Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 29, 1975. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated January 22, 1976. (Hearing Officer's Exhibit 2). The City of Sunrise is a Public Employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7) 1/ The Petitioner is an association which is seeking to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner requested recognition from the Public Employer as the exclusive bargaining representative for employees in the Public Employer's Utilities Department. The request was denied by the Public Employer. There is no contractual bar to holding an election in this case. (Stipulation, TR 7, 8). There is no pertinent collective bargaining history that will affect this case. (Stipulation, TR 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer operates under the form of government commonly referred to as the "strong Mayor-Council form of government". The City Council serves as the legislative body of the Public Employer, and the Mayor is the Chief Executive Officer. Public Employer's Exhibit 1 accurately describes the organization of the Public Employer. The Public Employer is roughly divided into twelve different departments, excluding the Police and Fire Departments. Each department is headed by a department head who answers to the Mayor. The Public Employer employs approximately 200 persons, approximately 25 percent of whom are clerical employees. There are approximately 55 to 60 persons in the bargaining unit proposed by the Petitioner, 12 to 15 of whom are clerical employees. The department heads are generally responsible for the day-to-day functioning of their department. The department heads will initiate hiring, firing, discipline, and promotion of employees; however, such action must be approved by the Mayor. Respecting hiring and firing, the Mayor goes against the recommendations of the department heads approximately 30 to 40 percent of the time. With respect to disciplinary action, the department head submits recommendations to the Mayor in the form of a memorandum. In the Water and Sewer Department the recommendation would go from the Director of the Utilities Department to the City Engineer to the Mayor. The department head will make all decisions respecting shift changes, lunch hours, and vacations; however, an aggrieved employee can always go to the Mayor. The department heads regularly evaluate employees in their department, and make recommendations respecting merit pay increases based upon the evaluations. The Mayor has a practice of always approving recommendations for merit pay increases if money is available in the budget. The Mayor is responsible for preparing a proposed budget to be submitted to the City Council. The department heads provide the Mayor with information respecting the budgetary needs of their departments. The department heads meet on a monthly basis as a group to discuss safety programs. Safety policies are formulated at these meetings. The department heads are responsible for granting leave time; however, this responsibility is apparently delegated to the chief operator in the Water and Sewer Department. Public Employer's Exhibit 2 is a computer read-out of all of the Public Employer's employees other than those in the Police and Fire Departments. Those employees who the Public Employer considers to be managerial, confidential, or professional employees within the meaning of the Public Employees Relations Act are designated respectively on the exhibits by the hand written letters "M", "C", or "P". The hand written numbers on Public Employer's Exhibit 2 refer to the page number where the job description of the employee appears in Public Employer's Exhibit 3. Public Employer's Exhibit 3 is a compilation of the job descriptions of all of the Public Employer's employees other than those in the Police and Fire Departments. The descriptions were prepared in January, 1976, and accurately describe the duties, responsibilities, and day-to-day activities of the employees. All employees of the Public Employer other than those in the Police and Fire Departments are compensated under the same pay plan, and receive the same benefits. All employees are given eleven paid holidays, ten paid sick days, and ten paid vacation days annually. All employees participate in the same hospitalization and pension plans. All employees are issued uniforms and safety equipment by the city; however, clerical employees are responsible for maintaining their own uniforms. Christmas parties and other social functions for the employees are open to all employees of the city. There are no functions open to the employees of only one department. Transfers of employees from one department to another are fairly common. Job openings and promotions in a department are always advertised and made available to employees in all departments before they are advertised or made available to non-employees. The departments of the Public Employer generally work together. Many employees in the Public Works Department have the same job description as employees in the Utilities Department. When necessary, employees in one department will assist in performing the functions of another department. The Utilities Department is divided into the Gas Department, the Water and Sewer Field Maintenance Department, and the Water and Sewer Treatment Plants. These departments produce services for a fee to the inhabitants of the City of Sunrise, as do the Spring Hill Country Club and the Recreation Department. Employees in the Water and Sewer Departments are on duty 24 hours daily. Each employee works a fixed 8-hour shift. Most other employees of the Public Employer work a day-shift only. Employees in the Water and Sewer Department do not generally work in one place. Clerical employees generally work full time at City Hall. It is apparent that transfers between manual positions and clerical positions are rare, and have probably never occurred. The work performed by clerical employees is different than the work performed by employees in the Water and Sewer Departments. The only testimony presented at the hearing respecting the desires of the employees was that employees in the Water and Sewer Departments would like to have their own bargaining unit. The Utilities Department is separately budgeted, and the only employee who testified expressed an interest in using the revenue of the department for the benefit of the employees in the department. All employees of the Public Employer are eligible for membership in the Petitioner. DONE and ORDERED this 6th day of April, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City, Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and M.D. Stewart Plumbing Company. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board. Respondent has never refunded any of the contract price to Mrs. Thames.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine in the amount of $1,000.00 be levied against Respondent. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489 The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Tectonics Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark O. Holland Route A, Box 366 Youngstown, Florida 32466 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be resolved is whether Petitioner, Emma J. Brown, was subject to discrimination in her employment by Respondent for the reasons alleged in her Petition for Relief.
