The Issue The issue is whether Petitioner is entitled to recover salary that it claims that it overpaid Respondent.
Findings Of Fact Petitioner employs Respondent as a detention care worker in a juvenile detention center in Miami. She is presently classified as a Senior Juvenile Detention Officer. Respondent's highest education is a high school diploma. She has worked 27 years for Petitioner and its predecessor agency, the Department of Health and Rehabilitative Services. In early January 2004, Respondent was hospitalized at least a couple of times for surgery. Upon her release from the hospital, Respondent's physician directed her to rest and not to return to work. She remained under these doctor orders, and thus out of work, continuously until April 29, 2004, when Respondent returned to work. Respondent exhausted her sick and annual leave prior to returning to work. The sole issue in this case is whether Respondent and her coworkers effectively completed transfers of their sick leave to her. Due to its payroll administration procedures, Petitioner paid Respondent her normal salary for a period of time for which Petitioner did not work and had no remaining sick or annual leave, so, absent an effective transfer of sick leave from coworkers, Respondent would have received overpayments during this time. The salary payments in dispute are $409.70 for the pay period ending March 25, 2004; $1399.71 for the pay period ending April 8, 2004; $1477.53 for the pay period ending April 22, 2004; and $518.08 for the pay period ending May 6, 2004. These payments total $3805.02. Petitioner has adopted a policy governing the transfer of sick leave between employees. Petitioner Policy 1002.03, Part III.F, Procedures for Sick Leave Transfer (Sick Leave Transfer Policy), sets forth the procedures applicable to leave donors, leave recipients, and Petitioner's Bureau of Personnel. With respect to the leave recipient, Sick Leave Transfer Policy provides: In order to receive donation of sick leave, the employee (recipient) must complete the Interagency Sick Leave Transfer Request (Request to Use) Form (Attachment 2) and submit it to the Bureau of Personnel on or before the pay period the employee is eligible to use the leave. The receiving employee (recipient) must submit medical certification to the Bureau of Personnel of the continued illness of the employee and the inability to return to work, by completing the Sick Leave Transfer Request (Request to Use) Form. The Request to Use Form is incorporated into the Sick Leave Transfer Policy. It is a one-page preprinted form consisting of two parts. Entitled "Request to Use Donated Sick Leave," Part I is a signed, dated statement from the employee that states the date on which the absence began or will begin and adds: I certify that I have suffered an illness, accident or injury. I further certify that I have expended all my personal leave credits and this is to request use of donated sick leave hours to cover my absence due to my current personal illness, accident or injury. I authorize my employer to use my name and release a general description of the medical circumstances in order to determine my eligibility in accessing this benefit. Entitled "Medical Documentation," Part II of the Request to Use Form comprises two subparts. The first part of the form consists of a statement from the employee that he or she is seeking donated sick leave and authorizes any medical practitioner to complete Part II and answer any questions concerning the employee's eligibility. The second part of Part II of the Request To Use Form follows a line stating: "To Be Completed by the Treating Medical Practitioner Only." The information to be supplied by the practitioner is identifying information, the "date of which patient was first examined for current condition," the "date patient is expected to recover or be released to duty," and any restrictions imposed upon the patient's release to duty. The last line of Part II states in boldface: "Return this form (marked confidential) to:" Instructions for Authorized Use of this Form: In order for the patient to comply with eligibility requirements, the treating medical practitioner must complete this form and return it to the patient's employer directly or via the patient. In smaller print, immediately following the last statement, the Request to Use Form states: "Return to Bureau of Personnel, Benefits, 2737 Centerview Drive, Tallahassee, FL 32399-3100." This case turns on whether Petitioner timely received the Request to Use Form. Petitioner does not dispute that it timely received sufficient Request To Donate Forms to cover the amount of the claimed salary overpayments. On March 31, 2004, Respondent faxed a seven-page package of documents to George Sumpter, who was Petitioner's Sick Leave Donations Coordinator in Petitioner's Benefits group in the Bureau of Personnel in Tallahassee. This package consisted of executed Request to Donate Forms. Respondent faxed these forms to 850-921-6700. On April 30, 2004, the day after she returned to work, Respondent faxed a 12-page package of