The Issue The issue in this case is whether the Petitioner is entitled to supplemental compensation pursuant to Section 633.382(2)(a)2, Florida Statutes.
Findings Of Fact The Petitioner is certified as a firefighter. She has been so certified at all material times. The Petitioner is presently employed as a "firefighter-paramedic" with the City of Rivera Beach Fire Department. She has been so employed at all material times. In her present position the Petitioner performs the "essential job functions" described in her job description. Those functions are: Lays, connects and places hose line in operation. Raises and climbs ladders. Enters building and other fire involved areas. Uses extinguishers, bars, hooks, lines, and axes and other hand equipment. Ventilates burning buildings and structures. Throws salvage covers and removes debris. Makes regular inspections of apparatus and equipment and notifies supervisor of defects. Assists Driver-Engineer routine maintenance and apparatus check-out as required. Makes visual and physical inspections of buildings to locate fire hazards. Rescues and removes individuals from danger. Administers Advanced Life Support medical treatment to sick, injured or afflicted persons. Makes periodic inspections of buildings to locate fire hazards. Performs physical cleaning and maintenance tasks on department buildings and equipment using brooms, mops, vacuum cleaners, etc. Performs hydrant maintenance. Attends training and drill sessions in such subjects as firefighting and inspection methods, equipment operations and emergency medical treatment. In her present position the Petitioner is required to have and use the "knowledge, skills, and abilities" described in her job description. The required knowledge, skills, and abilities set forth in the job description are: Knowledge of the street locations, geography and takes of construction in the City. Knowledge of advanced Life Support Emergency Medical procedures, practices and techniques. Knowledge of various types of fire hazards of the City. Knowledge and skill in the use of Advanced Life Support (ALS) emergency medical treatment, practices, and procedures. Knowledge of firefighting techniques, policies, procedures and practices. Ability to learn and perform many and varied fighting techniques and procedures. Ability to understand and follow oral and written instructions. Ability to perform prolonged and arduous work under adverse conditions. Ability to work at heights. Ability to drive fire apparatus over the road safely under emergency conditions. Skill in the use and maintenance of firefighting equipment. In 1987 the Petitioner was awarded a Bachelor of Liberal Studies degree, with a major in Liberal Studies, by Barry University. Review of the Petitioner's transcript from Barry University does not reveal any course that appears to be "readily identifiable as applicable to fire department duties" performed by the Petitioner in her present position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the Petitioner's application for Firefighters' Supplemental Compensation. DONE AND ENTERED this 26th of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 26th of March, 1999. COPIES FURNISHED: Maria Fonzi-Gonzalez 212 Southwest 12th Avenue Boynton Beach, Florida 33435 Maria Fonzi-Gonzalez 14915 78th Place, North Loxahatchee, Florida 33470 Elenita Gomez, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capital, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue The issues for determination are whether Petitioner, Paul F. Meloy (Meloy), is an employee of Petitioner, Alva Fire Protection and Rescue District (District), and is entitled to participate in the Florida Retirement System (FRS) pursuant to Section 121.051, Florida Statutes (2001). (All references to statutes are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Section 121.051 requires participation in the FRS by all employees hired after December 1, 1970. The District hired Meloy after 1970. Meloy has worked for the District as the fire chief and administrator since the District's inception in 1976. Meloy was instrumental in establishing the District. The other requirement imposed by Section 121.051 for participation in the FRS is that Meloy must be an employee. Section 121.021(11), in relevant part, defines an employee as any person receiving salary payments for work performed in a regularly established position. Respondent denies that the payments Meloy receives from the District are salary payments. Respondent asserts that the payments are reimbursement for expenses. Respondent denies that the payments to Meloy are compensation. Section 121.021(22) defines the term "compensation" to mean: . . . the monthly salary paid a member by his or her employer for work performed arising from that employment. The payments from the District to Meloy since October 1990 have been compensation. In October 1990, the District began paying Meloy a monthly salary "for work performed arising from his employment with the District." Before October 1990, the District reimbursed Meloy for expenses he incurred in housing fire trucks in the garage at Meloy's auto service business. The District also reimbursed Meloy for the maintenance and repair of District vehicles. In 1988, the District began reporting the payments made to Meloy as salary for purposes of the federal income