Findings Of Fact Respondent, David W. Brown, is the sole proprietor of an unincorporated business known as A-Quality Terminators which operates in the Orlando area. Respondent is licensed to operate a pest control business by the Petitioner. Respondent is also the holder of an identification card issued by the Petitioner which authorizes him to perform inspections of structures for wood-destroying organisms. Results of a wood-destroying organism inspection are required to be evidenced by completion of the Respondent's approved Form 1145, Wood Destroying Organism Report. Prior to April 20, 1984, Respondent was asked to perform a wood- destroying organism inspection at a residence located at 2913 Risser Avenue, Orlando, Florida. The inspection was requested by the purported owner, a woman using the name of "Laura Taylor," for the alleged purpose of enabling the owner to obtain refinancing of the mortgage on the residence. The advance arrangements made with "Ms. Taylor" were that the residence would be unoccupied during the inspection to be made on April 20, 1994, that a residence key would be left for Respondent under the door mat, that a check would be left for Respondent on the table inside, and that Respondent would leave a Form 1145 Wood-Destroying Organisms Inspection Report on the table inside. The person purporting to be the owner of the subject property was actually Laura Douglas, an employee of a local television station. She was using the fictitious name "Laura Taylor", as a part of the sting operation the station was conducting. The real owner was Dawn Angert. The contrivance to have Respondent inspect the subject property was part of arrangements made by the TV station to have inspections conducted by several pest control companies of the subject property. An investigative report would then be produced and broadcast by the station. Respondent had previously performed several wood-destroying organisms inspections in the subdivision where the subject residence is located, and he was familiar with the common types of construction throughout the subdivision and the common types of wood-destroying organism problems throughout the subdivision. On April 20, 1994, Respondent arrived at the subject property and remained for approximately eight minutes. He noticed termite damage inside the front door. He also observed the drill holes, indicating prior termite treatment, outside the front door, even though the drill holes had been obstructed by the door mat and potted plants. Respondent did not complete his inspection at that time. He did not leave a Form 1145, nor did he leave a notice of inspection. However, he took the check on the table inside, and left a note on his business card indicating that there were problems requiring further inspection. Portions of Respondent's activities at the subject property on April 20, 1994, were videotaped by three hidden cameras of the TV station. A day or so after the subject inspection of April 20, 1994, the purported owner of the subject property, "Laura Taylor," telephoned Respondent's office to advise that she urgently needed a "clean" Form 1145 because interest rates were going higher and she wanted to complete the purported refinancing transaction. She insisted that the Form 1145 be taped on the door of Respondent's office so that she could drive by and pick it up. Respondent's secretary called him while he was in the field to obtain approvals for the release of the report. Respondent, acting without his field notes and without a clear recollection of his inspection of the subject property, asked his office by telephone whether any notes at the office reflected a problem at the subject property. He was advised that no such notes were found. He then instructed his office to provide "Ms. Taylor" a "clean" Form 1145 pursuant to her urgent request. The Form 1145 was completed showing no evidence of any damage by wood- destroying organisms or any evidence of treatment of wood-destroying organisms. The report was taped to the office door and picked up that afternoon. Respondent did not follow his normal procedure of checking his field notes before issuing a Form 1145 report. The following day, while reviewing his notes, he discovered his error and attempted to communicate the mistake to "Ms. Taylor." Respondent did not intend to provide an erroneous Form 1145 following the inspection of the subject property. The incomplete inspection and erroneous wood-destroying organism report prepared by Respondent fell below the standard of practice in the pest control industry in the Orlando area and was negligent. In mitigation, following the extensive media publicity generated by this matter, Respondent lost a substantial volume of business, has substantially reduced the number of his employees, has been forced to close his office and work out of his home, and has suffered personal embarrassment and loss of reputation. In the weeks preceding the hearing in this case, Respondent was a participant in an unrelated undercover operation which led, through his efforts, to the detection and interdiction of a third party's scheme to distribute banned pest control substances unlawfully. Respondent's efforts led to an investigative report broadcast by another local televison station, and further led to enforcement action against the third party by the Petitioner. Respondent has never previously had any fines or warning letters imposed against him in the course of several years of pest control work and several thousand wood-destroying organisms inspections in Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered which finds the Respondent guilty of violating the provisions of Section 482.226(1) and 482.161(1)(f), Florida Statutes, and Rule 5E-14.142(2)(c), Florida Administrative Code. It is further, Recommended that the Respondent be issued a letter of reprimand and be assessed an administrative fine of $500.00. However, should the Petitioner determine that Respondent cooperated and played a significant role in the unrelated sting operation, said administrative fine should be suspended. DONE and ENTERED this 23rd day of May, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 (in part), 2, 3 (in part), 5 (in part). Rejected as a conclusion of law: paragraph 1 (in part). Rejected as subsumed or a comment on the evidence: paragraph 3 (in part), 4 (in part), 5 (in part), 6, 7; Supplement paragraphs 1, and 2. Revised proposed findings of fact by Respondent. Accepted in substance: paragraph 1, 2, 3, 4, 5, 7 (in part), 8, 9 (in part), 10, 11 (in part), 12 (in part), 13 (in part), 14 (in part), 21 (in part), 22 (in part), 23. Rejected as irrelevant and immaterial: paragraph 6, 7 (in part), 9 (in part), 13 (in part), 15, 16, 17, 18, 19, and 20. Rejected as a comment on the evidence or subsumed: paragraph 7 (in part), 11 (in part), 12 (in part), 14 (in part), 21 (in part), 22 (in part). COPIES FURNISHED: Robert G. Worley, Esquire Richard Tritschler, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Robert W. Genzman, Esquire Akerman, Sneterfitt & Eidson, P.A. 255 South Orange Avenue Post Office Box 231 Orlando, Florida 32802-0231 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue is whether Respondent's request for a hearing to contest a Stop-Work Order and Amended Order of Penalty Assessment (Amended Assessment) issued by Petitioner, Department of Financial Services, Division of Workers' Compensation (Division), was timely filed by virtue of the doctrine of equitable tolling.