Findings Of Fact Based upon the demeanor of the witnesses while testifying, exhibits admitted in evidence, and stipulations and argument of the parties, the following relevant, material, and substantive facts are found: Petitioner, Emma J. Brown (Ms. Brown), an African- American female, began working for Respondent, Sunbelt Health Care (Sunbelt), a nursing home in Zephyrhills, Florida, as a Certified Nursing Assistant (CNA) on or about February 11, 2002, after an interview by Barbara Derby-Bartlett (Ms. Derby- Bartlett), director of nursing, who made the decision to hire Ms. Brown. Margaret Levesque (Ms. Levesque), a white female, was hired as a CNA by Sunbelt in June of 2002. A CNA's duties include assisting the nursing staff in overall patient care. At the time of their hire, all new employees were required to attend an orientation process. During orientation, new employees, including Ms. Brown, were given a copy of Sunbelt's employee handbook and other printed materials, including Sunbelt's "Call-Off Guides" policy. The "Call-Off Guides" policy specifies the means and method employees are required to follow when they can not be present for their scheduled work shifts. The policy also informs the new employee that repeated absenteeism will result in immediate dismissal. Sunbelt is a 24-hour, full-care facility with residents located in both its north side wing and south side wing. Employees work on both wings. Sunbelt used two shifts, the day shift and the night shift, to provide residents with 24-hour care and service. Ms. Brown testified that at the time of her hire, she informed Sunbelt that she could not work the day (first) shift because she had another job. Her request to work the night (second) shift was granted. On February 22, 2002, after 11 days of employment, Ms. Brown suffered an on-the-job injury to her wrist. Ms. Brown re-injured her wrist on March 22, 2002, and suffered an on-the- job back injury on April 7, 2002. Ms. Brown, through counsel, filed workers' compensation claims for her on-the-job injuries. Ms. Brown's treating physician placed her on work restrictions, limiting her duties to no bending and no lifting over 20 pounds. On or about May 24, 2002, Ms. Brown returned to work and presented her work restrictions, and Sunbelt assigned Ms. Brown to the night shift to perform light-duty work assignments. The light-duty work assigned to Ms. Brown consisted of answering residents' call lights, checking their vital signs, assisting residents with their meals (passing trays), and replenishing their water supplies on both the north and south wings. Ms. Brown requested that Sunbelt change her work schedule to day shift and allow her to work five consecutive days with weekends off. This request was denied. During the pertinent time, two other CNAs, Ms. Levesque and Shirley Manley (Ms. Manley), were also on light-duty. Ms. Levesque and Ms. Manley, white females, performed light-duty work assignments on both the north and south wings similar to those performed by Ms. Brown. According to Ms. Brown, Ms. Levesque worked weekdays for two consecutive months with no weekend duty, and she was not allowed to do likewise. On June 6, 2002, Sunbelt transferred Ms. Brown from night shift to day shift. Ms. Brown maintained that there is "more light-duty work" during the day shift than during the night shift, and by keeping her on the day shift, her workload was increased when compared to CNAs working during the night shift. Ms. Brown filed her claim of discrimination, and Sunbelt, by and through counsel, attempted settlement of Ms. Brown's claim of discrimination without success. Ms. Brown maintained that the proffered settlement did not justify the treatment she received. Sunbelt presented the testimony of Ms. Levesque, who was hired in June 2002 as a CNA but was initially assigned to the duty and function of "staffing coordinator." The staffing coordinator is a day shift employee whose primarily duties consisted of preparing CNAs' work schedules and identifying and securing replacements for those CNAs who called in and, for whatever reasons, did not or could not report for duty as scheduled. During her staffing coordinator assignment, Ms. Levesque also assisted CNAs in their duties, but was assigned light-duty with a 20-pound lifting restriction. Her CNA duties include passing food trays during breakfast, lunch, and dinner; replenishing water; and anything that did not require her to physically pick-up and/or lift a resident. In or about mid-August of 2002, Ms. Levesque's schedule changed, and she was required to work every other weekend. On several occasions, Ms. Levesque and Ms. Brown worked on the same shift, but not on the same wing. Ms. Derby-Bartlett testified that upon receipt from an employee's physician detailing the employee's limitations, she would work within those specific limitations in assigning CNAs to light-duty. According to Ms. Derby-Bartlett, light-duty work assignments are less during the night when residents are asleep and more during the day when residents are awake. After her appointment to the position of director of nursing, Ms. Derby-Bartlett became aware that Ms. Levesque was not working every other weekend and informed Ms. Levesque that she would be scheduled to work every other weekend. Ms. Levesque's request for a couple of weeks to make adjustments was granted, and she thereafter was scheduled to work every other weekend. Ms. Derby-Bartlett confirmed that Ms. Brown was assigned light-duty work assignments on June 6, 2002, and Ms. Brown was a no-show for work. On July 3, 2002, Ms. Brown was assigned light-duty, and she called in as a no-show. On July 4, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. On July 5, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. Ms. Derby-Bartlett contacted the staffing person on each day Ms. Brown called in and on each day Ms. Brown was a no- show, confirming the accuracy of the reports. Ms. Derby-Bartlett contacted Ms. Brown regarding her no-calls and no-shows and informed her of Sunbelt's policy of termination for repeated absenteeism. Ms. Brown, believing her doctor had called Sunbelt on one of the days she was a no-show, was mistaken because no doctor called. On July 5, 2002, Ms. Derby-Bartlett completed Sunbelt's disciplinary form to terminate Ms. Brown due to her several no-calls and no-shows, in violation of Sunbelt's policy, and forwarded her recommendation to Maria Coddington, Sunbelt's unit manager. Ms. Derby-Bartlett testified that since her appointment as director of nursing, the no-show/no-call termination policy has been consistently applied, and she was not aware of any employee who had been no-show/no-call for two consecutive days who had not been terminated. Five months after hiring Ms. Brown, Ms. Derby-Bartlett terminated her. Sunbelt's employee handbook's "Call-Off Guides" policy regarding absenteeism provides, in pertinent part that: "if employees do not call in or do not show up for work for two consecutive days or three nonconsecutive days, it is grounds for termination." Each employee, as did Ms. Brown, signed individual employment documents attesting to having received a copy of Sunbelt's "Call-Off Guides" policy when hired. Ms. Brown was terminated because of her violation of Sunbelt's policy regarding two or more absenteeism without notice to her employer and her repeated failure, albeit her belief that her physician was going to call on her behalf and did not do so, to timely inform her employer of her absence from scheduled duty. Ms. Brown's termination by Sunbelt was based on her violation of their employee work attendance policy and not because of her race and/or ethnic origin. Ms. Brown failed to present a prima facie case of discrimination based on her race as alleged in her complaint of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Emma J. Brown. DONE AND ENTERED this 20th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 20th day of August, 2004. COPIES FURNISHED: Emma J. Brown 38723 Barbara Lane Dade City, Florida 33523 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan M. Gerlach, Esquire Adventist Health System-Legal Services 111 North Orlando Avenue Winter Park, Florida 32789 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent was arbitrary, capricious, or unlawful in examining Petitioner.