tax. Each year from 1988 to the present, the District has reported the payments to Meloy on a W2 Wage and Tax Statement. Between 1988 and October 1990, the District stopped housing vehicles in Meloy's garage, and Meloy stopped servicing vehicles for the District. In October 1990, the amount of the monthly payment to Meloy increased substantially. Thereafter, the District provided annual cost of living increases to Meloy. The payments to Meloy from October 1990 to the present have been unrelated to expenses incurred by Meloy. Those payments have been regular monthly salary payments for work performed to implement the policy of the District and to administer the day-to-day operations of the District. Even if the payments are salary payments, Respondent argues that Meloy did not receive those payments for work performed in a regularly established position. Section 121.021(52)(b) defines a regularly established position as one that will be in existence for six months. Meloy's position has been in existence since 1976. It will be in existence for six months. Respondent asserts that the position occupied by Meloy is a temporary position defined in Section 121.021(53)(b). Section 121.021(53)(b) defines a temporary position as one that will exist for less than six months or as defined by rule, regardless of its duration. Respondent claims that the position occupied by Meloy is a temporary position because it is an "on call position" defined in Florida Administrative Code Rule 60S- 1.004(5)(d)5. The rule defines an on call position as one filled by employees who are called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Meloy performs some of his duties unexpectedly when called anytime 24 hours a day. He performs his other duties in the normal course of business. Meloy does not maintain any time sheets, and the District does not require Meloy to perform his duties within an established work schedule. Meloy does not occupy an "on call position" within the meaning of Rule 60S-1.004(5)(d)5. Meloy's employment does not cease when the purpose of his being called is satisfied. Meloy has been performing his on-call duties and his other duties for approximately 25 years. In 1994, Mr. William D. Wilkinson became the Chairman of the District (Wilkinson). Wilkinson is also the Court Administrator for the Circuit Court in the Twentieth Judicial Circuit of Florida, in which the District is located. After Wilkinson became Chairman, he determined that Meloy receives compensation in a regularly established position and is entitled to membership in the FRS. Wilkinson testified at the hearing. Meloy has sole responsibility for implementing the District's policy and administering the day-to-day operation of the District. Relevant portions of Wilkinson's testimony are instructive. Q. And whose job is it to carry out that policy? A. Mr. Meloy. Q. When you came on board in 1994, Mr. Meloy, was he employed by the district? A. That's correct. Q. How many other administrators does the district employ? A. None. Q. Who runs the day-to-day affairs of the fire district? A. Mr. Meloy. Q. He is required to work a certain work schedule? A. No, sir. Q. What is he required to do as far as hours go? A. Once we set the policy, then we expect, you know, the chief to carry that out. And for however many hours it takes during the week, you know, the month to see it is fulfilled. Q. Do you know if he is on call? A. He is on call 24/7. Q. And what does that mean? A. 24 hours a day, seven days a week. Q. Is that 365 days a year? A. That's correct. * * * Q. Let me ask you to put your other hat on as the court administrator for the 20th Judicial Circuit. Are you involved with the Florida Retirement System? A. Yes, I am. Q. And you are a participant? A. Yes, I am. Q. Your duties as the court administrator, how would you compare that to Mr. Meloy's duties as the fire chief administrator of the Alva Fire District? A. Well, with the exception that I certainly make a lot more than he does for the duties that he has, it is similar. You know, I'm paid an annual salary and expected to get the job done. If you have to work 60 hours, you have to work 60 hours. If you get through sooner, hopefully you do. But that never happens. The District requires Meloy to spend as much time as is needed to implement the policy of the District and to administer the day-to-day business of the District. The hours vary, and there are no set hours. Some days, Meloy's day begins at 6:00 a.m. Other days, Meloy does not get to work until 9:00 a.m. or noon. Some days, Meloy leaves work at 5:00 p.m. and then must return immediately to the office. "It is whatever is needed." The District employs four individuals. One is Meloy. Two are certified firefighters. The other is a part- time bookkeeper. The bookkeeper and the two certified firefighters are members of the FRS. The two full-time firefighters maintain time sheets, and the District pays them for overtime. The District compensation of its full-time firefighters is consistent with compensation on an hourly basis. Meloy is not a certified firefighter, and the District does not compensate Meloy on an hourly basis. Meloy does not maintain or submit time sheets. The District does not pay Meloy for overtime. Like the certified firefighters, Meloy performs some of his duties when called anytime, 24 hours a day. However, neither