The Issue The issue in this case is 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 3rd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation, is the state agency responsible for enforcing the requirement that employers in the State of Florida secure the payment of workers' compensation for their employees and corporate officers. Respondent, Shriji Krupa, Inc., is a Florida corporation engaged in business operations as a gas station (self-service and convenience-retail) in the State of Florida. Mr. Hemant Parikh, one of Respondent's corporate officers, testified that, on November 20, 2012, Respondent was inspected by Petitioner's Compliance Investigator, Mike Fuller. Mr. Fuller advised Mr. Parikh that Respondent needed to close the store. According to Mr. Hemant Parikh, at the time of inspection, Respondent had two corporate officers and four additional employees. Mr. Parikh explained that, at the time of inspection, Respondent had two store locations with three employees working at each locale. Mr. Shrikant Parikh, another corporate officer, testified that, at the time of inspection, Respondent was operating under the mistaken belief that its corporate officers were exempt from workers' compensation coverage. Pursuant to the record evidence, on November 28, 2012, Mr. Fuller served a Stop-Work Order and Order of Penalty Assessment on Respondent. Pursuant to the Stop-Work Order, Respondent was ordered to cease all business operations for all worksites in the state based on the following: Failure to secure the payment of workers' compensation in violation of sections 440.10(1), 440.38(1), and 440.107(2) F.S., by: failing to obtain coverage that meets the requirements of Chapter 440, F.S., and the Insurance Code. After receiving the Stop-Work Order, on that same date, Respondent obtained workers' compensation coverage with an effective date of November 29, 2012. Respondent has maintained appropriate coverage to date. Following the Stop-Work Order, Respondent submitted various records for Petitioner's review.2/ Petitioner's sole witness was Ms. Lynne Murcia. Ms. Murcia works in Petitioner's Bureau of Compliance wherein she calculates penalties for those employers found in violation of the workers' compensation laws. Ms. Murcia performs approximately 200 penalty calculations per year. Ms. Murcia first became involved with Respondent in January 2013, when she received an assignment to perform a penalty calculation. Ms. Murcia reviewed all records previously submitted by Respondent. From the records received, Ms. Murcia was able to determine that Respondent employed four or more employees on a regular basis. Ms. Murcia explained that "employees" include corporate officers that have not elected to be exempt from workers' compensation. After conducting a search within the Florida Division of Corporations, Ms. Murcia was able to determine that no exemptions existed for Respondent's corporate officers. Ms. Murcia further conducted a proof of coverage search via Petitioner's Coverage and Compliance Automated System ("CCAS"), which is a database that contains all insurance coverage and exemptions for each employer throughout the State of Florida. The search revealed that Respondent possessed appropriate coverage from November 29, 2012, to the present; however, no prior coverage was indicated. Ms. Murcia conducted a penalty assessment for the non- compliance period of November 29, 2009, through November 28, 2012. From the records submitted by Respondent, Ms. Murcia correctly identified Respondent's employees and gross wages paid during the penalty period. All of the individuals listed on the Penalty Worksheet of the 3rd Amended Order of Penalty Assessment, dated August 27, 2014, were "employees" (as that term is defined in section 440.02(15)(a), Florida Statutes) of Respondent during the period of noncompliance listed on the penalty worksheet. From a description of the Respondent's business operations, Ms. Murcia determined Respondent's classification code. She explained that classification codes are established by the National Council of Compensation Insurance ("NCCI"). A classification code is a four-digit code number that is assigned to a specific group of tasks, duties, and responsibilities for a specific grouping of business. Ms. Murcia further testified that the classification codes are associated with a manual rate which is the actual dollar amount of risk associated with a particular code.3/ The manual rates are also established by NCCI. Class Code 8061, used on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment, and as defined by the NCCI Scopes Manual, is the correct occupational classification for Respondent. From the assigned classification code number, 8061, Ms. Murcia calculated the appropriate manual rate for the penalty period. The manual rates used on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment are the correct manual rates. The total penalty of $21,205.19 is the correct penalty for the employees listed on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent Shriji Krupa, Inc., violated the requirement in chapter 440, Florida Statutes, to secure workers' compensation coverage, and imposing a total penalty assessment of $21,205.19. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of October, 2014.
