The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Some time after February 19, 1983, and before March 23, 1983, Wayne W. Hickey opened for business as an auto mechanic under the name Auto Tech at 2350 Fernwood Drive in Pensacola, Florida. He was employed by, but had no ownership interest in the auto repair business known as Motor Exchange that occupied the premises before him. After he had opened his own business, he undertook employment for Lloyd Linville, a principal of Motor Exchange, who asked him to repair a car that belonged to David H. Weinstein which Motor Exchange had been unable to repair. Mr. Hickey could not fix the engine knock, either, and was never paid for his work. While the car was in Mr. Hickey's custody, vandals did $700 damage to it. Mr. Hickey refused to repair this damage or pay Mr. Weinstein money to have it done elsewhere. On February of 1983, while still employed by Motor Exchange, Mr. Hickey signed a warranty on behalf of Motor Exchange covering an engine rebuilt for Jose L. Rodriguez. A week later Mr. Rodriguez discovered that the cam and the lifters were bad, and brought this to Mr. Hickey's attention. Mr. Hickey referred Mr. Rodriguez to Motor Exchange at their new location. The last time that Mr. Rodriguez and Mr. Hickey spoke before the hearing in this cause, Mr. Rodriguez told Mr. Hickey that all was well. At hearing for the first time, Mr. Hickey learned that other problems had developed with the engine since. After she got her income tax refund, Anita Diane Frye took her 1974 Chevrolet to Auto Tech on February 28, 1983. She considers the car hers even though it is registered in her boyfriend's name. He signed the work order authorizing respondent to rebuild the engine. Auto Tech worked on the engine and gave a "1 year or 15,000 mile warranty on engine against defective parts & workmanship accessories excluded." Petitioner's Exhibit No. 5. When Mr. Hickey returned the car after working on the engine, he told Ms. Frye, "You better buy a new set of back tires," because it would go so fast, he claimed. In fact, the car smoked from the time they got it back from Mr. Hickey and he was unable to correct the problem when they took it back for lifters to be installed or when they took it back the second time. The third time they took it back they found the shop closed and no indication of how to get in touch with Mr. Hickey. At the time of the hearing, the car had been driven less than 3,000 miles since the engine had been rebuilt, but the engine spat and sputtered and the car could not be driven faster than 20 or 30 miles per hour: "You sit in a cloud of smoke whenever you stop." After James Clyde Odom heard respondent's radio advertisement, he brought his 1974 Dodge truck to Auto Tech on May 3, 1983, to have the engine rebuilt. Mr. Hickey told him he would rebuild the engine "from the ground up" and guarantee his work. As agreed, Mr. Odom returned for the truck on May 7, 1983, paid Mr. Hickey $644.09 and received a written "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Mr. Odom had driven the truck approximately three miles when his wife, who was following in another car, honked her horn. Steam was rising from the engine. They turned around and went back to the garage where Mr. Hickey supplied a bolt that had been left out of the water pump housing. The Odoms set out again and made it all the way to Mrs. Odom's father's house, where they noticed oil leaking. They determined that a quart and a half had been lost. They took the truck back to the Auto Tech shop again and left a note describing the problem. A week later Mr. Odom picked his truck up from Auto Tech a third time and drove it about two and a half miles to a friend's house, where oil leaked from the truck again and formed a puddle in the friend's driveway. This time when Mr. Odom returned, Mr. Hickey said he could not work on it right away, that Mr. Odom would have to bring it back at Mr. Hickey's convenience, and he refused Mr. Odom's proposal that another mechanic he asked to repair the engine with the bill being sent to Mr. Hickey. The compression in the truck's engine ranged from 107 or 114 pounds in one cylinder to 160 pounds in another. Mr. Hickey also undertook to repair the brakes on the Odom truck, and was paid for this job. He did not turn the drums or replace the brake cylinders although he did install new brake shoes. The brakes did not hold after the work was done. On May 27, 1983, Ishmael White took a 1974 Dodge engine to Hickey for rebuilding. The job was to include "rings, mains, rod bearings, timing gear, timing chain, lifters, push rods, oil pumps, all new gaskets, complete valve job and" cam bearings. Petitioner's Exhibit No. 7. On June 1, 1983, Mr. White paid Mr. Hickey $624.75 for this work and he picked the engine up the next day. The head bolt had not been replaced. On June 10, 1983, the engine was reinstalled in Mr. White's pick-up