documents to Mr. Sumpter. This package included an executed Request to Use Form and medical certification. Respondent's Bureau of Personnel thus received sufficient documentation to process the sick leave transfers during the pay period that ended May 6, 2004, as the policy requires that the documentation be submitted "on or before the [subject] pay period." Respondent faxed an executed Request to Use Form in late February or early March. She faxed the materials to the lone Bureau of Personnel liaison present in the Miami facility at which Respondent worked. Respondent believed either that submitting the materials to the Miami liaison would suffice or, if not, the Miami liaison would forward them to where they needed to go. It is difficult to determine what happened to these forms. No one in the Bureau of Personnel was very helpful to Respondent, who was able to obtain copies of the Request to Donate and Request to Use forms from a friend in the Department of Education. Somehow, while still recuperating from surgery and ill health, Respondent was able to obtain a copy of a list of telephone and fax numbers for various groups within Petitioner's Bureau of Personnel in Tallahassee, but the list was old and did not have Mr. Sumpter's name on it, nor did the list clearly indicate which fax number to use for submitting the Request to Use and Request to Donate forms. Learning that Mr. Sumpter claimed not to have received the first package, Respondent refaxed the package to him in March. At some point, Mr. Sumpter acknowledged that he had received the Request to Use Form package, but he told Respondent that he had received it too late for her to be able to use any of the donated sick leave. When Respondent persisted in asking that he allow her to use the donated sick leave, Mr. Sumpter told her to file a complaint with Petitioner's Inspector General's Office. Respondent contacted the Inspector General's Office, where no one was able to help her. Mr. Sumpter did not testify at the hearing. However, a document maintained in the Bureau of Personnel files discloses that Petitioner had received the Request to Use Form on April 1, 2004. However, the same form states that Petitioner did not receive the "Medical Documentation Form" until May 28, 2004. Prior to April 1, 2004, Respondent repeatedly sent faxes to Bureau of Personnel representatives in Miami and Tallahassee. Included in these faxes were all of the documentation necessary to process the sick leave transfers from the donors to Respondent. During the period in question, Petitioner was undergoing significant employee turnover. On this record, it is more likely than not that Respondent timely submitted, by no later than the first pay period in question in this case, all of the duly executed documentation necessary to effect a transfer of the donated sick leave to her.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing its claim of salary overpayment to Respondent. DONE AND ENTERED this 26th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2004. COPIES FURNISHED: Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Linville Apkins Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Elizabeth Judd, Qualified Representative 99 Northwest 183rd Street, Suite 224 Miami Gardens, Florida 33169 Yvette Demeritte 1730 Northwest 1st Court, Apartment 7 Miami, Florida 33136
The Issue The issue to be resolved concerns whether the Petitioner received, and should be compelled to repay, an alleged salary overpayment of $1,306.09.
Findings Of Fact James L. Lowery, the Petitioner, was employed by the Respondent Department, at all times pertinent. The Department employees are paid bi-weekly, with pay warrants being issued eight days after the end of a pay period. This is based on employee timesheets submitted to the Peoples’ First leave and payroll system. The payroll system will issue an employee a paycheck for the full pay period hours, if his or her timesheet is not timely submitted or if no timesheet is submitted (until a correction and re-calculation is done). That is the default posture. An employee is only paid less or a different amount than his regular salary if a timesheet is timely submitted and reflects less than a full-time number of hours of work or leave- time. Upon an employee’s separation from employment, an audit is conducted of his leave and attendance, to ensure that his final pay is correct. During the audit, the Department reviews the employee’s timesheets to determine what leave codes were used. It generates a cumulative pay report to ensure that the employee was paid correctly for each pay period. Upon conclusion of the audit, the Department sends the employee payment for any leave to which he is entitled, or, if it is determined that he was overpaid, the employee is notified of the hours and amount of the overpayment and repayment is demanded. Mr. Lowery was injured and therefore, had to be absent from work on workers’ compensation leave, starting in May of 2008, for approximately six weeks. He recovered from that injury, but did not return to work because his medication regimen