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 14, 2008, the Amended Order of Penalty Assessment issued on July 21, 2008, and the Second Amended Order of Penalty Assessment issued on August 20, 2008, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order for Specific Worksite Only and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-185-D1, and being otherwise fully advised in the premises, hereby finds that: 1. On July 14, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-185-D1 to F. PALHANO CONSTRUCTION CORPORATION (hereinafter “F. PALHANO”.). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On July 14, 2008, the Stop-Work Order and Order of Penalty Assessment was served by personal service on F. PALHANO. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3, On July 21, 2008, the Department issued an Amended Order of Penalty Assessment in Case No. 08-185-D1 to F. PALHANO. The Amended Order of Penalty Assessment assessed a total penalty of $24,758.10 against F. PALHANO. The Amended Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in _ accordance with Sections 120.569 and 120.57, Florida Statutes. 4, On August 11, 2008, the Amended Order of Penalty Assessment was served on F. PALHANO by personal service. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On August 13, 2008, F. PALHANO filed a petition for administrative review with the Department. . | 6. On August 20, 2008, the Department issued a Second Amended Order of Penalty Assessment 1 in Case No. 08- 185-D1 to F. PALHANO. The Second Amended Order of Penalty Assessment assessed a total penalty of $25,846.54 against F. PALHANO. The Second Amended Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO was advised that . any request for an administrative proceeding to challenge or contest the Second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, F lorida Statutes. 7. On August 21, 2008, the Second Amended Order of Penalty Assessment was served on F. PALHANO. by personal service. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 8. On August 26, 2008, the employer entered into a Payment Agreement Schedule for Periodic Payment of Penalty, in which the employer agreed to pay its penalty to the Department in set installments. The employer was granted an Order of Conditional Release From Stop-Work Order, which notified the employer that should the employer become delinquent on the Payment Agreement Schedule for Periodic Payment of Penalty, the Stop-Work Order would be reinstated. 9. The petition for administrative review was forwarded to the Division of Administrative Hearings on September 5, 2008, and the matter was assigned DOAH Case No. 08- 4396. 10. On February 5, 2009, the Administrative Law Judge issued an Order Granting Continuance, requiring the parties to advise the Administrative Law Judge of the case’s status no later than February 13, 2009. 11. The parties did not advise the Administrative Law Judge of the case’s status on or before February 13, 2009. On March 5, 2009, the Administrative Law Judge issued an Order Closing File, dismissing the case and closing its file at the Division of Administrative Hearings. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference. 12. On June 3, 2009, the Department reinstated the Stop-Work Order issued to F. PALHANO for failure to make timely payments on the Payment Agreement Schedule for Periodic Payment of Penalty. The last payment made by F. PALHANO was on January 5, 2009, leaving an outstanding balance of $21,696.78. 13. On July 27, 2009, F. PALHANO filed a Notice of Voluntary Dismissal of Petition for Formal Hearing with the Division of Administrative Hearings. A copy of the Notice of Voluntary Dismissal of Petition for Formal Hearing is attached hereto as “Exhibit E” and incorporated herein by reference.
The Issue The issues in this case are whether the Respondent has violated Sections 491.009(2)(h) and (u), Florida Statutes, by failing to timely comply with a prior Board Order and, if so, the determination of an appropriate penalty.
Findings Of Fact The Respondent, David Pesek, is a licensed Marriage and Family Therapist in the State of Florida, and has been so licensed at all times relevant and material to this proceeding. His license number is NT 192. On September 7, 1988, the Petitioner filed an earlier Administrative Complaint against the Respondent in DPR Case No. 0055334. On February 14, 1990, the Respondent signed a stipulation providing for a stipulated disposition of DPR Case No. 0055334. The Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling approved the stipulated disposition at a meeting on April 27, 1990, and on Nay 23, 1990, a Final Order was rendered in DPR Case No. 0055334. The Final Order in DPR Case No. 0055334 included the following pertinent language: Respondent shall pay an administrative fine of one thousand dollars ($1,000) to the Executive Director of the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling within sixty (60) days of the filing of the Final Order herein. Respondent shall be placed on probation for one (1) year, with the condition of probation that Respondent's billing records and documents be reviewed by a consulting practitioner. The one (1) year probation shall begin to run when consulting practitioner is approved. Such consultant shall submit a written report to the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling six (6) months following the rendition of the Final Order. The consulting practitioner shall be selected by Respondent, subject to approval of the Board. Pursuant to the terms of the Final Order in DPR Case No. 0055334, the deadline for paying the administrative fine was July 23, 1990. On November 27, 1990, the Department of Professional Regulation sent a letter to the Respondent reminding him that he had not complied with the Final Order in DPR Case No. 0055334. By letter dated December 6, 1990, and received on December 13, 1990, the Respondent transmitted his check in the amount of one thousand dollars in payment of the fine. 2/ The fine was paid approximately four and a half months after it was due. By letter dated January 23, 1991, the Respondent advised the Chairman of the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling of the name of a consulting practitioner who was willing to perform the review and reporting functions required by the Final Order in DPR Case No. 0055334. The letter of January 23, 1991, was two months after the deadline for the consultant's report. By letter dated April 1, 1991, the Respondent was advised by staff of the Department of Professional Regulation that his choice of a consulting practitioner had been approved, that the consultant's report would be due six months from the date of the letter, and that the Respondent's one-year probation period would begin as of the date of the letter. /3
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling enter a Final Order in this case to the following effect: Concluding that the Respondent did not violate Section 491.009(2)(h), Florida Statutes, and dismissing Count I of the Administrative Complaint. Concluding that the Respondent did violate Section 491.009(2)(u), Florida Statutes, and finding him guilty of the violation charged in Count II of the Administrative Complaint. Imposing a penalty consisting of: (1) an administra- tive fine in the amount of $500.00 (Five Hundred Dollars), (2) issuance of a public reprimand, and (3) a six-month period of probation, which period shall begin on the first day following the Respondent's current probation period and shall be subject to such reasonable conditions of probation as may seem appropriate to the Board. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 7th day of January, 1992. MICHAEL M. PARRISH, 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 7th day of January, 1992.
