The Issue The issues in this case are whether Respondent failed to maintain good moral character by engaging in sexual conduct while on duty as a police officer and making false statements under oath, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for the certification and regulation of law enforcement officers in Florida. Petitioner certified Respondent as a law enforcement officer on April 3, 1987, pursuant to certificate number 38354. During the fall of 2002, Respondent was employed as a police officer by the Sanford Police Department in Sanford, Florida. Respondent frequently conducted official business at a local Wal-Mart when Respondent was on duty and also visited the Wal-Mart for personal reasons when Respondent was off duty as a police officer. At the Wal-Mart, Respondent developed both a professional and personal relationship with Ms. Sheila Gill, a loss prevention employee at the Wal-Mart. Respondent and Ms. Gill spoke frequently both in person and by telephone. Some of the telephone conversations between Respondent and Ms. Gill included sexual banter. When Respondent and Ms. Gill talked in person at the Wal-Mart, the two usually stood close to one another or arm-in-arm, exhibiting personal intimacy. Respondent and Ms. Gill were sometimes together in the loss prevention office at the Wal-Mart when no one else was present. The loss prevention office has one door and no windows. Security personnel at the Wal-Mart use the loss prevention office, in relevant part, to process individuals accused of shoplifting and to transfer the custody of accused shoplifters to police officers, including Respondent. At all times relevant to this proceeding, the loss prevention office was equipped with a closed-circuit television camera to permit Wal-Mart security personnel to monitor the loss prevention office and to provide a videotape record. On October 13, 2002, Respondent and another police officer responded to a call from Wal-Mart security personnel regarding an accused shoplifter. After the other police officer left the loss prevention office with the accused, Respondent and Ms. Gill were alone in the office. They moved to an area of the office in which the video camera recorded only a portion of their actions. Respondent and Ms. Gill then engaged in sexual conduct at about 4:11 p.m., while Respondent was on duty for the Sanford Police Department. On October 27, 2002, Respondent was on duty for the Sanford Police Department and was alone with Ms. Gill in the loss prevention office at the Wal-Mart. Ms. Tracy Harden was employed at the Wal-Mart as the Assistant Store Manager. Ms. Harden attempted to enter the loss prevention office in response to a complaint of a stolen wallet that Ms. Harden received from a customer. Ms. Harden found the door locked. Ms. Harden unlocked the door, entered the loss prevention office, and observed Respondent and Ms. Gill alone together in the office. Respondent and Ms. Gill were sitting embraced and quickly separated when Ms. Harden entered the room. Ms. Gill was not working at the Wal-Mart on October 27, 2002. After observing Ms. Gill in the loss prevention office with Respondent, Ms. Harden met with Ms. Gill to question her about her presence in the store that day and her conduct with Respondent. Ms. Harden suspended Ms. Gill and directed her to leave the store. Ms. Harden retrieved the videotape from the security camera in the loss prevention office. However, she did not view the tape because she did not know how to operate the equipment. Ms. Harden locked the tape in the filing cabinet in her office and left work for the day. When Ms. Harden arrived at the Wal-Mart the next day, she found the filing cabinet in her office dented and its lock broken. Upon examining the contents of the cabinet, Ms. Harden discovered the tape was the only item missing from the filing cabinet. Ms. Gill had taken the videotape from the filing cabinet and discarded it. Ms. Harden complained to the Sanford Police Department about Respondent's behavior with Ms. Gill in the Wal-Mart loss prevention office on October 27, 2002. The Sanford Police Department conducted an internal investigation into the complaint. The internal investigation included an interview with Respondent on November 7, 2002. Respondent made two false statements under oath. Respondent denied that, on October 27, 2002, Respondent was touching Ms. Gill or in close proximity to Ms. Gill in the loss prevention office. Respondent also denied ever touching Ms. Gill, hugging her, having any type of close physical contact with her, or engaging in any inappropriate or unprofessional conduct with Ms. Gill while Respondent was on duty for the Sanford Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character and revoking Respondent's certification. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kristine R. Kutz, Esquire 200 East Robinson Street, Suite 200 Orlando, Florida 32801 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner properly issued a Stop-Work Order and 2nd Amended Order of Penalty Assessment against Respondent for failing to obtain workers’ compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact The Division is a component of the Department of Financial Services. It is responsible for enforcing the workers’ compensation coverage requirements pursuant to section 440.107. Escobar Marbol is a Florida company specializing in the installation of marble and tile, founded approximately 15 years ago. Escobar Marbol’s office is located at 20792 Southwest 129th Place, Miami, Florida 33177. Respondent was actively engaged in performing tile installation during the two-year audit period from March 4, 2013, through March 3, 2015. On March 3, 2015, while Escobar Marbol was working on a construction jobsite, the Division issued Respondent a Stop-Work Order for Respondent’s failure to secure the required workers’ compensation insurance coverage. Petitioner also served Respondent a Request of Business Records for Penalty Assessment Calculation (“Request”) asking for documentation to enable the Division to determine the appropriate penalty owed by Escobar Marbol. Escobar Marbol responded to the Request for records and provided the Division with SunTrust bank statements and check images. Nathaniel Hatten (“Hatten”), penalty auditor for the Division, was assigned to Escobar Marbol’s investigation. Hatten reviewed the business records provided and properly determined that Respondent paid Edgar Betanco, Odir Garcia, Raynaldo Remero, Daniel Escobar, Edwin Castro, and Luis Oswaldo Rodriquez for assisting with or installing tile for Escobar Marbol during the penalty period of March 4, 2013, through March 3, 2015. Hatten also concluded that Respondent failed to pay the workers’ compensation premium during the penalty period, two years prior to the Stop-Work Order. Hatten properly calculated the workers' compensation amount Escobar Marbol owed in workers’ compensation insurance for the audit period using the Class Code 5348 for tile installation work. Hatten applied the approved manual rates and methodology specified in section 440.107(7)(d) and concluded Escobar Marbol owed a penalty amount of $18,439.68. On June 10, 2015, the Division served Respondent the 2nd Amended Order of Penalty Assessment in the amount of $18,439.68. At the hearing, Escobar testified he thought an exemption was in place to cover Escobar Marbol because on March 18, 2013, Escobar had submitted an electronic Notice of Election to Be Exempt application with the Division’s online system requesting an exemption from chapter 440. Respondent paid $51.00 by credit card and received a receipt bearing the transaction confirmation number 145485197 upon applying. Respondent’s March 18, 2013, electronic application incorrectly listed the scope of business as a licensed building contractor. The incorrect scope caused the Division to deem the application incomplete, and it was not approved. According to the Division’s online application event summary, the Division generated an incomplete exemption application letter on March 20, 2013, to mail to and inform Respondent that his exemption application was not complete and therefore not approved. On September 3, 2013, Respondent submitted a completed application that corrected and changed the scope from licensed building contractor to marble, tile and flooring, which matched Escobar Marbol’s old exemption scope. The Division determined that the application was complete in its entirety and met the requirements of being issued an exemption. On September 4, 2013, the Division processed and issued Escobar an exemption. Respondent was without an exemption from April 13, 2013, to September 3, 2013. On June 30, 2015, Respondent challenged the Stop-Work Order and 2nd Amended Order of Penalty Assessment and requested a formal hearing.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order affirming the Stop-Work Order and 2nd Amended Order of Penalty Assessment in the amount of $18,439.68. DONE AND ENTERED this 24th day of November, 2015, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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, 2015. COPIES FURNISHED: Laureano Cancio, Esquire Law Office of Laureano Cancio 815 Ponce de Leon Boulevard, Suite 317 Coral Gables, Florida 33134 (eServed) Alexander Brick, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Was the Department of Education's (Department) refusal to review and evaluate Nationwide Credit, Inc.'s (Nationwide) response to the Department's Request for Proposal, Collection Services for Defaulted Florida Guaranteed Student Loans and Delinquent Florida Teacher Scholarships Loans, No. 99-06 (RFP) contrary to governing statutes and rules, clearly erroneous, contrary to competition, arbitrary, or capricious? Was the Department's failure to consider the reason for Nationwide's untimely delivery of its response to the RFP contrary to governing statutes and rules?