Findings Of Fact The Division is the state agency responsible for enforcing the various requirements of chapter 440. Respondent is a Florida limited liability company engaged in the construction business. Its offices are located at 1717 West Memorial Drive, Lakeland, Florida. On April 6, 2015, while driving in Spring Hill, Florida, Dale Russell, a Division compliance inspector, observed three individuals reroofing a single-family residence located at 1006 Chastile Drive. The three individuals confirmed that they were employed by Respondent's construction firm. Mr. Russell contacted Mr. Hutchinson, the owner of the corporation, who confirmed that the three individuals were employed by his firm and that the three were not covered by workers' compensation insurance. Because Mr. Hutchinson was in Lakeland that day, a Stop-Work Order was not served. However, the two agreed to meet at a later date in the Division's Tampa District Office. A Stop-Work Order and request for business records was served on Mr. Hutchinson by another investigator on April 8, 2015. The Stop-Work Order contained an Order of Penalty Assessment, which explained how a penalty is calculated, but gave no specific amount pending a review of Respondent's financial records. On May 20, 2015, an Amended Assessment was prepared indicating that Respondent was being assessed a total penalty of $96,364.78 for failing to secure the payment of workers' compensation insurance. The Amended Assessment was personally served on Respondent by Mr. Russell on May 26, 2015, when Mr. Hutchinson visited the Tampa District Office. The standard assessment form contains two important deadlines that must be met by the employer. On the first page, the form states that pursuant to Florida Administrative Code Rule 69L-6.028, "if the Division imputes the employer's payroll, the employer shall have twenty business days after service of the first amended order of penalty assessment to provide business records sufficient for the Division to determine the employer's payroll for the period requested in the business records request for the calculation of the penalty." It goes on to state that these records may be used to recalculate the employer's penalty "only if the employer provides all such business records within the twenty days after service of the first amended order of penalty assessment. Otherwise, the first amended order of penalty assessment will remain in effect." This means that Respondent had until June 23, 2015, in which to provide business records to the District Office. On the second page of the Amended Assessment is a section entitled Notice of Rights (Notice). Among other things, it states that if the employer requests a hearing, he "must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action." Notably, this timeframe is measured in calendar days, not business days, and means that if Respondent decided to request a hearing rather than providing additional financial records, the request had to be filed with, and received by, the Division no later than June 15, 2015. During his meeting with Mr. Hutchinson, the investigator explained the Amended Assessment, section by section. He specifically told Mr. Hutchinson that he had 20 business days in which to produce additional business records. He also told him that he had 21 calendar days in which to request a hearing. Mr. Russell is an experienced investigator, having worked as a deputy sheriff for 28 years before working as a Division inspector. He has issued numerous notices and is very familiar with the deadlines. Although Mr. Hutchinson testified that he asked Mr. Russell to confirm that he had 21 business days in which to file his business records, and was told that this was correct, which differs from Mr. Russell's version of the conversation, the testimony of the experienced investigator is accepted as being the most credible on this issue. The undersigned finds that Mr. Russell correctly explained the ramifications of the two deadlines and he did not mislead Mr. Hutchinson. The facts here do not demonstrate equitable tolling. Even though he was given accurate information regarding the two deadlines, it is evident that Mr. Hutchinson, a lay person, either misunderstood what he was told or was just plain confused. Obviously, he did not read the instructions on the Amended Assessment before submitting his records. Faced with a potential $96,364.78 assessment, it is somewhat surprising that Mr. Hutchinson did not contact the Tampa District Office after the May 26 meeting to reconfirm the precise date on which the records (or request for a hearing) were due. Even at hearing, he admitted that he did not know the difference between submitting business records and requesting a hearing. Believing that he had 21 business days to provide business records, Mr. Hutchinson carried his records to the Tampa District Office on June 24, 2015, or one day past the deadline established in the Amended Assessment. He was told by a Division supervisor that the submission was untimely and he had waived his right to produce them. Even though it was now too late, she recommended that Mr. Hutchinson prepare a request for a hearing, which would be submitted to Tallahassee for legal counsel to review. Pursuant to her instructions, that same morning, Mr. Hutchinson prepared a handwritten, one-page letter requesting a hearing. According to Respondent, the assessment is based on missing checks that, if produced, would establish that no penalty assessment is warranted. At hearing, over the Division's objection, Respondent was allowed to introduce into evidence