The Issue Whether Petitioner is entitled to a refund of, or credit equal to, the amount of the contributions he made to the Florida Retirement System (FRS) for service between November 8, 1971 and June 30, 1972.
Findings Of Fact Petitioner was employed as a paraprofessional by the Alachua County School Board from November 8, 1971 through June 30, 1972. During this period, he was a participant in FRS. Petitioner was employed as a County Commissioner by the Bradford County Board of County Commissioners from November 19, 1996, through November 16, 2004. During this period, he was a participant in FRS. On October 20, 2004, Petitioner filed an Application for Service Retirement with Respondent Division of Retirement. Respondent's audit of Petitioner's FRS account indicated that Petitioner had been paid in 1976 for his service with the Alachua County School Board. By an October 21, 2004, letter, Respondent acknowledged receipt of Petitioner's Service Retirement Application and gave Petitioner the opportunity to "buy back" his 1971/1972 time with the Alachua County School Board. By a November 18, 2004, letter, Respondent notified Petitioner that he must provide either a check to buy back his 1971/1972 time or a written statement indicating he did not want to purchase the service. Petitioner sent Respondent's letter back to Respondent with the following handwritten letter at the bottom, "I do not wish to purchase this service. Send check of refund." Petitioner signed and dated his signature, "11-23- 04."3/ Respondent notified Petitioner, in a proposed final agency action letter dated November 30, 2004, that an audit of his FRS account showed that, in the 1975/1976 fiscal year, Petitioner had requested a refund of his contributions to FRS for the period from November 8, 1971 through June 30, 1972. The letter noted that a refund check, in the amount of $104.00, representing the Petitioner's full contribution to FRS had been issued on February 11, 1976. Respondent enclosed with the letter a copy of the signed refund request card bearing a signature it presumed to be Petitioner's. Respondent's letter also informed Petitioner that he could reinstate this service credit by repaying the $104.00, plus accrued interest, for a total of $645.89. It further stated that Respondent had received Petitioner's written statement that he did not wish to repurchase this service credit and therefore his name would be added to the retired payroll without the refunded service. By a December 16, 2004, letter, Petitioner asked Respondent to get a handwriting expert to prove his signature on the refund request card was a forgery and a fraud. Respondent did not get a handwriting expert, but referred the underlying issue to the Division of Administrative Hearings. Respondent is the State Agency charged with the responsibility of administering FRS. Its information management system maintains a file on each member of FRS, including Petitioner. This file permits the construction set forth in Respondent's November 30, 2004, letter. Respondent's file also reflects that on or about November 2, 1998, Respondent, after conducting an audit of Petitioner's retirement account, determined that Petitioner then would have had to submit a check in the amount of $442.65, if Petitioner wanted to purchase previously refunded service from November 8, 1971 through June 30, 1972. Also, the file reflects that a letter, dated November 16, 1998, was mailed to Petitioner, in care of (c/o) the Bradford County Board of County Commissioners (of whom Petitioner was one at the time), at the Board's official address. This letter provided Petitioner with a Statement of Account, which reflected the findings of the above audit and explained that Petitioner had the option to purchase his refunded service. At the time of leaving his FRS-covered employment in June 1972, Petitioner had accrued .80 years (eighty per cent of one year) of creditable service in FRS, which computed to $104.00, but he was not a vested member of FRS. In early 1976, Respondent received a "Request for Refund" card, dated "12-22-75," bearing Petitioner's name, social security number, mailing address, and what purported to be Petitioner's signature. The mailing address listed on the refund card was, and still is, Petitioner's mailing address. It is a post office box. At all times material, Petitioner had the sole key to this post office box. It was not unusual in 1975 for a non-vested member of FRS to request a refund of accumulated contributions in FRS after terminating employment. Reasons for this might include an intention not to return to work for the State or an immediate need for the money contributed. Respondent Division of Retirement and the Comptroller followed their established procedures when they