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Nationwide is a foreign corporation authorized to do business in the State of Florida. Nationwide is in the business of collecting defaulted student loans and has worked with the State of Florida, and specifically the Department, for approximately nine years. On October 9, 1998, the Department issued RFP No.99-06, which solicited proposals for the provision of collection services for defaulted student loans. The technical requirements and requests found in the RFP were prepared by the Office of Student Financial Affairs (OSFA) which was the section within the Department requesting the services and the section which ultimately performed the review and evaluation of the responses to the RFP. The initial deadline for receipt of responses to the RFP was 3:00 p.m. Eastern Standard Time (EST) on December 3, 1998. The responses were to be delivered to the Department's Office of Purchasing for initial inspection and distribution to OSFA. The Department, through four separate RFP addenda, received and accepted by Nationwide, revised and postponed the response deadline until January 20, 1999, at 3:00 p.m. EST. The postponement was caused by the delay of the Department responding to questions posed by prospective vendors during the question and answer portion of the RFP procurement process. Nationwide had been prepared to submit it proposal to the Department on the date of the previous deadlines. The Department scheduled the deadline for receipt of proposals at 3:00 p.m. to accommodate those prospective vendors who used third-party delivery services. The response review process as established by the RFP consisted of the following: (a) a review of the technical components to be completed by February 3, 1999; (b) a cost proposal evaluation to be completed by February 9, 1999; and (c) a posting of intended award by February 16, 1999. In accordance with the RFP, multiple contracts were to be entered into based on the highest ranked responses. The actual signing of these contracts was not to occur until March 1999, after approval of the awards by the State Board of Education. Nationwide has previously provided the Department with the same services called for by the RFP. It was Nationwide's wish that it continue to provide those services and accordingly, its employees expended between 50 and 70 hours preparing Nationwide's response. On January 19, 1999, Nationwide, from its office in Marietta, Georgia, utilized a third party, Federal Express, to deliver Nationwide's response to the Department's RFP. Nationwide's general business practice is to use Federal Express and there has never been a problem with late delivery. Nationwide does not have an office in Tallahassee, Florida. Nationwide's only Florida office is in south Florida. Nationwide directed Federal Express to ship its response to the RFP by Priority Overnight Service and further directed Federal Express to deliver Nationwide's response to the RFP to the Department by 10:00 a.m. EST on January 20, 1999. These instructions to Federal Express were clearly reflected on the Airbill. Federal Express picked up Nationwide's proposal at 1:20 p.m. EST on January 19, 1999. Due to an error in the Federal Express distribution process, Nationwide's response to the RFP was not delivered to the Department until January 21, 1999, at 10:41 a.m. EST. Nationwide did not contact the Department on January 20, 1999, after 10:00 a.m. EST (the time Federal Express was to deliver Nationwide's proposal) to determine if its proposal had been delivered timely by Federal Express. There was sufficient time between 10:00 a.m. and 3:00 p.m. on January 20, 1999, for Nationwide to hand deliver its proposal to the Department had Nationwide been aware that its proposal had not been delivered by Federal Express as requested by Nationwide. Eighteen responses were submitted to the Department's Office of Purchasing prior to 3:00 p.m. EST on January 20, 1999. In order to ensure that no vendor had access to another vendor's proposal, the proposals were locked in a secured room. At 3:01 p.m. EST on January 20, 1999, the Office of Purchasing physically opened the 18 responses that were timely submitted and in its possession. The Office of Purchasing then conducted an initial review which included a tabulation of the responses to ensure that all responses satisfied procedural requirements. The timely proposals were also inspected to ensure that the appropriate transmittal letter was enclosed. The Office of Purchasing did not open the technical or price components of the responses. Once the initial review was completed by the Office of Purchasing, the proposals were sent to OSFA for purposes of conducting the detailed technical review contemplated by the RFP. The initial review by the Office of Purchasing took two days, and the proposals were not forwarded to OSFA until around January 25, 1999. At the time Nationwide's proposal was received by the Department, the Office of Purchasing was still in the process of completing its initial review. None of the timely proposals had been forwarded to OSFA for detailed review at this time. By letter dated January 27, 1999, the Department advised Nationwide that its proposal had been received after the deadline and that its proposal must be "retrieved no later than February 15, 1999." At this time, the evaluation of the technical and costs proposals by OSFA had not been completed. The Department similarly advised another vendor whose proposal had been received 30 minutes after the deadline. Nationwide did not retrieve its proposal, and it still remains in an unopened state with the Department. The Department rejected Nationwide's proposal without any consideration being given to the