The Issue Whether or not Respondent has correctly computed Petitioner's retirement pay.
Findings Of Fact The Findings of Fact set forth in paragraph 1 are accepted. The Findings of Fact set forth in paragraph 2 are accepted. The Findings of Fact set forth in paragraph 3 are accepted. The Findings of Fact set forth in paragraph 4 are rejected as not supported by competent, substantial evidence, except for the finding that Mr. wade was re-employed at a much lower rate of pay. Mr. Wade terminated his employment with the Legislature on August 8, 1986, and received salary through that date. He was re-employed by the Department of Banking and Finance and not the Department of Agriculture as stated in the Recommended Order. In addition, although Mr. Wade terminated his employment for retirement reasons on August 31, 1990, his effective date of retirement was September 1, 1990, as provided by the FRS law and rules. The Findings of Fact set forth in paragraph 5 are rejected as not supported by competent, substantial evidence. Petitioner was paid in September 1986 for his accrued annual leave, which also included leave credits earned in July and August 1986 before his termination on August 8, 1986. Mr. Wade was employed with the Department of Banking and Finance effective August 11, 1986, and began to earn additional leave credits which he continued to accrue until he retired effective September 1, 1990. The Findings of Fact as set forth in paragraph 6 are rejected as not supported by competent, substantial evidence. Petitioner's annual leave includes leave earned in July and August 1986, which could not be paid until he terminated employment in August 1986. Further, in Chapter 650, Florida Statutes, the Division of Retirement is named as the state agency with the authority for administering Social Security for public employees and the Federal Insurance Contributions Act (FICA) in Florida, including adoption of rules for the reporting of FICA contributions which are due when paid, not when earned. In addition, the Hearing Officer also incorrectly cited Rule 22B-3.0l1(1), F.A.C., which reads: "contributions" and not "benefits." The Findings of Fact set forth in paragraph 7 are accepted. The Findings of Fact as set forth in paragraph 8 are accepted in part and rejected in part. That portion of the Findings concluding that $11,286.00 should be added to the Petitioner's salary compensation for the 1985 - 86 fiscal year to obtain a higher AFC is rejected as not supported by competent, substantial evidence. In addition, the 1986 lump sum annual leave payment ($11,286) was not paid to Mr. Wade until after he was separated from state employment effective August 8, 1986. Payment was made in September 1986 and this payment cannot be added to the Petitioner's salary compensation for the 1985 - 86 fiscal year. The Findings of Fact set forth in paragraph 9 are accepted. The Findings of Fact as set forth in paragraph 10 are accepted in part and rejected in part as not supported by competent, substantial evidence. The Petitioner was employed by the Legislature through August 8, 1986. In addition, payment for accrued annual leave credits cannot be made to a state employee until his employment has been terminated which did not occur until August 8, 1986. That portion of the paragraph regarding the application of Generally Accepted Accounting Principles (GAAP) in the computation of retirement benefits pursuant to Chapter 121, Florida Statutes, and the FRS rules, in addition to not being relevant, is rejected as not supported by competent, substantial evidence. GAAP is not applicable as this case is governed by the rules of the Division of Retirement. The Petitioner was terminated in August 1986; therefore, the September 1986 lump sum annual leave payment ($11,286) is a part of the Petitioner's salary compensation for the 1986 - 87 fiscal year. The Findings of Fact set forth in paragraph 11 are accepted. The Findings of Fact set forth in paragraph 12 are accepted in part and rejected in part. The Petitioner's employment did not terminate with the Legislature until August 8, 1986, and he did not receive the payment ($11,286) for his accrued annual leave, which included leave accrued as of June 30, 1986, as well as leave earned in July and August 1986, until September 1986. The payment was calculated for fiscal year 1986 - 1987 which was not one of Mr. Wade's highest fiscal years. The Findings of Fact set forth in paragraph 13 are accepted. However, these findings are irrelevant as GAAP is not applicable to this case. The Findings of Fact set forth in paragraph 14 are accepted.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration, Division of Retirement, enter a final order adding $11,286.00 to Petitioner's $64,172.00 salary as already calculated for fiscal year 1985-1986, and using that figure together with Petitioner's fiscal years 1981-1982, 1982-1983, 1983-1984, 1984-1985 salaries so as to calculate Petitioner's average final compensation for retirement purposes. DONE and ENTERED this 14th day of May, 1991 in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 14th day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: There are no PFOF 1-4. 5, 5a Covered in the COL. 6 Covered in FOF 5 and 10. 7, 8, 10, 13 The recitation of the witnesses' qualifications and how exhibits came to be admitted is subordinate or unnecessary to the facts as found. The disputed material facts are resolved within the RO. Accepted that the 360 hours of annual leave accrued to Petitioner or obligated the State in 1985-1986 but that the monies therefor were not paid until the 1986-1987 fiscal year. Petitioner's choice of language utilized in this PFOF is confusing and misleading and is not adopted for those reasons. 9, 11 Covered in FOF 10 and 12-14 except for subordinate and unnecessary material which is rejected. Mere recitation of testimony is likewise rejected. 12, 16 Subordinate and cumulative. Accepted in FOF 13, but not dispositive. Accepted but unnecessary and not dispositive of the properly raised issues herein. Respondent's PFOF: 1 Largely subordinate and unnecessary. Covered as necessary in the Preliminary Statement and the COL. 4-8 Covered in FOF 1 and 2 and the COL. 9 Unnecessary and unproven. COPIES FURNISHED: Mr. Thomas L. Wade 602 Concord Road Tallahassee, Florida 32308 Larry D. Scott Assistant Division Attorney Division of Retirement Legal Office 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issue in this case is whether Petitioner should be permitted to transfer credit of certain hours of accrued sick leave from Petitioner's former place of employment, P.K. Yonge School, to Petitioner's current leave balance with Respondent, the Alachua County School Board (Board).