processed the request for refund card. Respondent Division of Retirement provided the pertinent information from the card to the Comptroller and requested a corresponding warrant. The Comptroller prepared a warrant in the requested amount and returned it to the Division, along with a computer-printed label that contained Petitioner's name and social security number, the refunded amount ($104.00), voucher number (270029), warrant number (0304887), and the date of the warrant (February 11, 1976). Upon receipt of the warrant and label, Respondent affixed the label to the refund request card, somewhat left of the middle, and over some of the other printing and markings. The label was affixed rather than filling out by hand the printed space indicated for the same information in the lower right hand corner of the card. The Respondent Division then mailed the warrant to Petitioner's address of record. It is possible, but unlikely because he was employed elsewhere at the time (see Finding of Fact 18) that in 1975, Petitioner made out the refund request card at the office of his former employer, the School Board of Alachua County, and transmitted it through the former employer's office to Respondent. Petitioner could also have transmitted it personally under those conditions, but there is no affirmative proof either of the foregoing scenarios occurrence. It is possible that when the card was transmitted to the Respondent, it did not already have the necessary approval information filled out by a representative of the School Board of Alachua County, providing the date of Petitioner's last retirement deduction, employer agency code, and approval signature, but there is no affirmative proof of this, either. It is possible that the card acquired this information before it was submitted to Respondent or that Respondent requested that the former employer place this information on the card before Respondent requested that the Comptroller cut a State warrant to Petitioner. Therefore, it also is possible that the card was handled sometime during the process by persons in the office of the School Board of Alachua County, who may also have corrected dates in the request portion of the card, presumably filled out by Petitioner, but there is no affirmative proof that any of that chain of conjectured events actually happened. Respondent now cannot determine how the Agency initially was contacted (in writing or by telephone) concerning the refund or whether it was initially contacted by Petitioner or by his first FRS employer, the Alachua County School Board. However, nothing in this chain of possible, yet unproven, events alters Mr. Snuggs' clear and convincing testimony that at the time at issue, retirement refund checks were mailed by Respondent directly to the address of the former State employee, not to the former employing agency.4/ At hearing, Petitioner admitted that, when he left State employment in 1972, he had no idea what the future would bring and that he continued to run for office (presumably an FRS-covered employment) whenever the opportunity arose. Petitioner also testified that he was working for IBM in late 1975 and early 1976 and that his financial situation was "pretty good." However, Petitioner denied executing the request for refund card and further denied ever receiving the State warrant for $104.00. The actual warrant at issue was destroyed by the Comptroller's Office in accordance with its statutory document control schedule, so it is impossible to determine who endorsed and cashed it. Petitioner contended that the signature on the refund request card was not his, but a forgery. He based this claim on his belief that he "never had a signature that looked that good." Respondent produced no handwriting expert to refute this testimony. However, Petitioner admitted that the appearance of his signature had "changed from time to time," and Respondent offered in evidence three examples of Petitioner's signature to show the different forms Petitioner's signature has taken over the years. Upon reviewing these exhibits, Petitioner conceded that all of the examples were of his signature and that they "don't look the same." The undersigned has compared the three acknowledged signatures with the signature on the refund request card. There are differences among all of them, and the undersigned cannot make any reasonable finding of fact one way or the other as to the authenticity of the signature on the retirement refund card in this case.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which denies Petitioner's request for a refund or credit for the amount of the accumulated contributions he made to FRS between November 8, 1971, and June 30, 1972. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 6th day of January, 2006.