circumstances surrounding the untimeliness of Nationwide's proposal. At the time Nationwide's proposal was rejected, the Office of Purchasing had knowledge of the fact that Nationwide had submitted its proposal to Federal Express in advance of the due date and in sufficient time to be delivered timely to the Department. On February 8, 1999, after contacting the Office of Purchasing to determine the reasons for the rejection of its proposal, Nationwide provided the Department with a written explanation from Federal Express explaining why Nationwide's proposal was untimely. Nationwide then requested the Department to consider the circumstances and use its discretion to waive the late filing and review the proposal. By letter dated February 12, 1999, the Department advised Nationwide that it was unable to consider Nationwide's untimely proposal. It is the Department's policy that, under the purchasing rules of the State of Florida, it should never consider or review a proposal received from a vendor after the date and time specified in the RFP regardless of the reason for the untimeliness. However, the Department did indicate that it may waive that policy where the untimeliness is due to an "act of God," such as a tornado or hurricane, which prevented timely delivery or resulted in the Department's office being unable to accept delivery in a timely fashion. General Conditions, Paragraph 3, of Form PUR-7033, revised 6/1/98, provides in relevant part as follows: PROPOSAL OPENING: Shall be public, on the date, location, and the time specified on the acknowledgement form. It is the proposer's responsibility to assure that this proposal is delivered at the proper time and place of the proposal opening. Proposals which for any reason are not so delivered, will not be considered. (Emphasis furnished.) Section 40.16 of the RFP provides as follows: PUBLIC OPENING OF PROPOSALS Each proposal will be dated, time-marked, and logged by the department as received. Each will also be examined to verify that it is properly addressed and sealed. Any proposal received after the specified date and time for receipt of proposals will be rejected and returned unopened to the contractor. (Emphasis furnished.) Section 40.17 of the RFP provides as follows: REJECTION OF PROPOSALS Proposals which do not conform to the requirements of this Request for Proposal may be rejected by the department. Proposals may be rejected for reasons which include, but are not limited to, the following: * * * The proposal is received late. (Emphasis furnished.) Section 40.15 of the RFP provides as follows: 40.15 ACCEPTANCE OF PROPOSALS * * * The department also reserves the right, in its sole discretion, to waive minor irregularities in proposals. A minor irregularity is a variation from the Request for Proposal which does not affect the price of the proposal, or give the contractor an advantage or benefit not enjoyed by other contractors, or adversely impact the interest of the department. (Emphasis furnished.)
The Issue Whether Respondent properly secured the payment of workers' compensation insurance coverage, as delineated by Subsection 440.107(2), Florida Statutes (2005),1 and, if not, what penalty for such failure is warranted. Whether Respondent conducted business operations in violation of a stop-work order, and, if so, what is the correct penalty for such violation, pursuant to Subsection 440.107(7)(c), Florida Statutes.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. Respondent is a corporation domiciled in Florida and engaged in the business of roofing, which is a construction activity. On December 21, 2004, Petitioner's investigator, Hector Vega, visited 951 North Park Avenue, Apopka, Florida, the site of a church, on a referral from his supervisor. Five men were observed engaged in roofing work. William Sims, Respondent's president, agreed to meet at the worksite. Sims, upon inquiry, informed Petitioner's investigator that he had not secured the payment of workers' compensation for the workers. However, Sims testified that for Respondent to re-roof the Apopka Church of God, Sims had to calculate the amount of roofing shingles needed, which proved to be difficult due to the architecture of the church's specialty roof. The amount of shingles needed for the job was overestimated in order to avoid running out of shingles during the job. As of December 21, 2004, the Apopka Church of God roofing job was done, so Respondent sold the extra, unused shingles to D&L Trucking, owned and operated by David Lorenzo, who was paying the five men found working on the roof on December 21, 2004. A check of Petitioner's Compliance and Coverage Automated System ("CCAS") database, which contains information on all workers' compensation insurance policy information from the carrier to an insured, determined that Respondent did not have a State of Florida workers' compensation insurance policy to provide workers' compensation coverage of the five workers. Chapter 440, Florida Statutes, allows an individual to apply for an election to be exempt from workers' compensation benefits. Only the named individual on the application is exempt from carrying workers' compensation insurance coverage. Petitioner, which maintains a