Findings Of Fact On or about October 30, 1998, Petitioner applied for certification as a firefighter with the Department under the provision relating to equivalency as a firefighter certified in another state. Petitioner met the requirements for equivalency and on November 3, 1998, was informed by letter from the Department of an Equivalency Examination. On November 23, 1998, Petitioner took the Examination, scoring a 15 percent on the practical portion. Points were deducted from Petitioner's score for the following items: Part I Breathing apparatus inhalation 5 Donning time over time limit 10 Hose and nozzle Operation 5 (Protective clothing not worn properly) Operation of nozzle 20 (poor control, closing nozzle too fast, nozzle not fully opened, nozzle opened when water arrives) Hose and nozzle operation over time limit 10 24' ladder extension 20 (did not check for overhead obstructions, lost control of ladder, did not tie a clove hitch) 24' ladder extension operation over time limit 5 Part II Improper tying on roof ladder 5 Failed to correctly demonstrate the advancing 5 and uncharged 1 3/4" hoseline up a ladder __ Total points deducted 85 A score of at least 70 percent is required to pass the Practical Examination. The Department sent Petitioner a letter on December 3, 1998, notifying him of his score on the Practical Examination and informing him that he failed. Petitioner was notified by letter dated December 10, 1998, from the Department of a retest on February 22, 1999. On February 22, 1999, Petitioner took the retest of the Practical Examination. Points were deducted from Petitioner's score for the following items: Part I a) Breathing apparatus inhalation 5 b) Donning time over time limit 5 c) Hose and nozzle operation over time limit 10 f) 24' ladder extension 5 g) (fly section not fully extended) 24' ladder extension operation over time limit 10 Part II Retied bowline 5 Unable to find requested material in guidebook 5 __ Total points deducted 45 Petitioner's score on the retest was 55. The Department sent Petitioner a letter on March 3, 1999, notifying him of his score and informing him that he failed. On March 4, 1999, the Department issued a letter of intent to deny, denying his certification as a firefighter for failure to meet the certification requirements. There are four events on the Practical Examination that are timed: testing the seal on the breathing apparatus, donning the apparatus, deploying and using the hose and nozzle, and extending and placing the 24-foot ladder. The inhalation test requires a check of the face seal after donning and fitting the mask of not less than 10 seconds. The Petitioner received a 5-point deduction for not maintaining the seal for the full 10 seconds. The total donning operation must be completed in not more than one minute and twenty-nine seconds. Examinees receive a 5-point penalty for each thirty-second increment they exceed the allowable time up to a maximum of 40 points. The Petitioner exceeded the allowable time by two seconds and received a 5-point deduction. The deployment and operation of the hose and nozzle requires an examinee to pull a water-filled hose a given distance, then turn the hose on and direct it properly on a specified type of fire. The examinee must complete the task in not more than one minute and fifty-nine seconds. For each thirty-second increment over the allowable time, 5-points are deducted from the examinee's score up to a maximum of 35 points. The Petitioner exceeded the allowable time by forty- five seconds, and received a 10-point deduction. The raising of the extension ladder requires the examinee to carry a 24-foot extension ladder to the side of a building, extend the ladder fully, and place the ladder against the wall of the building using proper procedures within a maximum allowable time of two minutes and twenty-nine seconds. For each thirty-second increment an examinee exceeds the allowable time, the examinee receives a deduction of 5-points, up to a maximum of 35 points. In each of the listed tasks above, as well as the other un-timed portions of the examination, the examinee can lose additional points for using the wrong technique or procedure. The total number of points that can be deducted from an examinee's score is 450 points. Mr. McCall from the Fire College testified concerning how the times on the examination were normed. The times of various examinees taking the examination before timing was required were taken and their times averaged. An additional increment of time was added to the average time required to complete each event. For each thirty-second increment an examinee exceeded the set time, 5 points are deducted. The method of arriving at the mean time for the events is sound; however, Mr. McCall reported that the data upon which the time standards were based had been destroyed. There was no evidence presented on the manner in which the point deductions schedules were established. They are uniformly linear in terms of the time limits imposed and points deducted. That is to say, that for every thirty seconds in excess of the allowable time, an additional 5 points is deducted. The Fire Colleges data reveals that only 35 percent of out-of-state applicants are able to qualify for certification by equivalency. This, at fact value, appears to be a low number for individuals who have already been examined and re frequently experienced firefighters. However, many of the tasks on the practical test require physical agility and prowess which may be affected by age or injury. No information is maintained regarding the demographic data of equivalency examinees regarding age and sex; however, it is noted that the statutes provide a special exemption for out-of-state firefighters hired to fill top positions within department. During the course of the hearing, it became evident that the number of points which potentially could be deducted totaled 450 points. It also became evident that the deduction of points was directly from 100 points with which each examinee started. This deduction was direct and was not scaled, weighed, or converted to arrive at a final score. The practical examination has a possible 450 points which can be deducted from 100 points. An examinee's score is the result of subtracting the points he or she loses from 100 points. The statute and rule provides that passing on the written and practical portions of the examination will be 70 percent. The Petitioner had a total of 45 points deducted on his performance examination from a total of 450 possible points that could be deducted. He missed 10 percent of the possible points which could be deducted, or conversely made a score of 90 percent. By deducting up to 450 points from 100 points to arrive at a final score, the Respondent has adopted a scoring system which is arbitrary, capricious, and contrary to the statute and rules. The fact that the Respondent has done this for a long time does not validate the process. Contrary to the suggestion by Respondent that looking at the number of possible deductions is a "red Herring," it is precisely the number of possible points "available." If the Respondent uses a 30 percent error rate when the base is 450, an applicant could lose up to 135 points. The Petitioner lost 45 points, only a third of the allowable points using the Respondent's method. Petitioner passed the written examination with a score of 86. The Petitioner should receive a score of 90 on his practical examination based upon the number of points on the examination and the statutory guidance. Based upon the foregoing the Petitioner's grade should be entered as a 90.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Petitioner be licensed. DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida. 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 8th day of December, 1999. COPIES FURNISHED: Kurt P. Larson 2225 Inverness Drive Pensacola, Florida 32503 Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Honorable Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0300
The Issue The issue to be resolved is whether Petitioner received more than one increase in pay in any twelve-month period for the category of added duties and responsibilities, Rule 60K-2.006, Florida Administrative Code.