Findings Of Fact Petitioner, Tom E. Massey, began his employment with Respondent at the start of the 1983-84 school year. He had been previously employed at the University of Florida's P.K. Yonge Laboratory School since September 1, 1967. During the 1983-84 and 1984-85 school years, Petitioner was technically on a leave of absence from the University of Florida. At the conclusion of that two year period, Petitioner determined that he would make his employment relationship with Respondent permanent and formally terminate his employment with the University of Florida. At the time of separation from employment with the University of Florida, Petitioner had accrued a balance in that employment of 336 hours of unused sick leave prior to October 1, 1973, and 686.4 hours of sick leave after that date. Petitioner learned from Respondent's personnel department that existing policy did not provide for transfer of such leave to the Alachua County School Board employment. Transfers of existing leave balances were limited to other school boards in the state and educational personnel in residential care facilities of the Department of Health and Rehabilitative Services. Consequently, Petitioner elected, on September 6, 1985, to be paid by the University of Florida for unused sick leave under prevailing personnel rules at his existing salary rate for one-eighth of the hours accrued prior to October 1, 1973, and one-fourth of the hours accrued on or after October 1, 1973. As a result of his decision to sell his sick leave, Petitioner was paid approximately $2,419 by the University of Florida. At the present, Petitioner has no unused sick leave hours accrued at the University. As a result of the legislative enactment in 1990 of the "Sidney Martin Developmental Research School Act" (Section 2 of 90-49, Laws of Florida), codified at Section 228.053, Florida Statutes, university sponsored developmental schools were established as a category of public schools funded under the Florida Education Finance Program (FEFP), as opposed to the previous practice of funding such "laboratory schools" through the budget of the State University System. On June 4, 1991, Respondent amended its policy to permit transfer of sick leave from other public schools in Florida funded through the FEFP. Pursuant to that policy, Respondent also permitted certain existing employees of the Alachua County School Board to transfer unpaid leave balances resulting from prior employment with the University of Florida. Leonard D. Jackson was employed at P.K. Yonge School from August 1, 1971, until November 23, 1973, when he left that employment with the University of Florida to commence employment with Respondent. Jackson had accrued 18 days and seven hours of sick leave (151 hours) during that period, but was ineligible for leave payment since the length of his employment with the University was less than 10 years. Following Respondent's June 4, 1991, policy change, Leonard D. Jackson transferred the 151 hours of accrued sick leave from the University of Florida to his then current employer, the Alachua County School Board. Upon his retirement, Jackson received payment for the leave at a rate of 110 percent of his final salary rate. Totsye J. Connor, employed at the University of Florida from September 1, 1968, until May 20, 1982, elected not to be paid for accrued sick leave when she left that employment for her subsequent employment with Respondent. Following Respondent's policy change in 1991, she then transferred 59 hours of accrued sick leave to her employment with Respondent and was paid for that leave upon her retirement. Petitioner intends to retire from employment at the conclusion of the present school term in June of 1996. Petitioner will receive compensation at that time for the leave balance accrued by him in Respondent's employment. Petitioner argues that he has been treated unfairly and should now be permitted to transfer and receive compensation for all or a portion of his previous unused sick leave balance accrued at the University of Florida's P.K. Yonge School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's request for transfer and subsequent compensation for sick leave from the University of Florida's P.K. Yonge School. DONE and ENTERED this 11th day of June, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 11th day of June, 1996. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Petitioner's handwritten proposed findings were unnumbered and basically restated his argument that he has been treated unfairly by what he views as a discriminatory school board rule. The findings of fact, as set forth above, address, to the extent possible, facts proposed by Petitioner. Respondent's Proposed Findings 1.-8. Accepted. Rejected, unnecessary to result. Accepted. COPIES FURNISHED: Tom E. Massey c/o Susan C. Massey 5160 Northeast Elliott Circle Corvallis, Oregon 97330 Thomas L. Wittmer, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, Esquire Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent's application for renewal of his certificate of registration as a farm labor contractor should be granted. Preliminary to that determination is the issue of whether Petitioner has failed to pay in excess of $10,000 in unemployment compensation taxes.
