Findings Of Fact Patricia Pyle is the sole owner and proprietor of Automenders, located at 5655 Beaver Street in Jacksonville, Florida. A paint and body shop, Automenders was opened in 1991 by Petitioner. In addition to paint work, Automenders repairs car frames, does rust repair to car bodies, repairs dents in automobiles, and installs headliners and vinyl tops. George Pyle, Petitioner's husband, has 30 years of experience in the automobile repair industry. He owns 50 percent of the land on which the business is located. He receives no rent from the business for use of his interest in the property. Mr. Pyle also does 50 percent of the estimates for work to be done in the shop, and works there approximately 30 to 50 hours per week. He is not paid for any of his efforts by Automenders since he presently draws social security. He does, however, share in the profits of the business. Petitioner and her husband previously operated a paint and body shop business at the same location from 1970 until 1986 when the couple decided to sell the business and retire. In that business, Petitioner was in charge of hiring, firing, keeping the books, doing the payroll and other administrative aspects of the business. The sale of the business in 1986 included the property, the paint and body shop, and an adjacent car lot. The purchasers of the business were unsuccessful in their business endeavors and, in 1991, Petitioner regained control of the property after the purchasers defaulted on their payments. Petitioner provided the start up costs and reopened the present business. There is little difference between Petitioner's present duties and her duties with the business which she and her husband sold. Petitioner is still in charge of administrative aspects of the enterprise. Listed on Automenders' bank account signature card are the names of Petitioner, her husband, and their daughter. Only one signature is required to transact business on the account. Additionally, Petitioner's husband is listed on Automenders' checks, along with Petitioner. Petitioner does not do actual body repair and painting of vehicles herself. While she did occasionally perform some technical tasks in the previous business such as taping and paint mixing, she has no other technical experience and has never received technical training in automobile body repair or painting. Even though she does not know how to run a frame straightening machine or paint cars, Petitioner maintains that she hires qualified employees and relies upon them for the technical aspects of her business. Petitioner's employees, Robert Yonnetti and Jason Sikes, are experienced. Yonnetti has 20 years of experience in the automobile body repair industry and has received training in repair as well as use of frame machines. Sikes has over nine years experience in automobile painting and has received training in automobile painting. Petitioner graduated from high school and attended Montgomery College where she took courses in bookkeeping, accounting and management. Petitioner has failed to provide documentation of training or possession of an expertise in automobile body repair work and painting. Consequently, Petitioner has not demonstrated the technical knowledge and capability necessary to maintain control of the technical aspects of the enterprise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Automenders application for certification as an MBE. DONE and ENTERED in Tallahassee, Florida, this 22nd day of March, 1995. DON W. DAVIS 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 22nd day of March, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Petitioner submitted a four page letter containing 10 unnumbered paragraphs. The letter has been reviewed and to the extent possible addressed by the foregoing findings of fact. Respondent's Proposed Findings 1.-20. Accepted, but not verbatim. COPIES FURNISHED: Patricia Pyle 5655 West Beaver Street Jacksonville, FL 32254 Ana Cristina Martinez Assistant Attorney General The Capitol - Suite PL - 01 Tallahassee, FL 32399-1050 Crandall Jones Executive Administrator Knight Building 2727 Centerview Drive Tallahassee, FL 32399-0950
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Stuart M. Lerner, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Notice Of Voluntary Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed December 3, 2010 4:44 PM Division of Administrative Hearings DONE AND ORDERED this ,,,11L day of December, 2010, in Tallahassee, Leon County, Florida. r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divist Motor Vehicles .,,,, -- u -'" this day of December, 2010. N . DNlerl5cenMAdmlnlstralor NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district comt of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 A. Edward Quinton III, Esquire Adams, Quinton & Paretti, P. A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 Stuart M. Lerner Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue The issue in this case is whether Respondent should be sanctioned for failure to renew his registration as a motor vehicle repair shop for the current year.