bank records and copies of checks. See Resp. Ex. 6-23. Although the Division has not yet reviewed them, it acknowledged that they may substantially reduce the assessment. Throughout this proceeding, Respondent's qualified representative has contended that the Amended Assessment is defective because it does not inform the employer that a qualified representative can represent its interests. The first paragraph of the Notice in both the Amended Assessment and the Stop-Work Order states that "you may be represented by counsel," but it makes no reference to a qualified representative. However, in the second paragraph, which provides information regarding the filing of a petition requesting a hearing, it states that the petition must contain "the name, address, and telephone number, and facsimile number of the attorney or qualified representative of the petitioner (if any) upon whom service of pleadings and other papers shall be made." While more clarity in the first paragraph of the Notice would be appropriate, there is sufficient information in the Notice, if read, to alert the employer that alternative representation is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order determining that Respondent's request for a hearing was untimely. However, it is recommended that the business records provided by Respondent at hearing be reviewed and considered to determine the correct amount owed, if any. DONE AND ENTERED this 3rd day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 3rd day of February, 2016. COPIES FURNISHED: Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) Trevor Sutor, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Jamison Jessup, Qualified Representative 557 Noremac Avenue Deltona, Florida 32738-7313 (eServed)
Findings Of Fact After working for other exterminating companies since 1970, respondent Raul O. Gonzalez joined with his wife and a Mr. Zwass to form Nationwide Exterminating Company, a Florida corporation organized originally as a vehicle for Mr. Gonzalez's extermination business but eventually also employing roofers. When respondent and Mr. Zwass came to a parting of the ways, respondent decided to form his own company. On January 20, 1978, he wrote petitioner that he was "resigning all duties with [Nationwide Exterminating Company) as of Jan 30 1978," petitioner's exhibit No. 1, and requested cancellation of his Nationwide Exterminating Company identification card, effective January 30, 1978. On March 8, 1978, petitioner received respondent's application for a pest control business license for Nationwide Professional Enterprises, Inc. (NPE), but returned the application to respondent for his signature. Petitioner received the application a second time on March 14, 1978, and issued a pest control business license for NPE to respondent on March 17, 1978. Between January 31, 1978, and March 16, 1978, inclusive, respondent undertook 12 assignments for Target Pest Control (Target). Charles M. Kirby, Target's proprietor, holds a certified fumigator's license but prefers that somebody else do fumigation for Target, and had regularly subcontracted this work to Nationwide Exterminating Company. After respondent decided to leave Nationwide Exterminating Company, he told Juan Espinoza, an employee of Target, that he could not continue fumigating for Target under the authority of Nationwide Exterminating Company's license. Either Mr. Kirby or Mr. Espinoza was present for the discharge of fumigant at each of the dozen jobs respondent performed for Target during the period January 31, 1978, to March 16, 1978. The Dade County Department of Public Health got no written notice that any of these jobs were to be performed. Signs required to be posted at the fumigation sites bore Target's name. Target made no application for an identification card for respondent and respondent did not suggest that this be done. Except for the work done for Target, respondent did no pest control work from January 31, 1978, to March 16, 1978, with the possible additional exception of a job at 2881 East 9th Avenue on January 31, 1978. Respondent's letter to petitioner of January 20, 1978, was written on stationery whose letterhead reads "Nationwide Termite and Roofing." Petitioner's exhibit No. 1. Petitioner had earlier received correspondence from respondent in an envelope, postmarked October 6, 1977, indicating the sender was "Nationwide, Inc. Termite & Roofing Div." Petitioner's exhibit No. 2. This name has not been registered in petitioner's records. D. B. Lieux saw two of respondent's trucks marked "Nationwide Pest Control" on March 20, 1978. The trucks were originally marked "Nationwide Exterminating Company." Even before organizing NPE, Mr. Gonzalez felt a need to change the name of the original corporation because of the confusion that might arise for customers writing checks to Nationwide Exterminating Company as payment for work on their roofs. As a result, Mr. Gonzalez instructed Nationwide Exterminating Company's bank to cause its records to reflect additional names under which the Company might do business. Mr. Larry J. Lancaster, an employee of the Dade County Department of Public Health familiar with pest control companies in Dade County, is unaware of any other such company with the word "Nationwide" in its name and was not misled by receiving an envelope indicating the sender's name was Nationwide Termite and Roofing, Inc. Mr. Gonzalez never used any name with the intent to mislead. On the afternoon of March 17, 1978, D. B. Lieux, at that time an entomology inspector in petitioner's employ, visited the home of Juan