Findings Of Fact Respondent is Ernest J. Grant, a farm labor contractor and holder of a certificate of registration issued by Petitioner at all times pertinent to these proceedings. Respondent's latest certificate of registration was issued by Petitioner on December 14, 1988, and expired on July 18, 1989. On November 28, 1989, Respondent applied for renewal of his certificate of registration. By letter dated January 5, 1990, Petitioner requested Respondent to contact Petitioner'srepresentative within 14 days regarding Respondent's nonpayment of unemployment compensation taxes totalling in excess of $10,000. Petitioner's correspondence further stated that applicable Florida law prevented the renewal of a certificate of registration absent Petitioner's satisfaction that the applicant for renewal is compliant with Petitioner's administrative rules regulating farm labor contractors. Petitioner's rules require compliance by farm labor contractors with applicable rules and statutes, both state and federal, relating to the payment of unemployment compensation taxes. Respondent's history of nonpayment of unemployment compensation taxes to Petitioner is lengthy, dating back to 1978 when his tax account was established with Petitioner's Bureau of Tax. Numerous checks written by Respondent for payments for previous taxes to Petitioner have been dishonored upon presentment for payment. Petitioner's attempts to resolve Respondent's tax payment deficiencies through the establishment of "time payment accounts" for the benefit of Respondent have failed or yielded only marginal results as a result of Respondent's noncompliance with those agreements. Respondent's last token payment on such an agreement in the amount of $50 was received by Petitioner on January 11, 1985. Respondent has made no contributions for unemployment compensation taxes for the previous 18 calendar year quarters of tax liability. Respondent presently owes Petitioner $10,642.22 in unpaid unemployment compensation taxes; $6,128.36 in interest; $85 in unpaid penalties; $25 in service fees for bad checks; and $28 in filing fees. The total amount currently owed by Respondent to Petitioner is $16,928.58.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Respondent's application for renewal of his certificate of registration as a farm labor contractor. DONE AND ENTERED this 30th day of April, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990. COPIES FURNISHED: Ernest J. Grant 204 Sally Blvd P.O. Box 1222 Bowling Green, FL 33834 Moses E. Williams, Esq. Suite 117 Montgomery Building 2562 Executive Center Circle Tallahassee, FL 32399-2152 Hugo Menendez, Secretary 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, FL 32399-2152 Stephen Barron, Esq. 131 Montgomery Building 2563 Executive Center Circle, East Tallahassee, FL 32399-2152
The Issue The issues in this case are whether Respondent, Axiom Construction Design Corporation (Axiom), failed to provide workers' compensation coverage, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing the various requirements of chapter 440, Florida Statutes. Section 440.107(3) mandates, in relevant part, that employers in Florida must secure workers’ compensation insurance coverage for their employees. At all times relevant, Axiom was a small Florida corporation engaged in the construction industry, principally installing drywall. Axiom’s principal office is located at 1067 Walt Williams Road, Lakeland, Florida. Mr. Pratt is Axiom’s owner, sole corporate officer, and registered agent. On July 23, 2014, Randall Durham conducted a job site workers’ compensation compliance investigation (Compliance Investigation). Mr. Durham spoke with Mr. Pratt at a job site at 109 Cattleman Road, the new Sarasota mall. Mr. Pratt and Al Lappohn were working the job site at the new mall. Mr. Pratt had a workers’ compensation policy in place with Southeast Personnel Leasing. Mr. Lappohn did not have an exemption from workers’ compensation coverage, and he was not covered by Axiom’s Southeast Personnel Leasing policy. On July 23, 2014, Mr. Pratt, as Axiom’s representative, was hand-served a Stop-Work Order1/ and a Request for Production of Business Records for Penalty Assessment Calculation (Request). This Request encompassed all of Axiom’s payroll documents, account documents, disbursements, workers’ compensation coverage policies, and professional employer organization records from January 4, 2013, through July 23, 2014. Mr. Pratt provided the certificates of liabilities, payroll and tax records for 2013, and additional business records to the Department. These records were given to Mr. Knopke to calculate the penalty. In reviewing the records, Mr. Knopke determined that Mr. Pratt, Mr. Lappohn and Frank Cutts were employees of Axiom, and that Axiom did not provide workers’ compensation coverage for them. Mr. Cutts worked for Axiom at a Family Dollar Store build-out in Orlando in early 2014. Mr. Cutts swept up after the drywall was installed in the store, and was paid $125. Axiom conceded it owed the workers’ compensation penalty based on the work Mr. Lappohn and Mr. Cutts performed. The business records provided that during the audit period Mr. Pratt had dual employment, payment being paid outside of leasing. Dual employment is when a business has a leasing policy and there is extraneous payroll that is paid outside of the leasing policy. Payments received outside of a leasing policy are considered