Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Tel-World Ministries (petitioner), is a private, non-profit association formed on January 24, 1996. According to its articles of association, petitioner was formed "to operate for the advancement of religion, religious education and charitable purposes, by the distribution of its funds for such purposes, and in particularly to promote understanding and truth and save soul's in Christ Jesus." Its president is Frederick J. Hoffman, a resident of Holly Hill, Florida. Respondent, Department of Revenue (DOR), is charged with the responsibility of administering and implementing the Florida Revenue Act of 1949, as amended. It has the specific task of collecting sales taxes and enforcing the State Tax Code and rules. By law, certain transactions are exempt from the state sales and use tax. Among these are sales or lease transactions by qualified "charitable" or "religious" institutions. In order for an organization to be entitled to an exemption, it must make application with DOR for a consumer's certificate of exemption and demonstrate that it is a qualified religious or charitble organization within the meaning of the law. Once the application is approved, the certificate entitles the holder to make tax-exempt purchases that are otherwise taxable under Chapter 212, Florida Statutes. Claiming that it was entitled to a certificate of exemption as either a religious or charitable organization, petitioner filed an application with DOR on an undisclosed date in early 1996. The application itself has not been offered into evidence. After requesting additional information, on April 26, 1996, DOR preliminarily disapproved the application on the grounds petitioner did not qualify under the statutory definition of a religious institution, and it did not have as its primary purpose one of seven defined charitable purposes set forth in the law. Thereafter, petitioner filed a request for hearing to contest this decision. In its request for hearing, petitioner contended, among other things, that DOR had failed to consider the legislative intent of the law, failed to consider an amendment to the application, and failed to properly interpret its own rules and the general law. Petitioner agrees it is not a church but rather is a ministry. It has no building or established physical location from which it provides charitable or religious services. As described by its president at hearing, its president, and perhaps two other officers, go to other churches, primarily the Seventh Day Adventist Church, and they "assist" the pastors of those churches by giving "input" at mass, prayer, and Bible study classes. The association also disseminates religious materials, including brochures and the like. Under Section 212.08(7)(o)2.b., Florida Statutes, a charitable institution is generally defined as an entity which holds a current exemption from the federal income tax under Section 501(c)(3) of the Internal Revenue Code. The entity must also have as its "sole or primary function" the provision of, or raising funds for organizations which provide, one of seven defined charitable services, if a reasonable percentage of such services is provided free of charge, or at a substantially reduced cost, to persons who are unable to pay for such services. The parties agree that petitioner has a current exemption from the federal income tax under section 501(c)(3) and, in this respect, it meets the statutory requirements. Petitioner contends that its sole or primary function is to provide services of the type that fall within the charitable purpose defined in subparagraph (IV) of the statute. That purpose is defined as being "(s)ocial welfare services including adoption placement, child care, community care for the elderly, and other social welfare services which clearly and substantially benefit a client population which is disadvantaged or suffers a hardship." According to petitioner, it does God's work at other churches by assisting those churches' pastors in saving souls, and thus these services fall within the broad definition of "social welfare services." However, within the narrow context of the statutory exemption, and when the term "social welfare services" is given its plain and ordinary meaning, religious or spiritual activities do not qualify as "charitable" services. In general terms, to qualify as a religious institution, an entity must be (a) a church, synagogue, or established physical place for worship at which nonprofit religious services and activities are regularly conducted and carried on, (b) a nonprofit corporation the sole purpose of which is to provide free transportation services to church members and attendees, (c) a "state, district or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within the state or district organization," or (d) a corporation qualified as nonprofit under section 501(c)(3) that owns or operates a Florida television station. Petitioner has no "established physical place for worship," its sole purpose is not to provide free transportation services to church members and attendees, and it does not operate a television station. Thus, it cannot qualify under the first, second and fourth parts of the definition. Petitioner's president contends, however, that he represents the "state office" of Tel-World Ministries, and therefore the association meets that part of the test. It is noted that the only "office" within the entity is that found in Holly Hill and it is not a part of a larger organization. Under DOR policy, in order to pass muster as a state, district or administrative office, petitioner must be a part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. This interpretation of the law is found in prior agency orders and is deemed to be reasonable. Because petitioner does not comport with this policy, it cannot qualify as a "state administrative office" within the meaning of the law. In summary, while petitioner submitted evidence to show that it is engaged in laudable religious efforts, the entity itself does not qualify as a religious or charitable institution for tax purposes, and thus it is not entitled to a consumer certificate of exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a Final Order denying petitioner's application for a consumer certificate of exemption as a religious or charitable institution. DONE AND ENTERED this 7th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 August, 1996. APPENDIX TO RECOMMENDED ORDER Respondent: Respondent's proposed findings, while substantially altered, have been adopted in substance. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Frederick J. Hoffman 1728 Derbyshire Road Holly Hill, Florida 32117 William B. Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue Whether Petitioner, following his conviction for driving under the influence of alcohol, was properly terminated from his employment by Respondent on January 29, 1999,. Whether Petitioner's termination was an unreasonable and too severe disciplinary action under the facts and circumstances of this case.
