, rather than being imputed.2/ Respondent?s total payroll for the three-year period in question was determined to be $154,079.82. Applying the same formula as that applied to determine the penalty amount reflected in the Amended Penalty Assessment, the premium was calculated to have been $3,624.33, with a resulting penalty of $5,436.64. On April 24, 2012, Petitioner issued a 2nd Amended Order of Penalty Assessment reducing Respondent's penalty from $39,843.18 to $5,436.64.
Recommendation Based on the findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers? Compensation, enter a final order assessing a penalty of $5,436.64 against Respondent, That?s Right Enterprises, LLC, for its failure to secure and maintain required workers? compensation insurance for its employees. DONE AND ENTERED this 31st day of August, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 31st day of August, 2012.
The Issue The issue in this case is whether the Petitioner's application for supplemental compensation pursuant to Section 633.382, Florida Statutes, should be granted or denied.
Findings Of Fact 1. The Petitioner holds a Bachelor of Arts degree from Michigan State University. The degree was earned in the College of Communication Arts and Science. The major on the Petitioner's degree is advertising. 2. The transcript of the courses taken by the Petitioner to earn his bachelor's degree does not list any courses that appear to come within the criteria listed at Rule 4A- 37.084(5) (b)1, Florida Administrative Code. 3. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists several courses that appear to come within the criteria listed at Rule 4A-37.084(5) (b)2, Florida Administrative Code. However, there are not enough of such courses to comprise a major. 4. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists one course that appears to come within the criteria listed at Rule 4A.37.084(5) (b)3, Florida Administrative Code. 5. The Petitioner is presently employed by the Miami Beach Fire Department as a Firefighter I. The Petitioner has been employed full-time in his present firefighter position at all times material to the pending application. 6. The Petitioner's fire department duties are described in a written position description for the Firefighter I position. It is clear from the description of those duties that a Firefighter I position with the Miami Beach Fire Department is not one of the "management positions within a fire department," nor is it a position that includes "arson investigators." Such a position is also not one of the "special positions" contemplated by Rule 4A-37.084(5) (b)4, Florida Administrative Code. 7. When the Petitioner submitted his present application, Floyd Jordan, the Fire Chief of the Miami Beach Fire Department, by letter dated November 15, 2000, advised the Bureau of Fire Standards and Training as follows: After review of the attached college transcript and the City of Miami Beach Job Description for Firefighter I, it is my conclusion that this request does not meet the requirements of the Firefighters Supplemental Compensation Program. As of the date of the final hearing, Chief Jordan continued to be of the same view of the matter. 8. The Petitioner was previously employed by the Boca Raton Fire-Rescue Services as a firefighter/paramedic. The Petitioner's job duties in the Boca Raton position were essentially the same as his job duties in his present position. While employed with the Boca Raton Fire-Rescue Services, the Petitioner applied for supplemental compensation on the basis of the same bachelor's degree on which he bases his present application. The Petitioner's prior application was approved and he received supplemental compensation while employed with the Boca Raton Fire-Rescue Services.
Conclusions For Petitioner: Chuck Pereny, pro se 259 Northwest 90th Avenue Coral Springs, Florida 33071 For Respondent: Elenita Gomez, Esquire James B. Morrison, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333
Recommendation On the basis of the foregoing, it is RECOMMENDED that the Department issue a final order denying the Petitioner's application and dismissing the petition in this case. Tallahassee, Leon County, Florida. = DONE AND ENTERED this CS “day of June, 2001, in CH heseu Loe € MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this Q — day of June, 2001.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent William C. Widner has been with the City of Clearwater Fire Department for 21 years. For the past ten years, he has been assigned to Engine 48 as a fire lieutenant. His record is free from any type of disciplinary action. When a call is received concerning a medical emergency, it is proper to dispatch both a rescue unit and a fire engine to the scene. The standard operating procedure for emergency calls for fire vehicles is that the time to clear the station should not exceed 45 seconds. If there are questions concerning the dispatch, the officer in charge is to contact the dispatcher while in route to the scene of the emergency and make inquiry at that time. Also, a lieutenant, by himself, cannot change, modify or refuse to respond to a dispatch. Only a captain or the dispatcher can change the required response, or, another unit can announce that they are closer to the scene and will respond. The average response time between dispatch and arrival at the scene is four minutes. When a dispatch is given, a grid number for the destination is announced. All fire engines are equipped with map books demonstrating the location of the scene in relationship to the grid number given. On August 5, 1985, at approximately 2050 hours, the Clearwater Police Department Communications Center received an emergency call reporting a subject having a heart attack at 2720 Morningside Drive. Safety Harbor Rescue 52 and an ambulance were dispatched by telephone. At approximately 2055 hours, Engine 48 was radio dispatched to 2720 Morningside Drive. Respondent advised by radio that Engine 