Martinez, which respondent and his employees had covered with a tarpaulin tent. The house was ringed with sand-filled vinyl-skinned cylindrical "snakes" lying atop the tarpaulin so as to prevent the escape of fumigant. Such snakes were also placed on the roof of the house. It was a very windy day. To prevent the edges of the tarpaulin from flapping, the portion outside the circle formed by the snakes was folded houseward over the snakes and weighted down with miscellaneous objects. Mr. Lieux returned to the Martinez residence the following day and found clearance notices posted at the front and rear entrances to the house but not at either side door. The clearance notices indicated that the premises had been found safe for human occupancy at nine o'clock on the morning of March 18, 1978, but forbade entry until five o'clock in the afternoon of the same day. This form of clearance notice is used by 10 or 15 exterminating companies in Dade County alone. While on his way to work, on April 12, 1978, Mr. Lancaster noticed one of respondent's tents over a building near Mr. Lancaster's own residence. He noticed three holes in the tarpaulin on the west side of the building and undated warning signs posted on the premises. When Mr. Lancaster arrived at his office at the Dade County Department of Public Health, he checked to see whether the Department had received a "fumigation notification" with respect to the building over which respondent's tent had been draped, but found none. Towards the middle of the day, Raymond J. Brooks, vice-resident of NPE, received a telephone call from the Dade County Department of Public Health. As a result Mr. Brooks went to the site and taped up the holes in the tarpaulin. Later in the afternoon, Mr. Brooks returned with Mr. Gonzalez who also inspected the tarpaulin, before releasing fumigant into the building. At that time, Mr. Brooks filled out the warning notices that had already been posted. Tarpaulin tents like those respondent uses may cost $475.00 and fumigators commonly use masking tape to repair tears in the fabric. Richard Wayne Strait and Edward J. Stys, like Mr. Lancaster, had responsibility for handling "fumigation notifications" received by the Dade County Department of Public Health. Fumigators are supposed to furnish the Department written notice of their intention to fumigate a building the day before the job is done, allowing Department employees opportunity to make spot checks to enforce compliance with safety regulations. In practice, a notice received the same day as the job was to be done was not marked late, and fumigators commonly telephoned notice, only submitting a written "fumigation notification" after the job was done. Although Messrs. Lancaster, Strait and Stys did not remember getting such telephone calls from anybody on behalf of NPE or Nationwide Exterminating Company, other employees of the Dade County Department of Health sometimes take these telephone messages from fumigators. Mr. Brooks could not remember a single time that he had been in respondent's office and learned of plans to fumigate that he had failed to notify the Department of Health by telephone, but conceded that he was not always in respondent's office. In February of 1978, the Dade County Department of Health received a group of respondent Gonzalez's "fumigation notifications" for January jobs in an envelope that was not postmarked. After discharging a secretary in January of 1978, respondent discovered "fumigation notifications" for jobs that had already been done sealed in envelopes which had never been sent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent Gonzalez's pest control operator's certificate and his special identification card for five (5) days. DONE and ENTERED this 1st day of December, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Morton Laitner, Esquire 1350 N.W. 15th Street Miami, Florida 33125 William J. Swink, Esquire 2915 S.W. 13th Street Miami, Florida 33145
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing Files in this Proceeding, A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT=S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. 2/83/2616 15:17 B589222679 DCA LEGAL Feb 3 2010 14:37 PAGE 4/11 Final Order No. DCA09-GM-301 MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has heen filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and corre copies have been furnished to the persons listed below in-the manner described, on this /[? ay of Augutt 2009. Paula Ford Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U.S. MAIL: Elaine A. Humphreys, Esq. Kathleen McGiveron Assistant City Attorney 7 North Dixie Highway Lake Worth, Florida 33460 chumphreys@lakeworth.org Donald Bicknell, Esq. Lawrence W. Smith, Esq, Gary, Dytrych & Ryan, P.A. 701 U.S. Highway One, Suite 402 North Palm Beach, Florida 33408 Lesley Blackner, Esq. Blackner, Stone & Associates 123 Australian Avenue Palm Beach, Florida 33480 LBlackner@aol.com HAND DELIVERY: 2121 Collier Avenue Lake Worth, Florida 33461 Kkss21@bellsouth net Lynn Anderson 2204 Lake Osbome Drive #21 Lake Worth, Florida 33461 Lynnt 13 @att.net Tripp Cioci 2217 Collier Avenue Lake Worth, Florida 33460-5684 Feb 3 2010 14:38 DCA LEGAL PAGE 5/11 2/83/2616 15:17 B589222679 Final Order No. DCA09-GM-301 Richard Shine, Esq. L. Mary Thomas, Esq. Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399
The Issue The issues are whether Petitioner violated Chapter 440, Florida Statutes, and the Insurance Code by not securing workers’ compensation insurance or workers’ compensation exemptions, and if so, what penalty should be assessed.