Findings Of Fact Brevard Community College, Respondent, is a body politic operating as a political subdivision of the State of Florida and authorized as a public employer to employ personnel and otherwise carry out the mission of the college as prescribed by the Legislature. Brevard Community College participates in the State Retirement Program as a public employer, but Brevard Community College is not involved in the State Career Service System. Respondent approves each non-instructional employee's continued employment for the next fiscal year each June, which includes an annual salary and a daily rate of pay. The employment approval provides that should the employee not remain employed through the entire year, the employee's pay is to be adjusted based on the number of days actually worked. Lloyd Creel, Petitioner, was a full-time employee of Respondent beginning December 17, 1979, and his employment was renewed annually until his termination. Petitioner had been a full-time employee of the college for a period of approximately 19 years prior to his termination, advancing to the position of maintenance supervisor. Petitioner's evaluations were consistently satisfactory and above-average during his employment. Creel was never warned, demoted, placed on a probationary status, or given any other disciplinary action whatsoever during his employment by Respondent. Operating under Chapter 240, Florida Statutes, and based on the recommendation of the District president of the college, the District Board of Trustees of the Brevard Community College approved Petitioner's continued employment for the fiscal year ending June 30, 1999. Petitioner was notified of his employment approval in June 1998. Petitioner's rate of pay was $38,700.00 for the 1998- 1999 fiscal year, at Step No. 257 for an annualized salary for a period of 261 days. The daily rate of pay was $148.28. During his employment with the college, Petitioner accumulated approximately $26,000.00 in sick leave. Florida law provides sick leave is compensable only in the event of death or retirement from the college. On or about October 13, 1998, Petitioner was arrested and charged with Driving Under the Influence of Alcohol (DUI), after hours in his private vehicle. This matter was brought to the attention of officials at Brevard Community College soon thereafter. After Petitioner was charged with DUI, he discontinued utilizing a college vehicle on the job and used his own vehicle. Petitioner continued to perform his responsibilities as maintenance supervisor. These included scheduling work, ordering supplies, occasionally viewing work completed by his subordinates on the job site, and attending meetings. Petitioner's subordinates performed their responsibilities without his direct supervision most of the time. Petitioner had a temporary permit which allowed him to drive through December 1998. Thereafter, the permit expired. After Petitioner's driver's permit expired, he had his roommate take him to work and provide his transportation whenever necessary. Occasionally, when he was required to attend a meeting on another campus, he sought and received rides with other Brevard Community College employees. On January 13, 1999, Petitioner pled no contest to the charge of driving under the influence of alcohol before the County Court of Brevard County, Florida. The Court adjudicated Petitioner guilty of the charge and sentenced him, inter alia, to six months driver's license suspension. Petitioner was eligible to obtain a business purpose driver's license in March 1999. Petitioner continued to perform his job functions until January 29, 1999, when he was terminated by letter from Robert E. Lawton, Associate Vice President for Human Resources. Petitioner protested his termination by writing a letter dated February 9, 1999. He questioned both his termination and the denial of payment for his sick leave. Following the termination of Petitioner, Respondent immediately employed the services of a replacement for the position of maintenance supervisor. That replacement continues to serve and be employed by the college. Counsel for Respondent communicated to counsel for Petitioner in writing that the college was willing to submit this dispute to a hearing before an Administrative Law Judge of the Division of Administrative Hearings. Petitioner was given notice of his rights by the college, together with a summary of the factual and legal policy grounds for his termination on or about May 21, 1999. On or about June 15, 1999, Petitioner filed a Petition for Relief from the employment decision rendered herein. The employment of Petitioner as an air-conditioning and electrical maintenance supervisor required Petitioner to transport himself on a regular and periodic basis among the four campuses of Brevard Community College located in Titusville, Cocoa, Melbourne, and Palm Bay, respectively. The nature of the employment of Petitioner was such that he was required to have a driver's license in order to perform his job properly. The suspension of Petitioner's driver's license, as a result of his conviction for driving under the influence of alcohol, effectively prevented Respondent from performing his job as maintenance supervisor in that he was not able to travel between the college campuses which span a distance of approximately 50 miles in Brevard County, Florida. At that