48 was responding to the call. Approximately 22 seconds after receiving the dispatch and 14 seconds after initially responding to the dispatch, respondent Widner telephoned the dispatcher and advised him that 2720 Morningside Drive was Engine 49's territory. Respondent did offer to go, however. The dispatcher stated that "this was a screwed up mess," but advised respondent that the computer recommended Engine 48. Respondent replied that he should go if Engine 49 was out. After further conversation, the dispatcher stated, "it made sense to me that 49 would go but it said 48." When respondent inquired as to who was to go, the dispatcher said "Oh hell, I might as well page somebody else." This conversation between the respondent and the dispatcher lasted 43 seconds and concluded 1 minute, 9 seconds from the end of the original dispatch. The dispatcher then radio-dispatched Engine 49 to 2720 Morningside Drive. Engine 49 advised that it was responding at approximately 2057 hours, 38 seconds, or two minutes, 22 seconds after the original dispatch was given to Engine 48. After speaking with the dispatcher, respondent and his superior officer, Captain Evans, checked the map for the 2720 Morningside Drive address. Upon learning that that address was, indeed, within Engine 48's territory, respondent and his crew immediately got in the truck and left the station. Captain Evans notified the dispatcher at 2059 hours that Engine 48 was responding to the call. When respondent arrived at the scene, Engine 49 and the rescue unit were already there. He attempted to radio in his arrival as soon as he got there, but the air waves were busy. He announced his arrival on his portable unit as he was walking up to the house. The evidence does not conclusively establish the exact time that respondent's arrival on the scene was reported to the dispatcher. Engine 49 did report its arrival before Engine 48's arrival was reported. Based upon the totality of the evidence, it is found that between 7 1/2 and 8 1/4 minutes elapsed between the time of the original dispatch to Engine 48 and the time of Engine 48's arrival at the scene. There are two Morningside Drives in the City of Clearwater. The residence located at 2720 Morningside Drive is within Engine 48's response zone, and is located 2.1 miles from Engine 48 and 3.0 miles from Engine 49. The other Morningside Drive is located in Morningside Estates and is within the response zone of Engine 49. When respondent first received the dispatch, he thought the address was located within the Morningside Estates subdivision. Upon leaving the station, an immediate right or left turn is required, dependent upon which Morningside Drive is being sought. Respondent's Captain Evans immediately conducted a fact finding session upon respondent's return to the station, and determined that respondent had failed to follow a direct order. A follow-up interview was conducted. It was determined that, upon receiving the initial dispatch, respondent should have proceeded directly to the engine and looked at the grid map, should have cleared the station within 45 seconds in accordance with standard operating procedures, should have reached the scene within 4 to 4.5 minutes and that, due to respondent's phone conversation with the dispatcher, two fire engines were sent on a call that required only one engine. Based upon those findings, the Fire Department concluded that respondent's productivity, workmanship, and efficiency with regard to the emergency response were not up to required standards for performance, and a two-day suspension was requested. The request for a two-day suspension was referred to the Affirmative Action Office, which conducts a fairness review of proposed disciplinary action and makes a recommendation to the City Manager, who takes final disciplinary action. After interviewing respondent concerning the August 5th incident, the Affirmative Action Office initially concluded that a two-day suspension was very harsh under the circumstances and recommended a letter of reprimand instead. Thereafter, Assistant Fire Chief Meyer contacted the Affirmative Action Office and provided the investigator with further information. The investigator was informed by Assistant Chief Meyer that respondent had been at that station for 10 years and should have been familiar with the addresses within his territory. He further advised her that the computer system utilized to determine which station should receive a particular call had been in effect for two years and discrepancies had been corrected. Meyer informed the investigator that lieutenants had been instructed not to argue with the dispatcher, to immediately respond to a call and that the proper response time in this instance should have been 4 minutes. This information from Meyer caused the Affirmative Action Office to amend its recommendation for disciplinary action to a suspension for 11.2 hours. The City Manager followed that recommendation and gave Notice of Suspension in accordance therewith. The Notice listed the three charges referenced in the Introduction as grounds for the disciplinary action taken, and established the date and time for the suspension to occur. In a separately related incident occurring in 1983, Lieutenant Handura with the City of Clearwater Fire Department received a letter of reprimand for not responding to a dispatch. In that incident, Handura was dispatched but, because he had a tour group of school children at his station and knew that a rescue unit had also been dispatched, he called the rescue unit and determined that he was not needed. He thereupon called the dispatcher and advised him that the rescue unit was responding to the call and that he would not respond.