The Issue Whether Judy Limekiller (Respondent) committed the violation alleged in the Administrative Complaint dated August 30, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida created by section 20.165, Florida Statutes. Petitioner is charged with the responsibility of regulating the real estate industry in Florida pursuant to chapters 455 and 475, Florida Statutes. As such, Petitioner is fully authorized to prosecute disciplinary cases against real estate licensees. Respondent was at all times material to this matter, the holder of a Florida real estate license, license number 3131887. At all times material to the allegations of this case Respondent was an active sales associate with Michael Saunders and Company. Respondent’s address of record is 1529 Pelican Point Drive, HA 205, Sarasota, Florida. In January 2012, Respondent was a sales associate handling a transaction with Regina Zahofnik (Ms. Zahofnik). Ms. Zahofnik was the seller of property located at 4527 MacEachen Boulevard, Sarasota, Florida. Respondent admits she signed Ms. Zahofnik’s name to a Cancellation of Contract and Release. Respondent did not have written authorization to sign for Ms. Zahofnik. Instead, she maintains Ms. Zahofnik gave her verbal authority to sign the document. In February 2012, Respondent was a sales associate handling a transaction with Lynda Kravitz. Ms. Kravitz was the seller of property located at 1526 Pelican Point Drive, BA 147, Sarasota, Florida. Respondent signed Ms. Kravitz’ name to a Seller’s Property Disclosure Statement. Ms. Kravitz did not authorize Respondent to sign the document. In February 2012, Respondent was a sales associate handling a transaction with Cherryne Kravitz. Ms. Kravitz was the seller of property located at 1526 Pelican Point Drive, BA 147, Sarasota, Florida. On or about February 10, 2012, Respondent signed Ms. Kravitz’ name to a Residential Contract for Sale and Purchase. Ms. Kravitz did not authorize Respondent to sign the document. In all situations, Respondent believed she was authorized to sign the documents. She claims either e-mail or text message gave her the go-ahead to sign documents so that they could be timely processed. In the case of Ms. Zahofnik, the “deal was dead” and could not close. Since the buyer elected to walk away from the purchase when the seller could not complete the transaction, Respondent maintains that no party was injured by the signing of the document and that by doing so the refund to the buyer was processed. In the case of the Kravitz sale, Respondent signed the property disclosure because she knew the property better than the sellers and an expedited completion of the paperwork was requested. Again, Respondent states Ms. Kravitz authorized the signature. And with regard to the signing of the contract, Respondent asserts that Ms. Kravitz was slow to return the contract and that she was getting pressure from the other Ms. Kravitz to get the paperwork completed. Eventually, both Kravitz daughters signed the contract. Respondent does not deny signing the contract. As a result of the allegations of this case, Michael Saunders and Company incurred expenses and lost commissions. Petitioner did not present evidence regarding the cost of investigating this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Respondent in violation of the provision of law set forth in the Administrative Complaint as alleged by Petitioner, imposing an administrative fine in the amount of $2,500.00, and imposing a suspension of Respondent’s real estate license for a period of 30 days, with probation to follow for such period of time as the commission deems appropriate. DONE AND ENTERED this 21st day of June, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 21st day of June, 2013. COPIES FURNISHED: Susan Leigh Matchett, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 James P. Harwood, Esquire James Harwood, P.A. Suite 106 1277 North Semoran Boulevard Orlando, Florida 32807 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Juana Watkins, Director Division of Real Estate 400 West Robinson Street, Suite N801 Orlando, Florida 32801 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure payment of workers’ compensation coverage, as alleged in the Second Amended Order of Penalty Assessment; and, if so, the appropriate penalty.