time, there did not exist a lateral position at the college to which Petitioner could be transferred pending the restoration of his driving privileges. A number of college employees, numbering at least three in the recent past, received DUI convictions and have had their licenses suspended. However, they did not suffer a loss of employment as did Petitioner. The following individuals were convicted of DUI during their employment with Brevard Community College. Robert A. Anderson was convicted of DUI on December 9, 1994, while he was Associate Vice President of Student Services, College-Wide. He was not terminated, demoted, or otherwise disciplined as a result of his DUI conviction. Wayne Wilkening was convicted of DUI on November 6, 1995, March 4, 1996, August 19, 1997, and on August 21, 1997, was convicted of violating his probation. Prior to these convictions, Wilkening's driver's license was revoked for ten years. Wilkening's employment, as a groundskeeper, continued until September 7, 1999. Jay Matheny was convicted of DUI on March 15, 1995, while he was employed by the college as mail courier. He was transferred after his conviction to a position as Groundskeeper I, where he is still employed today. Respondent does not have a policy which requires termination in the event of a conviction of DUI and loss of driving privileges. Likewise, the college does not have a policy which requires an employee who is convicted of DUI and who loses driving privileges to be retained or laterally transferred and continued in employment at the college. Petitioner was terminated because he lost his driver's license for a period of six months, and was unable to satisfactorily perform his job. Petitioner contends that he could have performed his job using a surrogate driver to transport him from campus to campus. He further argues that termination was too severe and was inconsistent with past practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District Board of Trustees of Brevard Community College enter a final order, as follows: The Brevard Community College Board of Trustees is lawfully entitled to terminate Petitioner, Lloyd Creel, under the facts and circumstances of this case; however, the appropriate disciplinary action under the facts and circumstances of this case is suspension without pay for the period January 13, 1999, until the time Petitioner obtained a business purpose driver's license. Petitioner was a non-instructional employee of the college and the Board of Trustees had approved his employment for the fiscal year 1998/1999 and no rule, statute or policy gave Petitioner the expectancy of continued employment beyond the fiscal year ending June 30, 1999. Petitioner should be compensated at the daily rate of pay of $148.28 for the period March through June 30, 1999. Petitioner should be compensated for his accrued sick leave for his period of employment. Petitioner has not demonstrated a legal basis for an award of attorney's fees. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of April, 2000. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach & Erlenbach, P.A. 400 Julia Street Titusville, Florida 32796 Joe D. Matheny, Esquire 355 Indian River Avenue Titusville, Florida 32782-6526 Thomas E. Gamble, President Brevard Community College 1519 Clearlake Road Cocoa, Florida 32922 Eugene C. Johnson, Chairman District Board of Trustees Brevard Community College 1519 Clearlake Road Cocoa, Florida 32922
The Issue Whether the Petitioner qualifies for a consumer's certificate of exemption as a "Religious Institution" or "Church" or as a "Charitable Institution" as defined in Chapter 212, Florida Statutes.
Findings Of Fact Petitioner was incorporated in the State of Florida as a nonprofit corporation on May 11, 1995. On February 21, 1995, Petitioner filed an application for a consumer's certificate of exemption as a charitable institution. The Department under its statutory powers denied the application and advised the Petitioner of his right to a hearing on his application. George B. Cooper is the incorporator president and treasurer of Petitioner. Mr. Cooper serves as the pastor of the Petitioner. Mr. Cooper is a Seventh Day Adventist and attended religious training with that denomination. He is not an ordained minister. The business office and business address of Petitioner is in Jacksonville, at the home of a friend of Mr. Cooper. Mr. Cooper resided in Jacksonville initially, and started his missionary activities there. He subsequently moved the mission to Daytona Beach, and resides in Jacksonville and overnights in Daytona Beach when engaged in mission work. Mr. Cooper leases one-third of a private residence located at 610 Winchester Street, Daytona Beach, Florida. Mr. Cooper provided receipts for $1075 for leasing this space from February, 1995, until July, 1995, and a letter from the landlord which indicates that she is aware that Mr. Cooper conducts religious services there. The leasehold includes a large meeting room with chairs for persons attending services and a podium from which Mr. Cooper leads religious services which include prayer, song and preaching. A small room is available with a cot and sleeping bag to provide a place for homeless to overnight. Mr. Cooper sleeps at the mission when in Daytona Beach. In addition the leasehold includes access to bath and kitchen facilities. Clothes and