Findings Of Fact On November 19, 1981, the Florida Real Estate Commission, then Board of Real Estate, received the application of Kay M. Harvey, Petitioner, asking that she be licensed to practice real estate as a salesperson. A copy of that application form may be found as Respondent's Exhibit No. 2, admitted into evidence. Following the review, and by correspondence dated February 19, 1982, the application for licensure was denied. A copy of that denial statement may be found as Respondent's Exhibit No. 1, admitted into evidence. The basis for denial was as set forth in the Issues Statement to this Recommended Order, with the exception of the assertion that the answer to Question No. 6 was incomplete. That assertion was first offered at the final hearing in this cause. In keeping with the opportunity expressed in the letter of denial, Petitioner requested a formal Subsection 120.57(1), Florida Statutes, hearing. The Director of the Division of Administrative Hearings was then requested to assign a Hearing Officer and the case was considered through the process of a formal hearing conducted on July 30, 1982. Petitioner is a resident of Jacksonville, Florida, residing at 2612 Sandra Lane. She has lived in Jacksonville for the period of her life. She is now twenty-nine (29) years old and is employed by State Farm Mutual Insurance Company. She has held employment with that organization for ten and one half (10 1/2) years. During that time, she has held various clerical positions and at present is a rate clerk. In that capacity she calculates insurance premium rates and informs customers of their premium rates. Her position includes making decisions on the question of premium adjustment refunds for the benefit of customers. This responsibility includes a determination on the part of Petitioner on the subject of proper refund; however, Petitioner does not prepare the refund draft nor mail the refund check. Petitioner does not handle cash money in other facets of her employment. On the topic of the answer to Question No. 6, which is the focus of the dispute between the parties, when asked to describe her understanding of the instructions given to an applicant who was answering Question No. 6, she stated, "I feel that it is asking me whether I've ever been arrested, and if I have, what it was for, and whether I was on parole or not." On July 1, 1981, Petitioner was arrested for obtaining property by the issuance of a worthless check. The arrest occurred in Duval County, Florida, for an offense committed in that county. The amount of the check was two hundred eighty-eight dollars ($288.00), constituting a felony offense. Petitioner pled guilty to the offense and was placed on probation. The probation was successfully concluded on July 8, 1982, following restitution by Petitioner. This pertained to the circuit court case, Docket No. 81-5065CFR, Duval County, Florida. In connection with the offense involved with the issuance of the two hundred eighty-eight dollar ($288.00) check, Petitioner purchased carpet from a merchant in Duval County, The Carpet Barn. When the check was processed, Petitioner was informed that she did not have sufficient funds to honor the check. This information was provided by an employee of the merchant. The check was then processed a second time and again Petitioner was informed that there was insufficient money in the account to allow the check to be negotiated. Petitioner was again told by the employee of The Carpet Barn that there were insufficient funds. Petitioner also received notice from her bank that there was insufficient money to honor the claim for a two hundred eighty-eight dollar ($288.00) payment. The check was not suitable on the first occasion due to the Petitioner's failure to deduct certain service charges from her bank account, which service charges had the effect of reducing the amount of available funds to be spent for other purposes. The check was not honored on a second occasion due the submittal of another check issued by the Petitioner, which had been outstanding, causing the reduction of available monies in the Petitioner's checking account, such that there were insufficient funds to honor the two hundred eighty-eight dollar ($208.00) check when it was processed on the second occasion. In the face of the shortages, Petitioner was requested to provide money to balance the checking account and allow payment of the two hundred eighty-eight dollar ($288.00) check. This was not done. Petitioner then requested that she be given a month to place sufficient funds in the account to honor the claims by The Carpet Barn, and was granted that opportunity. Following the second submission for payment, an employee of The Carpet Barn contacted the personnel office where Petitioner worked and spoke with the Personnel Manager about the subject of the outstanding check. Petitioner was disturbed by this contact and called the employee of The Carpet Barn and entered into an argument on the subjects of the check and that employee's contact with Petitioner's employer. The employee of The Carpet Barn indicated that the matter would be turned over to the local State Attorney for prosecution. Petitioner then contacted The Carpet Barn to try to arrange for the payment of the check and was told that they expected total payment and no settlement was arrived at, in view of the fact that Petitioner was suggesting payment of a lesser amount. The Petitioner and the merchant being unable to resolve their differences, Petitioner was prosecuted. She retained the carpet she had purchased and an amount of two hundred sixty or seventy dollars ($260.00 or $270.00) in her checking account, which represented the difference between the initial cost of the carpet and the charges in her account which had been deducted, causing the disallowance of the payment of the full amount of the two hundred eighty-eight dollar ($288.00) check. At the time of the incident involving the check, Petitioner was making an annual salary of twelve to thirteen thousand dollars ($12,000.00-$13,000.00) and the merchant was repaid the amount of two hundred eighty-eight dollars ($288.00), in keeping with the terms of Respondent's probation. The repayment was made through installments over a period of eleven (11) months. The other conditions of probation related to maintenance of her position in employment with the State Farm Mutual Insurance Company and submission of periodic reports were compiled with. In 1975 or 1976, Petitioner, while married, wrote a check at a time when the bank upon which the funds were drawn did not believe that she had check writing privileges, in that the bank was not aware that a signature card had been executed by Petitioner, thereby entitling her to write checks on a joint account with her husband. Prior to being notified by Respondent that it wished to inquire about the event of 1975 or 1976, Petitioner did not feel that any crime had been committed or that any criminal law investigative record of the events involving this particular check existed. At hearing, Petitioner did acknowledge that she had been charged with the offense in 1975 or 1976, related to checks or worthless checks, in the sense that she received a court summons about the check. Petitioner, by her explanation, was taken "downtown" and signed papers and was fingerprinted. The signature card had in fact been signed and filed with the bank, but the bank, not being cognizant of that signature at the time the check was written, refused to accept it. On the date of court appearance, under summons, an official of the bank accompanied Petitioner to that proceeding and the matter was dismissed. If Petitioner were licensed, one Terry Baker, licensed broker in Florida, has indicated that he might employ Petitioner. Petitioner indicated that to guard against problems of the type which occurred with the check incidents, that she would be more careful in her calculations in protecting the interests of her clients as a real estate salesperson.
The Issue The issues in this case are whether Petitioner violated Subsection 440.107(7)(c), Florida Statutes (2007),1 and, if so, what penalty should be assessed.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation coverage for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. Martinez Construction is a construction business. On June 15, 2005, the Department issued Stop-Work Order No. 05-325- 1A. On June 20, 2005, an Amended Order of Penalty Assessment was issued against Martinez Construction assessing a penalty of $23,472.57. On June 21, 2005, Martinez Construction and the Department entered into a Payment Agreement Schedule for Periodic Payment of Penalty in which Martinez Construction agreed to pay the Department a lump sum of $5,000.00 and to make 24 monthly payments of $769.69. On June 21, 2005, the Department entered an Order of Conditional Release from Stop- Work Order (Conditional Release), which conditionally released the Stop-Work Order that was issued on June 15, 2005. The Conditional Release provided: Until such time as the employer has paid the total assessed penalty of $23,472.57 in full, if the employer fails to comply with the terms and conditions of the Payment Agreement Schedule for Periodic Payment of Penalty attached hereto as Exhibit “A,” the Stop-Work Order to which this order applies will be immediately reinstated, and the unpaid balance of the total penalty to be paid by the employer shall become immediately due. The Conditional Release listed Martinez Construction’s address as 1905 Michigan Avenue, Panama City, Florida. Martinez Construction made payments until July 2006, when it stopped making payments. The unpaid balance on the assessed penalty was $10,008.98. By letter dated May 24, 2007, the Department wrote Martinez Construction advising that it was issuing an Order Reinstating Stop-Work Order because of the failure to make payments as required by the payment schedule to which the parties had agreed. A copy of the Order Reinstating Stop-Work Order was enclosed with the letter and ordered: The Stop-Work Order issued to Employer on June 15, 2005, is immediately reinstated, and