Findings Of Fact Stephen C. Metzler is an Environmental Specialist II in a leadworker position with the Department. Stephen C. Metzler received an Increase to Base Rate of Pay for added duties in the amount of $69.39, on April 7, 1998. Thereafter, Robert Merritt was promoted and there was no one to supervise the employees that he had previously supervised. He asked Petitioner to continue to perform the duties he had been performing, and assume the supervisory duties that Merritt had previously performed. Merritt advised Petitioner that he would be given additional compensation for performing these duties. Petitioner assumed and performed these added supervisory duties, and Merritt administratively initiated the pay increase. Subsequently, the paperwork was prepared by one of Respondent's clerical personnel, reviewed by the personnel officer, and signed by Petitioner's superiors. Petitioner did not see this paperwork at any time prior to its submission and had no part in its preparation. Both of Petitioner's supervisors who had signed and approved the pay-raise testified. They were aware that Petitioner was performing supervisory, leadworker duties and it was their intent to increase his compensation for performing those duties. Metzler received an increase to his base rate of pay for added duties in the amount of $75.86, on October 2, 1998. The Escambia County Health Department was not aware of the rule of prohibiting more than one pay increase in twelve consecutive months for the same category. The Department of Management Services audited the payroll of the Department of Health and found several deficiencies including overpayment to Metzler. The Personnel Action Request Form dated April 7, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. Under the section of the form relating to "Salary," there is no selection under "Salary Additive." The Personnel Action Request Form dated October 2, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. However, under the section of the form relating to "Salary," salary additive, the block "leadworker" was checked. It was testimony of the personnel officer that, had they known of the Rule restricting two pay increases within twelve consecutive months, they would have checked the block under increase in base rate of pay, Internal Pay Relationships. That, together with the selection of "Leadworker" under "Salary Additive," would have been administratively correct. Both payroll request forms authorize the increase of pay by placing an "X" in the box "added duties." Personnel Action Request one authorized a raise on April 7, 1999, and Personnel Action Request two authorized a raise on October 2, 1999, which is within twelve months of the first raise. McCulough calculated the $1,010.80 overpayment by determining the increases paid prior to the expiration of the twelve-month period of the preceding raise for the same category, added duties and responsibilities. McCullough calculated the amount of overpayment and drafted a letter for the Director of the Health Department's signature. McCullough drafted the letter seeking reimbursement of the $1,010.80, because of the audit exception and the demand of the Department of Management Services to correct the administrative error that had been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent correct its paperwork and not attempt to collect the monies involved. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. 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 26th day of June, 2000. COPIES FURNISHED: Stephen C. Metzler 4048 Charles Circle Pace, Florida 32571 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent has committed the acts alleged in the Amended Order of Penalty Assessment and Stop Work Order and, if so, what penalty should be imposed.
Findings Of Fact The Division of Workers' Compensation is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. Lucio Cabrera is a workers' compensation compliance investigator for the Department. On April 1, 2008, he visited a work site in Jacksonville where 16 men were working on a multi- family apartment complex. Mr. Cabrera spoke to the workers and asked several questions designed to determine for whom the men worked and whether they were covered by workers' compensation insurance. At the time of the site visit, Mr. Cabrera prepared a Field Interview Worksheet, upon which he recorded the names and other information regarding the men seen at the work site. He also created a separate document, which he requested the men to sign. The people present at the worksite on the day in question were Jose Sosa Santibanez, Alvaro Gaona, Edegun Gonzalez, Pablo Rodriguez, Jose Antonio Chavez, Jose Manuel Camacho, Crisoforo Chavez, Vicente Urbina Arreola, Francisco Zapata, Maximino Sanchez Simon, Francisco Javier Ortiz, Juan Rodriguez, Homero Moreno Martinez, Pascual Castillo Moreno, Luis Manuel Rodrigues and Cipriano Patino Zabaleta.1/ The men worked for Jesus Sosa Corp. Present at the job site was the company representative, Jesus Sosa Santibanez (Sosa). The company provided workers' compensation coverage through an employee leasing company, Convergence Employee Leasing, Inc. (Convergence). However, Sosa also paid the employees additional funds directly, for which no workers' compensation coverage was obtained. Cabrera was able to confirm that while coverage was provided through Convergence, there was no separate coverage for the portion of salary provided directly by Sosa, and Sosa had not filed for an exemption from coverage as an owner or director of Jesus Sosa Corp. On April 2, 2008, Mr. Cabrera served Mr. Sosa with a Request for Production of Business Records, which requested that Sosa provide certain enumerated business records for the period "12/22/08 through 3/21/08." Clearly, this request means to convey that records from December 22, 2007, through March 21, 2008, were to be supplied. The request specified that the records should be supplied within five business days, which would have made the responses due on or before April 9, 2008. On April 1 and April 7, 2008, the Department received records related to the relationship between Convergence and Jesus Sosa Corp., including a copy of the employee leasing contract, timecard verification reports for the period requested, a list of employees and their listed hire dates for purposes of payroll by Convergence. On April 17 and 29, 2008, additional records were produced, including a copy of Jesus Sosa's business license from the City of Jacksonville and copies of check stubs dating from December 27, 2007, through March 21, 2008. On April 30, 2008, a Stop-Work Order was issued against Jesus Sosa, d/b/a Jesus Sosa Corp., a dissolved Florida corporation, requiring that Sosa and the company cease all business operations for all worksites in the state for failure to secure the payment of workers' compensation. The Stop-Work Order was served on counsel for Mr. Sosa by hand