Findings Of Fact State of Florida, Department of Labor and Employment Security, Unemployment Appeals Commission ("Commission") is an agency affected by the petition in this matter. It exists within the Department of Labor and Employment Security ("Department"), and receives its property, personnel, and appropriations from the Department. The Commission and the Department are agencies as defined in Section 120.52(1), Florida Statutes. Petitioner, Juan Alfonso, Social Security Number 034-44-0611, resides at 20082 N.W. 43 Court, Carol City, Dade County, Florida. Petitioner is a party in proceedings before the Commission to obtain unemployment compensation benefits. His case was Referee Decision Docket No. 80-901OU, and is now on appeal by Petitioner to the Unemployment Appeals Commission, UCA Docket No. 80-2199. Petitioner was denied unemployment compensation benefits by a claims examiner of the Department, who issued two claims determinations on or about May 1, 1980. The Claims Examiner is not employed by the Commission, but by the Department. Exhibits B and C attached hereto are true and correct copies of the determinations issued by the claims examiner on or about May 1, 1980. Petitioner timely appealed both decisions of the Claims Examiner. A hearing was noticed on Petitioner's appeal. Notice of the hearing was given pursuant to Form UCA-2 and Rule 38E- 5.15(2), Florida Administrative Code. Rule 38E-5.15(2), Florida Administrative Code, a rule of the Commission. Form UCA-2 is issued by the Department. Exhibit A, consisting of two pages, attached hereto, is a true and correct copy of the front and back of the notice of hearing given Petitioner in the hearing regarding his appeal from the Claims Examiner's determination. Petitioner was given no other written notice of hearing. Hearing was held before an appeals referee, an employee of the Department, on June 11, 1980, pursuant to the notice attached as Exhibit A. Petitioner appeared at the hearing on June 11, 1980, without counsel. Petitioner has standing to bring this Rule Challenge. Exhibit D attached hereto, consisting of four pages, is a true and correct copy of the Referee's decision issued as a result of the hearing held on June 11, 1980, in Docket No. 80-9010U. Petitioner timely appealed that decision to the Commission. Petitioner's appeal is currently pending before the Commission in UCA Docket No. 80-2199. Petitioner's case has not yet been decided by the Commission. Petitioner is not receiving unemployment compensation benefits at this time, due to the adverse decision of the appeals referee resulting from the June 11 hearing. When a claimant such as Petitioner files a claim with the Department for unemployment compensation benefits, he completes Claim for Benefits LES form UCA-3, which requests the name of the last employer and the reason for separation. Upon completion of the form, his last employer is furnished LES form UCA-4, which contains the reasons for the separation contained on LES form UCA- The employer is requested by the Department to provide information regarding the reason for his job separation, whether the claimant has refused an offer of work, and whether the employer would re-employ the claimant. Upon receipt of the employer's response, a fact finding interview is conducted by a claims interviewer employed by the Department, who inquires into the subject of the termination, offers of work, and work search. The interviewer verbally advises the claimant of the employer's statement. The claimant provides his response. A summary of the interview is recorded on LES form UCA-64. During or after the interview, the claims interviewer contacts the employer by telephone and advises the employer verbally of the claimant's statements made on the fact finding report. The employer provides his statement to the interviewer. A summary of the telephone interview is recorded on the Fact Finding Report. If the employer raises a new matter not raised in his initial response, the claimant is verbally advised of such matters. The claimant provides a statement in response. A summary of the claimant's response is recorded on a Fact Finding Report. A claims determination is then rendered. If the determination is favorable to the claimant, the employer may appeal. If the determination is adverse to the claimant, the claimant may appeal. Notice of hearing of the appeal is given pursuant to Rule 38E-5.15(2). If the party resides in Florida, the notice of hearing is provided on form UCA- 2. The majority of unemployment compensation claimants' are not represented by counsel at any stage of the proceedings; however, Respondent does not concede that whether a claimant is represented by counsel is relevant to the subject matter of the rule challenge hearing. A claimant who has been determined by a claims examiner to have voluntarily quit his job without good attributable to the employer can be found by an appeals referee to have been discharged for misconduct connected with work. A claimant who has been determined by a claims examiner to have been discharged can be found by an appeals referee to have voluntarily quit his job without good cause attributable to the employer. Respondent does not concede that LES Form UCA-2 is a rule. LES Form UCA-2 has not been adopted pursuant to Chapter 120, Florida Statutes. In adopting Rule 38E-5.15(2), the Commission did not seek modification of the model rules as described in Section 120.54(10), Florida Statutes. SUPPLEMENTAL STIPULATION The parties stipulate as follows regarding the hearing held before the appeals referee on June 11, 1980, in Referee Docket No. 80-9010U, regarding Petitioner's claim for unemployment compensation benefits: Several times during the hearing, the petitioner asked for clarification of which job was being referred to. Petitioner stated that he did not understand the paper from the unemployment office. Petitioner stated that he did not understand what job he was supposed to have quit, or what location he was supposed to be dissatisfied with. Petitioner had difficulty answering questions about tardiness, stating he could not remember. The employer raised the issue of misconduct for the first time at the hearing.