database of all workers' compensation exemptions in the State of Florida, found a current, valid exemption only for William R. Sims in December 2004. On December 21, 2004, Petitioner issued and served on Respondent a stop-work order for failing to obtain coverage that meets the requirements of Chapter 440, Florida Statutes, and the Insurance Code. Also at that time, a Request for Production of Business Records was issued to Respondent. Employers employing workers on job sites in Florida are required to keep business records that enable Petitioner to determine whether the employer is in compliance with the workers' compensation law. At the time the Stop Work Order was issued, and pursuant to Subsection 440.107(5), Florida Statutes, Petitioner had in effect Florida Administrative Code Rule 69L-6.015, which requires employers to maintain certain business records. Respondent failed to comply with the Request for Production. Florida law requires that an employer who has employees engaged in work in Florida must obtain a Florida workers' compensation policy or endorsement for such employees which utilizes Florida class codes, rates, rules, and manuals that are in compliance with the provisions of Chapter 440, Florida Statutes, as well as the Florida Insurance Code. See § 440.10(1)(g), Fla. Stat. Florida Administrative Code Rule 69L-6.019(2) requires that in order for an employer to comply with Subsections 440.10(1)(g) and 440.38(7), Florida Statutes, any policy or endorsement used by an employer to prove the fact of workers' compensation coverage for employees engaged in Florida work must be issued by an insurer that holds a valid certificate of authority in the State of Florida. 12. Subsections 440.107(3) and 440.107(7)(a), Florida Statutes, authorize Petitioner to issue stop-work orders to employers unable to provide proof of workers' compensation coverage. Failure to provide such proof is deemed "an immediate serious danger to public health, safety, or welfare " § 440.107(7)(a), Fla. Stat. Following the follow-up efforts by Sims that extended until February 2005, Respondent believed that the Stop Work Order had been lifted by February 2005. Later in 2005, after Sims understood the Stop Work Order to be lifted, he pulled some permits from Orange County. The permits were called "a permit to work" and this supported, in Sims' mind, the conclusion that the Stop Work Order had been lifted. On November 1, 2005, Petitioner received a referral to investigate Respondent. Petitioner's investigator visited Respondent's worksite on November 1, 2005, and observed six men engaged in roofing work. Sims, upon inquiry, informed the investigator that he secured the payment of workers' compensation coverage for the workers through Emerald Staffing Services, an employee leasing company. Chapter 468, Part XI, Florida Statutes, governs employee leasing companies. Respondent contracted with Emerald Staffing for its services in October 2005 and became the client company of Emerald Staffing. Respondent paid invoices for its employees, thus indicating that it was engaged in business activities in October 2005 and November 2005. On November 2, 2005, Petitioner issued a Request for Production of Business Records to Respondent. The request was for business records from December 21, 2004, through November 2, 2005. Respondent remained under the belief that the Stop Work Order had been lifted until Sims was approached by Petitioner's inspector, Robert Cerrone, on November 4 or 5, 2005, and was told by Cerrone that Respondent was still under the Stop Work Order. Respondent thereafter stopped working at Cerrone's request. Although Respondent asserts it did not know the Stop Work Order was in place between December 21, 2004, and December 19, 2005, and therefore Respondent believed it appropriate to continue working during that time, Sims testified there was a health problem in his immediate family that slowed down his business from working in 2005. His wife was diagnosed with cancer, and this made him very distracted from work. Although Sims pulled a few permits in 2005, he reviewed all those permits in his testimony, and it became clear to him that all those permits were for work previously done during the hectic clean-up from the hurricanes. This testimony is not credible. Respondent acknowledges the issuance and receipt of the Stop Work Order, but alleges in its petition that the Stop Work Order should never have been issued because the men at the worksite were not performing roofing work. On November 10, 2005, however, Sims provided a statement to Petitioner's investigator wherein he admitted to having employed four individuals on December 21, 2004, without securing the payment of workers' compensation for any of them. However, Respondent admitted, through its president, by letter, dated November 10, 2005, and signed in the presence of Cerrone that four of the persons observed on the Apopka Church of God work site on December 21, 2004, were Petitioner's employees and they were not covered by workers' compensation insurance. Sims' testimony that he was forced to sign the letter or that he was tricked or mislead into signing it, is not credible. From the evidence presented, the four identified