for another condition interfered with his work schedule. Mr. Lowery thereupon began to use his accrued sick and annual leave. He exhausted his sick and annual leave by August 2008. He thereupon began using sick leave that he believed had been donated to him from the sick leave pool. Although he believed he was using sick leave pool leave, he actually had received donated sick leave for the period August 8, 2008 through October 30, 2008. The total amount of leave donated to him was 470 hours. Sick leave donations are not a pre-determined amount, but rather the amount an employee can receive depends strictly on how much leave is actually donated to that individual by other employees. Mr. Lowry used all the leave which had been donated to him as of November 14, 2008. Therefore, for the November 14 through November 27, 2008, pay period he had no leave left to his credit, but did not return to work. His timesheets for that pay period show that he was on “Authorized Leave Without Pay.” When the pay warrants were issued for that pay period, the system did not recognize that the Petitioner was on “Authorized Leave Without Pay” and on December 5, 2008, he was paid for 80 hours, in a gross amount of $1,162.00. Since he only had 4.75 hours of sick leave available for that pay period, he was, thus, overpaid for 75.25 hours. Between November 28, 2008, and December 25, 2008, the Petitioner did not work and had no annual, sick or other type of leave to his credit. Nonetheless, a pay warrant was issued to him on January 2, 2009, for payment for 30.75 hours. He was, thus, overpaid for that number of hours. The Petitioner’s timesheet for the period January 9 through January 22, 2009, shows that his hours were coded or entered as follows: 1.50 hours of annual leave, 1.00 hour of sick leave and 77.50 hours of unauthorized leave without pay. Although he had no annual, sick or other leave available to him, a pay warrant was issued to him on January 30, 2009, for the 2.50 hours. He was, thus, overpaid for that amount of hours. The Petitioner did not question the amounts he was paid on December 5, 2008, January 2, 2009, or January 30, 2009, because he believed he was drawing sick leave credit from the sick leave pool and that his timesheets were being taken care of by a supervisor, Otis Ray, in the Tallahassee office. After January 30, 2009, he received no more pay warrants. Upon the Petitioner’s separation from employment, the Respondent conducted the leave audit referenced above, as delineated in the Department of Financial Services’ Payroll Preparation Manual. It was thus determined that the Petitioner had been overpaid for a total of 108.50 hours for the above- referenced pay periods, due to the fact that he had used leave to which he was not entitled and because his timesheet was not timely submitted. In accordance with the Payroll Preparation Manual (in evidence as Respondent’s Exhibit 7), the amount of salary overpaid, and to be repaid, was calculated as follows: $1,013.56 for the warrant issued on December 5, 2008, $267.71 for the warrant issued on January 2, 2009, and $24.82 for the warrant issued on January 30, 2009. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. The Respondent followed those procedures in making the calculations relevant in this case. On May 29, 2009, the Respondent notified Petitioner of its position that he owed repayment of $1306.09, the total amount of the three erroneously paid warrants.
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 a Final Order be entered by the Department of Juvenile Justice requiring the Petitioner to repay erroneously paid salary in the amount of $1,306.09, pursuant to a reasonable installment arrangement to be agreed upon by the parties. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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, 2009. COPIES FURNISHED: Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 James L. Lowery, Jr. 3875 Old Cottondale Road Marianna, Florida 32448-492 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact At all times material hereto Petitioner, Ernest Walker, was an inmate incarcerated at Union Correctional Institution. Respondent is a state agency charged by law with determining what persons may be placed on parole, fixing the timing conditions of parole, and determining violations of parole. Respondent is charged by Section 947.16, Florida Statutes, with the responsibllity of interviewing inmates, and establishing presumptive parole release dates, and thereafter reviewing those dates. Pursuant to its statutory charge, Respondent conducted an interview of Petitioner, Ernest Walker, and established his original presumptive parole release date to be June 21, 1988, by action certified by Respondent on September 2, 1981. Subsequently, in special Commission action taken on October 17, 1983, Petitioner's PPRD was extended to June 21, 2008, based upon the receipt of a mental health status report, which, according to the record in this cause, was treated as "new information" not available at the time the Petitioner's initial PPRD was established.