Findings Of Fact Jurisdiction The Department is the state agency responsible for enforcing the requirement of chapter 440 that employers in Florida secure workers’ compensation coverage for their employees and corporate officers, pursuant to section 440.107. Patrick Hoffman was the owner and sole corporate officer for American. At all times material to this proceeding, American sold materials for window screens, patio sliding doors, screws, and spline screening; and it provided window and screen installation services. Investigation On June 29, 2016, the Department commenced an investigation following the observation of Patrick Hoffman and Timothy Barnett (also known as Adam Barnett) performing window installation services at a residential property. Kent Howe, an investigator in the Department’s compliance division, conducted an investigation regarding American’s operation of its business without proper workers’ compensation coverage. On June 29, 2016, Mr. Howe personally served a Stop-Work Order requiring American to cease all business operations and Order of Penalty Assessment on Mr. Hoffman. On June 29, 2016, Mr. Howe also served Mr. Hoffman with a Request for Production of Business Records for Penalty Calculation, requesting records to enable the Department to calculate the appropriate penalty for the period of June 30, 2014, through June 29, 2016. On June 30, 2016, the Department issued a conditional release from the Stop-Work Order. The conditional release required Respondent to pay $1,000, and agree to pay the penalty assessment within 28 days after the penalty calculation. American paid the $1,000 payment but it disputed the calculated penalty amount. An employer is required to maintain workers’ compensation coverage for employees unless there is an exemption from coverage. In the construction industry, a company must maintain coverage if it employs one or more persons. In the non-construction industry, a company is required to maintain coverage if it employs three or more persons. A contractor serving as a corporate officer in the construction industry may obtain an exemption from coverage requirements. See § 440.05, Fla. Stat. A contractor must demonstrate compliance with the workers’ compensation requirements or produce a copy of an employee leasing agreement or exemption for each employee. If an employee is a subcontractor without their own workers’ compensation coverage or an exemption, the individual is considered an employee of the contractor. American did not dispute that Timothy Barnett and Roger Wilson were employees of the company. American also did not dispute that it did not have workers’ compensation coverage for the employees as required by chapter 440. As a corporate officer, Mr. Hoffman elected to be exempted from workers’ compensation coverage. Penalty Calculation The Department assigned Eunika Jackson, a Department penalty auditor, to calculate the appropriate penalty for American. Ms. Jackson conducts penalty audits for construction and non-construction employers. Ms. Jackson testified that workers’ compensation coverage penalties are calculated based on a statutory formula in which the auditor calculates two-times the amount of the insurance premium the employer would have paid for each employee over the two-year period preceding the Stop-Work Order. The two-year period is commonly referred to as the look-back period. The penalty calculation is based on the employer’s payroll, the classification code for the industry of operation during the audit period, and the manual rate assigned to that classification code. To determine the appropriate code, the auditor uses the classification code in the Scopes® Manual, which has been adopted by Petitioner through Florida Administrative Code Rules 69L-6.021 and 69L-6.031. Ms. Jackson used business records Mr. Hoffman provided to determine the appropriate industry code and the penalty amount for each employee. Ms. Jackson reviewed bank statements to determine the gross payroll paid to Mr. Wilson and Mr. Barnett during the two-year non-compliance period. The records demonstrated that Roger Wilson received payment during the period of June 30, 2014, through December 31, 2015. Timothy (Adam) Barnett received payment during the period of January 1, 2015, through June 29, 2016. Ms. Jackson determined that American operated in the construction industry and initially assigned each employee a classification code of 5102. On August 11, 2016, the Department issued the Amended Order that assessed a total penalty of $10,785.04. The Amended Order was personally served on Mr. Hoffman on August 16, 2016. In response to the Amended Order, Respondent disputed the classification code assigned to Mr. Wilson. Mr. Hoffman testified that Mr. Wilson did not perform construction work, but rather worked as a retail employee selling merchandise in the store front. Mr. Hoffman further testified that contractors purchased items at American for use in their businesses. Mr. Hoffman’s description of Mr. Wilson’s job responsibilities and description of merchandise sold at American clearly demonstrates that Mr. Wilson did not perform construction work. Ms. Jackson correctly determined that the classification code 8018, which applies to retail and wholesale salespersons, was the appropriate code for Mr. Wilson. The classification code change resulted in a manual rate reduction and a reduced assessment applied to Mr. Wilson. On November 18, 2016, the Department filed a Motion for Leave to Amend Order of Penalty Assessment, which the undersigned granted. The Second Amended Order reduced the penalty assessment to $6,818.00. During the hearing, American continued to dispute the calculation of the penalty for Mr. Hoffman because he maintained an exemption as a corporate officer. The Department ultimately agreed to remove Mr. Hoffman from the penalty assessment worksheet and reduced the penalty assessment to $6,764.96. At hearing, there was no dispute regarding the penalty assessment related to Mr. Barnett. However, Respondent argued in the post-hearing statement for the first time that Timothy Barnett had an exemption. There was no evidence to support Respondent’s assertion. Therefore, Ms. Jackson correctly included payment to Mr. Barnett as payroll for purposes of calculating the penalty. Regarding Mr. Wilson, Mr. Hoffman argued that Mr. Wilson had an exemption from workers’ compensation coverage when he began working for American.1/ However, Mr. Hoffman could not produce a copy of the exemption and Mr. Wilson was not present at the hearing for testimony. Ms. Jackson conducted research using the Coverage Compliance Automated System (“CCAS”), a database used by the Department to maintain information regarding workers’ compensation policies, employee leasing plans, and exemptions for employees. Ms. Jackson found no record of an exemption for Mr. Wilson in CCAS. While Ms. Jackson did not exhaust all efforts to locate an exemption for Mr. Wilson, it was American’s burden to produce evidence of an exemption. Mr. Hoffman’s testimony with nothing more was insufficient to demonstrate that Mr. Wilson had an exemption and as such, Ms. Jackson appropriately included payments to Mr. Wilson as payroll to calculate the penalty. The calculation of the penalty for Mr. Wilson in the amount of $2,784.58 is correct. However, the penalty calculation for Mr. Barnett is incorrect. The amount should be $3,872.27. Therefore, the amount of the penalty should be reduced to $6,656.85. Ultimate Findings of Fact American was actively involved in business operations within the construction industry during the audit period of June 30, 2014, through June 29, 2016. Based upon the description of American’s business and the duties performed, Mr. Wilson was properly classified with a code 8018. Ms. Jackson used the correct manual rates and methodology to determine the appropriate penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that: Respondent, American Aluminum Concepts, Inc., violated the requirement in chapter 440, by failing to secure workers’ compensation coverage for its employees; and Imposing a total penalty assessment of $6,656.85. DONE AND ENTERED this 16th day of December, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 December, 2016.