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints relating to the real estate licensing laws. Respondent Homer C. King, Jr. (King), is the sole qualifier for King's Properties located at 1109 North Federal Highway, Suite 3, Hollywood, Florida. Respondent King is now, and was at all times material hereto, a licensed real estate broker in Florida having been issued license Number 00047643. On or about April 6, 1987, Respondent in Circuit Court, Broward County, Florida entered a plea of guilty, to one count of unemployment compensation fraud, a felony. Respondent was placed on probation for two years and ordered to make restitution in the amount of $1,223.00 to the Department of Labor, Division of Employment Security, Bureau of Unemployment Compensation (Department). Respondent has paid restitution to the Department and has complied fully with all the terms of his probation. During his period of probation, Respondent was at all times cooperative with the Department and the Petitioner's Investigator (testimony of Yvette Montgomery, Respondent King's Probation and Parole Officer and James J. Smith, Investigator for the Department of Professional Regulation). During times material hereto, Respondent failed to notify the Petitioner of the above-referenced plea. When Respondent Homer C. King, Jr. was arraigned on the charges of unemployment compensation fraud, he made the court aware that he was told by a representative from the unemployment compensation office that he was entitled to a certain amount of compensation from that office; in reliance on the representation that he was entitled to such compensation, Respondent completed the necessary forms to obtain the amounts he had been advised by the unemployment counselor that he was entitled to. An investigation conducted subsequent to Respondent's receipt of the money reveals that Respondent King had been overpaid. He was required to make restitution of the overpayment to the unemployment compensation office. Respondent King agreed to make restitution and did so in a timely manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner, Division of Real Estate, enter a Final Order imposing a $250 fine against Respondent made payable to Petitioner within 30 days of entry of the Final Order. Petitioner enter a Final Order issuing a written reprimand to Respondent based on the above-referenced acts and/or conduct. RECOMMENDED this 3rd day of August, 1988, in Tallahassee, Florida. The above recommended penalty falls within the Division of Real Estate's rule guidelines. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1988. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation, Division of Real Estate - Legal Section 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Homer C. King, Jr. t/a King Properties 1109 North Federal Highway #3 Hollywood, Florida 33020 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate - Legal Section 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2: The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $5,812.50 in administrative fines. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due as delineated in the Settlement Agreement. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed November 18, 2013 11:45 AM Division of Adnhinistrative Hearings ORDERED at Tallahassee, Florida, on this | S day of No Jere , 2013. udek, Sedretary Administration
Other Judicial Opinions A party whe 1s adversely affected by this Fi .! Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appea. «vith tae Agency Clerk uf AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and corrects of this Final Order was served op the below-named persons by the method designated on this (SE a of. , 2013. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Suzanne S. Hurley, Senior Attorney Rene Santiago Ruiz Office of the General Counsel In Touch Home Health, LLC Agency for Health Care Administration 120 State Street East, Suite 105B (Electronic Mail) Oldsmar, FL 34677 (U.S. Mail) William F. Quattlebaum Administrative Law Judge The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060