food are also stored at the mission which Petitioner provides to persons in need. These clothes and food items are gifts in kind obtained from individuals and organizations. Mr. Cooper does not maintain complete records of the items given to him or of the items which he gives away. Mr. Cooper testified that he received $4667 between May and December, 1994 which included $4000 which he received from distribution of religious tracts and pamphlets. Mr. Cooper testified that his expenditures between May and December, 1994 were $5150. This included expenses of $2100 for travel, rent and utilities, $383 for office materials, $100 for literature and gifts of food, clothes and money in the amount of $2567. None of the gifts of money were to other religious or charitable organizations. The Petitioner's mission in Daytona Beach provides clothes, food and minimal temporary shelter to homeless persons and others in need, together with preaching the gospel. To this end, Mr. Cooper conducts church services at regular times during the week and is available to provide care to those who come by his mission 24 hours a day when he is in Daytona Beach.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the application of the Petitioner as a religious institution be approved. DONE and ENTERED this 7th day of September, 1995, in Tallahassee Florida STEPHEN F. DEAN, 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 September, 1995. APPENDIX The Department filed proposed findings which were read and considered. The following states which of those findings were adopted and which were rejected and why: Respondent's Recommended Order: Findings: Paragraphs 1, 2 Paragraphs 1, 2 Paragraphs 3, 4 Subsumed by Paragraphs 3, 4 Paragraph 5 Subsumed in part in 3, 4; and rejected in part as irrelevant Paragraphs 6, 7 Subsumed in Paragraph 1 Paragraph 8 Irrelevant There is no allegation that the application was incomplete Paragraph 9 Irrelevant except that the Department automatically considers alternative basis for exemptions Paragraph 10 Subsumed in Paragraph 1 Paragraph 11 Subsumed in Paragraph 6 It is irrelevant that there are no signs or ads or telephone These are not required of a church. Paragraph 12 Deleted from Respondent's findings Paragraph 13 Statement of Case Paragraph 14 The listing of items is not necessary as a finding. Paragraph 15 Subsumed in Paragraph 6 Paragraphs 16, 17 Subsumed in Paragraph 4 Paragraph 18 Subsumed in Paragraph 5 Paragraph 19 Irrelevant and invades the province of the fact finder Paragraph 20 Conclusion of Law COPIES FURNISHED: George B. Cooper, Pastor 2172 McQuade Street Jacksonville, FL 32209 and 610 Winchester Street Daytona Beach, FL 32114 Nancy Francillon, Esquire Lisa M. Raleigh, Esquire Assistant Attorneys General Office of the Attorney General The Capital-Tax Section Tallahassee, FL 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes. Specifically, the Respondent has been charged in a three-count Administrative Complaint with violations of paragraphs (e), (h) and (m) of Section 489.129(1), Florida Statutes.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C046109, by the State of Florida. At all times material hereto, the Respondent was the qualifying agent for Florida Hi-Tech Construction, Inc. On November 2, 1990, the Respondent, doing business as Florida Hi-Tech Construction, Inc., contracted with New Life Presbyterian Church for the construction of a church at 7355 Coral Way, Miami, Florida 33155, for the price of Two Hundred and Ninety Four Thousand dollars ($294,000.00). New Life Presbyterian Church paid Florida Hi-Tech Construction, Inc., One Hundred and Four Thousand dollars ($104,000.00) toward the contract price. The Respondent constructed a foundation and two exterior concrete block walls with tie beams, and then abandoned the project without just cause or notice to the owner during or near March of 1991. The work performed by the Respondent amounted to approximately ten or fifteen percent of the total work to be performed under the contract. The amount of money the Respondent received from the New Life Presbyterian Church amounted to approximately thirty-five percent of the full price to be paid under the contract. On May 17, 1991, a lien in the amount of One Thousand Eighty Nine dollars and Seven cents ($1,089.07) was filed against 7355 Coral Way, Miami, Florida 33155, the property known as New Life Presbyterian Church, for building materials furnished by Nachon Enterprises, Inc., in accordance with a contract between Florida Hi-Tech Construction, Inc., and Nachon Enterprises, Inc. The Respondent failed to remove said lien and the New Life Presbyterian Church paid Nachon Enterprises, Inc., to satisfy said lien. On April 19, 1991, a lien in the amount of Ten Thousand One Hundred Eighty Four dollars and Fourteen cents ($10,184.14) was filed by Southeastern Municipal Supply, a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials furnished in accordance with a contract with Downrite Engineering. On April 19, 1991, a lien in the amount of One Thousand Eight Hundred Sixty One dollars and Thirty Six cents ($1,861.36) was filed by PreCon Products, a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials furnished in accordance with a contract with Downrite Engineering. The Respondent failed to remove the liens filed by Southeastern Municipal Supply and PreCon Products, a Division