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent's appeal be dismissed and that a Final Order be entered confirming the disciplinary action of an 11.2 hour suspension, without pay. Respectfully submitted and entered this 30th of July 1986, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July 1986. APPENDIX (CASE NO. 86-0236) The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 11. Partially rejected as being argumentative as opposed to a factual finding. Respondent 3-5. While these findings are partially correct, they are an incomplete recitation of the events which transpired. 6. Rejected; See Paragraph 5 in Findings of Fact. 7 and 8. Rejected as a legal conclusion as opposed to a factual finding. COPIES FURNISHED: Miles A. Lance Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Stuart M. Rosenblum, P.A. 220 South Garden Avenue Clearwater, Florida 33516 City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Civil Service Board City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts are found: The Largo Fire Department is comprised of approximately 70 employees and maintain three stations, with a fourth station apparently in the planning stage. The chief administrative officer in full command of the entire Department is the fire chief, who is directly responsible to the City Manager. In descending order of command are two assistant chiefs, three fire captains and twelve fire lieutenants. There are also two fire inspectors, forty-six fire fighters, three or four dispatchers and one secretary. (Exhibit No. 6). Assistant Fire Chiefs - Second in the line of command are the two assistant fire chiefs. They work a standard forty-hour week, 8:00 a.m. to 5:00 p.m., five days a week. Their office is one half block away from the main fire station. If the chief is out of town or unavailable, one of the assistant chiefs assumes command. When the chief and both assistant chiefs are unavailable, either a captain or a lieutenant is designated to be in command. With regard to the personnel evaluations made by either captains or lieutenants, assistant chiefs normally accept the recommendations made by them. On occasion an assistant chief will attach an additional memo to a recommendation submitted by an inferior officer. Assistant chiefs have no authority to fire Department personnel or to prevent merit pay increases. Only the chief has these powers, subject to review by the City Manager. There was testimony that after an applicant goes through certain testing procedures with the City's personnel department, the chief and assistant chiefs make the ultimate decision as to who is hired. Assistant chiefs receive input from captains and lieutenants with regard to purchasing new equipment and personnel transfers. With regard to the budget, assistant chiefs may purchase items within the guidelines of the budget. They make recommendations respecting the formulation of the budget, but the chief makes the ultimate decision as to what will be submitted to the City for the budget. If everything is going well at a fire scene, assistant chiefs stand back and observe rather than assume control. Equipment placements and transfers are made by the assistant chiefs. With regard to collective bargaining, assistant chiefs would directly assisting administering the outcome of the negotiations. Fire Captains - Like fire fighters, captains work a 24-hour shift and then are off 48 hours. They wear the same work uniform as fire fighters, but their dress uniform includes a white, rather than a blue, shirt. The captains eat their meals with and sleep in the same quarters as fire fighters. Each captain is responsible for a third of the combat portion of the Fire and directs the operations of the officers and men on their particular shift. On the fire scene, captains are the working supervisor and perform the normal functions of search and rescue. Around the station, captains participate in the minimal domestic and maintenance duties and tasks as part of a team effort. In the event that both the chief and assistant chief are absent, a captain designated by the chief assumed the duties and responsibilities of an assistant chief. With regard to authority to transfer men, discipline men and make policy, there was testimony that such authority is solely in the form of making recommendations in those areas. A lower grade officer or fire fighter can also submit written reports or charges concerning disciplinary action. While the job description for captain's requires them to make thorough weekly inspections of each station, apparatus and personnel the chief has been personally making such inspections for the past several months. While captains are required to keep records of sick leave, the the administrative secretary actually handles all leave records. Captains do have the authority to visit persons on sick leave if there is reason to believe a sick leave is not legitimate. The job description requires captains to forward to headquarters every six months a written personnel evaluation report on all personnel under their command. This is done by a standardized form sent to the captains by City's personnel department. Captains also have the authority to give mutual aid assistance when requested by a neighboring unit by sending men and equipment. While captains have the authority to make changes within their subordinates' command, in emergency situations, most changes in command come out in the form of memos from the administrative chief. In the captain's absence, his duties are assumed by a lieutenant. If a lieutenant is not present the lieutenant's duties are assumed by what is known as a lead fire fighter - a senior fire fighter by virtue of tenure and training. Captains do not formulate policies applicable to the Fire Department nor do they prepare of administer the budget. They can make recommendations with regard to the budget, as can lieutenants and other officers. They cannot buy equipment, nor can they move equipment between stations without written permission. Changes in the organizational structure are not discussed with captains. Any type of procedural recommendation which is made is discussed among the three captains and is then presented to the assistant chiefs and chief for final