truck. It made the whole truck vibrate. When Mr. White took it to be tuned, the mechanic said he could not tune it because the valves were not closing. When Mr. White reported this to Mr. Hickey, Mr. Hickey said he would not be able to work on the engine until June 15, 1983. On June 15, 1983, Mr. White left the truck with Mr. Hickey and returned to pick it up on June 21, 1983, as they had agreed. The truck was not ready then, so Mr. White inquired again on June 23, 1983. At that time Mr. Hickey told him that the water pump leaked and would cost $70 to replace, but Mr. White refused to buy a water pump from Mr. Hickey since a new one had been installed less than three months before he took the engine to Auto Tech. On July 12, 1983, Mr. Hickey told Mr. White that everything had been fixed except the water pump and that if he towed the truck away without buying another water pump the warranty was "no good." The warranty Mr. Hickey had earlier given Mr. White was a "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Petitioner's Exhibit No. 7. Mr. White took the truck nevertheless. Bolts were loose. A brand new air filter was wet. Four of the eight cylinders had little or no compression and the engine ran so rough the hood shook, but the water pump was not leaking. Mr. White took the truck elsewhere to be repaired at his expense. On April 2, 1983, James Fisher took his Ford pick-up to Mr. Hickey and Auto Tech and asked that a rebuilt 400 cubic inch engine be substituted for the 351 cubic inch engine it had at the time and that its C-4 transmission be replaced with a C-6. The Fishers retrieved their truck on April 14, 1983, and drove it home. The next day they set out on a camping trip. They had driven 20 miles when the engine "blew up." Smoke came back into the cab and billowed out from under the hood. Employees of Mr. Hickey came for the truck. On April 25, 1983, the Fishers left Auto Tech in the Ford truck a second time. The engine ran rough, the transmission "growled," and they spotted a stream of transmission fluid, so they turned around before they had gone a mile and drove the truck back to Auto Tech. On April 29, 1983, Mr. Hickey said everything was fine and the Fishers set out again. The transmission was better, but the engine was worse, and the car broke down near their son's place of business, a block or so from Auto Tech. The truck was taken back to the Auto Tech garage. Again on May 6, 1983, the Fishers set out in the truck and got all the way to Pace, Florida, this time, notwithstanding problems with the transmission. A mechanic in Pace discovered worn valve guides, worn rings and worn bearings; and that only one bolt attached the engine to the frame; and that the drive shaft had been jammed in without being properly fitted. The Fishers were unable to find Mr. Hickey after he closed down his Auto Tech shop. Without objection, the following affidavit was received in evidence at hearing: I Took The Engine To Wayne Hickey at Auto TECH to be Rebuilt. He was To Rebuild The Engine For $395.00 Plus Taxes, I Paind Him by check $414.75 I took The Engine Home and Installed it in The Car.The engine was Smokeing Real bad. I went back to Wayne Hickey with The Car and he informed me That The Engine Should be Ran For up To 500 miles If IT didn't stop smokeing & useing oil To bring it back. The Engine Froze up. I Towed The car back to AUTO TECH. Wayne Hickey said he would Need to Keep The Car for 3-4 days. My daughter called after 7 days and they haden't Touched The car. They Said to Call back ON The 16 July 83. My daughter Called back on The 16 July 83 and could get no anser, I called back on The 19th & the Recording Said The Phone was Temperoley out of order, I came over here to Auto TECH and talked to Wayne Hickey, 7-28-83. He had not done anything to the Engine, I ask him To give me my Money back and I would get The Engine Fixed Myself. He stated For me to Take The car Home, Take the Engin back out and bring the Engine back To him and He would Fix IT, he didn't say anything about Removeing The Engine when He Told me To bring The car back to Him, A Mr. Watha L. Clayton wrote out the foregoing statement on a form furnished by petitioner's office. The form affidavit was notarized July 28, 1983.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2d day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 2d day of December, 1983. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Wayne Hickey Motor Exchange 5672 Avondale Road Pensacola, Florida 32506 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony and documentary evidence presented at the final hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following Findings of Fact are made: Mr. Arthur is the owner of Mustang Speed and Restoration (MS&R), a motor vehicle repair shop. MS&R’s physical address is 12545 44th Street North, Suite D, Clearwater, Florida. 