Findings Of Fact Respondent James Seay, who had worked as a teacher in Suwannee County for many years, was out sick first with a stomach virus and then with recurring head pain for the entire school week of March 4-8, 1991. He visited physicians on March 5, 7 and 8, and took three prescribed medicines. Mr. Seay telephoned the morning of March 4, 1992, and told Sonja Suber, a secretary who was "the designated person at the school," (T.48) responsible for obtaining substitute teachers and maintaining sick leave records, that he was ill and would not be in that day. The parties agree that respondent was on sick leave through March 8, 1991. On the evening of March 4, 1991, he telephoned Nancy Roberts, director of elementary education for the Suwanee County School District and principal of Douglass Center. When Mr.Seay told her he would not be in the following day, she cancelled an observation she had scheduled for his benefit. The next day or the day after Sonya Suber telephoned respondent to relay Ms. Roberts' advice that a meeting scheduled for March 11, 1991, had been cancelled. On Saturday, March 9, 1991, Mr. Seay telephoned Ms. Suber and said "that he would be coming Monday to the school but he would not report to the classroom." T. 29. He had earlier expressed to Ms. Roberts discomfort "with the students that were assigned" (T. 46) to him. On Monday, March 11, 1991, at 7:53 o'clock in the morning, he appeared as promised and signed in at Suwanee County School District's Douglass Center. After greeting Sonya Suber, he went to the teachers' lounge. He did not give any indication that he was unwell or make any request for leave. Ms. Roberts saw Mr. Seay reading a newspaper in the lounge. She asked him to accompany her to her office, where she "let him know that he was a teacher assigned to the Alternative Program at the Douglass Center and what his responsibilities were . . . working with the students there." T.50. Respondent handed Ms. Roberts one of his attorney's cards, and told her "that there was nothing [she] could do to make him go in that classroom and that he was not going to that classroom," (T.50) and asked her "to stop harassing him." Id. After Mr. Seay's return to the teachers' lounge, Ms. Roberts gave an account of events to Mr. Charles F. Blalock, Jr., petitioner here. Petitioner's Exhibit No. 2. The following morning Mr. Seay signed in at the Douglass Center at ten before eight, Petitioner's Exhibit No. 1, but he again went to the teachers' lounge rather than to his assigned classroom. Again he told nobody he was ill, and asked nobody for sick leave. Ms. Roberts twice asked him to go to his classroom. When she told him his failure to teach the class he had been assigned "could be construed as insubordination on his part," (T.53) he asked her to clarify what she meant by insubordination and, with her permission, made a tape recording of her answer. Petitioner's Exhibit No. 3. He refused to go to his classroom. On Wednesday, March 13, 1991, Mr. Blalock wrote a letter to Mr. Seay advising him that he was suspended with pay, and that, as superintendent, he would recommend suspension without pay and ultimately dismissal at the next regular meeting of the School Board. Petitioner's Exhibit No. 4. When Ms. Roberts telephoned Thursday morning with word that Mr. Seay was at Douglass Center, Mr. Blalock went himself to speak to Mr. Seay. Twice he personally directed Mr. Seay to go to his classroom and get to work. Confronted with Mr. Seay's silent refusal, Mr. Blalock handed him the letter of suspension, dated the day before. When the School Board met, heard what had transpired, and listened to a presentation by Mr. Seay's lawyer, it decided that Mr. Seay should have a physical examination and be examined by a psychiatrist. At the school board meeting, nobody suggested that respondent was on sick leave at any time after March 8, 1991. In keeping with the collectively bargained agreement between the School Board and teachers like Mr. Seay under continuing contract with the School Board, Petitioner's Exhibit No. 6, petitioner demanded that respondent go for medical and psychiatric examinations, by letter dated April 10, 1991. Petitioner's Exhibit No. 7. A second, follow-up letter reiterating the demand, dated April 29, 1991, Petitioner's Exhibit No. 9, reached Mr. Seay by registered mail. As of the time of the hearing, Mr. Seay had not complied with the Board's demand that he submit to a physical examination and be examined by a psychiatrist.
Recommendation It is, therefore, RECOMMENDED: That petitioner terminate respondent's employment. DONE and ENTERED this 3rd day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II, 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 3rd day of December, 1992. APPENDIX FOR NO. 91-6046 Petitioner's proposed findings of fact Nos. 1-11 and 13-20 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 12 pertains to immaterial matters. With respect to petitioner's proposed finding of fact No. 21, respondent apparently also took the position that he had been on sick leave in the unemployment compensation case. Petitioner's proposed findings of fact Nos. 22 and 23 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 1-3, 5-8 and 19 have been adopted in substance, insofar as material. Respondent's proposed findings of fact Nos. 4, 9-12, 21 and 24 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 13 and 15 are immaterial since respondent never requested sick leave. Respondent's proposed findings of fact Nos. 14, 16, 17 and 18 have been rejected as unsupported by the weight of the evidence. With respect to respondent's proposed finding of fact No. 20, Ms. Roberts' testimony in that regard is unrebutted. With respect to respondent's proposed finding of fact No. 22, there is no disagreement. Respondent's proposed finding of fact No. 23 pertains to an immaterial matter. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Charles Blalock, Superintendent Suwanee County School Board 224 W. Parshley Street Live Oak, FL 32060 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, FL 32060 Linsey Moore, Esquire 50 East 2nd Street Jacksonville, FL 32206
The Issue The issue is whether the Department's Stop-Work Order and Amended Order of Penalty Assessment were lawful.