action. It was opined by Captain Lambert that captains would have no duties or responsibilities to management with respect to collective bargaining and that, as a member of a union, there would be no conflict of interest between the performance of their duties and the possibility of grievances filed within the union. It was Captain Lambert's opinion that policy' decisions were implemented, rather than formulated, by him. Fire Lieutenants - There is one lieutenant assigned to work each of three shifts at each of the stations. Lieutenants report to and perform under the general direction of the captain, also known as the shift commander, who reviews the decisions of the lieutenants. In addition to the job description contained in Exhibit No. 6, there was testimony that lieutenants and fire fighters work on the same time schedule, sleep in the same quarters, eat at the same table, prepare meals jointly and perform fire fighting duties jointly. Lieutenants are in charge at the scene of a fire until a senior officer arrives. There was testimony that although lieutenants participate in the normal evaluation procedure which is used as a basis for merit pay increases and they supervise the duties of the men in the station to which they are assigned, their basic duties are fighting fires. Lieutenants do not have anything to do with preparing or administering the budget nor would they work in the City's behalf with regard to collective bargaining negotiations. They have no authority in actually formulating the policy of the Largo Fire Department. If a fire fighter wants to change his schedule or get time off, he would submit a request to a lieutenant or a captain, depending on who was on duty that day. If both were on duty, he would go to a lieutenant. Fire Inspectors - With respect to inspectors, the petitioner simply submitted the job classification contained in Exhibit No. 6 and suggested that none of the tasks enumerated therein meet the statutory criteria of management employees of F.S. Ch. 447. As noted above, it was the City's position that inspectors do not share a community of interest with line personnel that are responsible for fire suppression in that they do not work the same shift and their duties are primarily fire code enforcement rather than fire combat. Dispatchers - The primary duties of dispatchers are to receive and dispatch fire and emergency calls. They dispatch calls solely for the fire department and do not dispatch for the police department or any other city agency. Another of their duties is to maintain files on equipment usage. Dispatchers work eight-hour shifts and eat with the fire fighters when a meal is served during their eight-hour shift. Their uniform is the same as the fire fighters. When a dispatcher is absent from work, a fire fighter fills in for him; although a dispatcher would never fill in for a fire fighter. Dispatchers have nothing to do with formulating policies of the department nor with preparing or administering the budget. They would not assist management in collective bargaining negotiations. Dispatchers are immediately responsible to the lieutenant, then the captain and on up the line of command. One of the four dispatchers of the Largo Fire Department is presently a member of and is represented by the Largo Employees Association, which presently has a collective bargaining agreement with the City. (Exhibit No. 5) This agreement includes public safety dispatchers in the unit. At the time of the hearing the LEA had not yet been certified by PERC. The one dispatcher who testified would prefer to be represented by petitioner, rather than the LEA. Fire Fighters and Chief - As noted above in the introduction, the parties stipulated that fire fighters were properly included in the proposed unit and that the chief is properly excluded from the unit. Recognition history - In the first letter from petitioner's president to the City Manager, recognition was requested for a unit consisting of captains, lieutenants and fire fighters. After the petitioner first spoke to representatives of the City regarding the bargaining unit, the staff assistant to the City Manager first recommended to the Manager that a unit consisting of fire fighters and lieutenants be approved. The City Commission questioned the inclusion of lieutenants. At that point, communications apparently broke down and unfair labor practice charges were filed by both the petitioner and the City. Their charges were subsequently dismissed. After that the petitioner filed its petition for Certification of Representation requesting inclusion of assistant chiefs, captains, inspectors and dispatchers, in addition to lieutenants and fire fighters, since the issue would then be before PERC and PERC could then rule on everybody once and for all. Although petitioner's constitution and by-laws speaks of a unit consisting of the ranks of captain, lieutenant and fire fighter, the same is in the process of being amended. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 18th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: G.R. McClelland, Esquire City Attorney City Hall Largo, Florida 33540 Mr. Robert Jewell City Hall Largo, Florida 33540 Terry A. Furnell 501 South Fort Harrison Clearwater, Florida 33516 Mr. Barry Burkhart 2320 East Bay Drive, No. 135 Clearwater, Florida 33516 Mrs. Lawrence C. Black 152 8th Avenue Southwest Largo, Florida 33540