4 Exhibit 9 is a composite exhibit of seven black and white photocopied photographs. Three of the photographs were identified as sand in the back seat of the Jeep; two photographs were of the Jeep parked; one photograph identified a pair of “pink” panties; and one photograph contained two “ZAFUL FOREVER YOUNG” tags. Only the photographs of the parked Jeep and the tags were clear. Mr. Arthur filed a motor vehicle repair registration application to renew MS&R’s license in March 2019. The application contained MS&R’s registration number as MV87835. Additionally, the application contained the following “Application Certification:” I certify that this applicant is aware of and complies with all of the requirements of ss. 559.901-559.9221, F.S., including the repair estimate and disclosure statement required to be given to customers, and I am empowered to execute this application on behalf of the above named [sic] entity or individual. Mr. Arthur’s name was printed below this statement along with his signature (which Mr. Arthur acknowledged during his testimony), his title as “owner,” his phone number, and the date: March 10, 2019. At all times relevant to this case, MS&R held a valid motor vehicle repair shop license. Sometime in 2019, Victor Oddo bought a 2002 Jeep Liberty (Jeep) from M and K Auto. Mr. Oddo secured his vehicle license plate, numbered FL- NBMD06, on the Jeep. Shortly after the purchase, the Jeep was not running smoothly. Mr. Oddo contacted M and K Auto, explained the problem, and he was directed to Respondent. Testimony at hearing did not adequately address the extent of the problem, other than the check engine light was coming on. During another appointment, Mr. Oddo paid Respondent $100 for a valve gasket repair. When shown a copy of the MS&R invoice for the valve gasket repair, Mr. Arthur confirmed it was an MS&R invoice but, testified he had “never seen that invoice, no. I don’t know anything about a valve gasket repair.” In January 2020, the Jeep’s check engine light kept coming on. Mr. Oddo brought the Jeep to Respondent. Mr. Arthur sent Mr. Oddo to a different repair shop, Carl and Sons Repair Shop (C&S). Based on information provided, Mr. Oddo believed the repair would cost $1,000 if done by C&S. On Wednesday, January 15, 2020, Mr. Oddo returned his Jeep to MS&R after Mr. Arthur stated he could do the repair for $380. The Jeep remained in Respondent’s possession until February 6, 2020, a period of 22 days. Mr. Oddo communicated with Mr. Arthur via telephone and text messages. Over the course of the 22 days the Jeep was at MS&R, Mr. Oddo sought information about the status of the Jeep’s repairs and when it would be returned to him. Respondent did not provide Mr. Oddo a written estimate for any work to be completed on the Jeep. At no time did Mr. Oddo waive the preparation of a written estimate. Mr. Arthur repeatedly claimed that the repair would be paid for by M and K Auto, as “the repairs were not done for the - - Mr. Oddo, they were done for the lot.” Mr. Oddo did not authorize Respondent or any of its employees to use his Jeep for personal use. Between January 15, 2020, and February 6, 2020, Mr. Oddo never took physical possession of his Jeep. On Thursday, January 23, 2020, at approximately 1:10 p.m., Mr. Oddo took two photographs of his Jeep parked in front of a Speedway store. The Jeep’s license plate confirmed it was Mr. Oddo’s vehicle. (Pet. Ex.9, pp 31 & 32.) This Speedway store is a block or more away from MS&R. On February 6, 2020, Mr. Oddo picked up the Jeep from MS&R. Respondent did not provide Mr. Oddo an invoice or billing statement for any work that was completed on the Jeep. After picking up the Jeep on February 6, 2020, Mr. Oddo received a parking ticket (Ticket One) in the mail. Ticket One was issued by the City of Tampa for a parking infraction at Ben T. Davis beach.5 The parking 5 A round-trip trek from MS&R’s location to Ben T. Davis beach could not be more than 40 miles. infraction occurred on Saturday, January 18, 2020, at approximately 1:00 a.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket One confirmed it was Mr. Oddo’s vehicle. Mr. Oddo communicated with Mr. Arthur about Ticket One, and believed Mr. Arthur would pay the $46.00 fine. Later, Mr. Oddo received another parking ticket (Ticket Two) in the mail. Ticket Two was issued by the City of Clearwater for an expired parking meter at a Clearwater beach.6 The parking ticket was issued on January 18, 2020, at 5:11 p.