of Clayton Group, Inc., and New Life Presbyterian Church paid both liens. Downrite Engineering was a subcontractor of Florida Hi-Tech Construction, Inc., in the construction of the New Life Presbyterian Church, and the materials furnished to the New Life Presbyterian Church by Southeastern Municipal Supply and PreCon Products, both Divisions of Clayton Group, Inc., were furnished in accordance with Respondent's instructions. On May 17, 1991, a lien in the amount of Four Thousand Seven Hundred Ninety Four dollars and Ninety One cents ($4,794.91) was filed by Standard Concrete Corporation against 7355 Coral Way, Miami, Florida 33155, for concrete furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Standard Concrete Corporation. On February 1, 1991, a lien in the amount of Four Thousand Nine Hundred Ninety Nine dollars and Eighty Four cents ($4,999.84) was filed by Central Concrete Supermix, Inc., against 7355 Coral Way, Miami, Florida 33155, for concrete furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Central Concrete Supermix, Inc. The Respondent failed to remove the lien filed by Central Concrete Supermix, Inc., and the New Life Presbyterian Church paid Four Thousand dollars ($4,000.00) in satisfaction of the lien. On February 22, 1991, a lien in the amount of Two Thousand One Hundred Twelve dollars ($2,112.00) was filed by Del Amo Plumbing, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials and labor furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Del Amo Plumbing, Inc. The Respondent failed to remove the lien filed by Del Amo Plumbing, Inc. On April 10, 1991, a lien in the amount of Two Thousand Two Hundred and Fourteen dollars and Ninety Three cents ($2,214.93) was filed by Austin Tupler Trucking, Inc., against 7355 Coral Way, Miami, Florida 33155, for trucking and related services furnished in accordance with a contract between Downrite Engineering and Florida Hi-Tech Construction, Inc. The Respondent failed to remove the lien filed by Austin Tupler Trucking, Inc., and the New Life Presbyterian Church paid to satisfy the lien. Downrite Engineering was a subcontractor of Florida Hi-Tech Construction, Inc., in the construction of the New Life Presbyterian Church, and the materials furnished to the New Life Presbyterian Church, by Austin Tupler Trucking, Inc., were furnished in accordance with the Respondent's instructions. New Life Presbyterian Church overpaid the Respondent by approximately Sixty Five Thousand Seven Hundred and Five dollars ($65,705.00). The New Life Presbyterian Church suffered financial harm as a result of the Respondent's activities. The Respondent obtained money draws from the New Life Presbyterian Church in a manner that did not conform to the contract requirements. The Respondent hired Joe Al Electric, Inc., to perform electrical work on the New Life Presbyterian Church. Joe Al Electric, Inc., was not a licensed entity pursuant to Chapter 489, Florida Statutes. The Respondent failed to ensure that Joe Al Electric, Inc., was an entity licensed to practice electrical contracting in the State of Florida. The Respondent assisted Joe Al Electric, Inc., in the uncertified and unregistered practice of contracting. The Respondent was previously found guilty of violations of paragraphs (k), (h), and (m) of Section 489.129(1), Florida Statutes, in a Final Order issued by the Construction Industry Licensing Board on May 13, 1994, in DBPR Case No. 92-14332. As of the date on which it submitted its proposed recommended order, the Petitioner had incurred costs associated with the investigation and prosecution of this case of at least Eight Thousand Three Hundred Six dollars and Sixty Two cents ($8,306.62).
Recommendation On the basis of all the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of the violations charged in all three counts of the Administrative Complaint; and Imposing the following penalties for the violations alleged in Counts I and II of the Administrative Complaint: (a) administrative fines totaling Ten Thousand dollars ($10,000.00) (a $5,000.00 fine for each of the two counts); and (b) revocation of the Respondent's license. DONE AND ENTERED this 26th day of April 1995 in Tallahassee, Leon County, Florida. 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 26th day of April 1995 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mr. Gonzalo Ardavin 6120 East Territorial Avenue Tucson, Arizona 85718 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?
Findings Of Fact The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996). Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated: The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997. I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995. It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated: The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues. In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements. If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief: Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . . The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id. This rule should be declared an invalid exercise of delegated legislative authority for the following reasons: The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes; The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996). Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.