Findings Of Fact Pursuant to the Florida Motor Vehicle Repair Act, Sections 559.901 through 559.9221, Florida Statutes, the Department regulates the repair of motor vehicles in this state. Mr. Flowers held a motor vehicle repair shop license issued by the Department which was valid through February 8, 2000. On January 9, 2000, Mr. Flowers was provided with notice that his license was required to be renewed by February 8, 2000. In order to have his license renewed, Mr. Flowers was required to pay a renewal fee of $50.00. He did not pay the renewal fee by the due date. During the period January 9, 2000, through September 21, 2000, in a continuing effort to persuade Mr. Flowers to renew his license, the department sent Mr. Flowers four letters, made three visits to the premises, and contacted the business at least nine times telephonically. Subsequent to his failure to renew his license, Mr. Flowers has continued to operate his vehicle repair facility and has, on at least three occasions, operated his motor vehicle repair shop by working on motor vehicles for compensation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of operating a motor vehicle repair shop without a license on three occasions, imposing a fine of $3,000, and ordering the Respondent to cease and desist engaging in the repair of motor vehicles. DONE AND ENTERED this 22nd day of November, 2000, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2000. COPIES FURNISHED: Howard Flowers Tallahassee Truck Service 3321 Garber Drive Tallahassee, Florida 32303 Harold McLean, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Petitioner, Sharon Adkins, filed application with Respondent for registration as an electronic repair dealer, together with the forty-five dollar registration fee, in August, 1978. A second application was filed in September, 1978 which reflected that Petitioner had commenced business under the name "A Consumer Tip" at Ft. Lauderdale, Florida on August 23, 1978. By letter of October 24, 1978, Petitioner was advised by Respondent that her application was denied. The stated reason for denial was that the name "A Consumer Tip" was already known as a title for public service advertising in the yellow pages of the telephone directory in her community, and that therefore, registration could not be validated for a name which was misleading within the meaning of Rule 7B- 2.08 Florida Administrative Code, and within the meaning of Section 468.151, Florida Statutes. Petitioner thereafter requested an administrative hearing on the denial of her registration (testimony of Petitioner, Exhibits 2-4). The advertising pages of the Southern Bell Telephone Company's telephone directory for Fort Lauderdale for the years 1978-79 and 1979-80 reflect a listing of Petitioner's business name "A Consumer Tip", address, and telephone number. At various places throughout the directory informational items appear which are directed to users of the classified section. A number of these items are headed by the words "a consumer tip" which offer the reader information concerning such subjects as wedding anniversaries, tornado safety rules, and ways to save energy. (Exhibit 1)
Recommendation That Petitioner's application for registration as an electronic repair dealer be approved. DONE and ENTERED this 27 day of July, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David M. Maloney Staff Attorney Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Robert D. Hurth, P.A. 2425 East Commercial Blvd. Marwayne Office Plaza, Suite 101 Ft. Lauderdale, Florida 33308
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.
The Issue The issue for determination at formal hearing was whether Rule 5J- 12.001(2), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Theron C. Phinney is the sole owner and operator of Mobile Auto Repair Shop, located in Lake Park, Palm Beach County, Florida. He is engaged in the repairing of motor vehicles and has been in the auto repair business for over 35 years. Mr. Phinney's auto repair business is mobile. All of his equipment and tools for repairing vehicles are located in his truck. Mr. Phinney repairs vehicles wherever they are located, i.e., he goes to where the vehicles are located. No repairs are performed at Mr. Phinney's residence. Mr. Phinney has no employees. Mr. Phinney has been issued an occupational license by Palm Beach County at a cost of $25.00. The license identifies his residence as the location for his business. Even though Mr. Phinney does not perform any vehicle repairs at his residence, the County required him to provide his residential address as the location of his business. The County renews his license yearly with the residential address. 1/ Repairs by mobile motor vehicle repair shops are performed wherever the vehicle needing repair is located. Equipment and tools used to perform the repairs are located in the vehicle owned by the mobile motor vehicle repair shop. The Department of Agriculture and Consumer Services (Department) is charged with administering the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes. The Act requires motor vehicle repair shops to register with the Department and pay a fee and provides certain exemptions. Section 559.904, Florida Statutes. Section 559.904(9), Florida Statutes, provides: (9) No annual registration application or fee is required for an individual with no employees and no established place of business. Section 559.903(8), Florida Statutes, defines "place of business" and provides: (8) "Place of business" means a physical place where the business of motor vehicle repair is conducted. The Department's Rule 5J-12.001(2), Florida Administrative Code, provides: (2) "Established place of business" means that physical location noted on the occupational license issued to the motor vehicle repair shop pursuant to Chapter 205, Florida Statutes. If the county or municipality has adopted no local occupational license requirement pursuant to Chapter 205, Florida Statutes, the term means that physical location where motor vehicle repairs are performed, or records, equipment, or tools used for the conduct of the business of motor vehicle repair are housed or stored. The term includes any vehicle constituting a mobile repair shop. The Rule was adopted on January 18, 1995. Rule 5J-12.001(2) implements Section 559.904(9). The Rule also implements Section 559.903(5) and (7), Florida Statutes, which define "minor repair service" and "motor vehicle repair shop," respectively. There is no dispute that mobile motor vehicle repair shops are included in the definition of motor vehicle repair shops. The Department developed the challenged Rule over a period of several months. Numerous public meetings were conducted, particularly with the motor vehicle repair industry, throughout the State of Florida. From the public meetings conducted by the Department, it was evident, among other things, that there was no clear understanding of the meaning of the term "established place of business" in Section 559.904(9). Consequently, the Department was convinced that clarification of the term was needed. The Motor Vehicle Advisory Council (MVAC) reviewed and advised the Department on the challenged Rule and gave the Rule its (MVAC) approval. The MVAC is a statutorily created advisory council, composed of members from the motor vehicle repair industry. The challenged Rule includes all mobile motor vehicle repair shops within the class of businesses required to be registered with the Department pursuant to Chapter 559, Florida Statutes. The Department contends that this inclusion is necessary because, since the purpose of Chapter 559 is to regulate the auto repair business, the mobile motor vehicle repair shops are conducting the business sought to be regulated in that the mobile repair shops are licensed by county and municipal authorities and are performing significant repairs for compensation. There are approximately 560 mobile motor vehicle repair shops registered with the Department. Standing is not at issue in this proceeding.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Subsections 489.129(1)(g), (h)1, (h)3, (n), and (p), Florida Statutes (1993).