unsecured payroll for the purposes of calculating a penalty against an employer. Mr. Knopke included Mr. Pratt’s outside distributions in the penalty calculation. The “Scopes Manual” is published by the National Council on Compensation Insurance, Inc. (NCCI), the nation’s most authoritative data collecting and disseminating organization for workers’ compensation. The manual contains certain codes related to the construction industry and trades considered to be within that industry. The installation of drywall, wallboard, sheetrock, plasterboard or cement board is considered to be “construction” under the relevant codes in the manual. The manual, with its codes and classifications, is relied upon in the insurance industry and has been adopted by the Department in Florida Administrative Code Rule 69L-6.021. Mr. Knopke, using the manual, determined the appropriate classification code for Respondent’s employees was 5445. Mr. Knopke applied the correct rates and used the methodology found in section 440.107(7)(d)1., and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to calculate the penalty assessment. Based upon the testimony and exhibits, the 3rd Amended Penalty Assessment in the amount of $20,221.62 is accurate and correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order upholding the 3rd Amended Order of Penalty Assessment, and assess a penalty in the amount of $20,221.62. DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 2nd day of June, 2015.
The Issue The issue is whether the Petitioner, a former employee of the Respondent, was overpaid in the amount of $1,165.76, and should be required to repay that amount to the Respondent.
Findings Of Fact The Petitioner was a career service employee of the Respondent and was initially employed on November 17, 1997. The Petitioner’s employment with the Respondent was terminated on June 30, 2003, due to layoffs created by the outsourcing of the Family Services Unit of the Respondent. The Petitioner’s annual rate of pay at the time of her termination was $19,797.44, paid bi-weekly. By letters dated August 26, 2003, October 14, 2003, and February 16, 2004, the Petitioner was informed that six separate salary overpayments had occurred. The Petitioner actually worked 56 hours during the pay period of June 20, 2003 through July 3, 2003, but was inadvertently paid for 80 hours of work. The Petitioner was inadvertently paid for working the days of July 1, 2, and 3, 2003, although her employment had been terminated effective June 30, 2003. The overpayment was for 24 hours, amounting to $183.79, based upon the Petitioner’s annual rate of pay. The Petitioner was no longer employed by the Respondent during the pay period of July 4, 2003 through July 17, 2003, but was inadvertently paid for 80 hours of work. The overpayment amounted to $601.70, based upon the Petitioner’s annual rate of pay. Following termination of employment, the Respondent’s Human Resources Department conducted an audit of the terminated employee’s leave. An audit was performed by the Respondent concerning the Petitioner’s leave. In the course and scope of the Respondent performing the audit of the Petitioner’s leave, the Respondent discovered that the Petitioner had been overpaid for four pay periods in 2003. Once an employee of the Respondent no longer has sick leave remaining, annual leave is used to cover any shortages in sick leave. Once an employee of the Respondent no longer has either sick leave or annual leave remaining, the employee cannot be paid for additional time taken as leave. The additional time becomes “leave without pay.” The Petitioner was overpaid in four separate pay periods when she had insufficient sick or annual leave as follows: 1/31/03-2/13/03: 16.50 hours 4/11/03-4/24/03: 22.75 hours 4/25/03-5/08/03: 4.25 hours 5/23/03-6/05/03: 4.75 hours The sum of the hours of overpayment is 48.25, which translates to the amount of $380.27 in overpayment to the Petitioner for the referenced pay periods. The total amount of the Respondent’s overpayment to the Petitioner, based upon the salary payments for July 1, 2, and 3, 2003, July 4 through 17, 2003, and the four pay periods in which the Petitioner was overpaid when her sick and annual leave had run out is $183.79 plus $601.70 plus $380.27, which totals $1,165.76. The Petitioner was not at fault for the overpayment. She did not falsify her leave reports or timesheets, nor was she accused by the Respondent of having done so. The Petitioner believed that the pay she received for July 4, 2003 through July 17, 2003, was severance pay since she had been terminated when her position had been eliminated. The Respondent does not issue severance pay to terminated employees. The Petitioner believes that some of the leave she had taken during the four pay periods when her sick and annual leave had run out should have been considered administrative leave which, according to the Respondent, was offered to employees in the Family Services Unit who were facing termination as an aid to finding new jobs. Administrative leave was available to employees whose positions were being eliminated to allow them to use the Internet while at the office to search for jobs, and to leave the office for interviews or any testing required for re- employment. The Petitioner failed to document leave time, if any, during the pay periods at issue in this proceeding, that she took for purposes of job testing or interviews. The Petitioner