delivery May 1, 2008. On May 1, 2008, Mr. Cabrera also provided to counsel for Mr. Sosa, a second Request for Production of Business Records for the period of February 17, 2006, through April 30, 2008, for the purpose of enabling the Department to determine the appropriate penalty for violation of the provisions of Section 440.07, Florida Statutes. Like the prior request, records were to be produced within five business days. Although not entirely clear when they were received, sometime in May 2008, additional records in the form of a handwritten disbursement ledger were provided to the Department. However, no records such as traditional payroll records, tax records, quarterly earnings reports or certificates of exemption were received. The check stubs for the additional period of time requested could not be located. Mr. Sosa admitted freely that he paid additional amounts to his employees over and above what they were paid through his arrangement with Convergence. He insisted that employees were paid this additional compensation by check and not by cash. There is no admissible, credible evidence to refute this assertion, and Mr. Sosa's testimony is credited. The Department decided that the records provided were insufficient to determine the payroll for the company. Accordingly, the Department decided that salary would be imputed, based upon the statewide average weekly wage as defined in Section 440.12(2), Florida Statutes, multiplied by 1.5. The Department entered an Amended Order of Penalty Assessment on May 27, 2008. The Amended Order of Penalty Assessment assessed a penalty of $909,941.76. There are two aspects of imputing payroll relevant to these proceedings. First, whether there was sufficient information to determine the amount that would be considered salary for the employees involved, and second, the duration of their employment by Sosa. Sosa appeared in this hearing with the assistance of an interpreter. Clearly, he is more comfortable communicating in Spanish than he is in English. Although the investigator spoke Spanish to the individuals at the worksite, neither the Stop Work Order nor the Requests for Production of Business Records are in Spanish.2/ Mr. Sosa admitted that his records were disorganized and in some respects incomplete. However, he indicated that he provided what records he had in his possession. The Convergence records provided indicate that a contract was entered into between Sosa and Convergence on October 15, 2007, and payments for workers compensation were made on behalf of relevant employees from that date forward for the period records were originally requested. The Convergence records also include an employee roster with hire dates for each employee. For the requested time period prior to December 22, 2007, Sosa provided a handwritten disbursement record. The record includes four columns: 1) the date; 2) the payee; 3) what appear to be reimbursement amounts for items such as gas, rent, tools, etc.; and 4) what appears to be a total amount provided to the payee. It would be difficult from the information provided to determine how much salary each employee was paid. Based on the admissible evidence provided, imputation of salary was appropriate based on the statewide average weekly wage for framing. The Department imputed salary for each employee from February 17, 2006. It determined that the period of employment for each employee could not be determined from the records provided, and therefore, imputed salary for all sixteen men from the date of incorporation. Sosa testified that many of his employees were hired not long before the site visit because he had received more work framing out the buildings of an apartment complex. In the normal course of business, he would not have sufficient work for so many employees. His testimony is consistent with the increase in the number of employees covered by Convergence over the period of time Convergence records were provided, and is credited. A careful comparison of the Convergence records, the check stubs and the handwritten ledger give a fairly consistent indication of how long each employee worked for Mr. Sosa. The Department had sufficient information to determine the length of employment for each person listed as being present April 1, 2008. While there are some variations in spelling for some names provided, it is sufficiently clear to be able to determine who is being referenced. Jose Sosa Santibanez ran the company. Although he testified that he did not actually perform any work for a few months after incorporating the company, there are no records to support his assertion, and he provided no actual "start date." Therefore, it is appropriate to impute salary for Mr. Sosa for the full period beginning February 17, 2006. The list provided to the Department by counsel for Respondent indicated that Alvaro Gaona (also spelled Garna) was hired June 16, 2006. The earliest record of payment to Mr. Gaona was October 14, 2006. Payments were made on his behalf by Convergence since October 15, 2007. For the purpose of imputing salary, Goana's start date should be listed as June 16, 2006. Edegun Gonzalez (also listed as Edeon Gonzales) was listed as being hired November 2, 2007. The earliest record on the disbursement ledger for him is November 2, 2007, and Convergence lists his hire date as November 8, 2007. For the purpose of imputing salary, Edegun Gonzalez' start date should be listed as November 2, 2007. Pablo Rodriguez was listed as being hired November 2, 2007. The earliest record related to Pablo Rodriguez on the disbursement ledger is also November 2, 2007. The hire date listed by Convergence is March 10, 2008. For the purpose of imputing salary, Pablo Rodriguez’s start date is November 2, 2007. José Chavez is listed as being hired November 30, 2007. The earliest record of payment to José Chavez in the disbursement ledger is November 30, 2007. Convergence lists his hire date as November 8, 2007. For the purpose of imputing salary, José Chavez' start date is November 8, 2007. José Manuel Camacho (also spelled Clamacho) is listed as beginning employment November 30, 2007. The earliest record of payment to Camacho is November 30, 2007. Convergence lists his hire date as December 10, 2007. For the purpose of imputing salary, Camacho's start date is November 30, 2007. Crisoforo Chavez is listed as being hired September 28, 2007, and the earliest record of payment to him is also September 28, 2007. Convergence lists his hire date as November 8, 2007. For the purpose of imputing salary, Crisoforo Chavez' start date is September 28, 2007. Vicente Urbina Arreola is listed as being hired February 29, 2008. The earliest record of any payment to him is also February 29, 2008. Convergence lists his hire date as March 10, 2008. For the purpose of imputing salary, Urbina's start date is February 29, 2008. Francisco Zapata is listed as being hired February 29, 2008. The earliest