Findings Of Fact Respondent is the state agency responsible for enforcing the requirement of workers’ compensation law that requires employers to secure payment of compensation for their employees. On June 26, 2006, Petitioner was operating in the construction industry installing drywall. At approximately 10:30 a.m., Respondent’s investigator, Vicki Chamelin, conducted a workers’ compensation compliance check at 5574 Hampton Hill Circle, Tallahassee, Florida. While at the site, Ms. Chamelin recorded the names of the workers who claimed to be or were claimed to be employed by Petitioner. The names of these individuals were Brandon Roberts, Kelvin Williams, Charles Carter, Willie Oliver, and Jerry Pompey. Next, Ms. Chamelin consulted Respondent’s Coverage and Compliance Automated System (CCAS). She then spoke with Christine Conley, branch manager of U.S. Labor, Inc./USA Staffing, the company that Petitioner contracted with to provide workers’ compensation coverage. Ms Chamelin concluded that Petitioner had not secured the payment of workers’ compensation for Brandon Roberts, Kelvin Williams, and Jerry Pompey. After consulting with her supervisor, Ms. Chamelin issued a Stop Work Order and Order of Penalty Assessment (hereinafter “Stop Work Order”). The Stop Work Order commanded Petitioner to cease business operations and assessed a $1000 penalty against Petitioner. In addition to the Stop Work Order, Ms. Chamelin served Petitioner with a Request for Business Records for Penalty Assessment Calculation (hereinafter “Request”). After serving Petitioner with the Stop Work Order and Request, Ms. Chamelin again verified with Christine Conley which employees were and were not covered by U.S. Labor, Inc./USA Staffing’s workers’ compensation insurance. U.S. Labor, Inc./USA Staffing is a staffing company whose employees must apply and be approved by USA Staffing prior to placement with client companies. Pursuant to the contract between USA Staffing and Petitioner, an employee is not covered by workers’ compensation insurance unless the employee applies to and is approved by USA Staffing prior to starting work. If an approved employee of USA Staffing does not work for USA Staffing for between two and four weeks, USA Staffing deactivates the employee from their payroll and notifies the client company. Inactivated employees are not covered by USA Staffing’s workers’ compensation insurance policy. Ms. Conley advised Ms. Chamelin that Kelvin Williams, Brandon Roberts, and Jerry Pompey were not being leased by Petitioner from USA Staffing on June 26, 2006. USA Staffing’s payment records reflected that no payroll was being run by USA Staffing for Brandon Roberts between the dates of April 6, 2006, and June 26, 2006. U.S. Staffing’s payment records reflected that no payroll was being run by USA Staffing for Kelvin Williams between the dates of March 2, 2006, and June 26, 2006. Jerry Pompey was never an employee of USA Staffing. In order to reactivate an employee, a client company must call USA Staffing and reactivate the employee prior to that employee commencing work with the client company. Ms. Chamelin called USA Staffing to investigate the coverage status of Jerry Pompey, Brandon Roberts, and Kelvin Williams before Petitioner called USA Staffing to reactivate the individuals. Petitioner did not provide Respondent with any of the documents identified in the Request. Because Petitioner failed to provide Respondent with the requested business records, Ms. Chamelin properly imputed Petitioner’s penalty. First, Ms. Chamelin imputed Petitioner’s payroll. Next, Ms. Chamelin divided the imputed payroll amount by 100, multiplied the quotient by the approved manual rate to arrive at the premium the Petitioner would have paid, then multiplied the product by 1.5. Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty by paying 10 percent of the total penalty with the balance due in equal monthly installments over 60 months. Petitioner was issued an Order of Conditional Release From Stop-Work Order after entering into the Payment Agreement Schedule for Periodic Payment of Penalty and demonstrating compliance with the coverage requirements of Chapter 440, Florida Statutes (2005). Respondent issued a Second Amended Order of Penalty Assessment to Petitioner. The Second Amended Order of Penalty Assessment adjusted Petitioner’s assessed penalty to $10,270.76.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order, affirming the Stop Work Order and Second Amended Order of Penalty Assessment that assessed a penalty of $10,270.76. DONE AND ENTERED this 8th day of March, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Stanley Roberts Forever Ready Drywall 272 Robert Willis Road Cairo, Georgia 39827 Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
Findings Of Fact Respondent Charles T. Noegel operates Seminole-Gator Exterminator, Tallahassee, Florida. Inspection reports made by Respondent with respect to the residences of the four owners named in the Administrative Complaint show that he held business license number 519 and ID Card No. 7750, issued by the Petitioner, at the time of the four inspections. (Petitioner's Exhibits 1-3, 5-8). On August 13, 1981, Respondent inspected the property of Gene Gandy, 2504 Hartsfield, Tallahassee, Florida, and issued a "wood-destroying organism inspection report," HRS Form 1145. He also entered into a termite control contract and warranty guarantee with Mr. Gandy on the same date, which included protection against powder-post beetles. Respondent's inspection report apparently was made in connection with the sale of the house to Mr. Gandy. Respondent's report reflected that active infestation and visible damage by powder-post bettles had been observed under the house. Gandy then authorized Respondent to treat the house for the control of powder-post beetles, and Respondent proceeded to provide such treatment. (Testimony of Respondent, Petitioner's Exhibit 6). On September 10, 1981, Mr. Gandy filed a written request with Petitioner's Office of Entomology to inspect his property because he had found evidence of powder-post beetle damage inside the house and in the garage. Pursuant to the request, William E. Page, entomologist-inspector for Petitioner, inspected the Gandy property on September 18, 1981, and rendered a report of his investigation on October 