failed to properly designate administrative leave on the automated leave system, Time Direct, for the pay periods at issue in this proceeding, even though, as a secretary specialist for the Respondent for seven years, her duties included keeping track of leave for the people in her work unit. The Respondent offered several of the Petitioner’s timesheets that reflect the Petitioner’s having taken administrative leave on more than 30 occasions from October 2002 through May 2003. These time entries for administrative leave include time during each of the four pay periods at issue in this proceeding, January 31, 2003 through February 13, 2003, April 11, 2003 through April 24, 2003, April 25, 2003 through May 8, 2003, and May 23, 2003 through June 5, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order requiring the Petitioner to repay the Respondent $1,165.76. DONE AND ENTERED this 5th day of March, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2004. COPIES FURNISHED: Rosanna Boyd Apartment 162 3400 Townsend Boulevard Jacksonville, Florida 32277 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent had a sufficient amount of workers’ compensation coverage during the time period in question; and, if not, what penalty should be imposed.
Findings Of Fact The Division is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2015),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. Kent Howe works for the Division as a compliance investigator based in Orlando, Florida. As part of his job responsibilities, Mr. Howe visits construction sites in order to verify that employers in the construction industry have obtained workers’ compensation coverage for their employees. Mr. Kehr was the owner and sole corporate officer of JNK. Mr. Howe visited a construction site in Port Orange, Florida, on the morning of December 10, 2015, and saw Mr. Kehr and two other men building the interior walls/frames of a house. Mr. Howe talked to the two men (James Hicks and James Garthwait) working with Mr. Kehr, and they reported that Mr. Kehr was paying them approximately $8.00 an hour. Mr. Kehr told Mr. Howe that Messrs. Hicks and Garthwait had been working for him for approximately two hours that morning. Mr. Kehr also stated that he had not obtained workers’ compensation coverage for Messrs. Hicks and Garthwait. Following those conversations, Mr. Howe returned to his car and accessed the Division’s Coverage and Compliance Automated System (“CCAS”) and learned that JNK had no workers’ compensation coverage. Mr. Howe also determined from CCAS that Mr. Kehr had obtained an exemption from workers’ compensation coverage that had been in effect from November 18, 2014, through November of 2016.2/ After relaying that information to his supervisor, Mr. Howe received authorization to serve Mr. Kehr with a Stop- Work Order, and he did so on December 10, 2015. That Stop-Work Order required JNK to “cease all business operations for all worksites in the State” based on the Division’s determination that JNK had failed to obtain workers’ compensation coverage. In addition, the Stop-Work Order stated that JNK would be penalized an amount “[e]qual to 2 times the amount [JNK] would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it [had] failed to secure the payment of compensation within the preceding 2-year period.” Along with the Stop-Work Order, Mr. Howe also served a “Request for Production of Business Records for Penalty Assessment Calculation” (“the BRR”) on Mr. Kehr. In order to ascertain JNK’s payroll disbursements during the relevant time period and the resulting penalty for JNK’s failure to obtain workers’ compensation coverage, the BRR requested that JNK remit several different types of business records covering the period from November 10, 2014, through December 10, 2015. Mr. Howe explained during the final hearing that the Division usually reviews business records pertaining to the two years preceding the Stop Work Order.3/ Because JNK came into existence on November 10, 2014, the Division’s review was limited to examining the period between November 10, 2014, and December 10, 2015. The business records sought by the Division included items such as time sheets, payroll summaries, check journals, certificates of exemption, and evidence that any JNK subcontractors had obtained workers’ compensation coverage. Section 440.107(7)(e) provides that if an employer fails to provide business records sufficient to enable the Department to ascertain the employer’s actual payroll for the time period in question, then the Division will estimate the employer’s actual payroll for that time period by imputing the employer’s payroll based on the statewide average weekly wage. The Division then multiplies that amount by two. JNK did not provide business records typically sought by the Division. Instead, JNK responded to the BRR by producing a written statement from Mr. Kehr indicating that he founded JNK in November of 2014, but did no work until July of 2015. That initial job involved fixing a set of stairs for $200. Afterwards, Mr. Kehr performed three separate small jobs between July and November of 2015, earning approximately $550. Because the Division could not ascertain JNK’s actual payroll from the documentation provided by JNK, the Division imputed JNK’s payroll for the time period in question and issued an Amended Order of Penalty Assessment on January 19, 2016, seeking to impose a penalty of $61,424.04. Phillip Sley calculated the aforementioned penalty amount by filling out a worksheet that has been adopted by the Division through Florida Administrative Code Rule 69L-6.027. The first step in completing the worksheet required Mr. Sley to assign a classification code to the type of work that Mr. Howe witnessed Messrs. Kehr, Hicks and Garthwait performing at the Port Orange worksite on December 10, 2015. Classification codes come from the Scopes® Manual, which has been adopted by the Department through rule 69L-6.021. Each code within the Scopes® Manual pertains to an occupation or type of work, and each code has an approved manual rate used by insurance companies to assist in the calculation of workers’ compensation insurance premiums. The imputed weekly payroll for each employee and corporate officer “shall be assigned to the highest rated workers’ compensation classification code for an employee based upon records or the investigator’s physical observation of that employee’s activities.” See Fla. Admin. Code. R. 69L-6.028(3)(d). In the instant case, Mr. Sley determined “5645” was the appropriate classification code. According to the Scopes Manual, [w]hen all of the carpentry work in connection with the construction of residential dwellings not exceeding three stories in height is performed by employees of the same carpentry contractor or general contractor responsible for the entire dwelling construction project, the work is assigned to Code 5645. This includes the construction of the sill, rough framework, rough floor, wood or light-gauge steel studs, wood or lighted-gauge steel joists, rafters, roof deck, all types of roofing materials, sidewall sheathing, siding, doors, wallboard installation, lathing, windows, stairs, finished flooring, cabinet installation, fencing, detached structures, and all interior wood trim. Mr. Sley’s next step in calculating the penalty amount was to determine the period of non-compliance. With regard to Mr. Kehr, the Department asserted that JNK failed to have workers’ compensation coverage between the date of JNK’s inception (November 10, 2014) and the date that Mr. Kehr received an exemption from the workers’ compensation coverage requirement (November 18, 2014). Despite having no evidence that Messrs. Hicks and Garthwait worked for JNK on any day other than December 10, 2015, the Division’s penalty calculation was based on an assumption that Messrs. Hicks and Garthwait worked for JNK from November 10, 2014, through December 10, 2015. Mr. Sley’s next step was to calculate JNK’s gross payroll for the time period in question. Because JNK did not provide the Division with business records that would have enabled the Division to calculate JNK’s actual payroll, Mr. Sley based JNK’s payroll on the statewide average weekly wage determined by the Department of Economic Opportunity for the time period in question.4/ Mr. Sley then multiplied that amount by two.5/ After converting the payroll numbers into a percentage, Mr. Sley multiplied the payroll amounts by the approved manual rate. As noted above, every classification code is associated with a particular manual rate determined by the Office of Insurance Regulation, and a manual rate corresponds to the risk associated with a particular occupation or type of work. Manual rates associated with potentially dangerous activities will have higher manual rates than activities with little or no potential danger. Mr. Sley’s next step was to calculate a premium for obtaining workers compensation coverage for Messrs. Kehr, Hicks, and Garthwait. Mr. Sley then multiplied that premium by two in order to calculate the individual penalties resulting from JNK not having workers’ compensation coverage for Messrs. Kehr, Hicks, and Garthwait. The sum of those amounts was $61,424.04. The evidence produced at the final hearing established that Mr. Sley utilized the correct class code, average weekly wage, and manual rates in his calculation of the penalty set forth in the Amended Order of Penalty Assessment. The Division has demonstrated by clear and convincing evidence that JNK was in violation of the workers’ compensation coverage requirements of chapter 440. In particular, the Division proved by clear and convincing evidence that Mr. Kehr had no workers’ compensation coverage for himself and no exemption from November 10, 2014, through November 17, 2014. However, the Division did not demonstrate by clear and convincing evidence that Messrs. Hicks and Garthwait were employees of JNK on any day other than December 10, 2015. Mr. Kehr testified during the final hearing that Messrs. Hicks and Garthwait were working for him on December 10, 2015. He also testified that he was paying them at a rate of $8.00 an hour. However, Mr. Kehr persuasively testified that Messrs. Hicks and Garthwait had not worked for him at any other time between November 10, 2014, and December 10, 2015. The undersigned finds Mr. Kehr’s testimony on this point to be credible. Messrs. Hicks and Garthwait did not testify during the final hearing in this matter. There is no evidence that Messrs. Hicks and Garthwait worked for JNK at any time other than December 10, 2015. Because there is no evidence indicating that Messrs. Hicks and Garthwait were employees of JNK at any time other than December 10, 2015, during the time period in question, the undersigned finds that the Department failed to carry its burden of proving that $61,424.04 is the