record of any payment to him is also February 29, 2008. Convergence lists his hire date as March 10, 2008. For the purpose of imputing salary, Zapata's start date is February 29, 2008. Maximino Sanchez Simon listed as being hired February 29, 2008. The earliest record of any payment to him is also February 29, 2008. Convergence lists his hire date as March 10, 2008. For the purpose of imputing salary, Maximino Sanchez' start date is February 29, 2008. Francisco Javier Ortiz is listed as being hired March 7, 2008. The earliest record of any payment to him is also March 7, 2008. Convergence lists his hire date as March 10, 2008. For the purpose of imputing salary, Ortiz' start date is March 7, 2008. Luis Manuel Rodrigues is listed as being hired March 7, 2008. The earliest record of any payment to him is March 14, 2008. Convergence lists his hire date as March 10, 2008. For the purpose of imputing salary, Luis Rodrigues' start date is March 7, 2008. Juan Rodriguez is listed as being hired March 7, 2008. The earliest record of any payment to him is also March 7, 2008. Convergence lists his hire date as March 10, 2008. For the purpose of imputing salary, Juan Rodriguez’s start date is March 7, 2008. Homero Moreno Martinez is listed as being hired March 7, 2008, and the earliest record of payment to him is also March 7, 2008. Convergence lists his hire date as March 10, 2008. For the purpose of imputing salary, Homero Martinez’s start date is March 7, 2008. Pascual Castillo Moreno is listed in Petitioner’s Exhibit 12 as being hired April 11, 2008. There is no record of any payments to him in the check stubs or disbursement ledger. Convergence lists his start date as March 10, 2008, and payments were made on his behalf. The listed start date in Exhibit 12 is in error, as Mr. Moreno was present at the work site on April 1, 2008. However, because there is no admissible evidence of additional payments to him, there is no basis for imputing salary for Pascual Castillo Moreno. Cipriano Patino Zabaleta is also listed in Exhibit 12 as being hired April 11. 2008. There is no record of any payments to him in the check stubs or disbursement ledger. Convergence lists his start date as March 10, 2008, and payments were made on his behalf. Like Moreno, Cipriano Zabeleta was present on April 1, 2008, and was covered by Convergence at that time. Inasmuch as there is no admissible evidence of additional payments to him, there is no basis for imputing salary for Mr. Zabaleta. The Department imputed salary for all 16 employees through April 30, 2008. Records were requested through April 30, 2008, and no additional records beyond March 22, 2008, were provided. However, Sosa admitted that the men were employed through April 25, 2008. Imputation of salary for the employees for which imputation of salary is appropriate should be calculated through April 30, 2008.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that finds Jesus Sosa, d/b/a Jesus Sosa Corp., is guilty of failing to secure workers' compensation insurance as required by Chapter 440, Florida Statutes; recalculates the penalty in light of the dates of employment reflected in the Findings of Fact; and gives credit against the final penalty calculation for the amount paid in workers' compensation premium through Convergence. DONE AND ENTERED this 10th day of December, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2008.
The Issue Whether Respondent, Tony Williams Drywall and Plastering, Inc., failed to comply with the coverage requirements of the Workers' Compensation Law, chapter 440, Florida Statutes, by not obtaining workers' compensation insurance for its employees and, if so, what penalty should be assessed against Respondent pursuant to section 440.107.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of the workers' compensation law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. Tony Williams Drywall and Plastering, Inc., (Respondent or Williams Drywall) is a corporation based in Tallahassee, Florida, first incorporated on August 18, 1999. Williams Drywall is engaged in the construction industry, operating as a drywall installation and repair business with a principal office located at 8513 Raquel Lane in Tallahassee. Tony Williams is the sole owner, registered agent and president of Williams Drywall. On or about October 30, 2014, Williams Drywall was hired by Bill Davis, a general contractor, to make drywall repairs at 2069 North Monroe Street in Tallahassee (the job site). Williams Drywall hired Viper Enterprises, LLC, (Viper) for the job. Viper is a company owned and operated by Joseph Johnson, whom Mr. Williams described as a friend. Mr. Williams deemed the job as simple and expected to pay Viper about $200. On October 30, 2014, Department Investigator Betty Fuentes arrived at the job site and encountered Mr. Johnson. Ms. Fuentes inquired regarding Mr. Johnson’s workers’ compensation compliance.1/ Although Mr. Johnson, as corporate officer of Viper, had been exempt from the requirement to obtain workers’ compensation insurance, pursuant to section 440.05(3), Florida Statutes, the exemption expired after September 10, 2014. As of October 30, 2014, Mr. Johnson had not effectively renewed his exemption. Mr. Johnson called Mr. Williams from the job site on October 30, 2014, to inform Mr. Williams of the events that transpired at the job site. Through this telephone call, Mr. Williams learned that Ms. Fuentes had issued a stop-work order at the job site. Mr. Williams also spoke with Ms. Fuentes by phone from the job site on October 30, 2014, and Ms. Fuentes asked Mr. Williams for his corporate records as part of her investigation. Mr. Williams met directly with Ms. Fuentes in the late afternoon of October 30, 2014. During the meeting, Ms. Fuentes hand-delivered to Mr. Williams a Stop Work Order for Specific Worksite Only (Stop Work Order). The Stop Work Order required Williams Drywall to cease all business operations at the job site for failure to secure workers’ compensation insurance coverage for its employees. The Stop Work Order included an Order of Penalty Assessment in the amount of two times the amount Williams Drywall would have paid in premium when applying the approval manual wage rates to Williams Drywall’s employee payroll during periods for which it failed to secure payment of workers’ compensation insurance within the preceding two-year period. During the meeting, Mr. Williams provided to Ms. Fuentes corporate records and workers’ compensation information for Williams Drywall. Ms. Fuentes also requested from Mr. Williams payroll records for the preceding two-year period. Mr. Williams disputed that his payroll records for the preceding two-year period were relevant. Mr. Williams testified that he offered to provide his payroll records for the two-week time period during which Mr. Johnson’s exemption had lapsed. Mr. Williams insisted that the October 30, 2014, drywall job was the