the certified firefighters nor Meloy has the option to refuse to work when called. The employment positions of the certified firefighters and Meloy do not cease when the purpose for being called is satisfied. Although the bookkeeper for the District is never on call, she maintains a schedule similar to that of Meloy. She works those hours necessary to perform her duties. Like Meloy, the bookkeeper's position does not cease when she completes her work. The District pays compensation to Meloy in accordance with an annual salary rather than an hourly rate. Meloy does not have an established schedule during which he must implement the board's policy and administer the day-to- day operations of the District. Meloy occupies a regularly established position within the meaning of Section 121.021(52)(b). Meloy is the District administrator. The position has been in existence since 1988 and is not a temporary position within the meaning of Section 121.021(53)(b) or Rule 60S-1.004(5). Respondent's final argument is that a determination of Petitioners' request to enroll Meloy in the FRS is barred by the judicial doctrines of res judicata or collateral estoppel. Respondent argues that final agency action determined that the payments received by Meloy through June 29, 1992, are reimbursement for expenses. Respondent argues that nothing has changed since that time, and Meloy cannot now revisit the issue of his compensation. Findings regarding Respondent's final argument require some historical perspective. The District joined the FRS in 1988. At that time, the District purchased past service credit for a number of employees, including Meloy. Meloy enrolled as a member of the Special Risk Class. When Meloy enrolled as a member of the Special Risk Class, a question in the enrollment form asked Meloy if the applicant was certified as a firefighter or required to be certified as a firefighter. Meloy answered in the affirmative. Meloy has always been required to be certified as a firefighter in order to receive retirement benefits as a member of the Special Risk Class. However, Meloy has never been certified as a firefighter pursuant to Section 633.35. Meloy has never completed an essential firefighting course that is a statutory prerequisite to certification. By letter dated June 29, 1992, Respondent notified Meloy that Respondent was terminating Meloy's membership in the FRS. The letter stated two grounds for termination. One ground was that Meloy had not completed the firefighting course required for membership in the Special Risk Class. The second ground was that the payments Meloy received from his employer are reimbursement for expenses rather than compensation. Meloy did not appeal either ground stated by Respondent on June 29, 1992, for the termination of benefits. Meloy does not contest the first ground and is not now seeking enrollment in the FRS as a member of the Special Risk Class. Rather, Meloy now seeks benefits as a member in a regularly established position defined in Section 121.021(52)(b). Meloy does contest the second ground stated by Respondent on June 29, 1992, for terminating Meloy's membership in the FRS. Respondent determined that Meloy did not receive compensation from 1988 through June 29, 1992. The time for appealing that determination has expired, and Meloy cannot now amend the scope of this proceeding to include any payments he received on or before June 29, 1992. Respondent asserts that its determination on June 29, 1992, also establishes that payments received by Meloy after June 29, 1992, are not compensation. Respondent argues that Meloy's duties have not changed, and the payments Meloy receives are reimbursement for expenses. On June 1, 1999, Respondent sent a letter to Wilkinson explaining Respondent's denial of Meloy's application for enrollment in the FRS. In relevant part, the letter stated: By certified letter dated June 29, 1992 (copy enclosed), the State Retirement Director, Mr. A.J. McMullian III, advised Mr. Meloy that he was inelligible for Florida Retirement System (FRS) participation since the monthly payments he received were for "expenses" and not compensation. Subsequent to Mr. McMullian's letter, a hearing was conducted by the Division of Administrative Hearings and Mr. Meloy's payments were defined as expenses as a statement [sic] of fact (copy enclosed). In light of this, the Division has already made a determination that Mr. Meloy is ineligible for FRS participation from 1979 through 1992. Since your letter indicates that Mr. Meloy's duties and payments he has received have not changed since 1988, he remains ineligible for FRS participation. Respondent's Exhibit 10. The DOAH hearing referred to in the letter on June 1, 1999, involved allegations that Meloy had violated state ethics laws when he first attempted to enroll in the FRS in 1988. In 1992, the Florida Commission on Ethics (Commission) investigated Meloy's participation in the FRS. The Commission entered an order finding probable cause that Meloy violated Section 112.313(6) when he submitted his enrollment form for retirement benefits by corruptly using or attempting to use his official position to retain retirement benefits for himself and his assistant fire chief when neither was qualified to receive benefits. The findings concerning the assistant fire chief are neither relevant nor material