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Philip James Chase, II, was employed under a continuing contract as a classroom teacher at Dunedin High School (DHS) in Dunedin, Florida. The school is under the jurisdiction of petitioner, School Board of Pinellas County (Board). During school year 1990- 91, respondent was a physical education and driver's education teacher and also served as wrestling coach. He has been an employee of the Board since 1975 and a teacher since 1971. The facts underlying this controversy are relatively simple. On December 18, 1990, respondent was seated at his desk in the DHS physical education office talking to two students. At the same time, several other students were in line to weigh themselves on a weight scale which was located a few feet from respondent's desk. After one student had jumped on the scale, respondent, without looking up, said to the students still in line, "on the scale gently, please". The next student in line, Derek Carson, ignored respondent's instructions and jumped on the scale causing a loud banging noise. Respondent rose out of his chair and at the same time gently swung his foot and hit Carson's buttocks. He also told Carson, "I told you gently, please." Carson immediately launched into a tirade of verbal obscenities at the top of his voice against respondent. Realizing that Carson was obviously upset, respondent initially ignored the remarks, but after the verbal abuse continued, he told Carson that he (Carson) ought to try to talk to him in that manner "on the street". Carson then departed. At no time did Chase become upset or lose his composure during the incident, and he drew praise for his cool demeanor from his department chairman who was an eyewitness to the incident. There is no competent evidence that Carson "reasonably interpreted" respondent's remarks as "fighting words" as charged in the suspension letter. 1/ Since the incident occurred in the presence of a number of students and two members of the faculty, it may be reasonably inferred from the evidence that Carson was embarrassed by the incident. The student then reported the incident to the principal, John McLay, who investigated the matter and initially concluded that respondent should be given a written reprimand. However, after McLay learned that Carson's grandparents (guardians) had filed a complaint with the Board, he turned the matter over to the Board for further action rather than handling it at the local school level. Because the Board's superintendent has proposed to increase the severity of the penalty from a reprimand to a three day suspension, Chase has requested this hearing. 2/ According to McLay, the faculty is given specific training at the beginning of each school year on how to resolve conflicts of this nature and is warned that a student may react negatively to physical discipline. He added that a teacher should never place his hands on a student for any reason unless the teacher is in fear of bodily harm or is trying to break up a disturbance among students. McLay also placed importance on how the student perceived the actions of the teacher. In other words, if the student perceived a light tap from the teacher as being deliberate or malicious when in fact the teacher was only kidding, McLay felt the action by the teacher would probably be unjustified. He agreed, however, that other factors, besides the student's perception of the incident, were also relevant to a final determination. McLay also emphasized the importance of teachers maintaining a good rapport with a student's parents since the education of the child required their cooperation. Further, the Board's director of personnel services, Steven Crosby, established that the incident undermined the parents' confidence in respondent. He characterized the action of respondent as "poor judgment" and one which diminished his effectiveness as a teacher. This testimony on the issue of teacher effectiveness is accepted as being more credible than that offered by a student and fellow teacher who testified on respondent's behalf. Crosby added that simply because Chase was a coach who worked in a more informal atmosphere than did other teachers did not excuse his conduct. Crosby noted that school policy generally calls for a three day suspension without pay for a teacher "who has struck a student". Although Chase had previously been given a reprimand for using poor judgment in 1988, Crosby felt that such a penalty was especially appropriate here without regard to the previous reprimand because Chase "had lashed out at a student, physically, out of frustration or during a time of upset." However, as noted in a prior finding, Chase did not tap the student on his buttocks out of anger or because of frustration. Two witnesses to the incident described the kick to Carson's buttocks as having insufficient force to cause any injury to the student. This was not credibly contradicted. Further, one witness characterized the kick as actually being a "tap" while the other stated he was under the impression respondent was kidding when he swung his foot towards the student. Respondent added that the kick was intended to be "negative reinforcement" after his verbal instructions were ignored. He now agrees that it was a mistake to touch the student in that manner and recognizes that he violated school policy. Other than the reprimand in 1988, respondent has an unblemished tenure with the school system. The Board has adopted a Code of Student Conduct (Code) which prescribes the type of disciplinary action permitted to be taken by school personnel against students. Section (7)(a) of the Code provides as follows: (7) DISCIPLINARY ACTION AND PROCEDURES: (a) TYPES OF DISCIPLINARY ACTION PERMITTED The following types of disciplinary action may be considered. 4. Corporal Punishment: For purposes of this code, corporal punishment shall refer to physical punishment (as) opposed to other forms of punishment. The use of corporal punishment is not permitted as a type of disciplinary action. (emphasis added) Thus, corporal punishment of any form is prohibited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office and that he be given a written reprimand. DONE and ENTERED this 26th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1991.