only job for which he hired Mr. Johnson between September 11, 2014, and October 30, 2014. Mr. Williams did not provide any payroll records for Williams Drywall to Ms. Fuentes or any other representative of the Department. Andrew Moskowitz was assigned to calculate the appropriate penalty to be assessed against Williams Drywall by the Department. Penalties for workers’ compensation insurance violations are based on doubling the amount of evaded insurance premiums for periods during which the employer failed to secure workers’ compensation coverage within the two-year period preceding the Stop Work Order. § 440.107(7)(d), Fla. Stat. The applicable period of noncompliance for Williams Drywall was September 11, 2014, the date Mr. Johnson’s exemption lapsed, through October 30, 2014, the date the Stop Work Order was issued. Section 440.107(7)(e) provides that where an employer fails to provide business records sufficient to enable the Department to determine the employer’s actual payroll for the penalty period, the Department will impute the weekly payroll at the statewide average weekly wage as defined in section 440.12(2), multiplied by two.2/ In the penalty assessment calculation, Mr. Moskowitz consulted the classification codes and definitions set forth in the SCOPES of Basic Manual Classifications (Scopes Manual) published by the National Council on Compensation Insurance (NCCI). The Scopes Manual has been adopted by reference in Florida Administrative Code Rule 69L-6.021. Classification codes are four-digit codes assigned to occupations by the NCCI to assist in the calculation of workers’ compensation insurance premiums. Rule 69L-6.028(3)(d) provides that “[t]he imputed weekly payroll for each employee . . . shall be assigned to the highest rated workers’ compensation classification code for an employee based upon records or the investigator’s physical observation of that employee’s activities.” Mr. Moskowitz applied NCCI Class Code 5480, titled “Plastering NOC [Not Otherwise Classified] and Drivers,” which applies to specialty contractors engaged in interior plastering. Mr. Moskowitz used the approved manual rates corresponding to Class Code 5840 for the period of non-compliance to calculate the penalty. On December 14, 2014, the Department issued an Amended Order of Penalty Assessment in the amount of $2,105.50, based upon an imputation of wages to Mr. Johnson, the only employee of Williams Drywall known to the Department for the period of noncompliance. The evidence produced at the hearing established that Mr. Moskowitz utilized the correct class codes, average weekly wages, and manual rates in his calculation of the Amended Order of Penalty Assessment. The Department has demonstrated by clear and convincing evidence that Williams Drywall was in violation of the workers' compensation coverage requirements of chapter 440. Joseph Johnson was an employee of Williams Drywall performing services in the construction industry without valid workers’ compensation insurance coverage. The Department has also demonstrated by clear and convincing evidence that the penalty was correctly calculated by Mr. Moskowitz, through the use of the approved manual rates and the penalty calculation worksheet adopted by the Department in Florida Administrative Code Rule 69L-6.027.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, assessing a penalty of $2,105.50 against Tony Williams Drywall and Plastering, Inc. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 June, 2015.
Findings Of Fact David F. Ramsey, Respondent, is a registered professional engineer holding registration No. 15307 and a registered land surveyor holding registration No. 2545 and at all times relevant hereto he was so registered. In April 1974 Respondent was President and qualifying professional engineer for Ramsey and Associates, Inc. , the engineering firm retained to prepare plans and specifications for a mobile home park known as Heritage Village. Approved financing for this project was near expiration date and the plans had not been approved by Indian River County officials. Before the plans for the sewage treatment plant and percolation pond associated therewith could he approved, a subsoil percolation test was required. On April 24, 1974, Respondent, in company with Larry Brown, General Manager of Brown Testing Laboratory, a wholly owned subsidiary of Ramsey and Associates, Inc., proceeded to the site of the Heritage Village project. There five test holes were dug to obtain subsoil conditions and prepare Subdivision Analysis Form (Exhibit l) for submission to Indian River County so the plans could be approved. No hole was dug deeper than 3.2 feet. Brown testified only a posthole digger was available for digging while Respondent recalled a hand auger also being available. Since Brown did the digging, his memory may be the better. During the procedure, Respondent took notes as the holes were excavated. Hardpan was found 2-1/2 to 3 feet below the surface, but the thickness of this hardpan was not ascertained. No water was put in the holes to ascertain the percolation rate for the subsoil. After the testing was completed, Respondent and Brown retired to the Holiday Inn for lunch where Respondent prepared page 4 of Exhibit 1, which is titled "Survey of Subsoil Conditions". Thereon for the 5 holes reported he included the percolation time for water in the test holes to drop one inch. These figures were estimated by Respondent based upon the type of soil observed in the holes. These figures were certified by Respondent to be representative of existing subsoil conditions at the time the test was made. It is this certification, which was submitted to Indian River County to get the plans approved, which forms the basis for the charge here under consideration. While Respondent was under investigation, and after being fully advised of his rights, he told an investigator that he had estimated the percolation rates because no water was available in the vicinity and submission of the subsoil report was urgent due to the financing deadline. In his defense, Respondent did not deny the percolation figures submitted on Exhibit 1 were estimates rather than the measurements they purported to be, but contended that the percolation rates and subsoil conditions shown on Exhibit 1 accurately represent conditions as they existed. Evidence to support this position was included in the tests conducted and reported in Exhibit 3. Standard procedure for taking percolation tests is to fill the hole with water and observe the time it takes the water level to drop three inches. It is also standard to dig a 6-foot deep hole. Here it was testified that hardpan prevented the hole depth from exceeding 3.2 feet. However, when a proper test was made shortly before the hearing, no difficulty was encountered getting to a depth of 6 feet using a hand auger. It is difficult to dig deeper than about 3 feet with a posthole digger.