Findings Of Fact The Respondent holds Florida teaching certificate 190841, covering the areas of elementary education and reading, which is valid through June 30, 1993. The Respondent has applied for renewal of her teaching certificate, and her renewal application is being held pending a resolution of this matter. At all times pertinent hereto, the Respondent was employed as a teacher at Seminole Middle School in the Pinellas County School District. On or about August 19, 1979, the Respondent was arrested in Sylva, North Carolina, and charged with driving while intoxicated. On or about December 20, 1979, the Respondent was convicted and her driver license was revoked for 12 months. The Respondent submitted an Application for Teacher's Certificate to the Department of Education, signed and notarized on September 7, 1982. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on March 2, 1983. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Extension of Certificate to the Department of Education, signed and notarized on March 1, 1984. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had convicted of driving while intoxicated in 1979. On or about February 26, 1985, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests and refused to submit to a breathalyzer test. The Respondent was arrested and charged with driving while intoxicated. On or about April 29, 1985, the Respondent entered a plea of nolo contendere in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 12 months probation. The court further ordered the Respondent to pay a $500.00 fine, enroll in a DUI school, and revoked the Respondent's driver license for six months. On or about October 30, 1986, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests. The Respondent's blood alcohol level was found to be in excess of the legal limit. The Respondent was arrested and charged with driving under the influence. On or about March 6, 1987, the Respondent entered a plea of guilty in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 10 days in the jail, to be served in the "Weekend/Daywatch Program", to be followed by one year of probation. The court further ordered the Respondent to enroll in DUI school, attend Alcoholics Anonymous meetings, and revoked the Respondent's driver license for 10 years. The Respondent submitted an Application for Extension of Certificate and Application for Addition and/or Upgrade to the Department of Education, signed and notarized on June 23, 1987. The applications each included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations? In her sworn response to each question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Educator's Certificate to the Department of Education, signed and notarized on June 13, 1988. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on February 24, 1989. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. On or about January 5, 1993, the Respondent was observed driving a vehicle in Pinellas County, Florida while her driver license was revoked. The Respondent was arrested and charged with driving with a revoked license. On or about February 24, 1993, the Respondent entered a plead of guilty to the charge of driving with a revoked license in Pinellas County Court. The court adjudicated her guilty and ordered her to pay $500.00 in fines and court costs. The Respondent has been an effective classroom teacher for 36 years, mostly teaching sixth grade. The Respondent's evidence was that she resorted to alcohol in response to three successive traumatic events in her life: (1) the death of her husband in 1976, which required her to become independent and the sole parent of her son and four daughters and to return to graduate school to enable her to become the sole support for her family; (2) the murder of her son in 1982; and (3) the cancer death of her mother in 1986. Despite her alcohol problem, the Respondent was able to be an effective school teacher through the years and did not allow her personal problems to seriously adversely affect her work. Her last alcohol-related incident was in October, 1986. The Respondent's principal from approximately 1987 through 1992, a man named Bill Mock, had a well-deserved reputation for administering the Respondent's school through intimidation and threat of punishment. Since applications for teacher certificates routinely were processed through the school administration offices, the Respondent was afraid that the principal would learn of her DUI arrests and convictions from reading the Respondent's teacher certificate applications and that he would fire her or impose conditions on her continued employment at the school that would be intolerable for her. In order to protect her job and livelihood, and ultimately her family, the Respondent rationalized to herself that it was not necessary to disclose those arrests and convictions on her teacher certificate applications. When Mock retired at the end of the 1992/1993 school year, the Respondent reported her violations to her new school principal, and on or about March 31, 1993, received a written reprimand, but no suspension or dismissal, for her failure to acknowledge her arrests to the Department of Education. The Respondent has continued to be an effective middle school teacher. The Respondent's arrest and conviction for driving with a revoked driver license may have been "set up." Her ride to school cancelled at the last minute, leaving the Respondent without enough time to walk. She drove herself straight to school, and there was a policeman waiting for her in the school parking lot at the end of the school day. Otherwise, she did not drive with a revoked driver license. The Respondent's driver license is revoked until March, 1997, but she is eligible for a work permit upon completion of a driver education class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending her teacher certificate for one year, to be served beginning at the end of the current school year. RECOMMENDED this 17th day of August, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1994. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killarney Way Suite G Tallahassee, Florida 32308 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 (Copies furnished, continued) Karen B. Wilde Executive Director The Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether the Petitioner, Spiritual Kingdom of God the Creator of All Universes, should receive a consumer's certificate of exemption.
Findings Of Fact The Respondent is the state agency charged with the administration of Chapter 212, Florida Statutes. On or about February 4, 1999, the Petitioner submitted an application for consumer’s certificate of exemption. Such application sought exemption as a religious organization. On February 17, 1999, the Department issued a letter to the Petitioner acknowledging receipt of the application and requesting additional information about the Petitioner in order to complete the application review. On March 15, 1999, the Department issued a second notice to the Petitioner that mirrored the prior request for additional information. On April 26, 1999, the Department issued a third letter that advised Petitioner that it had failed to demonstrate that it meets the criteria as a religious institution as defined by Section 212.08(7), Florida Statutes. This letter outlined the criteria that would support the approval of the certification sought by the Petitioner. On June 11, 1999, the Department issued a Notice of Intent to Deny the Petitioner’s application for a consumer’s certificate of exemption. Thereafter the Petitioner requested an administrative hearing to contest the agency’s decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying the Petitioner’s application for a consumer’s certificate of exemption. DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1999. COPIES FURNISHED: Wendell Phillips Spiritual Kingdom of God the Creator Post Office Box 331228 Coconut Grove, Florida 33233-1228 George C. Hamm, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Joseph C. Mellichamp, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issues to be resolved in this proceeding concern whether the Petitioner corporation's workers' compensation insurance policy was in compliance with the provisions of Chapter 440, Florida Statutes, cited below, despite not having a specific Florida endorsement; whether the Department properly issued a Stop Work Order against the Petitioner and whether the proposed penalty of $240,927.55 was properly assessed.