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket Two confirmed it was Mr. Oddo’s vehicle. Mr. Oddo did not communicate with Mr. Arthur about Ticket Two as by that time, Mr. Oddo had filed a complaint with Petitioner. Petitioner’s Exhibit 9, pages 27 through 29, purports to show sand on the back seat of Mr. Oddo’s Jeep. While it is logical to assume that a vehicle may have sand in it after a trip (or two) to the beach, or for that matter while in Florida as a whole, the black and white photographs are not clear or concise, but are unnecessary. That the Jeep was at each beach is established by the two tickets. After receiving the second ticket, Mr. Oddo checked his Florida Sunpass transponder7 account and discovered two charges while the Jeep was at MS&R for repair. On Thursday, January 23, 2020, at approximately 11 a.m., Mr. Oddo’s transponder account was charged $1.07 for his Jeep traveling southbound on the Bob Graham Sunshine Skyway bridge (Skyway). Later, at 12:25 p.m., Mr. Oddo’s transponder account was again charged $1.07 for the Jeep returning northbound on the Skyway. Mr. Arthur testified that Mr. Oddo’s Jeep was taken for a round-trip test drive to Sarasota, Florida, on January 23, 2020. The round-trip test drive 6 A round-trip trek from MS&R’s location to a Clearwater beach could not be more than 40 miles. 7 Mr. Oddo referred to this as his “Sunshine Skyway pass.” was approximately 82 miles in distance. Mr. Arthur attached a scanner to the Jeep to determine “what the repair needed to be done.” The test drive was also to pick up “a check for a different repair for a car dealer.” Respondent described this test drive using the phrase it “killed two birds with one stone.” Approximately 45 minutes after the Jeep returned from the Sarasota test drive, the Jeep was photographed at the Speedway store front. Mr. Arthur claimed the Jeep was on empty and had to be filled with gas. As provided in paragraph 11 above, Petitioner’s Exhibit 9, pages 31 and 32, are pictures of the Jeep parked in front of the Speedway store, not at a gas pump. Prior to reclaiming his car, Mr. Oddo was led to believe from Mr. Arthur that the Jeep’s timing chain and the check engine light had been repaired. However, that was not the case. Although the timing chain may have been repaired or replaced, the check engine light stayed on. When Mr. Oddo reclaimed his Jeep on February 6, 2020, he claimed there were “approximately a thousand miles added to my odometer.” He failed to substantiate this claim with evidence of the odometer reading on the Jeep when he dropped it at MS&R, compared to the odometer reading when he reclaimed the Jeep. Further, Mr. Oddo confused the issue when he testified: My trip odometer only had 16 miles on it, and I always reset my trip odometer when I fill up my gas tank. My gas tank was empty with 16 miles, so I - - I don’t understand why the trip odometer has to be reset for a test drive at all. Mr. Arthur admitted he never filled out or provided an estimate or invoice for the repair work to Mr. Oddo’s Jeep. Mr. Arthur testified instead that he was under the impression the repair work would be paid for by the car dealer from whom Mr. Oddo bought the Jeep. Mr. Arthur testified: We have an open contract, we are - - no shop under any of the motor vehicle repair under Mr. Williamson,[8] or anybody else, requires the car dealer to come out here and sign the invoice on every job. * * * And no shop that does car dealer wholesale work, auto work, auction work, has the customer - - the car dealer come down out of his office and sign a repair order; it’s a blanket contract, verbal contract. We repair them, they pay their bills, and everybody’s happy. * * * Just in rebuttal, there’s not one car dealership, one repair shop in the world that gets the car dealer or the auction to sign an invoice on every single job. It’s not possible. They’re not going to come down out of their car lot to come down here and sign every - - it’s a blanket contract, verbal contract valid under the State of Florida. Petitioner did not present any disciplinary history regarding Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating section 559.920(3), (12), (13), and (17), as alleged in the AC; Imposes an administrative fine of $4,000; and Directs Respondent to cease using consumers’ vehicles for unauthorized business. DONE AND ENTERED this 25th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2021. Robert J. Arthur Robert J. Arthur, d/b/a Mustang Speed & Restoration 12545 44th Street North, Suite D Clearwater, Florida 33762 Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Genevieve Hall, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street Tallahassee, Florida 32399 Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Respondent is a non-instructional employee of the School Board and has been employed by the School Board of Brevard County for approximately nine (9) years. Respondent is a small engine mechanic and is assigned to the Maintenance Division of the School Board. Respondent's duties are to repair and maintain lawnmowers, edgers and other equipment in the North and Central areas of the Brevard County School District. Respondent was assigned School Board Vehicle No. 271 for transportation during working hours. Vehicle No. 271 is a pickup truck with distinctive School Board markings and a county government license tag. No other