Findings Of Fact Respondent owned and operated a licensed child care facility in Fort Myers, pursuant to a license that expired June 30, 1997. The name of the licensed facility was Patti Cake Nursery. Respondent is not presently licensed to operate Patti Cake Nursery. By final order in DOAH Case No. 97-3032 on May 1, 1998, Petitioner either revoked this license or denied an application for its renewal on grounds separate from the training violations that are the subject of this Recommended Order. In the Partial Final Order and Remand Order, Petitioner cited the following paragraphs from the Administrative Complaint dated February 11, 1997, which commenced DOAH Case No. 97-2146: 10. [sic] On June 14, 1996, an agent from the Department conducted a routine inspection. At that time, five employees were lacking the 30 hours of training. An administrative warning letter was sent on June 24, 1996, giving a deadline for corrective action of December 30, 1996, and advising that future deficiencies would result in an administrative fine of $25.00 per employee per day of every day of noncompliance. 9. On January 28, 1997, an agent from the Department conducted a recall inspection and determined that staff had completed the 20 hour training, however, the 10 hour portion of the 30 hour training had not yet been obtained. On February 3, 1997, Child Care of Southwest Florida, Inc., had no record of their enrollment for this training. 11. The acts and practices in paragraphs 9 & 10 above violate 402.305(2)(d) Florida Statutes and Rule 10M12-12.002(4) Florida Administrative Code, which requires all employees to within 90 days of employment, [sic] child care personnel shall begin training to meet the 30 hour training requirement and must complete the requirement within one year of the date on which training began. The Department imposes the minimum fine of $25.00 per employee per day of noncompliance. To date there have been 30 business days of noncompliance by 3 employees for a fine thus far of $2,250.00. This fine will continue to accrue until compliance is met. The Preliminary Statement of the Recommended Order states, in relevant part, that the material allegations were that Respondent "employed staff without the required amount of training on January 28, 1997; and employed staff without the required amount of training on June 14, 1996. Petitioner sought fines of $200 for the January 28 violations and ongoing fines of $2250, plus $25 per day times three employees, for the June 14 violations." The $200 in fines sought for the January 28 violations pertained solely to the violations of the staffing-ratio and supervision requirements; Petitioner sought no fine for the January 28 alleged training violation. The Recommended Order ultimately sustained the staffing-ratio and supervision allegations and noted that Petitioner properly sought fines totaling $200 for these two separate violations. The only fines sought for training violations pertained to the alleged June 14 violations. The Recommended Order states that the Administrative Complaint charged that, as of the June 1996 inspection, five employees lacked the required 30 hours of training, but the Administrative Complaint did not charge that these employees were employed on the corrective date of December 30, 1996, and had failed to complete the required training by that date. The Recommended Order states that the Administrative Complaint charged that, as of the January 1997 "recall inspection," unidentified staff had failed to complete the required 10 hours, which is part of the 30 hours of required training. The amount of the fine for the alleged training violations confirms that they pertain to the failure to obtain the required training by the December 30 corrective date. As noted above, the fine is $2250 and accrues at $25 daily times three employees for the June 14 violations. A fine of this amount represents 30 days of violation: $2250 divided by three employees divided by $25. Likely, Petitioner calculated the fine from December 31, 1996, which was the first day following the end of the corrective period arising from the June 14 violations. Likely, the calculation did not run through the date of the Administrative Complaint due to the lapse of time between the preparation and filing of the Administrative Complaint. The allegations are thus that three employees who had not completed their required training as of the June 14, 1996, inspection had failed to complete their required training by the corrective date of December 30, 1996. The June 14, 1996, inspection report found that unnamed employees had not completed their required training. According to the Partial Final Order and Remand Order, by letter dated June 24, 1996, Petitioner identified five employees as lacking the required training. These employees were Michelle Stroman, Westonia Walker, Debra Dorenus, Joan Grey, and Dana Royal. Clearly, the appellate court concurred with the reasoning of the Partial Final Order and Remand Order that the June 14 inspection report must be read in conjunction with the June 24 letter, and, together, these documents charge that Respondent violated the training requirements because Ms. Stroman, Ms. Royal, and Ms. Grey had not completed the required training by the end of 1996. In its opening statement, Petitioner confirmed this interpretation of the issue when its counsel asserted that she would show that three employees had not completed their required training within one year and 90 days of their date of hire, which had expired by the time of the