men found on the roof of the Apopka Church of God on December 21, 2004, were the employees of Respondent, and Respondent had not complied with the requirements of the workers' compensation law. Therefore, the Stop Work Order was not erroneously issued against Respondent on December 21, 2004. After learning from Cerrone that the Stop Work Order was in place, Respondent worked with Petitioner to come into compliance and agreed to the Order of Conditional Release from Stop-Work Order that Cerrone signed on December 19, 2005, under it, Respondent has been making payments to Petitioner to satisfy the penalty Petitioner has levied against Respondent. On November 16, 2005, Petitioner issued a Request for Production of Business Records for Penalty Assessment, in which Petitioner requested business records from Respondent for the period of December 21, 2001, through December 21, 2004. Respondent complied with the records requests and provided Petitioner with tax ledgers and documents for the years 2002 through 2004, along with permits. Subsection 440.107(7)(c), Florida Statutes, provides: "The department shall assess a penalty of $1,000 per day against an employer for each day that the employer conducts business operations that are in violation of a stop-work order." Documentation specifically showed Respondent was engaged in business activities after December 21, 2004. The Orange County building department records indicate that a number of roofing permits that had been pulled by Respondent after December 21, 2004, the date the Stop Work Order was issued. Sims also stated that he was aware of the need to pull permits as part of his job as a roofer in Orange County, Florida. He alluded at the hearing that Orange County should have informed him of the existing Stop Work Order. Darlene Elaine Talley, contractor certification coordinator with the Orange County building department, testified that Respondent, through Sims, pulled a number of permits after December 21, 2004. Some of the permits were pulled for work performed prior to December 21, 2004. Although Respondent alleges that much of the actual roofing work was done prior to pulling permits and, thus, prior to the issuance of the Stop Work Order, the act of pulling a permit is considered "conducting business operations," which is prohibited by Subsection 440.107(7)(c), Florida Statutes, when a stop-work order is in effect. A-1 Construction ("A-1"), a Georgia company, performed roofing services for Respondent in Orlando, Florida, from September 2004 to November 2004, and was paid remuneration for those services. Although Respondent sought to prove that A-1 had Florida workers' compensation coverage through its Georgia workers' compensation and should not be included in the penalty calculation, the credible evidence showed that Georgia workers' compensation coverage, with Key Risk, did not extend to Florida, nor did A-1 purchase extra Florida coverage. Subsection 440.10(1)(c), Florida Statutes, states, "A contractor shall require a subcontractor to provide evidence of workers' compensation insurance." Respondent did not request evidence of workers' compensation coverage from A-1, and Respondent was not aware whether A-1's Florida workers' compensation coverage was purchased or not. Under the Workers' Compensation Law in effect during the penalty period, a subcontractor becomes an "employee" if the subcontractor has not validly elected an exemption as permitted by Chapter 440, Florida Statutes, or has not otherwise secured the payment of compensation coverage as a subcontractor. § 440.02(15)(c)2., Fla. Stat. The entities listed on the Amended Order's penalty worksheet, including the employees of A-1, were Respondent's employees during the relevant period, all of whom Respondent paid, and all of whom had neither valid workers' compensation exemptions nor workers' compensation coverage. To determine the number of days that Respondent was in violation of the Stop Work Order, the payroll records for Respondent were obtained from Emerald Staffing, and the permits pulled by Respondent were gathered. The investigator further discussed the matter with Respondent to determine the number of days Respondent worked in violation of the Stop Work Order. It is determined that Respondent worked for 10 days in violation of the Stop Work Order. Utilizing the records provided, in evidence, the penalty is calculated for Respondent by assigning a class code to the type of work utilizing the SCOPES Manual, multiplying the class code's assigned approved manual rate with the wages paid to the employee per one hundred dollars, and then multiplying all by 1.5. The penalty for violation of the Stop Work Order is $1,000.00 per day for each day of violation, which for 10 days amounts to $10,000.00. The Amended Order, which assessed a penalty of $49,413.18, was personally served on Respondent on December 19, 2005. Sims was not personally calculated into the penalty because he had a current valid workers' compensation exemption. On December 19, 2005, Respondent entered into a Payment Agreement Schedule for Periodic Payment of Penalty and was issued an Order of Conditional Release from Stop-Work Order by Petitioner. Respondent made a down payment of 10 percent of the assessed penalty; provided proof of compliance with Chapter 440, Florida Statutes, by securing the payment of workers' compensation through Emerald Staffing; and agreed to pay the remaining penalty in 60 equal monthly payment installments.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Stop Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment; and that assesses a penalty of $49,413.18. DONE AND ENTERED this 30th day of November, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th of November, 2006.