Findings Of Fact The Cocoa Fire Department consists of 32 employees including a Chief, 3 captains, 3 lieutenants, 24 firefighters, and a secretary to the chief. All personnel except the Chief and the secretary are on three shifts of 24 hours on duty and 48 hours off duty. During each shift, a captain is in charge and the second in command is a lieutenant. Ten employees are on each shift and are located at either Station 1 or Station 2. Normally, at Station 1 there is a captain and a maximum of 7 firefighters. At Station 2, there is normally a lieutenant and 1 firefighter. The bulk of the firefighting equipment is located at Station 1, which includes 2 pumpers, a rescue truck, and an aerial truck. Station 2 is a residential station at which two pumpers are located. The shift or duty-captain is in charge of both stations and normally goes to fires handled by Station 2 unless they are of a minor nature. The Department averages about 3 runs a day, either for fires or on rescue calls. The bulk of their activity is rescue operations which are attended normally by two firemen. However, these calls can be handled by an officer and one firefighter if the officer is an emergency medical technician. The employees of the fire department and the city of Cocoa entered into an agreement on March 12, 1974, concerning their relationship (Exhibit 11). The agreement states that it is to provide, where not otherwise mandated by statute or ordinance, for the salary structure, fringe benefits, and conditions of employment of the firemen covered by the agreement. This agreement in Article 1C is referred to as a collective bargaining agreement and deals with those matters that customarily would be included in such a document. Although it does not specifically mention specific classifications of fire department employees as being included thereunder except by the term "employees of the City of Cocoa Fire Department", in the first paragraph of the agreement, Article 16, dealing with wages, lists the titles of recruit firemen, fire lieutenant and fire captain and their pay plan with annual step increments. Accordingly, it is concluded that the intent of the agreement was to cover all employees of the fire department other than the Chief and his secretary. The agreement generally provides uniform provisions applicable to all members of the department concerning transfer rights, time off for jury duty, provision of counsel for defense of civil actions, overtime pay, education leave, bereavement leave, sick leave, holidays, vacations based on time with the department, uniform maintenance, terminations and wages. There is no distinction by rank other than by years of service drawn as to different classifications of personnel. Testimony presented at the hearing established that the majority of captains and lieutenants participated on the side of labor in discussions leading to the agreement and that they presently desire to be included in the proposed bargaining unit under consideration. It further established that the agreement was formulated because the employees wanted financial conditions applicable to them spelled out clearly rather than remain in the existing city pay plan which was not as specific as desired. The firemen viewed their situation as differing from that of other city employees because of the nature of their functions and the shift work involving extended hours on duty. In the agreement, they were provided certain benefits that other city employees do not enjoy, some of which were requested by the group and some of which were voluntarily offered by the city. The department is governed by rules and regulations proposed by the Chief and approved by the public employer which include provisions that the department operates in paramilitary fashion with a chain of command extending from the Chief through the duty captain, duty lieutenant and senior firemen to the remainder of the employees. It also indicates that insubordination will not be tolerated with penalties of verbal reprimand, permanent written reprimand, suspension, loss of pay and termination. They further provide that violations of the rules, regulations, directives, and memos, generally should be' handled by the captain or duty officer of the shift, but that if, in his opinion, the violation warrants further action he should give the Chief a written statement of the facts. It states that the captain or duty officer of the shift will be held accountable by the Chief to run the shift in accordance with the rules and regulations of the department, and that violations will consist of penalties including verbal reprimand by the captain or duty officer, permanent written reprimand by the captain or duty officer, written reprimand by the Chief, suspension without pay by the Chief, or termination by order of the Chief (Exhibit 12). In this connection, testimony at the hearing established that the hiring, firing and suspending of employees by the Chief must be approved by the city manager. As to discipline, minor infractions are taken by a lieutenant to the captain and, depending on the severity of the matter, the captain is authorized to handle it himself. This includes minor infractions, with sanctions of oral or written reprimands, or recommendations for suspension or other adverse actions. The budget of the department is submitted by the Chief to the city manager for approval. Ultimate approval is given by the city counsel. Although the Chief inquires of the captains as to the need for and condition of the department equipment, they are not consulted as to actual preparation of the proposed budget. The Chief holds staff meetings approximately monthly whenever he deems it necessary. Normally, these are attended by himself, the captains, and lieutenants. At the meetings, personnel problems, operations and training matters, and current programs are discussed with input from the officers. However, all major policy decisions are formulated by the Chief. The job descriptions and duties performed by the officers and men of the department are as follows: Captains - The official job description for this position (Exhibit 8) describes the major function of a fire captain as being responsible supervisory work in directing the activities in fire fighting and in the maintenance of fire department property and equipment. It provides that the first captain at the scene of a fire has complete charge of all operations until the arrival of an officer of superior rank. It further provides that under departmental general regulations, a captain may be assigned as a