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes,1/ by failing to secure the payment of workers’ compensation, as alleged in the Stop-Work Order and Third Amended Order of Penalty Assessment.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation coverage for the benefit of their employees. Respondent is a corporation with its principal office 3981 North W Street, Unit 36, Pensacola, Florida 32505. At all relevant time periods, Respondent has been engaged in business as a contractor in the construction industry. On March 28, 2012, after receiving a public referral regarding alleged uninsured construction activity at 2544 North D Street in Pensacola, Florida (the Site), Department Compliance Investigator Angelia Brown visited the Site. Upon Ms. Brown's arrival, there were plumbers and a siding company at the Site. According to Ms. Brown, she also saw an individual attaching u- shaped metal clips between the inside beams and the roof and soffits of the house that was being constructed at the Site. The plumbers had a workers' compensation policy and the siding workers had exemptions from workers' compensation requirements. Ms. Brown spoke to the man who appeared to be attaching the metal clips. Based upon that conversation, Ms. Brown concluded that the man was a subcontractor and Respondent's employee. The evidence, however, does not support that conclusion. The man, whose name is apparently Robert Madron, was not called as a witness at the final hearing. According to Ms. Brown, Mr. Madron told her he had his own company. Ms. Brown, however, was unable to obtain information verifying that assertion. Further, while Mr. Howard had paid Mr. Madron prior to Ms. Brown's visit for unsolicited work Mr. Madron had performed for Mr. Howard, consisting of picking up trash and repairing some equipment owned by Mr. Howard, Mr. Howard denied that Respondent ever employed Mr. Madron. Rather than showing that Mr. Madron was a subcontractor with his own business or an employee of Respondent, the evidence adduced at the final hearing indicated that Mr. Madron, who was known as "Gomer" by Mr. Howard, was an unemployed, homeless person, living in nearby woods. Mr. Madron would often come to the Site and surrounding neighborhood looking for work and food. Mr. Howard was surprised that Ms. Brown had taken Mr. Madron seriously, because Mr. Howard believes that Mr. Madron's facial expressions and unbalanced, awkward gait are obvious indicators that Mr. Madron is unstable and has mental problems. Ms. Brown issued a Stop-Work Order to Mr. Madron the day of her first visit at the Site, March 28, 2012. The evidence presented at the final hearing, however, failed to show that Mr. Madron was ever employed by Respondent. The next day, March 29, 2012, Ms. Brown returned and observed four other individuals working at the Site. The individuals included Robert Jones, Charles Lyons, Martin Shaughnessy, and Allen Weeden. While Ms. Brown concluded that these individuals were Respondent's employees on March 29, 2012, the evidence shows that they were paid for the work that day by Pacesetter Personnel, an employee-leasing company. Aside from alleging that Respondent employed Mr. Madron, the Third Amended Order of Penalty Assessment is based upon Respondent's alleged employment and failure to provide workers' compensation coverage for Mr. Jones, Mr. Lyons, Mr. Shaughnessy, and Mr. Weeden. In addition, the Third Amended Order of Penalty Assessment alleges that Respondent employed its officer, Mr. Howard, during a lapse in Mr. Howard's exemption from workers' compensation. There was no testimony from Robert Jones, Charles Lyons, Martin Shaughnessy, or Allen Weeden offered at the final hearing and the evidence is otherwise insufficient to show that those individuals were employed by Respondent on March 29, 2012. The Department's investigator, Ms. Brown, further concluded that Pacesetter Personnel had not provided worker's compensation coverage for those four men on March 29, 2012. Her conclusion, however, was based on a conversation she said she had with Pacesetter Personnel. The Department did not offer the testimony from anyone at Pacesetter, nor did it offer any non- hearsay evidence to support Ms. Brown's conclusion that Pacesetter Personnel was not providing workers' compensation to those four individuals. Further, the only evidence that the Department offered to prove that Messrs. Jones, Lyons, Shaughnessy, and Weeden were ever employed by Respondent, or to support the Third Amended Penalty Assessment, consists of Mr. Howard's cancelled checks to those individuals. The Third Amended Penalty Assessment seeks an assessment for Robert Jones from January 1 to March 28, 2012. At the final hearing, Mr. Howard testified that Mr. Jones is a relative, and the payment to Mr. Jones was a loan to help Mr. Jones with moving expenses. There is no contrary evidence. The Third Amended Penalty Assessment provides an assessment for Charles Lyons for the periods from July 1, 2010 to December 31, 2010, and from January 1, 2011 to December 31, 2011. The assessment is based upon one check to Mr. Lyons in the amount to $480. Mr. Howard testified that Mr. Lyons had an exemption from workers' compensation. The Department presented no contradictory evidence. The Third Amended Penalty Assessment seeks an assessment for Martin Shaughnessy for several time periods based upon several checks from Mr. Howard. Mr. Howard testified that Mr. Shaughnessy had an exemption and the Department presented no contrary evidence. The Third Amended Penalty assessment also seeks an assessment for James Howard, individually, from July 17 to August 11, 2011, during which time there was a lapse in his certificate of exemption from workers' compensation. The evidence showed that, other than that 26-day lapse, Mr. Howard has maintained his exemption since 2003. The Department presented no evidence that Mr. Howard provided services to, or was paid by, Respondent during the time that his exemption had lapsed. The only evidence presented was a check from Respondent's checking account showing a payment to Mr. Howard's mother during the lapse period. Mr. Howard testified that the check was to reimburse his mother for the use of her American Express card to purchase materials and supplies. The Department presented no countervailing evidence. In sum, the evidence presented at the final hearing was insufficient to support the Stop Work Order or Third Amended Penalty Assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Workers’ Compensation enter a final order dismissing the Stop-Work Order and Third Amended Order of Penalty Assessment issued against Respondent. DONE AND ENTERED this 28th day of June, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2013.