12, 1981. He found that there was active powder-post beetle infestation in the wall studs of a bedroom and in the walls of the garage, old beetle and termite damage under the house, and in the wall studs of another bedroom, and water and fungus damage in kitchen and bathroom walls. Respondent conceded at the hearing that he had re-treated the house for powder-post beetles after being informed of Page's inspection and had had no further complaints from Mr. Gandy since that time. (Testimony of Page, Respondent, Petitioner's Exhibit 6) Prior to purchasing a home at 1937 Sageway Drive, Tallahassee, Florida, Dennis G. Fagen observed some "wrinkled" wood on the wall of the spa room. He requested the real estate salesman to arrange for a termite inspection. Respondent performed an inspection of the property on June 24, 1982, and rendered a negative report as to the presence of wood destroying organisms. The inspection occurred on the date that the Fagens closed the transaction for the purchase of the property. Mrs. Fagen accompanied Respondent during part of his "walk through" of the premises. During the course of his inspection, Respondent noted that the wood in the spa room was suspicious, and, in fact, poked his finger through the pine wood on the wall. Although the evidence is conflicting as to whether Mrs. Fagen was present in the room at that time, it is apparent that both the Fagens and Respondents were aware of the potential problem prior to the completed purchase of the home. The Fagens were of the opinion that it probably consisted of wood rot, and relied on Respondent's negative report as to the presence of wood destroying organisms. About a year later, after the suspicious area had increased in size, Mr. Fagen pulled a board off the wall and discovered that there was active termite infestation. Mr. Fagen contacted Respondent concerning the problem, but he declined to take any remedial action because the Fagens had been aware of the potential damage and Respondent had pointed out the area to the real estate salesman at the time of his inspection. Respondent is of the belief that he was not required to reflect the damaged area on his inspection report because it was damage that had occurred prior to his inspection which he was not required to report on the inspection form, and which would have necessitated removing finished wood to make a determination of the presence of wood-destroying organisms beyond the scope of his inspection, as provided for on HRS form 1145. Mr. Fagen thereafter filed a complaint with Petitioner's Entomology Office and requested a state inspection. William E. Page, the State Entomologist-Inspector investigated the complaint on July 8, 1983, and filed a report reflecting his findings that active infestation of subterranean termites and wood rot were present in the walls and ceiling of the spa room. This finding was confirmed by his observation of termite tubes on the exterior wall of the room, and it was his opinion that termites had been active for several years in that location. Mr. Page's findings were confirmed by a further inspection made on July 14, 1983, by another local pest control firm. Mr. Page was of the opinion that there was obvious damage in the room which should have been listed by Respondent on his inspection report. This opinion is deemed credible. By letter of September 1, 1983, Respondent wrote the Fagens and reiterated his belief that he was not responsible in any respect with regard to the termite damage. (Testimony of D. Fagen, B. Fagen, Page, Respondent, Petitioner's Exhibits 3-4, 7, Respondent's Exhibit 1) On April 12, 1982, Respondent performed a wood destroying organism inspection at 1409 Pichard Drive, Tallahassee, Florida, prior to its purchase by John E. Ellis. His inspection report was rendered on the same date on HRS Form 1145 and was negative as to the presence of any damage or infestation. Mr. Ellis was particularly concerned about this aspect of the house since he had previously cancelled a contract in another state for the purchase of a home when an inspection revealed the presence of termites. Consequently, he had insisted on a clause in his present sales contract which permitted him to void the same if a termite problem existed. Mr. Ellis closed the house purchase in May 1982, lived there a month, and after a trip to North Carolina, came back to the dwelling on July 4. At this time, he found that he had a flea problem in the house and accordingly, called a local pest control firm, Florida Pest Control, to spray for fleas and treat the property for termite control. That firm performed the treatment on July 6 and apparently did not find any problems. On July 7, Mr. Ellis observed what looked to be dry rot at the base of four wooden posts on his front deck. It also appeared that Florida Pest Control had dug around each post slightly to treat the ground. Mr. Ellis then traveled again to North Carolina and returned on September 30. Two days later he examined the posts again and noticed that a piece of wood on one corner of a deck post had fallen off. He called the Florida Pest Control who found that the deck posts were damaged as high as four inches above the deck. Mr. Ellis, one of that firm's representatives, told him that although one post showed termite damage, the treatment in July must have killed the termites since there was none existing at that time. He also indicated that the damage to the other posts was either water damage or dry rot. Mr. Ellis contacted Respondent concerning the problem, but he declined to do anything about it because he considered that the damage was not visible or accessible, and therefore outside the scope of his inspection as provided on HRS Form 1145. Mr. Ellis thereupon filed a written complaint with Petitioner's Office of Entomology and requested a state inspection. William E. Page, the State Entomologist Inspector, investigated the complaint on October 15, 1982, and his report of inspection indicated that there was evidence of termite damage in one post of the front deck and rot damage at the base of all the posts. In the opinion of Mr. Page, a normal inspection should have found signs of termite damage to the posts underground and that the damage had been progressing for at least a period of one year. He was further of the opinion that it would have been necessary