person was assigned the use of Vehicle 271. Three (3) sets of keys were maintained for Respondent's vehicle. One set was assigned to Respondent, one set is kept by the Maintenance Division in a key locker and one set is kept by the School Board Vehicle Maintenance Shop on State Road 520 in Cocoa, Florida. On or about February 27, 1989, Leon Cowling, Assistant Superintendent for Facilities and Support Services received a telephone call from Assistant Superintendent, Jerry Copeland, concerning Vehicle 271. Mr. Copeland had been contacted by two civilian employees from Patrick Air Force Base who stated that on or about February 22, 1989, they had seen Vehicle No. 271 in the Cape Canaveral area being driven in an erratic manner by a person holding a pistol and a large amount of cash. Mr. Cowling telephoned the Maintenance Department and relayed this information to Johnny Romans, Maintenance Coordinator, who confirmed that Vehicle 271 was assigned to Respondent and was parked in the maintenance yard. Respondent was on sick leave that day and Cowling asked Romans to secure the truck. Romans checked Vehicle 271 and found it locked. He went to the key locker for the extra set of keys but found them missing. Romans then called the Vehicle Maintenance Shop for their set of keys but those keys were also missing. Romans decided to take the matter up with his supervisor, Henry Hartrich, the next day and left Hartrich a memo on the incident. On or about February 28, 1989, Henry Hartrich returned to work from a conference and read the memo. Hartrich looked in the locked vehicle and observed several key rings and keys hanging on knobs on the dash board and on the console. Hartrich asked the locksmith, Bob Dunkinson, to open the vehicle and bring him all keys found inside. Dunkinson unlocked the vehicle and delivered the keys to Hartrich. Hartrich then asked Dunkinson to identify the various keys found in the vehicle. Dunkinson identified the keys and determined that one ring contained keys to the truck, as well as, keys to Mr. Hartrich's office, Mr. Buckner's office, Bobby Young's office, the warehouse, and the big forklift in the maintenance yard. Respondent was not assigned any of these keys except the truck keys. On March 6, 1989, a meeting was scheduled by the Maintenance Division to discuss the reported sighting of Respondent with a handgun and money in the School Board vehicle. Present at the meeting were the two civilian employees from Patrick Air Force Base who reported the incident, Mr. Cowling, Mr. Hartrich, Mr. Romans, Mr. Buckner and Respondent. At the meeting, Respondent was identified by the Air Force employees as the person they observed in Vehicle 271. Respondent denied having a handgun or cash in the vehicle. The Air Force employees were dismissed from the meeting and Mr. Hartrich then confronted Respondent with the keys found in his School Board vehicle. At first Respondent denied the keys were his, but then admitted that they were. Mr. Cowling suspended Respondent for the remainder of March 6 and March 7 with pay. On March 8, 1989, Respondent was recommended for termination of employment for misconduct for having unauthorized keys in his possession and suspended without pay. The School Board's Maintenance Division is entrusted with millions of dollars of equipment, tools and other public property. Theft of School Board property from the Maintenance Division is a serious problem and access to the areas where the property is stored is strictly controlled. Keys to the equipment storage areas and offices in the Maintenance Division are assigned only to those employees who require access to these areas. Respondent was not assigned the keys to the offices in the Maintenance Division or the warehouse and forklift. He had no reason to have those keys in his truck. Respondent's possession of the unauthorized keys was a serious violation of School Board policy. There have been documents and property stolen from the Maintenance Division in the past several years. The area from which these items were taken were secured by lock and key. Keys to the offices of Mr. Buckner, Mr. Hartrich, and the warehouse were among those discovered in Respondent's vehicle. The unauthorized keys in question were in Respondent's locked vehicle. Respondent was not assigned these keys or authorized to have them in his possession. Respondent was the only person who drove Vehicle 271. There was no evidence presented that any other person had the opportunity or motive to place the keys in Respondent's truck. Respondent did not present any evidence that showed the existence of a conspiracy by his immediate supervisor, Ed Buckner, or others to place the keys in his truck or to cause his termination from employment. Neither the Respondent's testimony nor that of his witnesses showed bias against the Respondent nor motive on the part of any of his supervisors to conspire against him.