Findings Of Fact The Petitioner, American Coatings, Inc., is a commercial painting corporation based in Tennessee. It has been in business since 1994 in the State of Tennessee, and through a predecessor entity, since 1985. The Petitioner does business in other states, including the State of Florida, and in fact operates in approximately 14 states. It has done so since the year 2000. It has had no workers' compensation claims from any of its Florida work sites during the entire time it has operated in Florida. On February 19, 2008, the Petitioner was painting portions of the premises at "the Estates of Rockledge" in Rockledge, Florida. It had other operations in Florida in the three years prior to February 28, 2008. When the Petitioner applied for workers' compensation coverage in Tennessee, the Petitioner advised its broker and insurance carrier that it maintained operations in Florida. The workers' compensation carrier and agent provided certificates of workers' compensation insurance for the Petitioner's Florida operations which supported its good faith belief that it had valid workers' compensation insurance in Florida. Respondent presented no evidence that Mr. Carswell and the Petitioner have committed fraud, misrepresentation, or omission concerning the obtaining and maintaining of workers' compensation insurance coverage for its Florida operations. There was no attempt to conceal the fact that the Petitioner had insurable operations in Florida. For the three years prior to February 28, 2008, the Petitioner maintained a policy of workers' compensation insurance for all employees, including those employees that performed operations in Florida. A workers' compensation premium was paid for each employee in question for all periods in the three years preceding February 28, 2008. The Respondent is an Agency of the State of Florida responsible for enforcing the various statutory requirements of Chapter 440, Florida Statutes, including Sections 440.107 and 440.38, Florida Statutes (2007). Its authority includes Section 440.10(1)(a), Florida Statutes, which imposes upon all employers in Florida the obligation to secure the payment of workers' compensation. The Respondent is statutorily charged with the obligation to monitor employers operating in Florida, to ensure that statutory employers maintain appropriate workers' compensation coverage on employees. There is no dispute that the Petitioner, is an "employer" for purposes of Sections 440.02(16)(a) and 440.02(17)(b)2., Florida Statutes (2007). It was operating in the construction industry and regularly employed at least one person. Pursuant to the Division's statutory authority, Investigator Eugene Wyatt of the Department's Division of Workers' Compensation, Bureau of Compliance, visited the subject worksite in Brevard County, Florida, where an apartment complex was under construction. Mr. Wyatt inquired at the general contractor's headquarters trailer and was told that a painting subcontractor known as American Coatings was employing workers on the site. Using the Federal Employer Identification Number, Mr. Wyatt checked with the Department's Coverage and Compliance Automated System (CCAS) data base and learned that American Coatings, Inc. the Petitioner, which did business in Florida as A.C. Painting, Inc., did not have a record of a Florida workers' compensation coverage policy since December of 2003. Upon inquiry of the general contractor's supervisor at the job site, Mr. Wyatt learned that American Coatings, Inc., had furnished proof of insurance to the general contractor. It was shown as a certificate of liability insurance from American Coatings, in evidence as Department's Exhibit 17. Investigator Wyatt contacted the agent who had produced the Certificate of Insurance and asked if a Florida endorsement had been procured for that policy. He was told that the policy had a "an all states" endorsement. Mr. Wyatt then contacted the underwriter and was told that it was a policy for Tennessee and not for Florida (apparently Tennessee rates and codes applied). The investigator then contacted Benjamin Carswell, the President of the Petitioner. He informed him that in his view the company was not in compliance with the Florida requirement that workers' compensation policies covering Florida work and Florida employees be specifically endorsed for the State of Florida. He stated that he would issue a Stop Work Order, which he did on February 19, 2008. (SWO). The SWO was posted at the worksite and served personally on Mr. Carswell on February 21, 2008. After the Petitioner entered into an installment payment plan as to the penalty, the SWO was ended with an Order of Conditional Release, on February 28, 2008. The Petitioner sent a copy of consolidated insurance policy number WC8263193, by fax to Terrence Phillips, the chief of the Respondent's Orlando compliance office. The information page of this policy showed that only Tennessee was listed in item 3A of the policy. Item 3C stated that the policy was in effect in all other states, however, except for North Dakota, Ohio, Washington, West Virginia, and the states listed in item 3A. Item 4 listed various occupational classifications with their codes and the premium rates for each. The codes were for the State of Tennessee. The effect of these terms was that Florida was included in the category for "all other states." Florida Law requires that Florida be listed as a state in item 3A, and requires a policy to utilize Florida class codes, rates, rules, and manuals, in order for an employer to be compliant with workers' compensation