to remove the dirt from the first two or three inches below the ground surface in order to find the damage and that such an area would be "accessible." He found damage to the posts at least eight inches above the ground, although he acknowledged that part of the damage could have been done after Respondent had made his inspection. Mr. Ellis later sued Respondent in civil court and recovered a judgment which was subsequently satisfied. Repair damages to the posts were approximately $585. (Testimony of Ellis, Page, Respondent, Petitioner's Exhibit 5, 8) Respondent conducted a wood-destroying organism inspection of the property located at 711 Piedmont Drive, Tallahassee, Florida, on May 5, 1983 incident to the subsequent purchase of the property by Mr. David Jones on June 1, 1983. Respondent's inspection report on HRS Form 1145 was negative in all respects except that it was noted that the property showed evidence of previous treatment. Mr. Jones talked to Respondent prior to closing of the transaction and Respondent assured him that everything was all right with the property. While moving into the home on June 1, 1983, Mr. Jones observed an area of wrinkled paint above a window in the family room. When he touched the area, his finger went through the wood. He proceeded to call another pest control firm, Florida Pest Control, to inspect the house. Their inspection indicated that there was evidence of termites by the presence of termite tubes on the wall of the utility room. They also found that there was wood rot damage to the subfloor under a bathroom. Mr. Jones got in touch with Respondent who again examined the property and agreed to repair the damage in the family room, but was unwilling to do anything about the other problems. Jones filed a complaint with Petitioner's Office of Entomology on June 10, 1983, and requested that a state inspection of the premises be performed. Entomologist-Inspector William E. Page conducted an investigation on July 1, 1983, and found that, although there was no active infestation, old termite tubes were present in the utility room and subterranean termite damage and wood rot were located in a beam about the window, and in the window frame in the family room and the wall of the utility room, and that rot damage existed in the sub-flooring of a bathroom. Mr. Page was of the opinion that a light tap on the wall would have revealed the damage in the family room, and that the termite tubes in the utility room were obvious. He was of the further opinion that a thorough inspection would have found most of the damage that he noted. Respondent testified that he did not believe that HRS Form 1145 provided for the entry of information concerning inactive infestation. He acknowledged that he had not noticed the damaged area above the window of the family room because it had been painted over. (Testimony of Jones, Page, Respondent, Petitioner's Exhibit 1-2) HRS Form 1145 limits the scope of a licensee's inspection of property to the "visible and accessible areas of the structure." It does not include areas concealed by wall coverings, or any portion of the structure in which inspection would necessitate removing or defacing finished wood. The form provides for the entry of findings concerning the observation of "active infestation," "other evidence of infestation," and "visible damage," together with locations of such observations, and the organisms observed or which caused the damage. It also provides for findings as to whether the property shows evidence of previous treatment. By requiring that a finding be entered as to "active infestation" and the organism observed, it is intended that the term "other evidence of infestation" refers to situations where organisms are not observed, but there is some other kind of evidence of either active or inactive infestation, such as the presence of termite tubes. It is intended that the term "visible damage" is also applicable to damage caused by active or inactive infestation. The terms used in the form are commonly understood by the industry to have the meaning indicated above which is the agency interpretation. In all instances, suspicious areas which might indicate infestation should be noted on the form as "visible damage," even though the licensee is unable to determine exactly what has caused the problem without removing or defacing finished wood. In such cases, "tapping" of the wood may produce a hollow sound which should be listed as possible hidden damage. Powder-post beetles can be detected by the observation of holes with powder falling out. If wood is damaged, it is possible to trace it to termite infestation with a probe. It is therefore expected that a thorough inspection will reveal signs of past or present infestation. HRS Form 1143 was revised in May 1983 at the request of the industry, but the changes were not substantiated, nor did they essentially change the required findings. The form is utilized in the sale of property and is designed to protect the purchaser. It is therefore important that the inspection be accurate and thorough in all instances since the public relies on the expertise of qualified licensees as to wood-destroying organisms. (Testimony of Page, Bond, Respondent's Exhibit 2)
Recommendation That a final order be entered which suspends the pest control business license, pest control operator's certificate, and pest control employee identification card of Respondent Charles T. Noegel for a period of three months, and that he be placed on probation thereafter for a period of one year for violation of Section 482.161(1)(f), Florida Statutes. DONE AND EXTENDED this 25th day of January, 1984, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1984. COPIES FURNISHED: John Pearce, Esquire Department of HRS District II Legal Counsel 2639 North Monroe Street Tallahassee, Florida 32303 Charles T. Noegel Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32308 David Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The ultimate issue is whether Olcott Dairy is exempt from permitting requirements regarding treatment and disposal of wastewater from its dairy operation. If it is not exempt, the remaining issue is whether Olcott Dairy must apply for a wastewater treatment and disposal permit from the Department of Environmental Regulation (DER) in order to continue operation.