company officer and has direct responsibility for discipline and the proper maintenance of apparatus, equipment, and the station. His duties may include training functions or supervising a special activity or unit within the department. As illustrative duties, he assumes complete charge of the station and the fire company on route to alarms and at the scene of the fire until the arrival of a superior officer. He directs the work of the firefighters in house duties, testing and maintaining equipment, and inspecting the station house grounds and apparatus. He acts as the department training officer and may conduct company drills or instruction periods. He conducts roll call, inspects personnel and maintains discipline, and transmits order and information to the men. Testimony at the hearing established that each of the shift captains would assume command of the fire department in the absence of the Chief. When the Chief is present, the captain in charge of the shift acts as his assistant and has total command of both fire stations, subject to the approval of the Chief. Captains can set vacation schedules of the men and also change them. He can give time off in an emergency situation and makes effective recommendations concerning bereavement leave. To move a man from one shift to another, the captain would be obliged to consult the Chief. If an employee reported in sick, he notifies the captain who then, if the department is understaffed, calls in off-duty personnel for overtime work, using an established list which must be exhausted in fairness to all. A captain performs combat roles and responds on the department trucks or will proceed in a rescue vehicle or pickup truck to the scene of the fire or rescue operation. He works the same hours as the other men and receives the same sick leave, vacation, and overtime pay. Occasionally, he will perform maintenance and housekeeping duties voluntarily at the station. He normally goes to the suppression of fires handled by Station 2 unless they are of a minor nature. LIEUTENANTS - The job description for this position provides that a lieutenant has direct command over firemen in a fire company on an assigned shift, subject to general regulations of the department and the direction of a superior officer. In the absence of the captain, the lieutenant assumes his duties and responsibilities and is responsible for the discipline of the men on his shift and the maintenance of apparatus and equipment at a fire station. At a fire, he is responsible for the effective combatting of the fire until relieved of command by a superior fire officer. H enters burning buildings with his men to direct their work, and at major fires he is under the command of the superior officer. Illustrative duties are responding to fire alarms that are within an assigned district, driving apparatus or directing the route to be taken to the fire and determine what equipment and apparatus are necessary. He makes decisions as to the best methods of extinguishing fires and directs the use of equipment until relieved of command by a Superior officer. He supervises the laying of hose lines, directing of water streams, placing of ladders, ventilation of buildings, rescuing of persons and placing of salvage covers. He conducts company drills and instruction periods as directed by his superior officer. He sees that all station equipment is returned to the proper place after a fire has been extinguished and that the equipment is in good working order at all times. He supervises the cleaning of quarters, equipment and apparatus at the fire house, conducts roll call, inspects personnel and maintains discipline, and transmits orders and information to men (Exhibit 9). Testimony at the hearing establishes that the lieutenants are in charge of Station 2 during shift at which there is himself and one firefighter. A1though he is not required to perform maintenance and housekeeping duties, the lieutenants usually help to clean hoses and to keep the quarters clean because of limited manpower and because that has been the practice in the past. On unusual occasions, a lieutenant might exercise disciplinary power with respect to the one firefighter at Station 2, or under circumstances where he is in charge of a shift in the absence of a captain. If a man came in late for duty, the lieutenant could handle it himself or report to the Chief. He has little or no meaningful participation in personnel matters dealing with promotion, suspension, hiring or firing of employees. If he is on a rescue call, he is not necessarily in charge of the operation. The individual who is not driving is the one who is in charge, and rescue operations are a team endeavor. A lieutenant is interchangeable with a firefighter and his activities vary depending on the situation. Sometimes he serves as a hydrant man, sometimes on the truck, and overall performs essentially the same firefighting functions as that of the firefighters. FIREFIGHTER - The job description provides that this is general duty work in the prevention of fire damage and that, although the work involves combatting, extinguishing and preventing fires, and operation of equipment, a large part of the time is spent in study and in cleaning fire department equipment, apparatus, and quarters. Work is performed by a member of a team and a superior officer is usually available to assign definite duties. The standard firefighting duties are set forth in the job description (Exhibit 10). Testimony at the hearing established that the firefighter looks upon the captain as his primary supervisor, although he acknowledges the lieutenant to be his superior officer. The duties of officers and men of the department have not changed since the inception of the collective bargaining agreement.
The Issue The issue in this case is whether the Petitioner qualifies for the Firefighters Supplemental Compensation Program at the Bachelor level for supplemental compensation at the rate of $110.00 per month.