The Issue Whether Proposed Rule 33.9007(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Steven Rivera, Petitioner, is currently serving a prison sentence at Walton Correctional Institution at DeFuniak Springs, Florida. He is on his fifth commitment to prison. Respondent supervises the operation of correctional institutions in Florida and promulgates rules governing the operation of the prisons and various subjects relating to inmates of these prisons. The proposed rule here under challenge provides: Any inmate who is serving his fourth commitment to prison or higher shall be excluded from work release if the inmate has previously been given the opportunity to participate in work release, except that an inmate may be given consideration if the inmate has demonstrated outstanding institutional adjustment and if extenuating circumstances exist. Petitioner has been admitted to the work release program in a prior commitment and, with more than four prison commitments is in the class of prisoner covered by this rule. Accordingly, he has standing to challenge the rule. The work release program is intended to motivate the individual offender toward self improvement, to ease the transition from prison into the community, place the inmate in employment to which he or she may return after release from the institution, permit the offender to contribute towards his own support and the support of his or her family, help determine the prisoner's readiness for parole, preserve family and community ties, and permit the offender to develop or maintain occupational skills. (Exhibit 6) The Florida work release program has been in effect for many years allowing Department of Corrections officers the opportunity to gain experience in the effectiveness and efficacy of the program. First commitment offenders are more likely to benefit from work release than are those who have three or more prior commitments. Inmates who have been given one chance in the work release program and are subsequently recommitted to the prison institution have thereby demonstrated that they did not obtain the anticipated benefit of remaining crime free subsequent to being admitted to the work release program. Following a murder committed by a prisoner who escaped from the work release program at another institution, a Task Force was set up to study the work release program and prepare recommendations affecting this program. As a result of this Task Force's recommendations, wide ranging changes to the rules affecting the work release program were promulgated of which the rule here challenged is only one small subsection. Furthermore, prior to the commission of the crime referred to above, there were approximately 4000 prisoners admitted to the work release program. Legislative changes since that time have limited the maximum number of prisoners admitted to the work release program to 2100. Although Petitioner contends that there is no rule definition of commitment, this is a word that is well recognized in the prison community. As defined by one of Respondent's witnesses in these proceedings, each time a prisoner is committed following a release from a prior commitment whether in Florida or in another jurisdiction, this counts as an additional commitment. If the inmate commits an offense while in confinement, is taken to court and receives an additional sentence, this is not counted as an additional commitment. This method of counting commitments inures to the benefit of the prison inmates. Petitioner also contends that the phrase "has demonstrated outstanding institutional adjustment and if extenuating circumstances exist" is arbitrary and vests unbridled discretion in the prison officials. However, admission to the work release program is a privilege which all prisoners admitted to such program must earn. They earn this privilege by adhering to the code of conduct established for prisoners, by participating in education, drug and alcohol abuse programs, and by other acts contributing to earning gain time. Certain classes of prisoners, e.g. those who have committed serious crimes, sex crimes, and crimes evincing a violent disposition must demonstrate more clearly than does the less violent criminal that he is eligible for work release. No one act can show that one prisoner is better deserving for the limited number that can be admitted to the work release program than is another prisoner. Accordingly, it is necessary to consider innumerable factors to determine which are the prisoners most likely to benefit from work release based upon their history and their current conduct in the prison system. A finite list of factors to be considered in determining those most eligible for work release is impracticable because the list would be too numerous and could still omit factors deserving consideration. The proposed rules, including the rule in issue here, provide that certain prisoners are not eligible for work release; but the rule provides two exceptions to this general disqualification, to wit: those who "demonstrate outstanding institutional adjustment and extenuating circumstances." By providing these exceptions, the rule removes the arbitrary exclusion of certain prisoners from work release regardless of their good conduct in prison and demonstration that they have totally reformed and are most unlikely ever to again commit a crime.