Findings Of Fact During the early part of 1990, Earl Olcott proposed to construct and operate the Olcott Dairy in Gilchrist County, Florida, near the intersection of State Road 138 and U.S. Highway 129. In response to Olcott's proposal, DER sent Olcott a letter dated February 26, 1990, which advised that he could "either apply for a construction permit covering the treatment and disposal of dairy wastes using the enclosed industrial waste application or pursue an exemption from permitting." Based on the options given to him by DER, Olcott submitted a request for an exemption on March 23, 1990. The request included all the necessary engineering information and drawings. Essentially Olcott proposed a concrete lined waste storage pit sized to prevent the 25-year 24-hour storm event from overflowing and spray irrigation system for distributing the wastes to a hayfield. By letter dated March 26, 1990, DER exempted the proposed dairy from permitting requirements subject to certain conditions. Based on the exemption, Olcott purchased and constructed the proposed dairy, including the waste storage pit. Olcott Dairy commenced operations on January 26, 1991, and continues to operate. On November 8, 1990, the Petitioners wrote to DER about the Olcott Dairy, inquiring about the granting of the exemption to Olcott and seeking a point of entry to challenge the exemption. DER advised that "because these facilities are exempt by rule, the Department does not believe it has taken any action that would be subject to the provisions of Section 120.57 or 403.412(5), F.S." Mr. Olcott was copied on this letter. The Petitioners filed their Petition for Formal Administrative Proceedings on January 3, 1991. NFPOA is comprised of 45 members who live in the area of Olcott Dairy. On April 11, 1991, NFPOA incorporated as a Florida corporation not-for-profit. The purpose of the group, as stated in the Articles of Incorporation, is to protect "the environmental health of the land, air and water in North Florida." Petitioner Eron Carver lives directly across the road from Olcott Dairy and relies for drinking water on wells that pump from the groundwater aquifer lying beneath his home as well as beneath the Olcott Dairy. He also fishes in the Santa Fe River, an Outstanding Florida Water (OFW). After the filing of the Petition, DER wrote to Olcott on February 5, 1991, advising that the decision on the exemption was proposed agency action only and that "no action may be taken on the above exemption" until DER issued a Final Order on entitlement to the exemption. Regrettably for Mr. Olcott, action had already been taken based on the exemption and on DER's letter of December 7, 1990, which had indicated that the exemption was already granted and not subject to challenge by the Petitioners. The dairy was already in operation. The March 26, 1990, letter which found Olcott entitled to an exemption did not advise that the action was proposed and not final. Instead the letter clearly authorized Olcott to proceed with construction and operation of the wastewater management system as proposed and subject to the stated conditions because the proposed project was exempt from DER's permitting requirements. The December 7, 1990, letter clearly reinforced that the exemption was granted and not subject to challenge. On March 1, 1991, DER inspectors went to Olcott Dairy to review the wastewater management system in use. They found that the storage pit had overflowed and that no spray irrigation system had been built. Instead, the wastes were being applied to the field from a tank truck which was being driven slowly over the same 10-foot wide area with its tank valve open. On April 29, 1991, DER advised Olcott by letter that it was no longer supporting the exemption because an exemption was not appropriate and a groundwater discharge permit was necessary. The reasons given for this change in position were New information which shows that dairy activities pose a threat of groundwater contamination; Condition 4 was being violated by Olcott's waste application rates; Condition 7 was violated because the system design engineer failed to certify that the system was constructed to meet the design criteria; The waste management system being operated differed from the proposed design because the wastes were being applied by a tank truck; and The storage pit had apparently overflowed. The primary reason for DER's change was the new information derived from a study of dairies in North Central Florida. This study of dairies similar to Olcott indicated that existing waste management practices of dairies in the Suwannee River Basin have a potential to contaminate groundwater with elevated levels of nitrates and to cause off-site contamination. Specifically, the study found that groundwater beneath more than 45% of the dairies studied had nitrate levels exceeding the state standard of 10 mg/l, with nitrate levels as high as 140 mg/l recorded. Nitrate is a pollutant that can cause health problems in humans, particularly children. The area in which Olcott Dairy is located is highly vulnerable to groundwater contamination because of the underlying Karst geology. Additionally the aquifer under the dairy flows, under normal conditions, toward the Santa Fe River, an OFW. The ground application of wastes by Olcott Dairy allows percolation of wastes, which threatens violation of groundwater standards beyond the boundaries of the dairy. It also threatens to impair the water quality of the Santa Fe River, a contiguous water body. The only way these threats can be evaluated is to require that the waste management system undergo a complete review as part of the permit application process. By its letter of March 26, 1990, DER led Olcott to believe that the exemption was final and that the dairy could operate indefinitely pursuant to the exemption from permitting. Olcott has taken all of its actions in reliance on DER's representations regarding permitting requirements and DER's authority to determine entitlement to exemptions. In reliance on the exemption given in the March 26, 1990, letter, Mr. Olcott expended sums in purchasing the property for the dairy and in building the dairy, including the waste management system currently in place. He will be required to expend additional sums for preparation and filing of a permit application and for installation of monitoring wells and other equipment which may be required to qualify for a permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order and therein: Deny Olcott Dairy's request for an exemption from permitting requirements. Waive permit application fees from Olcott for its permit application and cooperate with Olcott in processing and conditioning for intended approval the permit for which Olcott must apply. RECOMMENDED this 26th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0750 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted Jointly by Petitioners, North Florida Property Owners Association and Eron W. Carver and by Respondent Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(5); 3(6); 5(13); 6- 8(14); 9&10(15); 12(16); 13&14(17); and 15(9). Proposed finding of fact 4 is subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 11 is unsupported by the competent, substantial evidence. COPIES FURNISHED: John K. McPherson Attorney at Law McPherson & Coffey, P.A. 22 South Main Street Gainesville, FL 32601 Earl Olcott Olcott Dairy Route 2, Box 417 Brandford, FL 32008 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