Recommendation Based on the findings of fact and conclusions of law set forth herein, it is recommended that Respondent's suspension, effective March 8, 1989, be upheld and that he be terminated from employment with the School Board of Brevard County. DONE AND ENTERED this 30th day of November, 1989, in Tallahassee, Leon County, 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 30th day of November, 1989. COPIES FURNISHED: Burton J. Green, Esquire Post Office Box 320087 Cocoa Beach, Florida 32932-0087 William C. Walker, Jr., Esquire 1260 S. Florida Avenue Rockledge, Florida 32955 Harold T. Bistline, Esquire Building I, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Abraham L. Collinsworth Superintendent School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955 Hon. Larry C. Williamson, Chair School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955
The Issue The issue in the case is whether Touch Free Technology, LLC (Respondent), should be assessed a penalty, and, if so, in what amount, for an alleged failure to comply with workers' compensation requirements referenced herein.
Findings Of Fact Pursuant to section 440.107, Florida Statutes (2014),1/ the Petitioner is the state agency charged with enforcing compliance with Florida’s workers’ compensation requirements. On October 21, 2014, Germaine Green, an investigator employed by the Petitioner, observed two individuals installing automated car wash equipment into a structure located at 5740 Ranch Lake Road, Lakewood Ranch, Florida 34202. Ms. Green identified the individuals performing the installation as Mark Hawkins and Randy Allore, and observed that they were being supervised by Timothy Smith. The Respondent is a business located at 6160 15th Street, East, Bradenton, Florida 34203. The Respondent was engaged in business activities during the period from October 22, 2012, through October 21, 2014, including the installation, maintenance and servicing of automated car wash equipment. Mr. Smith is the “managing member” of the Respondent. On October 21, 2014, Mr. Smith admitted to the inspector that the Respondent did not have workers’ compensation coverage or exemptions from coverage requirements. Ms. Green’s review of state workers’ compensation coverage records confirmed the admission. Mr. Hawkins and Mr. Allore advised the Petitioner’s investigator that they did not operate a business and that they did not have their own workers’ compensation coverage. The Respondent asserts that the services of Mr. Hawkins and Mr. Allore were supplied by “Tommy’s Car Wash Systems,” from whom the Respondent acquired the equipment, and that they were not directly employed by the Respondent. Pursuant to section 440.02(15)2, an uninsured subcontractor is considered an employee of the Respondent for purposes of workers’ compensation coverage. Under the statute, Mr. Hawkins and Mr. Allore were the Respondent’s employees. On October 21, 2014, the Petitioner’s investigator requested that Mr. Smith provide certain business records, and the Respondent complied with the request. The records were reviewed by Eric Ruzzo, the Petitioner’s penalty auditor. Mr. Ruzzo determined that, in addition to the three individuals observed by the Petitioner’s investigator on October 21, 2014, two additional individuals, Marie Smith and Don Meissner, Jr., were employed by the Respondent. The National Council on Compensation Insurance (NCCI) assigns classification codes for various occupations related to levels of risk presented by the specific tasks performed by an employee. The codes are used to establish rates charged for workers’ compensation coverage. They are also used in determining the penalty assessed for violations of workers’ compensation requirements. NCCI Code 3724 (“Machinery or Equipment Erection or Repair NOC & Drivers”) specifically includes “automatic car washing equipment,” such as that which the Petitioner’s investigator observed being installed by the Respondent on October 21, 2014. Mr. Ruzzo properly determined that NCCI Code 3724 was applicable to the job duties of Mr. Smith, Mr. Meissner, Mr. Hawkins and Mr. Allore, and calculated the penalty assessment on that basis. The Respondent asserted that Mr. Ruzzo’s determination of the applicable NCCI Code was erroneous, but the assertion was not supported by the evidence. Mr. Hawkins and Mr. Allore were installing automatic car wash equipment when observed by Ms. Green. The evidence established that Mr. Smith and Mr. Meissner, when required to do so, performed repairs to such equipment. Installation and repairs of automatic car wash equipment are specifically included within NCCI Code 3724. Mr. Ruzzo determined that Ms. Smith was the Respondent’s office manager and properly assigned NCCI Code 8810 (“Clerical Office Employees NOC”) in calculating the penalty related to Ms. Smith. Mr. Ruzzo reviewed the business records submitted by the Respondent and initially calculated a penalty assessment of $20,480.86. Following a review of additional records provided by the Respondent, Mr. Ruzzo reduced the penalty assessment to $14,994.72. The employment classifications assigned to the Respondent's personnel were correct. The amended penalty assessment was properly calculated by Mr. Ruzzo.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Financial Services, Division of Workers’ Compensation, enter a final order assessing a penalty of $14,994.72 against the Respondent, Touch Free Technology, LLC. DONE AND ENTERED this 16th day of October, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of October, 2015.