June 14 inspection; that these three employees likewise failed to complete their required training within the additional time granted by Petitioner through the December 30 corrective date; that two of the employees had not completed their required training until April 30, 1997; and that the third employee had not completed her required training through the date of the final hearing, May 20, 1997. One of Petitioner’s witnesses was Marjorie Wilson, who was employed as the Director of Education by Child Care of Southwest Florida, Inc. Child Care of Southwest Florida, Inc., held a contract with the State of Florida to provide the required 30 hours of training for staff of child care facilities. However, Child Care of Southwest Florida, Inc., is not the sole provider of such training in the State of Florida. There is no central registry of information concerning who has taken the required coursework. Each training provider must search its own records for such information. In this case, Ms. Wilson testified that she searched the records of only Child Care of Southwest Florida, Inc., and found information concerning Ms. Stroman, Ms. Royal, and Ms. Gray. Ms. Wilson testified that Ms. Stroman and Ms. Royal completed their 30 hours of training on April 30, 1997. Ms. Wilson testified that Ms. Grey completed the 20-hour class on November 2, 1996, but, checking their 10-hour classes "back over a couple of years [we] saw nothing and don’t know where else we could look." Tr. p. 68. At the hearing, Petitioner’s counsel admitted that she had not deposed Ms. Stroman, Ms. Royal, or Ms. Gray. Evidently, Petitioner did not serve requests for admission concerning their training. Petitioner’s counsel accurately noted that the required certificates of completion were not in the respective personnel files of these employees, but she conceded that this omission was relevant only as proof of the lack of required training and was not alleged as a separate basis for discipline. Petitioner proved that Ms. Stroman, Ms. Royal, and Ms. Gray took classes following the June 14 inspection. It is unclear why Petitioner did not obtain the testimony of these three employees to establish that they had never completed the necessary training in the required timeframe. Absent such affirmative evidence, Petitioner invites inferences based on the absence of findings from an examination of the records of Child Care of Southwest Florida, Inc., and the subsequent enrollment in classes of the three employees. However, these sources of information do not provide the same quantum of evidence that would be provided by the testimony of the three employees. As already noted, the records of Child Care of Southwest Florida, Inc., do not purport to be the records of all persons who have completed the required training, and the testimony of Ms. Wilson at times did not inspire great confidence. Absent testimony from the three employees, their motivation in taking the classes is open to speculation. Perhaps they took the classes to obtain the required training; perhaps, having already obtained the required training, they, unaware of the legal requirements, took the classes to satisfy the demands of the inspector or Respondent. At the hearing, Petitioner attempted to establish the dates of hire for these three employees through Petitioner Exhibit 12. This document is a form completed by Petitioner’s inspector based on her review of the personnel files kept at Respondent’s child care facility. Representing herself, Respondent objected on the basis of repetitiousness, and Judge Meale overruled her objection. However, this exhibit constitutes hearsay, and findings cannot be predicated strictly on hearsay. Even if Respondent waived her objection to this exhibit, the weight of the exhibit is a matter for the Administrative Law Judge to determine. In this case, the summary document prepared by Petitioner’s inspector does not provide clear and convincing evidence of the dates of hire for these three employees. Electing not to subpoena the personnel records themselves, Petitioner has failed to establish the claimed dates of hire for these three employees: February 10, 1994, for Ms. Stroman; February 28, 1995, for Ms. Royal; and February 28, 1995, for Ms. Grey. Respondent testified briefly on the training allegations. Her testimony did not establish any hire dates. As for training, her testimony was confusing as it attempted to establish a training deadline of November 1997. She was evidently less concerned with providing factual testimony than in advancing a legal argument directed toward the "proper" calculation of the one year and 90 days within which an employee must obtain the required training. At one point (Tr. p. 205), Respondent testified: "I feel that right now I have one that has not complied with this, and that’s Mrs. Joan Gray." This apparent concession does not make Petitioner's case, even as to only Ms. Gray. First, the apparent concession does not establish the direct facts of date of hire or date of completion of training; rather, it concedes only a failure to comply with Respondent’s imperfect and somewhat incomprehensible "understanding" of the ultimate legal requirements concerning training. Second, as for Respondent's knowledge of Ms. Gray's training, it is difficult even to infer that, given her imperiousness and lack of cooperation, Respondent would have bothered to talk to Ms. Gray to find out her training status. Even if she had, Respondent's knowledge would be hearsay that is insufficient to establish the fact of training. For these reasons, Respondent's apparent concession as to Ms. Gray fails to establish, by clear and convincing evidence, her dates of hire and completion of training.