appropriate penalty. Based on the above findings, the undersigned finds that the correct penalty resulting from Mr. Kehr’s lack of coverage is $627.48. The worksheet completed by Mr. Sley indicates that is the amount of the $61,424.04 penalty associated with Mr. Kehr’s lack of coverage. As for the penalties associated with the lack of coverage for Messrs. Hicks and Garthwait on December 10, 2015, the undersigned multiplied the average weekly wage utilized by the Division ($841.57) by two. That results in a weekly gross payroll amount of $1,683.14. Dividing $1,683.14 by five results in a daily gross payroll amount of $336.63. Dividing $336.63 by 100 and then multiplying the result by 15.91 (the approved manual rate utilized by the Division for the period from January 1, 2015, through December 10, 2015) yields a daily premium of $53.62. Multiplying $53.62 by two results in a penalty of $107.23. Multiplying $107.23 by two yields $214.46, JNK’s penalty for not having workers’ compensation coverage for Messrs. Hicks and Garthwait on December 10, 2015. JNK’s total penalty is $841.94. Because section 440.107(7)(d)1. mandates a minimum penalty of $1,000, the undersigned finds that $1,000 is the correct penalty for the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation enter a final order imposing impose a $1,000 penalty on Donald Kehr, d/b/a JNK Framing Inc., a Dissolved Florida Corporation. DONE AND ENTERED this 10th day of August, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2016.
Findings Of Fact The employee herein, the Petitioner, is employed by DEP as a park ranger. DEP is an agency of the State of Florida. The Petitioner failed to report for work after June 10, 1995. He apparently had some health problem or complaint and was on sick leave for a time. October of 1995 was the first month that he was on leave without pay. He was on leave without pay when he was terminated, which occurred on November 27, 1995. The Petitioner was not receiving workers compensation benefits between his last day of work on June 10, 1995 and the termination date of November 27, 1995. His monthly rate of pay was $1,627.23. He was paid $1,627.62 in gross wages for 176 hours on November 30, 1995. He received $1,319.18 in net wages for November of 1995. The Petitioner was entitled to $71.74 in wages for 10.75 hours for November of 1995. DEP calculated the amount of overpayment by offsetting the wages issued to him in November of 1995 by the amount he was actually entitled to receive for that month for the 10.75 hours. Thereafter, on December 12, 1995, DEP notified the Petitioner, by certified mail, return receipt requested, that he had been overpaid $1,247.44 in net wages for November of 1995. That return receipt reflected that the Petitioner received that letter on December 15, 1995. The Petitioner failed to refund the money to DEP during the 1995 tax year and as yet, has still not refunded the money. Because the money was not refunded during the 1995 tax year, the Petitioner also owes DEP an additional $163.87, which was withheld for taxes on the payment or overpayment in question. Thus, DEP overpaid the Petitioner a total of $1,411.31 in wages for November of 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent, Department of Environmental Protection, enter a Final Order finding that the employee, the Petitioner, Eugene Breeze, owes $1,411.31 for a salary overpayment received by him in November of 1995. DONE AND ENTERED this 1st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996. COPIES FURNISHED: Mr. Eugene Breeze 1110 Florida Avenue Lynn Haven, Florida 32444 Melease Jackson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact For calendar year 1989 and until November 11, 1990, petitioner worked for respondent. As of January 5, 1989, having exhausted accumulated leave balances, petitioner was not entitled either to sick leave or to annual leave. After January 5, 1989, and until her employment with respondent ended on November 11, 1990, petitioner earned 192 hours of sick leave and 192 hours of annual leave. During the pay period ended January 19, 1989, she took 1.75 hours of leave. During the pay period ended February 2, 1989, she took 3.5 hours of leave. During the pay period ended February 16, 1989, she took 1.5 hours of leave. During the pay period ended March 2, 1989, she took 18.25 hours of leave. During the pay period ended March 16, 1989, she took 16 hours of leave. During the pay period ended March 30, 1989, she took 1.5 hours of leave. During the pay period ended April 13, 1989, she took 36 hours of leave. During the pay period ended April 27, 1989, she took 22 hours of leave. During the pay period ended May 11, 1989, she took 20.75 hours of leave. During the pay period ended May 25, 1989, she took 6 hours of leave. During the pay period ended June 8, 1989, she took 8.75 hours of leave. During the pay period ended June 22, 1989, she took 17.25 hours of leave. During the pay period ended July 6, 1989, she took 16 hours of leave. During the pay period ended July 20, 1989, she took 1 hour of leave. During the pay period ended August 3, 1989, she took 9 hours of leave. During the pay period ended August 17, 1989, she took 10 hours of leave. During the pay period ended August 31, 1989, she took 4 hours of leave. During the pay period ended September 14, 1989, she took 12 hours of leave. During the pay period ended September 28, 1989, she took 8.5 hours of leave. During the