coverage requirements of Chapter 440, Florida Statutes. Investigator Wyatt determined that compliance was deficient and that a penalty should be calculated and assessed. He therefore served a request for production of business records on Mr. Carswell on February 21, 2008. The business records were necessary to construct the payroll amounts and number of employees at issue, so that the penalty, based upon the Petitioner's Florida Payroll, could be calculated. Mr. Carswell believed in good faith, throughout all times pertinent to this matter that his company was compliant with Florida workers' compensation coverage requirements. After compliance was called into question, however, he also obtained an additional workers' compensation insurance policy, apparently obtained on or about February 20, 2008. It showed that coverage was effective, related back to May 1, 2007. Based upon this additional policy, the Petitioner provided Investigator Wyatt with an additional certificate of insurance for this policy. On March 6, 2008, Investigator Wyatt learned that the SWO was a duplicate and had to be substituted. A new SWO was issued as an amended SWO. A Second Amended Order of Penalty Assessment and an Amended Order of Conditional Release from SWO, under the second SWO number of 08-092-D4, was issued. Investigator Wyatt calculated the penalty by reviewing the business records supplied by the Petitioner and determining what each employee had been paid between February 23 and December 31, 2005; during all of 2006; during all of 2007 and between January 1, and February 22, 2008. Each employee's payroll, for each year or portion thereof, was divided by 100 and multiplied by an actuarial figure known as the "approved manual rate," which is related to the job duties the employee performed. In the case at hand, all the employees were engaged in commercial painting and, therefore, their classification codes were all 5474. Each trade, occupation or profession has a particular code assigned to it by the National Council on Compensation Insurance (NCCI) and each code has its own rate, the codes and rates being adopted in the Respondent Agency's Rules. The product of one one-hundredth of the gross payroll, and the approved manual rate, constitutes the "evaded premium." In effect this is the insurance premium the employer should have paid during the years it did not actually secure the appropriate payment of workers' compensation for its Florida Employees (proper Florida or Florida-endorsed coverage). Each employee's premium added together was then multiplied by the statutory factor of 1.5 in order to determine the total penalty amount the Respondent seeks to assess. The penalty amount herein was calculated using the correct Florida Approved Manual Rate and class codes. The Respondent established that its calculations indicated that, for the Florida employees of the Petitioner, based upon its Florida payrolls for the three year period in question, the total workers' compensation premium, under the Florida rate, would be in the amount of $160,618.15. Based upon that Florida workers' compensation premium amount, when multiplied by the statutory factor of 1.5 times that amount, the Respondent arrived at a total proposed assessed penalty of $240,927.55. The Petitioner established, through the testimony of Mr. Carswell that, for the time period at issue, for the Florida employees and payroll, the Petitioner had paid workers' compensation premiums of $111,682.21 for the coverage it had in effect. It acknowledges that this was not paid pursuant to Florida rates, rather it was based upon Tennessee rates. It is the position of the Petitioner that the difference in premiums. between the above Florida premium amount, and the premium that the Petitioner actually paid, was $48,935.94. The Petitioner maintains that this differential is what really should be determined to be the unpaid or "evaded" premium, based upon Florida rates, and, if that amount was multiplied by 1.5 then the total penalty actually due should be $73,403.91. An initial penalty payment of $24,092.76 has already been made by the Petitioner. Periodic penalty payments, assessed beginning March 2008, and continuing, have been paid in the amount of $36,139.40. The total penalty already paid by the Petitioner, as of the hearing date, is thus $60,232.16. The Petitioner contends that the actual penalty to be paid should be based upon the differential between the correct total premium due, when using the correct Florida manual rate, and the total premium actually paid by the Petitioner, which, when applied in the above-referenced calculation results in the penalty due of $73,402.91. This would then be reduced by $60,232.17, the amount already paid, for a total remaining amount due of $13,171.75, as of the hearing date.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, finding that the Petitioner failed to fully secure the payment of workers' compensation for its employees in the manner prescribed by the above-referenced authority and that a penalty in the amount of $73,402.91 is due, less a credit of $60,232.16 already paid, and with credit applied to the above amount for penalty payments made since January 28, 2009. DONE AND ENTERED this 5th day of May, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 5th day of May, 2009. COPIES FURNISHED: Robert L. Dietz, Esquire Zimmerman, Kiser & Sutcliffe, P.A. Post Office Box 3000 Orlando, Florida 32802 Thomas H. Duffy, Esquire Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Honorable Alex Sink Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