Findings Of Fact At all times relevant and material to these proceedings, the Petitioner has been employed as a firefighter with the Metro-Dade Fire Department. The Petitioner's primary function with the Metro-Dade Fire Department is as a firefighter. By letter dated May 30, 1991, and received on June 10, 1991, the Petitioner applied to the Respondent for Firefighters Supplemental Compensation at the Bachelor degree level. Three transcripts were submitted with the Petitioner's application. The first was from Miami-Dade Community College, and showed that an Associate of Science degree in Fire Science was awarded to the Petitioner on May 4, 1991. The second transcript was from Broward Community College, showing many courses taken by Petitioner, but no degree awarded. 3/ The third transcript was from Florida International University, and showed that a Bachelor of Science degree with a major in Industrial Technology was awarded to Petitioner on December 12, 1980. Petitioner's Bachelor degree from Florida International University is not based upon, and does not include, any of the courses in fire science that formed the basis for Petitioner's Associate degree from Miami-Dade Community College. 4/ Petitioner's transcript of her Bachelor degree does not reveal a major study concentration area of at least 18 semester hours or 27 quarter hours which is readily identifiable and applicable as fire- related. On or about June 24, 1991, the Respondent notified the Petitioner that she was eligible for the Firefighters Supplemental Compensation Program at the Associate degree level by virtue of her Associate of Science degree in Fire Science from Miami-Dade Community College. On or about June 26, 1991, the Respondent notified the Petitioner that she was not eligible for the Firefighters Supplemental Compensation Program at the Bachelor degree level because Petitioner's major in Industrial Technology from Florida International University was not a recognized Major Study Concentration Area in Rule 4A-37.084. The denial letter cites and quotes the definition of "Bachelor's Degree" at Rule 4A-37.084(3), Florida Administrative Code.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Insurance issue a final order in this case denying the Petitioner's application for participation in the Firefighters Supplemental Compensation Program at the Bachelor degree level. 7/ DONE AND ENTERED at Tallahassee, Leon County, Florida, this 17th day of December, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1991.
The Issue Whether Respondent failed to secure the payment of workers’ compensation in violation of Sections 440.10(1), 440.38(1) and 440.107(2), Florida Statutes, by materially misrepresenting and concealing employee duties as to avoid proper classification for premium calculation, and if so, what is the appropriate penalty?
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees. Respondent is a commercial welding corporation based in Putnam County, Florida. It has been in business as an active Florida corporation since the early 1950s. Its principal office is located at 1301 Madison Street, Palatka, Florida 32177. Petitioner is an “employer” for purposes of Chapter 440, Florida Statutes. Respondent is in the business of welding, fabrication and erection of structural steel, fabrication and installation of metal handrails and fire escapes to existing buildings, and various other metal fabrication and welding operations. Respondent is engaged in the construction industry. At all material times, Respondent maintained a policy of workers’ compensation insurance for all of its employees. Respondent’s workers’ compensation insurance at issue in this case was obtained through the Florida Retail Federation Insurance Fund, and was in place since February 1, 2002. Pursuant to the Department's statutory authority, after receiving a referral based on a fatal accident at a site where Respondent was providing work, Investigator Daniel Pfaff of the Department's Division of Workers' Compensation, Bureau of Compliance, conducted an investigation into Respondent’s workers’ compensation coverage. The investigator reviewed payroll records as well as certificates of insurance. Respondent cooperated with the Department’s investigation, providing all requested documents and responding to the questions of Petitioner’s investigation. Investigator Pfaff determined that Respondent had not secured workers’ compensation coverage consistent with the job descriptions of its employees. At the final hearing it was shown that, indeed, the job classification code2/ listed on Respondent's workers' compensation policy for Respondent's non-clerical work used to determine premiums paid by Respondent was not appropriate for much of the work Respondent was performing. The job classification code on Respondent’s workers’ compensation policy for the non-clerical work performed by Respondent was 3822. Classification code 3822 encompasses manufacturing or assembling automobile, bus, truck, or trailer bodies made of die pressed steel. Classification code 3822 does not encompass fabrication of iron or steel outside of a welding shop, erection of iron or steel structures, fabrication and installation of metal handrails and fire escapes to existing buildings, or operation of machinery to lift materials used to erect buildings (collectively "off-site erection work"). Based upon contracts provided by Respondent to the Department, the Department determined that the proper classification codes for the off-site erection work performed by Respondent’s employees were 5040 and 5057. Classification code 5040 encompasses the erection of iron or steel frame structures, the assembly and fabrication of iron or steel frame structures at the erection site, welding operations incidental to steel erection work, and the installation of iron or steel balconies, fire escapes, and staircases to existing buildings. Classification code 5057 encompasses iron or steel erection not otherwise classified in the Scopes® Manual. After it was determined that Respondent did not have the proper workers’ compensation insurance, Investigator Pfaff issued a Stop Work Order and Order of Penalty Assessment against Respondent on behalf of the Department on February 12, 2010. The Stop-Work Order is on a form with supporting allegations that may be selected by checking the box next to the allegation. The boxes checked on the Stop-Work Order comprise the following allegation: “Failure to secure the payment of workers’ compensation in violation of sections 440.10(1), 440.38(1) and 440.107(2) Florida Statutes by: materially misrepresenting and