The Issue Whether Mike Futch, d/b/a Futch Construction Company, (Respondent) violated Sections 440.10 and 440.38, Florida Statutes, and if so, what penalty should be imposed. References to sections are to the Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440, Florida Statutes, which requires that employers secure workers’ compensation coverage for their employees. At all times material to this case, Respondent was engaged in the construction business within the meaning of Chapter 440, Florida Statutes. Its individual principal, Mike Futch (Mr. Futch), was responsible for the day-to-day operations of the business. At all times material to this case, Respondent is an employer within the meaning of Section 440.02(16)(a), Florida Statutes. At all times material to this case, Respondent was legally obligated to provide workers' compensation insurance in accordance with the provisions of Chapter 440, Florida Statutes, for all persons employed by Respondent to provide construction services within Florida. Chapter 440 requires that the premium rates for such coverage be set pursuant to Florida law. It is undisputed that Respondent had not furnished the required coverage, and that there was no valid exemption from this requirement. Accordingly, on May 12, 2004, the Stop Work Order was properly entered. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that Respondent employed individuals whose identities are not in dispute, under circumstances which obliged Respondent to provide workers' compensation coverage for their benefit. Based upon Respondent’s payroll records, Petitioner correctly calculated the penalty amount imposed by law under all the circumstances of the case, and issued the Amended Order imposing a penalty assessment in the amount of $198,311.82. Respondent did not persuasively dispute the factual or legal merits of Petitioner's case. Rather, Respondent suggested that this forum has some type of general equity powers to lessen the penalty on the grounds that Respondent made a good faith effort to provide coverage for its workers. The record does demonstrate that Mr. Futch in good faith engaged a Georgia insurance agent and instructed him to obtain workers' compensation coverage which would satisfy the requirements of Florida law with respect to Respondent's Florida operations. The Georgia agent's failure to obtain coverage that satisfies Florida's requirements is a regrettable circumstance, but it raises no issue over which this forum has authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order that affirms the Amended Order in the amount of $198,311.82. DONE AND ENTERED this 28th day of January, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 28th day of January, 2005. COPIES FURNISHED: Joe Thompson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Patrick C. Cork, Esquire Cork & Cork 700 North Patterson Street Valdosta, Georgia 31601 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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
The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
The Issue Whether Respondent was overpaid for 27.5 hours in the amount of $271.70, originally credited as administrative leave?
Findings Of Fact The DJJ is an agency with a centralized personnel office in Tallahassee, Florida. All the records of its personnel are kept and maintained in Tallahassee, Florida. Petitioner, Jennifer Carter Nicholson, was employed in the category of an Other Personnel Services (OPS) employee by DJJ from May 8, 2002 until September 12, 2002, at the Marion Juvenile Detention Center as a Juvenile Detention Officer. As an OPS employee, Petitioner did not earn sick or annual leave credit. Petitioner was employed by DJJ as a Career Service employee from September 13, 2002 until October 6, 2002, at the Alachua Juvenile Detention Center. As a Career Service employee, Petitioner earned three hours' credit of annual leave and three hours' credit of sick leave during her employment from September 13, 2002 until October 6, 2002. Petitioner did not work from September 23, 2002 until the effective date of her resignation on October 6, 2002, because of complications from asthma, which was why she tendered her resignation. During the last week of her last pay period, Petitioner worked 12.5 hours. A time sheet appears to have been submitted in her behalf by a person or persons unknown claiming 27.5 hours of sick leave. The payroll clerk apparently determined that Petitioner was not entitled to 27.5 hours of sick leave, and erroneously credited Petitioner with 27.5 hours of administrative leave. Upon that basis, Petitioner was paid for a full week's work. This amounted to $855.87, or 80 hours at a rate of $10.70 per hour. However, the records indicate, and Petitioner does not deny, that she did not work 27.5 hours during the second week of the period. Thereafter, an audit of her account revealed that Petitioner was not entitled to administrative leave, and this action was initiated within the statute of limitations to seek re-payment of $271.70. During the period in question, Petitioner's attendance and leave record reflects that Petitioner earned three hours of annual leave and three hours of sick leave. See Respondent's Exhibit 6.1/ This leave was not credited against the 27.5 hours. Therefore, crediting Petitioner with the six hours of leave she had earned, the time actually taken in the status of leave without pay should have been 21.5 hours. At Petitioner's rate of pay, this would have been an over-payment of $230.05, minus the $22.51 originally deducted for miscellaneous deductions, or $217.44.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Juvenile Justice enter a final order directing the repayment of $217.44 from Petitioner. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 6th day of November, 2003.
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.