The Issue Whether the Respondents' Motion to Dismiss should be granted.
Findings Of Fact The Petitioners did not timely file the challenge to proposed rules. The Petitioners admit they were aware of the rule- making process and did not challenge the proposed rules within the statutory time guidelines. The date of publication (as corrected) was May 30, 2008. The date of the rule challenge filing was July 18, 2008. The date of the final public hearing was June 17, 2008. The rule challenge was not filed within ten days of this date. part:
The Issue Whether the Respondent was required to carry workers' compensation insurance coverage for its employees and, if it failed to do so, whether the Amended Notice and Penalty Assessment Order is correct.
Findings Of Fact At all times material to this case, the Petitioner, the Department of Labor and Employment Security, Division of Workers’ Compensation was the state agency charged with the responsibility of administering compliance with state laws governing workers’ compensation (WC). The Respondent, A. J. Interiors, Inc., is a Florida corporation doing business at 1825 Mears Parkway, Margate, Florida. At all times material to this case, Robert Barnes was an investigator employed by the Department to perform compliance investigations for WC. On July 6, 2000, Investigator Barnes performed a random construction site inspection at a new construction project located at 16687 Jog Road, Delray Beach, Florida. While at that location, Investigator Barnes observed two men wearing T-shirts bearing the company name "A. J. Interiors, Inc." along with its telephone number. The men were installing metal framing in order to hang and finish drywall. The field interview with the two men, identified in this record as Sergio and Jaime Gonzalez, revealed that neither was covered by WC insurance. This information was later confirmed by Investigator Barnes. Additionally, neither man had obtained an exemption from coverage as the sole proprietor of a business. Based upon the field interview of the two men, a review of Department records, and contact with the Respondent's insurance agent, Investigator Barnes correctly determined that the men were the Respondent’s "employees” as that term is defined by the WC law. The men did not supply materials to the job site but agreed to perform work based upon a price described as a "per board" industry standard rate. In other words, the men would hang the drywall at a flat rate (established by and consistent with the local industry standard) for each job accepted through the Respondent. If the work were completed, the men expected to be paid by the Respondent. The men did not contract with or work for the general contractor of the job. The only requirement for payment was the performance of the work. The only risk incurred by the workers related to their relationship with the Respondent. Having concluded that the workers were not covered by WC and were not exempt, Investigator Barnes caused a stop work order to be issued against the Respondent. In conjunction with that order, the Department requested copies of the Respondent's business records. A review of the "vendor accounts” supplied by the Respondent established that its workers were paid amounts presumably based upon the number of boards hung per job identified. The payments were not always the same amount as the number of boards hung for a given job could vary. Additionally, the Respondent allowed workers to receive "draws" against the expected payments for uncompleted jobs. The Respondent’s claim that the workers were independent contractors has not been deemed credible. Based upon the testimony of the Respondent's witness all of the workers performed as outlined by the men interviewed by Investigator Barnes. The Respondent did not have a valid WC policy during the three years preceding the stop work order. The Amended Notice and Penalty Assessment Order prepared by Investigator Barnes accurately calculates the amounts owed by the Respondent for the three-year period.