pay period ended October 12, 1989, she took 10.5 hours of leave. During the pay period ended October 26, 1989, she took 8.5 hours of leave. During the pay period ended November 9, 1989, she took 26.25 hours of leave. During the pay period ended November 23, 1989, she took one hour of leave. During the pay period ended December 7, 1989, there was no leave taken. During the pay period ended December 21, 1989, she took .5 hours of leave. During the pay period ended January 4, 1990, she took 18 hours of leave. During the pay period ended January 18, 1990, she took 10.5 hours of leave. During the pay period ended February 1, 1990, she took 1.5 hours of leave. During the pay period ended February 15, 1990, she took 1.5 hours of leave. During the pay period ended March 1, 1990, she took 3 hours of leave. During the pay period ended March 15, 1990, she took 27 hours of leave. During the pay period ended March 29, 1990, she took 11.5 hours of leave. During the pay period ended April 12, 1990, she took 36 hours of leave. During the pay period ended April 26, 1990, she took 24 hours of leave. During the pay period ended May 10, 1990, she took 34.25 hours of leave. During the pay period ended May 24, 1990, she took .5 hours of leave. During the pay period ended June 7, 1990, she took 2 hours of leave. During the pay period ended June 21, 1990, she took 27.5 hours of leave. During the pay period ended July 5, 1990, there was no leave taken. During the pay period ended July 19, 1990, she took 8 hours of leave. During the pay period ended August 2, 1990, she took 26 hours of leave. During the pay period ended August 16, 1990, she took 31 hours of leave. During the pay period ended August 30, 1990, she took 8 hours of leave. During the pay period ended September 13, 1990, she took 16 hours of leave. During the pay period ended September 27, 1990, she took 24.5 hours of leave. During the pay period ended October 11, 1990, she took 13.25 hours of leave. Because petitioner's time sheets were not always processed in a timely manner, leave balances stated on contemporaneous print outs were not always accurate. (In 1989, respondent had no official mechanism for notifying employees that time sheets were missing.) After petitioner's situation came to the attention of payroll specialists at HRS, a manual audit was performed. For the period ending March 30, 1989, petitioner had an annual leave balance of 6.5 hours. During the next pay period, she used the entire balance, but at the end of the pay period, at the close of business on April 13, 1989, four more hours of annual leave were credited, all of which she used before the succeeding period ended. During the period ended May 25, 1989, she was also out on leave two hours for which she was not entitled to pay. In all, the audit established that respondent had taken some 563 hours of leave after January 5, 1989. This exceeded paid leave she was entitled to by 179 hours. Nothing in the evidence suggests she was docked for more than 135.25 hours' pay.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's request for refund. DONE and ENTERED this 19th day of April, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1991. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert L. Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Ruby Bush 3111-21 Mahan Drive, #113 Tallahassee, FL 32308
The Issue The issue is whether Respondent is liable for a penalty of $286,400.01 for the alleged failure to maintain workers’ compensation insurance for its employees in violation of Subsection 440.107(7)(d), Florida Statutes (2008).1
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees in accordance with the requirements of Section 440.107. Respondent is a Florida corporation engaged in the construction business. On May 19, 2009, Petitioner's investigator inspected one of Respondent's job sites located at 6665 Mirabella Lane, Naples, Florida. The purpose of the inspection was to determine whether Respondent was in compliance with workers' compensation requirements. The investigator observed workers laying concrete block in a residential development under construction. The investigator interviewed the workers and learned the identity of the individual owner of Respondent. The investigator determined through the Coverage and Compliance Automated System (CCAS) that Respondent had secured workers' compensation coverage. However, Respondent maintained minimum coverage identified in the record as an "if any" policy. An "if any" policy imposes a premium based on zero employees and zero payroll and requires Respondent to notify the insurer of any new employees within three days of being hired. Respondent had reported no workers to his workers' compensation carrier, but had reported 54 employees for purposes of unemployment compensation taxes.2 None of the individuals reported for unemployment compensation taxes had secured workers' compensation coverage for themselves. Respondent is liable for workers' compensation for the 54 workers described in the preceding paragraph, which the trier of fact finds are employees of Respondent. None of the workers has an exemption from workers' compensation coverage. Petitioner correctly calculated the amount owed by Respondent, which is $286,400.01.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a penalty assessment in the amount of $286,400.01. DONE AND ENTERED this 13th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2010.