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the remainder of the Administrative Complaint against Respondent. DONE AND ENTERED this 3rd day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1998. COPIES FURNISHED: Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Bruce A. Tischler Greene & Tischler, P.A. 2503 Del Prado Boulevard, Suite 402 Cape Coral, Florida 33904 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Office of the General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact 10. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 17, 2009, the Amended Order of Penalty Assessment issued on May 19, 2009, and the 2nd Amended Order of Penalty Assessment issued on June 5, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Findings Of Fact 16. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on September 17, 2008, the Amended Order of Penalty Assessment issued on December 17, 2008, and the 1 Amended Order of Penalty Assessment issued on June 3, 2009, attached as “Exhibit A”, “Exhibit B”, and “Exhibit D”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from SHAWN GODSEY MASONRY, INC., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 1 Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On September 17, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-251-D1 to SHAWN GODSEY MASONRY, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein SHAWN GODSEY MASONRY, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop- Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On November 22, 2008, the Stop-Work Order and Order of Penalty Assessment was served on SHAWN GODSEY MASONRY, INC. by process server. A copy of the Stop- Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On December 17, 2008, the Department issued an Amended Order of Penalty Assessment to SHAWN GODSEY MASONRY, INC. The Amended Order of Penalty Assessment assessed a total penalty of $79,200.93 against SHAWN GODSEY MASONRY, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein SHAWN GODSEY MASONRY, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On April 25, 2009, the Amended Order of Penalty Assessment was served on SHAWN GODSEY MASONRY, INC. by process server. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On May 28, 2009, SHAWN GODSEY MASONRY, INC. filed a petition for administrative review (“Petition”) with the Department. A copy of the Petition is attached hereto as “Exhibit C”. 6. SHAWN GODSEY MASONRY, INC.’s Petition was received by the Department 33 days from the date of service of the Amended Order of Penalty Assessment, was the only Petition filed in this matter, and gave no explanation as to why the Petition was filed beyond the 21 day time period. However, the Department failed to enter a Final Order Denying Petition as Untimely. Consequently, SHAWN GODSEY MASONRY, INC. was never advised that its Petition was untimely. 7. On June 3, 2009, the Department issued a 1 Amended Order of Penalty Assessment to SHAWN GODSEY MASONRY, INC. The 1 Amended Order of Penalty Assessment lowered the penalty assessed against SHAWN GODSEY MASONRY, INC. to $39,897.93. The 1 Amended Order of Penalty Assessment included a Notice of Rights wherein SHAWN GODSEY MASONRY, INC. was advised that any request for an administrative proceeding to challenge or contest the 1 Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 1 Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 8. On June 10, 2009, the 1 Amended Order of Penalty Assessment was served on SHAWN GODSEY MASONRY, INC. by certified mail. A copy of the 1 Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 9. SHAWN GODSEY MASONRY, INC. failed to answer the 1 Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes. 10. On November 23, 2009, the Department filed a Final Order upholding the Stop- Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 1 Amended Order of Penalty Assessment, under the mistaken belief that SHAWN GODSEY MASONRY, INC. had not filed any petition requesting an administrative proceeding in response to the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, or the 1 Amended Order of Penalty Assessment. 11. Subsequent to the filing of the Final Order in Division of Workers’ Compensation Case No. 08-251-D1, the Department became aware that SHAWN GODSEY MASONRY, INC.’s May 28, 2009 Petition had not been properly dismissed. As a result, the Department applied the doctrine of equitable tolling, pursuant to Rule 28-106.111(4), Florida Administrative Cade, to excuse the untimely filing of SHAWN GODSEY MASONRY, INC.’s May 28, 2009 Petition. 12. On February 18, 2010, the Department filed an Order Rescinding Final Order in Division of Workers’ Compensation Case No. 08-251-D1. 13. On April 2, 2010, SHAWN GODSEY MASONRY, INC.’s Petition was forwarded to the Division of Administrative Hearings, and the matter was assigned DOAH Case No. 10-1798. 14. On July 7, 2010, Shawn Godsey, representative of SHAWN GODSEY MASONRY, INC., informed the Department that SHAWN GODSEY MASONRY, INC. did not wish to proceed to an administrative hearing in DOAH Case No. 10-1798. 15. On July 8, 2010, the Department filed a Joint Motion to Relinquish Jurisdiction with the Division of Administrative Hearings. As a result, Administrative Law Judge Linda M. Rigot entered an Order Closing File, relinquishing jurisdiction of this matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E”.