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 as required by Section 440.107, Florida Statutes (2008). Respondent is a Florida Corporation engaged in the construction business. Respondent was incorporated on February 21, 2008. Jose Garcia, John Jones and Jamar Armstrong are corporate officers of Dice Construction, Inc. and have been since its’ inception. On December 16, 2008, Petitioner's investigator, Michael Robinson, conducted an investigation at 5524 Marathon Parkway, Jacksonville, Florida. Mr. Robinson observed one worker on the roof removing shingles and another worker on the ground cleaning up the shingles. The workers at the site identified themselves to Mr. Robinson as James Sutton and Derrick Sutton. The workers stated they were employees of Dice Construction, Inc. Mr. Robinson then spoke with Fernanda Dice, Respondent's president. Mr. Dice stated that he had an exemption from workers’ compensation insurance. Mr. Robinson was able to confirm that Mr. Dice had a current valid construction exemption, specifically for carpentry and remodeling. However, Mr. Dice did not have a roofing exemption that would apply to the type of work being performed on December 17, 2008. Additionally, neither worker at the site had a workers’ compensation insurance policy nor an exemption. On December 17, 2008, Mr. Robinson issued and personally served on Respondent a Stop-Work Order and Order of Penalty Assessment for failure to comply with statutory requirements. Mr. Robinson also issued a Request for Production of Business Records for Penalty Assessment Calculation. The specific records requested were enumerated and described on the request. In response to the request, Respondent only provided bank statements for a two-month period. Mr. Dice subsequently told Mr. Robinson, “I didn’t have any bank statements because I cash the checks to pay bills right there, and I didn’t have no circulation in my bank account.” Mr. Dice never produced documentation sufficient to calculate Respondent’s payroll. Since Respondent’s actual payroll could not be determined, Petitioner imputed the payroll as the average weekly wage rate multiplied by 1.5. pursuant to Section 440.107, Florida Statutes (2008). Respondent provided no documentation showing that the three corporate officers listed with the Florida Division of Corporations were not working for the corporation. Petitioner issued an Amended Order of Penalty Assessment based upon the imputed payroll on January 14, 2009, in the amount of $96,094.44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent issue a final order affirming the Stop-Work Order and Amended Order of Penalty Assessment in the amount of $96,094.44. DONE AND ENTERED this 14th day of August, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2009 COPIES FURNISHED: Fernanda Dice Dice Construction, Inc. 12256 Cobblefield Circle, South Jacksonville, Florida 32224 Paige Billings Shoemaker, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact 1. On October 7, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-432-D3 to J & L CONSTRUCTION SERVICES, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein J & L CONSTRUCTION SERVICES, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On August 3, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on J & L CONSTRUCTION SERVICES, INC. .A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. On November 15, 2010, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-432-D3 to J & LCONSTRUCTION SERVICES, INC. assessing a total penalty in the amount of $90,803.79. The Amended Order of Penalty Assessment included a Notice of Rights wherein J & L CONSTRUCTION SERVICES, INC. - was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 4. On August 3, 2011, the Amended Order of Penalty Assessment was served by personal service on J & L CONSTRUCTION SERVICES, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit 2” and incorporated herein by reference. 5. On August 24, 2011, J & L CONSTRUCTION SERVICES, INC. filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on January 26, 2012, and the matter was assigned DOAH Case No. 12-0411. A copy of the petition is attached hereto as “Exhibit 3” and incorporated herein by reference. . 6. On February 2, 2012, the Petitioner served on Respondent the Department’s First Interlocking Discovery Requests via overnight mail. 7. On March 7, 2012, the Petitioner filed with DOAH a Motion to Compel Discovery Responses. A copy of the Motion to Compel Discovery Responses (without Exhibits) is attached hereto as “Exhibit 4” and incorporated herein by reference. 8. On March 14, 2012, the Petitioner filed a Unilateral Motion to Continue Administrative Hearing. A copy of the Unilateral Motion to Continue Administrative Hearing is attached hereto as “Exhibit 5” and incorporated herein by reference. 9. On March 26, 2012, per the Administrative Law Judge’s Order, the Petitioner attended a Telephonic Conference with the Judge regarding the outstanding Motion to Compel Discovery Responses and the Unilateral Motion to Continue. 10. On March 26, 2012, the Petitioner filed a Motion to Relinquish Jurisdiction. A copy of the Motion to Relinquish Jurisdiction (without Exhibit) is attached hereto as “Exhibit 6” and incorporated herein by reference. 11. On April 11, 2012, the Department received a copy of an Order Closing File and Relinquishing Jurisdiction. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit 7” and incorporated herein by reference. 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, issued on October 7, 2010 and the Amended Order of Penalty Assessment, issued on November 15, 2010, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition ~ received from J & L CONSTRUCTION SERVICES, INC., as well as the Stop- Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment and being otherwise fully advised in the premises, hereby finds that:
