The Issue The issue in this case is whether Respondent is guilty of violating a lawful order of the Florida Real Estate Commission and, if so, what penalty should be imposed.
Findings Of Fact On August 18, 1992, the Florida Real Estate Commission issued a final order following an administrative hearing and recommended order from a hearing officer of the Division of Administrative Hearings. The final order, which was filed September 2, 1992, concerned Respondent and several other individuals who were also named respondents. The final order suspends Respondent's license for 90 days, places her license on suspension for two years thereafter, requires continuing education, and requires Respondent to pay a fine of $1000. Unlike the case with respect to another respondent required to pay a fine, the final order does not provide a time within which the fine is to be paid. Respondent testified that she never received a copy of the final order when it was issued. She testified that, when she received the administrative complaint, she did not receive the sole exhibit attached to the complaint, which was the final order. She also testified that she does not have the money to pay the fine. Respondent's testimony that she has been unaware of her obligation to pay the $1000 fine is discredited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order suspending Respondent's license for a period of five years, commencing 90 days from the date of the final order; provided, however, that Respondent may avoid the suspension by paying the $1000 fine from the previous case in its entirety within 90 days from the date of the final order in the subject case. ENTERED on March 16, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on March 16, 1994. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 James H. Gillis, Senior Attorney Division of Real Estate Legal Section Hurston Bldg.--North Tower Suite N-308 400 W. Robinson St. Orlando, FL 32801-1772 Linda Futch, pro se P.O. Box 051025 Ft. Myers, FL 33905
The Issue Whether the Petitioner is entitled to either a refund of employee contributions to the Florida State and County Officers' and Employees' Retirement System ("SCOERS") made from August 26, 1966, through June 3, 1974, or service credit toward retirement for this period of time.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the administration of the Florida Retirement System ("FRS"). § 121.025, Fla. Stat. (2004). Ms. Johnson has been employed by Jackson Memorial Hospital since February 1985, and she is an active member of the FRS. Ms. Johnson was also employed by Jackson Memorial Hospital from August 26, 1966, through June 3, 1974, and was a member of the SCOERS during that time. Under the SCOERS, both members and employers paid contributions into the system. Members of the SCOERS could request a refund of employee contributions into the system upon termination of employment.2 When Ms. Johnson terminated her employment at Jackson Memorial Hospital in June 1974, she completed a Division of Retirement Request for Refund card, in which she requested a refund of her contributions to the SCOERS. Ms. Johnson signed the Request for Refund Card, which directs that the refund be sent to the 17th Floor of the Dade County Courthouse, which was the address for the Miami-Dade County Finance Department. Ms. Johnson was an employee of Miami-Dade County when she worked for Jackson Memorial Hospital from 1966 until 1974. At the time Ms. Johnson terminated her employment in 1974, refund checks for employees of Miami-Dade County were sent to Miami-Dade County rather than to the employee, and all Request for Refund cards completed by Miami-Dade County employees had typed on the cards the Dade County Courthouse address of Miami- Dade County's Finance Department. Included on the Request for Refund card signed by Ms. Johnson was a statement that, by requesting a refund of contributions to the SCOERS, she waived the right to any retirement service credit for the time period covered by the refund. The normal business practice of the Division of Retirement is, and was at the times material to these proceedings, to notify the Comptroller's office to send the refund requested by a SCOERS member to the address indicated on the Request for Refund card. The normal business practice of the Division of Retirement is, and was at the times material to these proceedings, to affix to the Request for Refund card labels provided by the Comptroller's office confirming that refund checks were mailed to the member requesting the refund. The labels attached to Ms. Johnson's Request for Refund card indicate that two refund payments were sent by the Comptroller on Ms. Johnson's behalf to the address shown on the Request for Refund card: One, in the amount of $2,150.29, was sent on July 19, 1974, and one, in the amount of $242.18, was sent on January 31, 1975.3 Although Ms. Johnson claims that she did not receive any refund of her employee contributions to the SCOERS, she did not contact the Division of Retirement regarding the refund until August 2003, when she telephoned the Division of Retirement and stated that she had never received the 1974 refund. Because Ms. Johnson is an active member of the FRS, she is entitled to purchase the retirement service credit she accumulated between 1966 and 1974.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the request of Delores F. Johnson for a formal administrative hearing. DONE AND ENTERED this 22nd day of September, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2004.
Findings Of Fact 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on October 17, 2011, the Amended Order of Penalty Assessment issued on November 4, 2011, and the 2"! Amended Order of Penalty Assessment issued on April 26, 2012, attached as exhibits and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 24 Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, 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, the Amended Orders of Penalty Assessment, the Request for Administrative Hearing, the withdrawal of Petition, and the Order Relinquishing Jurisdiction and Closing File, and being otherwise fully advised in the premises, hereby finds that: 1. On March 14, 2011, 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. 11-083-1A to TRACY B. HINOTE, D/B/A T.H. PLASTERING. 2. On March 14, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. 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 March 28, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-083-1A to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The Amended Order of Penalty Assessment assessed a total penalty of $7,590.78 against TRACY B. HINOTE, D/B/A T.H. PLASTERING. . 4. On April 6, 2011, the Amended Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 28, 2011, the Department issued a 2" Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-083-1A to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The 2" Amended Order of Penalty Assessment assessed a total penalty of $6,050.69 against TRACY B. HINOTE, D/B/A T.H. PLASTERING. 6. On May 3, 2011, the 2"4 Amended Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the 2" Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On April 25, 2011, the Division received from TRACY B. HINOTE, D/B/A T.H. PLASTERING a request for an administrative hearing. The request for administrative hearing is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On June 28, 2011, the Department issued a 3rd Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-083-1A to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $2,618.57 against TRACY B. HINOTE, D/B/A T.H. PLASTERING. 9. On June 29, 2011, the 3rd Amended Order of Penalty Assessment was served by overnight mail delivery on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 10. On October 17, 2011, the Petition was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 11-5327. 11. On November 23, 2011, the Division received from TRACY B. HINOTE, D/B/A T.H. PLASTERING a withdrawal of the request for administrative hearing. The withdrawal of request for administrative hearing is attached hereto as “Exhibit F” and incorporated herein by reference. 12. On December 8, 2011, an Order Relinquishing Jurisdiction and Closing File was entered in Division of Administrative Hearings Case. No. 11-5327. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
The Issue The issues in this case are whether XKLUCIV Investment Group, LLC, (Respondent) violated the provisions of chapter 440, Florida Statutes (2014),1/ by failing to secure workers’ compensation coverage as alleged in the Stop-work Order issued against Respondent by the Department of Financial Services, Division of Workers’ Compensation (Petitioner) on August 28, 2014, and, if so, what penalty is appropriate.
Findings Of Fact The Department of Financial Services, Division of Workers’ Compensation (Petitioner) is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation insurance coverage for the benefit of their employees and corporate officers. Robert Feehrer has been a compliance investigator with Petitioner since April 2011. Mr. Feehrer has participated in over 1,000 site visit inspections during his tenure with Petitioner. The primary purpose of a site inspection is to ensure that employers have workers’ compensation coverage for their employees. On August 28, 2014, Mr. Feehrer conducted a site inspection at a residence located at 15772 85th Road, Loxahatchee, Florida. The residence was being remodeled (the subject job). For approximately ten minutes, Mr. Feehrer watched two men paint the exterior of the residence. When he approached the men, he learned that one was Anthony Lucombe and the other was a man named Wesley Roper. Mr. Lucombe, who appeared to be in charge of the project, told Mr. Feehrer that he was “running this job.” Mr. Feehrer was not able to ascertain any information from Wesley Roper because Mr. Roper did not want to get involved. Mr. Roper refused to provide any form of identification to Mr. Feehrer or to otherwise cooperate. Mr. Lucombe told Mr. Feehrer that he had been working on the subject job for two days, that he did not know how much he would be paid for the job, and that he had agreed to pay Mr. Roper $100.00 for one day’s work. Mr. Lucombe credibly testified that he had not worked with Mr. Roper before or after the subject job. Mr. Lucombe told Mr. Feehrer that he had been hired by a man with the last name of Diamond who did business as Diamond Painting.2/ After Mr. Lucombe had worked a day, Diamond Painting walked off the job without paying Mr. Lucombe. Mr. Lucombe told Mr. Feehrer that he had no company, and that he was hired by the general contractor to finish painting the house after Diamond Painting walked off the job. A Georgia entity named Master Craft was the general contractor for the remodeling project. After talking to Mr. Lucombe and after talking by telephone to Jay York, an employee of Master Craft, Mr. Feehrer asked Mr. Lucombe whether he had a company. In response to that question, Mr. Lucombe truthfully answered in the affirmative and gave Mr. Feehrer the name XKLUCIV Investment Group, LLC. Based on that information, Mr. Feehrer concluded that the corporate Respondent had subcontracted to paint the residence after Diamond Painting walked off the job. Mr. Lucombe never told Mr. Feehrer that he was working as an employee of his company. Respondent was organized as a limited liability company pursuant to the provisions of chapter 608, Florida Statutes (2012), for “any and all lawful business” effective July 22, 2012, by Mr. Lucombe, a cousin (Rosemond Lucombe), and his wife (Cryselda Lucombe). Mr. Lucombe was designated the manager of the company. Mr. Lucombe credibly testified that the corporation was formed for the purposes of making investments in real estate. Mr. Lucombe also credibly testified that due to the state of the economy, the company had lost its investments and that he worked odd jobs as a handyman. Mr. Lucombe posted his availability to work as a handyman on Craig’s List and worked various jobs, including house painting, for persons who responded to the posting. Petitioner failed to establish by clear and convincing evidence that the corporate Respondent acted as a painting subcontractor on August 28, 2014.3/ While at the job site, Mr. Feehrer determined that the corporate Respondent had no workers’ compensation coverage and that Mr. Roper and the three principals of the corporate Respondent had no exemption from the workers’ compensation coverage requirements. Mr. Feehrer, on Petitioner’s behalf, issued a Stop-work Order 14-325-D2 (Stop-work Order) to the corporate Respondent on August 28, 2014, pursuant to section 440.107, Florida Statutes, for its failure to comply with Florida’s Workers’ Compensation Law. The Stop-work Order contained an order of penalty assessment that described how the penalty assessment would be calculated without stating the amount of the penalty assessment.4/ While Mr. Feehrer was preparing the Stop-work Order, Mr. Lucombe and Mr. Roper packed up the painting equipment, loaded them in Mr. Lucombe’s truck, and left the worksite in Mr. Lucombe’s truck. Mr. Lucombe appeared to be in charge of the painting equipment. Mr. Feehrer thereafter posted the Stop-work Order at the jobsite. On September 12, 2014, Mr. Lucombe went to Petitioner’s district office where he was personally served with the Stop-work Order and with a request for production of business records for penalty assessment calculation (request to produce). Both the Stop-work Order and the request to produce were directed to Respondent. In response to the request to produce, Mr. Lucombe produced certain bank records pertaining to Respondent’s bank accounts. Eric Ruzzo, an experienced penalty calculator employed by Petitioner, reviewed the bank records produced by Mr. Lucombe. The bank records were insufficient to determine Respondent’s payroll for the applicable penalty period. The two-year penalty period for this matter started August 29, 2012, and ended August 28, 2014. Based on Mr. Ruzzo’s calculations, Petitioner issued an Amended Order of Penalty Assessment against the corporate Respondent on October 13, 2014. The amount of the assessment totaled $106,003.26. Mr. Ruzzo calculated this penalty by imputing Respondent’s payroll during the penalty period. The calculation assumed that Respondent’s three principals would have been paid as painters during the penalty period. On December 5, 2014, Petitioner entered its Second Amended Order of Penalty Assessment, which assessed a total penalty in the amount of $141,337.68. Mr. Ruzzo calculated this penalty by imputing Respondent’s payroll during the penalty period. The calculation assumed that Respondent’s three principals and Mr. Roper would have been paid as painters during the penalty period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation rescind both the Stop-work Order issued August 28, 2014, and the Second Amended Order of Penalty Assessment issued December 5, 2014. DONE AND ENTERED this 13th day of February, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2015.
Findings Of Fact By Administrative Complaint issued August 13, 1990, Petitioner charged Respondent with violation of Chapter 400, Part II, Florida Statutes and provisions of Rule Chapter 10A-5, Florida Administrative Code, due to Respondent's failure to correct five Class III deficiencies cited during a survey of Respondent's premises by Petitioner's representative on March 6, 1990. Respondent holds license number 0005512, issued by Petitioner or its predecessor, the Department of Health and Rehabilitative Services. Respondent's representative requested an administrative hearing on August 28, 1990. By joint stipulation between Respondent's representative and Petitioner's counsel, bearing a date stamp of February 13, 1991, the parties resolved their differences. As a result, the pending administrative proceeding before Hearing Officer Robert Benton, a duly designated representative of the Division of Administrative Hearings, was concluded. Under provisions of the stipulation between the parties, Respondent agreed to pay a fine of $937.50 through monthly payments to Petitioner of $156.25 for a period of six months beginning March 1, 1991. In the event of non-payment, Respondent agreed that it would be in default of a final order requiring payment of the entire fine amount. A final order incorporating the parties' stipulation was entered by Petitioner on March 16, 1991, directing the parties' compliance with the stipulation and its requirements that Respondent make the required monthly payments to prevent a default declaration. Respondent never made any payments, monthly or otherwise. On April 1, 1991, Respondent applied for a renewal of it's license to operate an adult congregate living facility. Thereafter the requested license renewal for the period of July 2, 1991 through July 1, 1993, was erroneously granted by Petitioner's representatives, contrary to the prohibition against such a renewal contained in Section 400.417(1), Florida States, and without regard to Respondent's noncompliance with Petitioner's final order of March 16, 1991. Respondent was informed by certified mail letter dated July 2, 1991, from Petitioner's counsel that no payment had been made pursuant to the parties's stipulation or the March 16, 1991, final order of Petitioner directing the parties' compliance with the terms of the stipulation. Respondent was requested to respond within 30 days. Respondent's representative received the letter on July 8, 1991. Petitioner's counsel, by certified mail, again notified Respondent on August 19, 1991, that no payment had been received and requested a response within seven days. Respondent's representative received the letter on August 21, 1991. On May 6, 1992, Petitioner issued the Administrative Complaint which forms the basis of this proceeding and declares that Petitioner is in default of the requirements of the parties' stipulation and subsequent final order. As requested relief, Petitioner seeks the revocation of Respondent's license in lieu of payment of the stipulated fine. Respondent's representative received the Administrative Complaint on May 8, 1992. At the final hearing, Respondent's representative and corporate officer, candidly admitted that it was his signature, on behalf of Respondent, on the original stipulation between the parties. He further stated that he never intended to pay anything toward retirement of the stipulated fine amount and that his execution of the stipulation was purely for the purpose of delay. He was motivated to seek delay in this manner because his wife was eight months pregnant and his brother was a political candidate for city commissioner at the time.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered requiring Respondent to satisfy the March 16, 1991 final order by payment of the $937.50 fine by a date certain or suffer the immediate revocation of license number 0005512 without further proceedings. DONE AND ENTERED this 1st day of February, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1993. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-11. Accepted. Respondent's Proposed Findings None submitted. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration General Counsel's Office 2727 Mahan Drive, Suite 103 Tallahassee, Florida 32308 Mark K. Glaeser, Pro Se Collins Court 2924 SW 39th Avenue Gainesville, Florida 32608 Sam Power Agency Clerk Agency For Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, FL 32303 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
Findings Of Fact 19. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 25, 2008, the Amended Order of Penalty Assessment issued on April 3, 2008, the 2°4 Amended Order of Penalty Assessment issued on April 11, 2008, the 34 Amended Order of Penalty Assessment issued on July 8, 2008, the 4" Amended Order of Penalty Assessment issued on August 12, 2008, and the 5 Amended Order of Penalty Assessment issued on September 24, 2008, which are attached hereto as Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E and Exhibit F, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2"! Amended Order of Penalty Assessment, the 3 Amended Order of Penalty Assessment, the 4" Amended Order of Penalty Assessment and the 5 Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-1 17-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On March 25, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued to JOHN BICKNAS LLC a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-117-1A. The Stop-Work Order and Order of Penalty Assessment included.a Notice of Rights wherein JOHN BICKNAS LLC 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 March 25, 2008, the Stop-Work Order and Order of Penalty Assessment was served by personal service on JOHN BICKNAS LLC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. JOHN BICKNAS LLC failed to answer the Stop-Work Order and Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On April 3, 2008, the Department issued an Amended Order of Penalty Assessment to JOHN BICKNAS LLC in Case No. 08-117-1A. The Amended Order of Penalty Assessment assessed a total penalty of $117,098.93 against JOHN BICKNAS LLC. The Amended Order of Penalty Assessment included a Notice of Rights wherein JOHN BICKNAS LLC 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. 5. On April 3, 2008, the Amended Order of Penalty Assessment was served on JOHN BICKNAS LLC by personal service. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 6. JOHN BICKNAS LLC failed to answer the Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes. 7. On April 11, 2008, the Department issued a 2" Amended Order of Penalty Assessment to JOHN BICKNAS LLC in Case No. 08-117-1A. The 2"? Amended Order of Penalty Assessment assessed a total penalty of $59,861.05 against JOHN BICKNAS LLC. 8. On April 11, 2008, the 2"! Amended Order of Penalty Assessment was served on JOHN BICKNAS LLC by personal service. A copy of the 2™4 Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 9. On May 2, 2008, JOHN BICKNAS LLC requested a proceeding based upon the 2™ Amended Order of Penalty Assessment, in accordance with Sections 120.569 and 120.57, Florida Statutes. 10. On May 8,-2008, the Department referred the matter to the Division of Administrative Hearings (hereinafter “DOAH”) for appointment of an administrative law judge, who would conduct a formal hearing. The case was assigned DOAH Case No. 08-2236. 11. On July 8, 2008, the Department issued a 3rd Amended Order of Penalty Assessment to JOHN BICKNAS LLC in Case No..08-117-1A. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $74,362.20 against JOHN BICKNAS LLC. 12. On August 12, 2008, the Administrative Law Judge permitted the Department to amend the penalty assessment. As a result, the 3rd Amended Order of Penalty Assessment was entered in this matter. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 13. On August 12, 2008, the Department issued a 4th Amended Order of Penalty Assessment to JOHN BICKNAS LLC in Case No. 08-117-1A. The 4th Amended Order of Penalty Assessment assessed a total penalty of $169,896.64 against JOHN BICKNAS LLC. 14. On August 21, 2008, the Administrative Law Judge permitted the Department to amend the penalty assessment. As a result, the 4th Amended Order of Penalty Assessment was entered in this ection. A copy of the 4"" Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 15. On September 24, 2008, the Department issued a 5" Amended Order of Penalty Assessment to JOHN BICKNAS LLC in Case No. 08-117-1A. The 5" Amended Order of Penalty Assessment assessed a total penalty of $20,054.97 against JOHN BICKNAS LLC. 16. On September 25, 2008, this 5 Amended Order of Penalty Assessment was filed in DOAH Case’No. 08-2236. A copy of the 5"" Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 17. On September 25, 2008, based upon the 5" Amended Order of Penalty Assessment, JOHN BICKNAS LLC filed a Notice of Withdrawal of Claim in Division of Administrative Hearings case number 08-2236, attached hereto as “Exhibit G” and incorporated herein by reference. | 18. On September 29, 2008, the Administrative Law Judge issued an Order Closing File in Division of Administrative Hearings case number 08-2236, attached hereto as “Exhibit H” and incorporated herein by reference. |
The Issue Whether Respondent is subject to a civil penalty for alleged violation of Section 400.424(3)(a), Florida Statutes, and Rule 58A-5, Florida Administrative Code, through failure to provide a timely prorated refund following the death of a resident of Respondent’s facility.
Findings Of Fact Petitioner is the agency responsible for the licensing and regulation of assisted living facilities, and, in this case, specifically “Holly Hill Care Center” in Holly Hill, Florida. Holly Hill Care Center is operated by a corporation owned by Harry Hartman, President, and Mr. Hartman’s wife. Pursuant to a complaint, Ernest H. Cartwright, a health care evaluator employed by Petitioner, conducted an investigation on November 20, 1997, of Respondent’s facility. The complaint, alleging that a timely prorated refund had not been made to a beneficiary following death of a resident, was confirmed. Beatrice Raverini moved into Holly Hill Care Center on August 24, 1997, and died on September 1, 1997. Her personal belongings were removed from her room on September 8, 1997. While the policy of the facility is to process refunds on the first day of the month following termination, an error in communication occurred between the onsite administrator and the facility’s bookkeeper who is located off-site. As a consequence, the refund was not mailed on October 1, 1997. A refund check was prepared and mailed on or about November 1, 1997, and deposited by Mrs. Raverini’s beneficiary on November 14, 1997, in Canada. Approximately 53 days elapsed before the refund was made. Section 400.424(3)(a), Florida Statutes, requires that the refund occur within 45 days or less. The refund check processed and mailed by Respondent erroneously refunded 958 dollars instead of 616 dollars. Since the room was not vacated of personal belongings until September 8, 1997, the refund should have been calculated from that date instead of the date of September 1, 1997. Respondent refunded 342 dollars in excess of what was owed to the beneficiary.
Findings Of Fact 8. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 16, 2010 and the Amended Order of Penalty Assessment issued on May 6, 2010, which are attached as “Exhibit A” and “Exhibit B,” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Amended Order. of Penalty Assessment served’ in Division of Workers’ Compensation Case No. 10-060-D3, and being otherwise fully advised in the premises, hereby finds that: 1. On February 16, 2010, 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. 10-060-D3 to INITECH RESTORATION, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein INITECH RESTORATION, INC.. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On March 29, 2010, the Stop-Work Order and Order of Penalty Assessment was served by certified mail on INITECH RESTORATION, INC. 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 April 2, 2010, INITECH RESTORATION, INC. filed a petition requesting an administrative hearing with the Department. The petition was forwarded to the Division of Administrative Hearings on May 10, 2010, and the matter was assigned DOAH Case No. 10- 2484. 4. On May 6, 2010, the Department issued an Amended Order of Penalty Assessment to INITECH RESTORATION, INC. in Case No. 10-060-D3. The Amended Order ‘of Penalty Assessment assessed a total penalty of $50,756.24 against INITECH RESTORATION, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein INITECH RESTORATION, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 5. On May 10, 2010, the Amended Order of Penalty Assessment was served through the Division of Administrative Hearings in Case No. 10-2484. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 6. On June 4, 2010, an Order Canceling Hearing and Placing Case in Abeyance was entered by the Administrative Law Judge, sua sponte. The Order directed the parties to advise of the status of the case by August 9, 2010. 7. On August 5, 2010, the Department filed its Response to the Order, however INITECH RESTORATION, INC. failed to comply with the Order. After receiving no response to the Order, the Administrative Law Judge entered an Order Closing File which relinquished jurisdiction of the matter to the Department for final disposition. A copy of the Order Closing File is attached hereto as “Exhibit C” and incorporated herein by reference.