Findings Of Fact The Division is a component of the Department of Financial Services. The Department is a state agency charged with the administration of portions of the "Workers' Compensation Law." Among the Division's duties is enforcing the statutory requirement that employers secure the payment of workers' compensation coverage for the benefit of their employees and corporate officers who are required to be covered. Scotts is a corporation engaged in the business of installing siding on buildings. Scotts is engaged in construction as that term is used in Chapter 440, Florida Statutes. Scotts' headquarters is located at 4130 Bayfront Terrace, Pace, Florida. Angelia Brown has worked for the Department since June 2007. She is a workers' compensation compliance investigator, and on August 23, 2007, she was doing random checks on Pensacola Beach, Florida. In the course of her work, and while accompanied by Investigator Vanessa Hernandez, Ms. Brown came upon 801 Ariola Drive, Pensacola Beach, Florida. There the two investigators observed an individual on the ground floor of a home and another on a ladder on the exterior of the home. These two men were working on the house. Ms. Brown also observed a white van parked by the home that had painted on it the words, "Scotts Exterior, Inc." Ms. Brown exited her vehicle and approached the man using the circular saw and identified herself. The individual identified himself as Timothy Willard, an employee of Scotts. Ms. Brown asked Mr. Willard for contact information, including his social security number. He provided the requested information and stated that he had a workers' compensation exemption form and that it was in the white van. At this time, the man who had been on the ladder descended and stated that he was Scott Henderson and that he was the owner of Scotts. He provided contact information, including his social security number. Using the information provided by the two men, Investigator Hernandez searched the Coverage and Compliance Automated System (CCAS), an online database maintained by the Department. The investigators observed that the CCAS revealed that Mr. Henderson had a current exemption and that Mr. Willard's exemption had expired September 8, 2006. One is eligible for an exemption if one owns at least ten percent of the stock of the corporation for which one is working and is an officer of the corporation. If such a person correctly completes the appropriate form, and pays the required fee, the Department will declare that person exempt from the requirement to obtain workers' compensation insurance. Subsequent to relaying the information she received on the job site to her supervisor, and after obtaining his approval, Ms. Brown issued an SWO, dated August 23, 2007, to Scotts. She served it on Mr. Henderson. She also served a "Request for Production of Business Records for Penalty Assessment Calculation" (Request for Production), which was provided to Scotts on the same day. Scotts responded to the Request for Production with their ledgers and other business records for the three years prior to August 23, 2007. These documents indicated that Scotts paid Mr. Willard as an employee from at least, September 8, 2006, until August 23, 2007. Ms. Brown used these figures to determine the penalty that should be assessed for Mr. Willard's noncompliance. In 2006, the penalty was $5,644.94 and for 2007, it was $12,936.86. The parties stipulated that these figures were correct, and if owed, would amount to $18,581.80 in the aggregate. On August 24, 2007, Mr. Henderson and Mr. Willard entered into a Penalty Payment Agreement, whereby Scotts agreed to pay ten percent of the penalty, provide proof of compliance, and make periodic payments for 60 months. After Mr. Willard correctly completed a Notice of Election to be Exempt, the Department agreed to allow them to work. The Department did not require the payment of another $50 fee. Mr. Willard's previously obtained exemption expired on September 8, 2006, and subsequent to that date he worked for Scotts without an exemption and without making any effort to obtain one until December 5, 2006. On December 7, 2006, he filed a Notice of Election to be Exempt in the Bureau of Compliance Office in Pensacola that was notarized on December 5, 2006. The Pensacola Office of the Bureau of Compliance is authorized to receive such notices. Mr. Willard paid the $50 fee, and the Department eventually negotiated the money order he submitted with the form. The application of Mr. Willard failed to note the scope of business or trade, the Federal Employer Identification Number was incorrect, and the fraud notice was not signed. The failure to accomplish the foregoing rendered the application unacceptable. The Department informed Scotts by mail that the form was incomplete. This information was accompanied by the incomplete application he submitted. Mr. Henderson provided the letter informing Mr. Willard that his