Findings Of Fact The Petitioner, Tony Meehan's Auto Repair, Inc., is a Florida corporation doing business as Burnie's Auto Service. Essentially, it is the family business of a man and woman who are husband and wife, Anthony and Cheryl Meehan. Before moving to Florida to begin doing business as Burnie's Auto Service, the Meehans lived in New Jersey. In New Jersey, Anthony Meehan worked as an auto mechanic for approximately 15 years. He is an ASE-certified master mechanic and also holds several other auto mechanic and repair competency certifications. Prior to leaving New Jersey, he was half owner of a small auto repair business. He and his partner did all of the work in the two-bay shop. Over the years, he built up a $15,000 equity in the business. In addition, he had an auto repair manual worth about $30, which he planned to contribute to the new business, and he had his own personal tool box worth about $10,000 to $15,000, which he planned to use in connection with the operation of the business. Cheryl Meehan was not in the auto repair business in New Jersey. She worked for several different employers in an office administrator capacity. In her most responsible position, she essentially reported to a business executive daily and received daily assignments. During her employment, the company grew. Cheryl was exposed to, and gained valuable experience, in several areas of bookkeeping, accounting, banking, finance and personnel matters. Burnie's Auto Service was a relatively large ongoing auto repair business in Tampa, Florida. It had five employees and 14 work bays. In approximately September, 1989, the Meehans negotiated to buy the business for $275,000, $50,000 down and the balance amortized over a period of years at ten percent interest. The seller took back a purchase money mortgage on the business property to secure payment of the balance. Both of the Meehans are liable, jointly and severally, on the note and mortgage to the seller. The Meehans used the $15,000 Tony got for the sale of his interest in his New Jersey auto repair business as part of the down payment. In addition, they used a certificate of deposit in the amount of approximately $30,000. The CD had been obtained by use of funds that had been paid to Cheryl before their marriage as a result of a personal injury lawsuit. It is not clear whether the CD was held solely in Cheryl's name or in the names of both of the Meehans. In addition, $10,000 from the sale of Cheryl's automobile also went towards the purchase of the business. It was not clear from the evidence whether the automobile was titled in the name of Cheryl only, or in the name of both of the Meehans. Nor is it clear whether the automobile was purchased by Cheryl before the marriage. The purchase of the business was to close in November, 1989, but the closing was postponed to January, 1990. The Meehans incorporated Tony Meehan's Auto Repair, Inc., as a Florida corporation on or about December 20, 1989. The Meehans were named as the sole members of the initial board of directors of the corporation. The Meehans moved to Tampa on Christmas day, 1989. The initial meeting of the board of directors of Tony Meehan's Auto Repair, Inc., was held on December 28, 1989. At the meeting, the Meehans were confirmed as the sole members of the board of directors. Tony was named chairman of the board, and Cheryl was named secretary. 500 shares of stock were issued, all to "Anthony R. Meehan and Cheryl A. Meehan, husband and wife." In addition, Tony was made president of the corporation, and Cheryl was made secretary/treasurer. When the Meehans took over the business, they decided to keep the shop foreman, master mechanic and two auto mechanics already employed there. They decided to use suppliers Tony had used when he was in business in New Jersey. They decided to contract out towing and transmission service to companies in Land O' Lakes, Florida. These were joint decisions based in large part on Tony's expertise. Cheryl has practically no training or experience in auto mechanics or auto repairs. She has no auto mechanic certifications. She has only recently begun to learn something about auto mechanics and about how to do certain auto repairs. Hiring and firing continued to be joint decisions made by the two