pursuant to such immediate reinstatement, the provisions of said Stop- Work Order are in full force and effect. The unpaid balance of the penalty in the amount of $10,008.98 is due pursuant to such immediate reinstatement. Pursuant to such immediate reinstatement, Employer shall cease all business operations in the State of Florida until the DEPARTMENT issues an Order releasing the reinstated Stop-Work Order upon a finding by the DEPARTMENT that Employer has come into compliance with coverage requirements of Chapter 440, Florida Statutes, and has paid the entire unpaid balance of the penalty assessed as specified in (7) above [$10,008.98]. The letter and Order Reinstating Stop-Work Order were sent to Martinez Construction by certified mail to its Michigan Avenue address. The letter and order were returned to the Department as undeliverable. In early January 2006, Hector Martinez (Mr. Martinez) and his family moved from 1905 Michigan Avenue, Panama City, Florida, to 1304 Delaware Avenue, Lynn Haven, Florida. They remained at that address until January 2008. Mr. Martinez was the manager and registered agent for Martinez Construction. The records of the Florida Department of State, Division of Corporations, show that on February 2, 2006, the principal address and mailing address for Martinez Construction was changed to 1304 Delaware Avenue, Lynn Haven, Florida, and that the address for the registered agent was also changed to the 1304 Delaware Avenue address. The Department resent the May 24, 2007, letter and Order Reinstating Stop-Work Order by certified mail to Martinez Construction. The return receipt from the United States Postal Service shows that the documents were delivered to the 1304 Delaware Avenue address on June 1, 2007. The receipt bore a signature stating Luisa Martinez. On June 1, 2007, Mr. Martinez was married to Luisa Alvarez Diaz. Mr. Martinez claims that his wife did not sign the receipt for the certified mail and that he did not receive the documents. According to Mr. Martinez, his wife does not use his surname, but goes by the name of Luisa Alvarez. Mr. Martinez’s testimony is not credible. The letter and Order Reinstating Stop-Work Order were delivered to the 1304 Delaware Avenue address on June 1, 2007. On August 24, 2007, Robert Borden (Mr. Borden), an investigator for the Department, was conducting a random compliance investigation and found a crew working on a jobsite. When Mr. Borden questioned the crew concerning the name of their employer, they replied that they worked for Martinez Construction. Mr. Borden checked the Department’s Coverage Compliance Automated Systems database and discovered that an Order Reinstating Stop-Work Order had been issued to Martinez Construction. Mr. Borden checked with the employee leasing company which Martinez Construction used and found that Martinez Construction had been employing crews for 70 days since the issuance of the Order Reinstating Stop-Work Order. On August 28, 2007, Martinez Construction was issued and personally served an Order Assessing Penalty for Working in Violation of Reinstated Stop-Work Order, assessing a $70,000.00 penalty which represented a penalty of $1,000.00 per day for the 70 days of violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order finding that Petitioner violated Subsection 440.107(7)(c), Florida Statutes, and assessing a penalty of $70,000.00. DONE AND ENTERED this 30th day of June, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of June, 2008.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the assessment of the documentary stamp surtax in the amount of $2,436.50 and the penalty in a like amount, for a total assessment of $4,873.00, be upheld. Respectfully submitted and entered this 17th day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1976. COPIES FURNISHED: Mr. Gerald J. Biondo PAUL, LANDY, BAILEY & YACOS 200 Southeast First Street Miami, Florida 33131 Mr. Edwin J. Stacker Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol Tallahassee, Florida 32304
The Issue Whether Gio & Sons, Inc. (Respondent) violated Sections and 440.38, Florida Statutes, and if so, what penalty should be imposed. References to sections are to the Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440, Florida Statutes, which require that employers secure workers’ compensation coverage for their employees. Respondent, whose principal is Giovanny Martinez, Jr. (Mr. Martinez), is in the business of providing drywall installation services. At all times material to this case, Respondent is an employer within the meaning of Section 440.02(16)(a), Florida Statutes. At all times material to this case, Respondent was legally obligated to provide workers' compensation insurance in accordance with the provisions of Chapter 440, Florida Statutes, for all persons employed by Respondent to provide drywall installation services within Florida. In particular, Chapter 440 requires that the premium rates for such coverage be set pursuant to Florida law. At all times material to this case, Respondent failed to obtain workers' compensation coverage on behalf of over 150 employees. It is undisputed that Respondent had not furnished the required coverage, and that there was no valid exemption from this requirement. Accordingly, on February 26, 2004, the Stop Work Order was properly entered. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that Respondent employed the individuals referred to in paragraph 5, whose identities are not in dispute, under circumstances which obliged Respondent to provide workers' compensation coverage for their benefit. Based upon Respondent’s payroll records, Petitioner correctly calculated the penalty amount imposed by law under all the circumstances of the case, and issued the Amended Order imposing a penalty assessment in the amount of $107,885.71. Mr. Martinez does not dispute the factual or legal merits of Petitioner's case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order that affirms the Amended Order in the amount of $107,885.71. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 15th day of December, 2004. COPIES FURNISHED: Joe Thompson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Giovanny Martinez, Jr. Gio & Sons, Inc. 6910 Southwest 18th Court Pompano Beach, Florida 33068 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florid a 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 14, 2008, the Amended Order of Penalty Assessment issued on July 21, 2008, and the Second Amended Order of Penalty Assessment issued on August 20, 2008, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order for Specific Worksite Only and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-185-D1, and being otherwise fully advised in the premises, hereby finds that: 1. On July 14, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-185-D1 to F. PALHANO CONSTRUCTION CORPORATION (hereinafter “F. PALHANO”.). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On July 14, 2008, the Stop-Work Order and Order of Penalty Assessment was served by personal service on F. PALHANO. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3, On July 21, 2008, the Department issued an Amended Order of Penalty Assessment in Case No. 08-185-D1 to F. PALHANO. The Amended Order of Penalty Assessment assessed a total penalty of $24,758.10 against F. PALHANO. The Amended Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in _ accordance with Sections 120.569 and 120.57, Florida Statutes. 4, On August 11, 2008, the Amended Order of Penalty Assessment was served on F. PALHANO by personal service. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On August 13, 2008, F. PALHANO filed a petition for administrative review with the Department. . | 6. On August 20, 2008, the Department issued a Second Amended Order of Penalty Assessment 1 in Case No. 08- 185-D1 to F. PALHANO. The Second Amended Order of Penalty Assessment assessed a total penalty of $25,846.54 against F. PALHANO. The Second Amended Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO was advised that . any request for an administrative proceeding to challenge or contest the Second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, F lorida Statutes. 7. On August 21, 2008, the Second Amended Order of Penalty Assessment was served on F. PALHANO. by personal service. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 8. On August 26, 2008, the employer entered into a Payment Agreement Schedule for Periodic Payment of Penalty, in which the employer agreed to pay its penalty to the Department in set installments. The employer was granted an Order of Conditional Release From Stop-Work Order, which notified the employer that should the employer become delinquent on the Payment Agreement Schedule for Periodic Payment of Penalty, the Stop-Work Order would be reinstated. 9. The petition for administrative review was forwarded to the Division of Administrative Hearings on September 5, 2008, and the matter was assigned DOAH Case No. 08- 4396. 10. On February 5, 2009, the Administrative Law Judge issued an Order Granting Continuance, requiring the parties to advise the Administrative Law Judge of the case’s status no later than February 13, 2009. 11. The parties did not advise the Administrative Law Judge of the case’s status on or before February 13, 2009. On March 5, 2009, the Administrative Law Judge issued an Order Closing File, dismissing the case and closing its file at the Division of Administrative Hearings. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference. 12. On June 3, 2009, the Department reinstated the Stop-Work Order issued to F. PALHANO for failure to make timely payments on the Payment Agreement Schedule for Periodic Payment of Penalty. The last payment made by F. PALHANO was on January 5, 2009, leaving an outstanding balance of $21,696.78. 13. On July 27, 2009, F. PALHANO filed a Notice of Voluntary Dismissal of Petition for Formal Hearing with the Division of Administrative Hearings. A copy of the Notice of Voluntary Dismissal of Petition for Formal Hearing is attached hereto as “Exhibit E” and incorporated herein by reference.