application was incomplete and returned the application to Mr. Willard. Although Mr. Willard testified that he received this material, completed it, and returned it to the Department via the U. S. Postal Service, there is no record that the Department received it. There is no evidence in the record that Mr. Willard, or anyone on behalf of Scotts, thereafter inquired as to the status of the exemption request. On more than one occasion Mr. Willard had previously applied for exemption, was determined to be exempt, and received a card reflecting exemption from the Department. Mr. Willard testified that he understood that it was his responsibility to know when his exemptions expired. It was not the fault of the Department that Mr. Willard failed to obtain an exemption. It was Scotts' or Mr. Willard's failure. It is a fact that Mr. Willard was eligible for an exemption from September 9, 2006, until he actually obtained one on August 24, 2007. If officially exempt, he was responsible for his own medical expenses should he suffer an injury while on the job. If he failed to get an exemption, he was likewise responsible for his own expenses should he suffer an injury while on the job. This situation is very different from that where an employer fails to obtain coverage for workers not having an ownership interest in the employer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order requiring Scotts Exteriors, Inc., to pay a penalty of $18,581.80. DONE AND ENTERED this 7th day of February, 2008, in Tallahassee, Leon County, Florida. S 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 7th day of February, 2008. COPIES FURNISHED: Kristian E. Dunn, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Michael James Rudicell, Esquire Michael J. Rudicell, P.A. 4303 B Spanish Trail Road Pensacola, Florida 32504 Daniel Sumner, General Counsel Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues are whether Petitioner violated Chapter 440, Florida Statutes, and the Insurance Code by not securing workers’ compensation insurance or workers’ compensation exemptions, and if so, what penalty should be assessed.
Findings Of Fact Respondent is the state agency responsible for enforcing the requirement of workers’ compensation law that requires employers to secure payment of compensation for their employees. On June 26, 2006, Petitioner was operating in the construction industry installing drywall. At approximately 10:30 a.m., Respondent’s investigator, Vicki Chamelin, conducted a workers’ compensation compliance check at 5574 Hampton Hill Circle, Tallahassee, Florida. While at the site, Ms. Chamelin recorded the names of the workers who claimed to be or were claimed to be employed by Petitioner. The names of these individuals were Brandon Roberts, Kelvin Williams, Charles Carter, Willie Oliver, and Jerry Pompey. Next, Ms. Chamelin consulted Respondent’s Coverage and Compliance Automated System (CCAS). She then spoke with Christine Conley, branch manager of U.S. Labor, Inc./USA Staffing, the company that Petitioner contracted with to provide workers’ compensation coverage. Ms Chamelin concluded that Petitioner had not secured the payment of workers’ compensation for Brandon Roberts, Kelvin Williams, and Jerry Pompey. After consulting with her supervisor, Ms. Chamelin issued a Stop Work Order and Order of Penalty Assessment (hereinafter “Stop Work Order”). The Stop Work Order commanded Petitioner to cease business operations and assessed a $1000 penalty against Petitioner. In addition to the Stop Work Order, Ms. Chamelin served Petitioner with a Request for Business Records for Penalty Assessment Calculation (hereinafter “Request”). After serving Petitioner with the Stop Work Order and Request, Ms. Chamelin again verified with Christine Conley which employees were and were not covered by U.S. Labor, Inc./USA Staffing’s workers’ compensation insurance. U.S. Labor, Inc./USA Staffing is a staffing company whose employees must apply and be approved by USA Staffing prior to placement with client companies. Pursuant to the contract between USA Staffing and Petitioner, an employee is not covered by workers’ compensation insurance unless the employee applies to and is approved by USA Staffing prior to starting work. If an approved employee of USA Staffing does not work for USA Staffing for between two and four weeks, USA Staffing deactivates the employee from their payroll and notifies the client company. Inactivated employees are not covered by USA Staffing’s workers’ compensation insurance policy. Ms. Conley advised Ms. Chamelin that Kelvin Williams, Brandon Roberts, and Jerry Pompey were not being leased by Petitioner from USA Staffing on June 26, 2006. USA Staffing’s payment records reflected that no payroll was being run by USA Staffing for Brandon Roberts between the dates of April 6, 2006, and June 26, 2006. U.S. Staffing’s payment records reflected that no payroll was being run by USA Staffing for Kelvin