of them. To the extent that they were made based on an evaluation of the employee's skills in auto mechanics, they were based in large part on Tony's expertise. Since the beginning of the business, they have had to fire one employee, and they have hired two. Tony's primary role in the daily operations of the business is to generally supervise the quality and efficiency of the auto repair work. He also sometimes diagnoses (or helps diagnose) mechanical problems, directs (or helps direct) the performance of repairs, and test drives vehicles after repairs are done. In connection with these functions, he sometimes orders (or directs the ordering of) parts. Sometimes, he will estimate repair costs. Cheryl is the office administrator for the business. In this role, she handles all bookkeeping, accounting, banking, payroll and personnel matter details. She often bills jobs and operates the business cash register. She physically places orders for parts, at the direction of Tony or the employees, and pays for them. She generally will not countermand a parts order but may ask her husband or, if he is not there, the master mechanic to verify an order if she questions it. She makes sure parts get billed. As she became more familiar with the auto repair business, she began to estimate some jobs by reference to standard estimates manuals and was able to say which parts would have to be ordered for some jobs. The corporation opened a business bank account with a local bank. Both Cheryl and Tony have signature authority on the account. Cheryl writes virtually all checks on the account and does all the banking. Tony only writes a check on the account on the rare occasions when Cheryl is not available when one has to be written. Initially, the Meehans decided that Tony would be paid approximately $700 a week and that Cheryl would be paid approximately $300 to $350 a week. Tony did not have as much Social Security credit as Cheryl from their work in New Jersey, and they wanted to try to equalize their credits. Otherwise, as a practical matter, the relative size of their salaries did not matter to the Meehans. Cheryl deposited both checks into their joint personal bank account for the use of both of them, as needed. The business pays for a $200,000 whole life insurance policy on the life of Cheryl, and one on the life of Tony. It is not clear from the evidence who are the beneficiaries under those policies. The business also pays for a $2 million major medical insurance policy for Cheryl, and one for Tony. As the business continued, Cheryl assumed increasing duties and responsibilities, and Tony assumed fewer. Cheryl worked harder, and Tony worked less. Also, Cheryl's mother persuaded Cheryl that she should have a greater share of the equity in the business to reflect her greater initial financial contribution. Tony agreed. In January, 1991, additional stock in the company was issued. 135 shares went to Cheryl and 65 went to Tony. No changes were made in the constitution of the board of directors or in the officers of the corporation at that time. Tony Meehan's Auto Repair, Inc., d/b/a Burnie's Auto Service, applied to the Department 3/ for certification as a minority business enterprise on or about May 13, 1992. By letter dated September 16, 1992, the Department denied the application. The denial was based, in part, on the Department's determinations (1) that Cheryl's compensation was not commensurate with her ownership interest in the business and (2) that minorities (i.e., Cheryl) did not make up more than 50 percent of the board of directors. In reaction to the denial letter, and to improve their company's chances of being certified as a minority business enterprise, the Meehans decided to alter their respective salaries. Starting no earlier than December, 1992, Cheryl has been paid $725 a week, and Tony has been paid $450 a week. As before, as a practical matter, except for the Social Security credit, the relative size of their salaries does not matter to the Meehans. Cheryl deposits both checks into their joint personal bank account for the use of both of them, as needed. Also in reaction to the denial letter, and to improve their company's chances of being certified as a minority business enterprise, the Meehans met as the board of directors on or about March 18, 1993, to change the constitution of the board of directors and to change the officers of the corporation. They made Cheryl the chairman and sole member of the board of directors, and the president of the corporation. They made Tony the vice-president, secretary, and treasurer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Management Services enter a final order denying the application of Tony Meehan's Auto Repair, Inc., d/b/a Burnie's Auto Service, for certification as a minority business enterprise. RECOMMENDED this 13th day of May, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of May, 1993.