Findings Of Fact The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on October 28, 2008, and the 4th Amended Order of Penalty Assessment issued on October 6, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the 4th Amended Order of Penalty Assessment served in Division of Workers' Compensation Case No. 08-291-Dl, and being otherwise fully advised in the premises, hereby finds that: On October 28, 2008, the Department of Financial Services, Division of Workers' Compensation (hereinafter "Department") issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers' Compensation Case No. 08-291-Dl to Wainwright Construction and Roofing, Inc. (Wainwright). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Wainwright was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. On November 3, 2008, the Stop-Work Order and Order of Penalty Assessment was served via certified mail on Wainwright. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference. On December 2, 2008, the Department issued an Amended Stop-Work Order to Wainwright. The Amended Stop-Work Order included a Notice of Rights wherein Wainwright was advised that any request for an administrative proceeding to chellenge or contest the Amended Stop-Work Order must be filed within twenty-one (21) days of receipt of the Amended Stop-Work Order in accordance with Sections 120.569 and 120.57, Florida Statutes. The Amended Stop-Work Order was served on Wainwright by certified mail on December 8, 2008. A copy of the Amended Stop-Work Order is attached hereto as "Exhibit B" and incorporated herein by reference. On December 2, 2008, the Department issued an Amended Order of Penalty Assessment to Wainwright in Case No. 08-291-Dl. The Amended Order of Penalty Assessment assessed a total penalty of $77,189.76 against Wainwright. The Amended Order of Penalty Assessment included a Notice of Rights wherein Wainwright was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days ofreceipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. The Amended Order of Penalty Assessment was served on Wainwright by certified mail on December 8, 2008. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit C" and incorporated herein by reference. On December 24, 2008, Wainwright filed a timely Petition for a formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The 2 Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09- 0340. On October 6, 2011, the Department issued a 4th Amended Order of Penalty Assessment to Wainwright in Case No. 08-291-Dl. The 4th Amended Order of Penalty Assessment assessed a total penalty of $1,000.00 against Wainwright. The 4th Amended Order of Penalty Assessment was served on Wainwright through the Division of Administrative Hearings. A copy of the 4th Amended Order of Penalty Assessment is attached hereto as "Exhibit D" and is incorporated herein by reference. On October 11, 2011, Wainwright and the Department entered into a settlement agreement pursuant to which Wainwright agreed to pay the penalty assessed in the 4th Amended Order of Penalty Assessment, and accordingly, on October 11, 2011, the Department filed a Notice of Settlement in DOAH Case No. 09-0340. A copy of the Notice of Settlement filed by the Department is attached hereto as "Exhibit E." On October 12, 2011, Administrative Law Judge Lawrence P. Stevenson entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the October 12, 2011 Order Closing File is attached hereto as "Exhibit F."
Findings Of Fact 8. The factual allegations contained in the Order of Penalty Assessment issued on September 22, 2009, which is fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-235-D3-OPA, and being otherwise fully advised in the premises, hereby finds that: 1. On July 8, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Request for Production of Business Records for Penalty Assessment Calculation in Division of Workers’ Compensation Case No. 09-235-D3- OPA to JUAN MERLO D/B/A MERLO HARVESTING. 2. On July 8, 2009, the Request for Production of Business Records for Penalty Assessment Calculation was served by personal service on JUAN MERLO D/B/A MERLO HARVESTING. A copy of the Request for Production of Business Records for Penalty Assessment Calculation is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On September 22, 2009, the Department issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-235-D3-OPA to JUAN MERLO D/B/A MERLO HARVESTING. The Order of Penalty Assessment assessed a total penalty of $104,004.19 against JUAN MERLO D/B/A MERLO HARVESTING. The Order of Penalty Assessment included a Notice of Rights wherein JUAN MERLO D/B/A MERLO HARVESTING was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On September 25, 2009, the Order of Penalty Assessment was served by certified mail on JUAN MERLO D/B/A MERLO HARVESTING. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On October 13, 2009, JUAN MERLO D/B/A MERLO HARVESTING filed a petition for administrative review with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on October 22, 2009, and the matter was assigned DOAH Case No. 09-5854. 6. On December 14, 2009, JUAN MERLO D/B/A MERLO HARVESTING filed A Notice of Voluntary Dismissal with the Division of Administrative Hearings. A copy of the Notice of Voluntary Dismissal is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On December 16, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