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and 2nd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency responsible for the enforcement of the workers’ compensation insurance coverage requirements established in chapter 440, Florida Statutes (2014).1/ On March 6, 2006, the Florida Department of State, Division of Corporations, issued articles of corporation to Respondent. Respondent’s address of record is 4441 Radio Avenue, Sanford, Florida 32773. Respondent’s mailing address is 3779 Eagle Preserve Point, Sanford, Florida 32773. On October 22, 2014, Investigator Etheredge conducted a random workers' compensation compliance check at 107 East Circle Drive, New Smyrna Beach, Florida 32169. During the course of the compliance check, Investigator Etheredge observed Matthew Nobles supervising William Boling, who was operating a miter saw, and James Clogston, Jr., who was moving construction materials to the house. These individuals were building a deck on the house in question. Upon questioning by Investigator Etheredge, Matthew Nobles advised that William Boling and James Clogston both worked as employees for Respondent. Matthew Nobles further advised that workers’ compensation exemptions were in effect for himself and James Clogston. Matthew Nobles also informed investigator Etheredge that Respondent did not have a workers' compensation policy. Armed with this information, Investigator Etheredge returned to his vehicle and searched the corporate database of the Florida Department of State, Division of Corporations. The search revealed that Respondent's corporate officers are Matthew S. Nobles, Timothy J. Nobles, and James Clogston. Investigator Etheredge then consulted the Coverage and Compliance Automated System (CCAS). CCAS is the workers’ compensation compliance database for the State of Florida. Through CCAS, insurance companies and employee leasing companies submit to the State insurance information regarding new policies, amendments to existing policies, and cancellations of policies. CCAS also lists any exemptions currently or previously held by any member of a registered company.2/ According to Investigator Etheredge, in reviewing the CCAS database, he did not locate a workers' compensation policy or employee leasing notice for Respondent. CCAS did show, however, that Matthew Nobles had a then-current exemption for the period June 19, 2014, through June 19, 2016. Prior to this exemption, CCAS also showed that Matthew Nobles had an exemption for the period April 3, 2012, through April 3, 2014. CCAS showed that Timothy Nobles had an exemption for the period March 18, 2014, through October 24, 2014. For James Clogston, Jr., CCAS showed an exemption for the period December 10, 2013, through December 10, 2015. Finally, for William E. Boling, CCAS showed an exemption for the period December 10, 2013, through March 17, 2014. On October 22, 2014, William Boling was neither covered by a workers’ compensation policy, nor exempt from being covered by the same. Accordingly, on October 22, 2014, the Department issued to Respondent a Stop-Work Order and a written request for copies of Respondent’s business/payroll records for the two-year period covering October 23, 2012, through October 22, 2014. In response to the Department’s request for business records, Respondent provided approximately a year’s worth of payroll records for the period October 25, 2013, through October 15, 2014. These payroll records are sufficiently detailed, as reflected in the summary of payroll records (Ex. 6), so as to allow the Department to calculate Respondent’s weekly payroll for this period with respect to all employees and corporate officers other than William Boling. Florida Administrative Code Rule 69L-6.028(2) provides as follows: The employer’s period of non-compliance shall be either the same as the time period requested in the business records request for the calculation of penalty or an alternative period of non-compliance as determined by the department, whichever is less. The department shall determine an alternative period of non-compliance by obtaining records from other sources, including, but not limited to, the Department of State, Division of Corporations, the Department of Business and Professional Regulation, licensing offices, building permitting offices and contracts, that evidence a period of non- compliance different than the time period requested in the business records request for the calculation of penalty. For purposes of this rule, “non-compliance” means the employer’s failure to secure the payment of workers’ compensation pursuant to Chapter 440, F.S. (emphasis added). The payroll records provided by Respondent to the Department establish October 25, 2013, through October 22, 2014, as Respondent’s period of non-compliance. The Department failed to offer other evidence sufficient to establish a period of non- compliance commencing prior to October 25, 2013. However, since Respondent did not provide payroll records for the period October 16, 2014, through October 22, 2014, wages for this period shall be imputed for each of Respondent’s employees and corporate officers, as appropriate. Accordingly, Respondent’s penalty shall be calculated based on the above-established period of non- compliance. In support of its 2nd Amended Order of Penalty Assessment, the Department prepared a penalty calculation worksheet showing a total penalty owed of $61,175.36. While the evidence does establish that a penalty amount is owed, the evidence does not support the total penalty amount claimed by the Department. As previously noted, CCAS, as to William Boling, showed an exemption for the period December 10, 2013, through March 17, 2014. The evidence also established that Mr. Boling was observed operating a miter saw at the referenced job site on October 22, 2014. Given that Mr. Boling’s exemption expired on March 17, 2014, and that he was observed working for Respondent on October 22, 2014, Mr. Boling’s wages should be imputed for the period March 18, 2014, through October 22, 2014. The penalty calculation worksheet correctly reflects a penalty, based on imputed wages, in the amount of $539.58 for Mr. Boling for the period October 16, 2014, through October 22, 2014. The worksheet fails, however, to calculate a penalty for Mr. Boling based on imputed wages for the period March 18, 2014, through October 15, 2014. Furthermore, the worksheet entries for Mr. Boling showing penalties totaling $21,940.16 are not supported by the evidence as these penalty entries are based on imputed wages for a time not within the period of Respondent’s non-compliance. The entry on the penalty calculation worksheet for Timothy Nobles and Matthew Nobles correctly reflects a total penalty of $1,217.92 and $1,004.02, respectively, based on information gleaned from Respondent’s payroll records. The penalty calculation worksheet entries for Harold Nobles showing penalties totaling $13,106.38 are not supported by the evidence as these penalty entries are based on imputed wages for a time not within the period of Respondent’s non-compliance. As previously noted, James Clogston had an exemption for the period December 10, 2013, through December 10, 2015. There is no evidence establishing that Mr. Clogston had a business relationship with Respondent prior to the effective date of his exemption. The penalty calculation worksheet entries for James Clogston showing penalties totaling $21,940.16 are not supported by the evidence as these penalty entries are based on imputed wages for a time not within the period of Respondent’s non-compliance. The penalty calculation worksheet for the other listed employees (Messrs. Lisk, Knudsen, Taylor, Pingerin, Farrar and Donat (collectively referred to as “other employees”)) correctly reflects penalties totaling $1,427.14 based on information gleaned from Respondent’s payroll records. Auditor Ruzzo was assigned by the Department to calculate the penalty owed by Respondent. Auditor Ruzzo consulted the classification codes listed in the Scopes® Manual, which has been incorporated by reference into the Department’s rules. Fla. Admin. Code R. 69L-6.021 and 69L-6.031. The classification codes are four-digit numbers assigned to occupations by the National Council on Compensation Insurance, Inc. (NCCI), to assist in the calculation of workers' compensation insurance premiums. Auditor Ruzzo correctly assigned to Mr. Boling, and the other corporate officers and employees listed on the penalty calculation worksheet, NCCI class code 5654, which is for the area of carpentry. Auditor Ruzzo utilized the appropriate formula in calculating the penalty owed by Respondent for failing to secure the payment of worker’s compensation during the determined period of non-compliance.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding that Respondent, Nobles Quality Services, LLC, violated the provisions of chapter 440 by failing to secure the payment of workers’ compensation and assessing against Respondent a penalty in an amount consistent with the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 9th day of December, 2015 in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 9th day of December, 2015.