Findings Of Fact At all times pertinent to this proceeding, the Respondent was a certified building contractor, having been first issued license number CB C012666 in his individual name by the Florida Construction Industry Licensing Board in 1978. License number CB C012666 was subsequently issued to the Respondent as the qualifying agent for GMG Investment Company. The Respondent has renewed the license on a regular basis and continues to be licensed as the qualifying agent for GMG Investment Company. The most recent renewal was for the 1996-98 renewal period. Hurricane Andrew caused severe damage to the Miami home of Mr. Robert Richardson. The damage was so extensive that it was necessary to demolish the house and rebuild it. Mr. Richardson had homeowner’s insurance that covered most, if not all, of the cost of rebuilding his home. The Respondent, acting in his capacity as qualifying agent for GMG Investment Company,3 made a proposal on behalf of GMG Investment Company to rebuild Mr. Richardson’s home. Mr. Richardson accepted the proposal, and on November 11, 1992, Mr. Richardson entered into a contract with GMG Investment Company for the latter to rebuild his home for a contract price of $97,310.00. The master building permit was issued to GMG Investment Company on December 10, 1992. During the course of the work on Mr. Richardson’s home, the Respondent contracted with numerous subcontractors to provide labor and materials for the completion of the project. Two of the subcontractors filed liens against Mr. Richardson’s property. On September 22, 1993, Optima Flooring, Inc., recorded a lien in the amount of $8,919.42 against Mr. Richardson’s property. The lien related to floor covering materials Optima Flooring, Inc., had delivered and installed at Mr. Richardson’s home. The Respondent had not paid Optima Flooring, Inc., because he was not satisfied with some of the work it had done. After some discussions with Mr. Richardson, the Respondent ultimately agreed that he would resolve the dispute with Optima Flooring, Inc., by no later than February 4, 1994. The Respondent did not resolve the dispute with Optima Flooring, Inc., by the agreed- upon date, and on February 16, 1994, Mr. Richardson paid $9,225.42 in order to satisfy the Optima Flooring, Inc., lien. The amount paid by Mr. Richardson included interest, attorney fees, and costs. On October 27, 1993, Florida Builder Appliances, Inc., recorded a lien in the amount of $2,930.90 against Mr. Richardson’s property. The lien related to appliances Florida Builder Appliances, Inc., had delivered for incorporation into Mr. Richardson’s home.4 The Claim of Lien recorded by Florida Builder Appliances, Inc., shows on its face that it was filed more than ninety days after the last day on which Florida Builder Appliances, Inc., provided services or materials to the subject property. On February 11, 1994, Florida Builder Appliances, Inc., filed a Notice of Lis Pendens against Mr. Richardson’s Property. Florida Builder Appliances, Inc., also filed a civil action in County Court in Dade County, Florida, to foreclose its lien. On March 3, 1997, counsel for GMG Investment Company filed a motion to dismiss the civil action filed by Florida Builder Appliances, Inc. On April 20, 1994, Florida Builder Appliances, Inc., served a Notice Of Dismissal With Prejudice, by means of which it dismissed its civil action and vacated the Notice of Lis Pendens it had earlier filed. In the meantime, without advising the Respondent that he was doing so, on February 18, 1994, Mr. Richardson paid $3,661.00 in order to satisfy the Florida Builder Appliances, Inc., lien. The amount paid by Mr. Richardson included interest, attorney fees, and costs. Shortly after Hurricane Andrew, the prices for construction materials in the Dade County area sharply increased. As a result of those increases, the Respondent eventually realized that it was not going to be possible to complete Mr. Richardson’s home for the amount agreed to in the contract. This unfortunate result was due to the Respondent’s inability to anticipate how much construction costs would increase in the aftermath of Hurricane Andrew. It was not due to incompetence or misconduct. All of the funds paid by Mr. Richardson were used by GMG Investment Company for the construction of Mr. Richardson’s home. None of those funds were used for any other purpose. The Respondent has not been the subject of any prior license discipline proceedings.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.