concealing employee duties as to avoid proper classification for premium calculation.” The allegation selected in the Amended Order of Penalty Assessment refines the allegation of the Stop-Work Order by alleging “Failure to secure the payment of workers’ compensation within the meaning of section 440.107(2), F.S., by: materially misrepresenting or concealing employee duties so as to avoid proper classification for premium calculations.” The Second Amended Order of Penalty Assessment contains no separate allegation, but rather references the original Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment. No other charging documents were provided by Petitioner in support of the proposed penalty. At the final hearing, Petitioner presented evidence demonstrating that the appropriate job classification code for the majority of Respondent’s work was 5040. It also provided evidence that $60,873.60 was the amount of penalty that would be due if a violation had occurred. The penalty amount was calculated by using payroll amounts provided by Respondent and the approved rates for the proper job classification codes to determine the amount of premium that should have been paid and then, after giving Respondent credit for previous premiums paid, multiplying the result by 1.5 in accordance with applicable rules. Petitioner, however, did not provide sufficient evidence that Respondent failed “to secure the payment of workers’ compensation in violation of sections 440.10(1), 440.38(1) and 440.107(2) Florida Statutes by materially misrepresenting and concealing employee duties as to avoid proper classification for premium calculation” as alleged in the Stop-Work Order. Rather than showing that Respondent misrepresented or concealed employee duties to avoid proper classification, the evidence indicated that Respondent believed that its company was compliant with Florida workers’ compensation coverage requirements. While the Scopes® Manual explains the various job classification codes, there was no evidence that the Scopes® Manual has ever been provided to Respondent or that Respondent was the one who selected the job classification codes that were on its workers’ compensation policy. The job classification description for classification code 3822 provided on premium summaries and statements from the insurance agent and carrier to Respondent were different at different times. One description was “auto, bus, truck body, MFG/steel” and another was “auto, bus, truck, trailer manufacturing, die press.” The self-audit reports abbreviate job classification 3822 as “Auto bus truck body mfg/steel.” These abbreviations do not give notice that Respondent’s job classification was wrong. In addition, the evidence showed that Respondent’s workers’ compensation insurance carrier conducted regular audits of Respondent's operations. Respondent cooperated with the audits. During the course of the audits, the insurance auditor would go to Respondent’s premises where the auditor was able to observe the types of machinery, equipment, and operations used by Respondent. Despite evidence on the premises indicating that Respondent was engaged in work beyond the scope of job classification code 3822 established at the final hearing, there is no evidence that the auditors, carriers, or agents ever questioned the workers’ compensation insurance job classification codes that were on Respondent’s policy, summaries, and audit forms that they transmitted to Respondent. Aside from cooperating with regular audits and allowing inspection of its premises, Respondent also provided additional information to its agent and carrier regarding its operations through Respondent’s requests for certificates of insurance for various off-site jobs. Investigator Pfaff has substantial experience in the insurance industry as an adjustor, special investigator and supervisor in property and casualty for over 30 years. As part of the investigation, investigator Pfaff obtained a number of Respondent’s certificates of insurance. The certificates of insurance were introduced as Petitioner’s Exhibit 21. Investigator Pfaff provided credible testimony that there was no real reason to send out a certificate of insurance unless a company was planning to perform work for another company. The certificates of insurance were issued by Respondent’s insurance agent at Respondent’s request for off- site erection work for a variety of different companies located in a variety of counties, and contain information showing that Respondent was performing work outside its premises. Respondent’s representative testified that Respondent informed its insurance agent of the location of the work each time a certificate of insurance was issued. The Department demonstrated that the off-site erection work being performed by Respondent was not consistent with the workers’ compensation classification code in place for Respondent. The certificates of insurance, however, were approved by the insurance agent or carrier, and neither expressed any concern that the workers’ compensation insurance coverage was insufficient in any respect. In addition, the carrier was made aware of the type of work performed by Respondent by prior claims. Respondent had previously reported two other workers’ compensation incidents which arose from work performed off of the premises. One previous off-site erection work incident involved an injury resulting from an employee falling from a crane, and the other involved an employee’s fall through a roof skylight. The insurance carrier was made aware that off-site erection and construction work was being performed by Respondent in each of these incidents. Even though it was established at the final hearing that job classification code 3822 utilized for Respondent’s workers’ compensations insurance for those incidents should not have covered the off-the-premises incidents, Respondent’s insurance carrier and insurance agent never suggested that Respondent’s workers’ compensation coverage was deficient or erroneous. In sum, Petitioner did not show that Respondent materially misrepresented or concealed employee duties in order to avoid proper classification for premium calculation of its workers’ compensation policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Stop-Work Order, Order of Penalty Assessment, Amended Order of Penalty Assessment, and Second Amended Order of Penalty Assessment issued against Respondent, and ordering the return of any penalty paid by Respondent under the Periodic Payment Agreement. DONE AND ENTERED this 24th day of November, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 November, 2010.