Williams between the dates of March 2, 2006, and June 26, 2006. Jerry Pompey was never an employee of USA Staffing. In order to reactivate an employee, a client company must call USA Staffing and reactivate the employee prior to that employee commencing work with the client company. Ms. Chamelin called USA Staffing to investigate the coverage status of Jerry Pompey, Brandon Roberts, and Kelvin Williams before Petitioner called USA Staffing to reactivate the individuals. Petitioner did not provide Respondent with any of the documents identified in the Request. Because Petitioner failed to provide Respondent with the requested business records, Ms. Chamelin properly imputed Petitioner’s penalty. First, Ms. Chamelin imputed Petitioner’s payroll. Next, Ms. Chamelin divided the imputed payroll amount by 100, multiplied the quotient by the approved manual rate to arrive at the premium the Petitioner would have paid, then multiplied the product by 1.5. Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty by paying 10 percent of the total penalty with the balance due in equal monthly installments over 60 months. Petitioner was issued an Order of Conditional Release From Stop-Work Order after entering into the Payment Agreement Schedule for Periodic Payment of Penalty and demonstrating compliance with the coverage requirements of Chapter 440, Florida Statutes (2005). Respondent issued a Second Amended Order of Penalty Assessment to Petitioner. The Second Amended Order of Penalty Assessment adjusted Petitioner’s assessed penalty to $10,270.76.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order, affirming the Stop Work Order and Second Amended Order of Penalty Assessment that assessed a penalty of $10,270.76. DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Stanley Roberts Forever Ready Drywall 272 Robert Willis Road Cairo, Georgia 39827 Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto net Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this | a day of Quis, Us? ‘ , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 Jul 11 2009 11:41 a7/11/2889° 12:23 9549617454 PACK-SHIP&BEYOND PAGE 91/03 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GLORIA MARSHALL, Petitioner CASE NO: 08-3716 JUDGE ARRINGTON v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT. Respondent. / PETITIONER’S AMENDED NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PETITIONER, GLORIA MARSHALL, through undersigned counsel, hereby files this AMENDED PETITIONER’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE, on the following grounds: 1. Petitioner Marshall is not working for the employer since June of 2008, when she retired after a long career as an employee of the Broward County School Board. Most of the documents to be used in this petition are already in possession of Respondent and the attorney for Petitioner. 2. Petitioner patiently and conscientiously worked as an adult ed teacher from 1981 through 2005, a period of some twenty four years. EXHIBIT att Jul 11 2009 11:41 @7/11/2889 12:23 9549617454 PACK-SHIP&BEYOND PAGE 62/83 3. In view of the relationship between the Repondent and Petitioner, who has been enrolled several times in the FRS, Petitioner contends that the Respondent exercise its fiduciary duty to act in the best interests of the member by not opposing this dismissal without prejudice. 4. Petitioner contends that no prejudice to Respondent will result. 5. No expenses have been incurred thus far other than the transmission of employment records by the Respondent to undersigned counsel, and those will not change. If a plan has been proposed for the case by Respondent, that plan can be laid aside and will serve the same purpose in the future. 6. In light of the circumstances which prevail, to insist on the prosecution of this petition at this time will not serve the interests of justice. 7. Petitioner has indicated that she is unable to assist in this petition until the month of December 2009. 8, In addition, the goal sought in these proceedings is a very precious one, that is, a pension and social security fund which will influence the comfort or lack thereof of this petitioner’s last years, and is worthy of the Court’s indulgence in acknowledging this dismissal without prejudice. BASED ON THE FOREGOING recitation of facts, Petitioner files this ‘ Amended Notice of Voluntary dismissal without prejudice. Jul 11 2009 11:42 97/11/2009 12:23 9549617454 PACK-SHIP&BEYOND PAGE 43/03 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been fax-filed with the Department of Administrative Hearings and e-mailed to 850 922 6312, to Larry Dz. Scott, Esq., Asst. General counsel to DMS, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950 Eleventh day of July, 2009. LAW OFFICE OF JANE M. LETWIN Attorney for Petitioner: Florida Bar Number 990329 5426 SW 25" Avenue, Fort Lauderdale Fl 33312 Phone: 954 245 8495: Fax: 954 301 8401 E-mail; Janeletwintv@aol.com By * ou Jane M. Letwin