to this proceeding. Meloy requested an administrative hearing, and the Commission referred the matter to DOAH to conduct the hearing. ALJ Susan B. Kirkland conducted the administrative hearing and entered a Recommended Order on July 8, 1994. The Recommended Order found that Meloy misrepresented his entitlement to membership in the Special Risk Class and did so with wrongful intent. The Order concluded that Meloy violated the relevant statute because Meloy attempted to use his position, or the property and resources entrusted to him, to secure a benefit. The Order recommended a civil penalty, public censure, and a reprimand. The Final Order of the Commission adopted the Recommended Order. The Recommended Order contains three paragraphs that discuss the payments received by Meloy. Those three paragraphs state: 3. In 1976, the . . . District was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. * * * 5. In 1988, the District joined the . . . (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator of the District but did not draw a salary and continued to receive remuneration in the form of the monthly reimbursement for expenses. . . . * * * 18. By letter dated June 29, 1992, [Respondent] notified Meloy that his membership in the FRS . . . was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation. . . . The Recommended Order does not operate under the judicial doctrines of res judicata or collateral estoppel to preclude a determination of whether the payments received by Meloy after 1988 are compensation. The Recommended Order limits the finding that Meloy received payments for expenses to those received in 1988. Paragraph 5 expressly states, "At that time. . . Meloy . . . continued to receive . . . reimbursement for expenses. . . ." The findings in paragraph 18 merely recite the grounds stated by Respondent but do not make findings on the merits of the stated grounds. The findings in paragraph 3 are not probative. The Recommended Order made no findings concerning the payments Meloy received after 1988. Respondent determined that the payments between 1988 and June 29, 1992, were payments for expenses rather than compensation. Irrespective of whether Respondent's determination was legally and factually correct, Meloy did not appeal Respondent's determination. The determination by Respondent on June 29, 1992, involved a separate and distinct application from the application at issue in this case. No determination has been made that the payments since June 29, 1992, either are or are not compensation. The application at issue in this case is a new application for different benefits. Meloy is not applying for benefits to which he would be entitled if he were a member of the Special Risk Class. Nor can Meloy apply for benefits related to the payments received on or before June 29, 1992. Respondent argues that nothing has changed in the course of Meloy's tenure with the District. Payments that were reimbursement for expenses before 1992 arguably have not now been transformed into compensation. Respondent is incorrect. Something has changed in the course of Meloy's tenure with the District. Sometime after September 1990, the payments to Meloy changed from reimbursement for expenses to monthly salary payments. The District no longer housed equipment at Meloy's garage, Meloy no longer serviced the equipment at the garage, and the amount of the monthly payments to Meloy increased from $540 to $833. Relevant portions of the transcript of the administrative hearing in the ethics case are instructive. Meloy asserted in the ethics case that in 1988, he was a volunteer fireman. As a volunteer, rather than a salaried employee, Meloy argued that he was not required to be certified as a firefighter. The attorney who represented the Commission sought to show that Meloy was not a volunteer after 1990 but was a salaried employee of the District. As long as I'm volunteering, I don't have to have it. Q. Okay. You are also the administrator for the full-time firemen, is that right? A. Yes. Q. You have the power to hire and fire them? A. Yes. Q. You set their hours? A. Yes. Q. The district also has a part-time secretary, is that right? A. Yes. Q. And currently that's Ms. Connie Bull? A. Correct. Q. She handles payroll matters? A. Yes. Q. She writes checks? A. Yes. Q. Pays bills? A. Yes. Q. She and you both answer questions that the full-time firemen might have about vacation or sick leave or retirement, is that right? A. To the best of our ability, yes. Q. Okay. Now, before 1990 you were not an employee of the fire district, is that right? A. According to how you define it, I guess. I was paid more as an expense type arrangement up until sometime around '90. I don't remember the exact date. Q. Okay, you received the expense reimbursement prior to 1990 for working on the fire equipment; is that right? A. It covered a lot of things. We worked on the fire equipment there in my business, we housed a lot of equipment there, used my facilities for -- well, we have used my facilities as a station for awhile. Q. When you say your facilities, you mean the Alva garage that you used to own? A. Right. Q. When you got the expense reimbursement, you would get the same amount every month, is that right? A. Yes. Q. It changed some over time, though, didn't it from '73 to 1990? A. Yes. Q. You got that same reimbursement amount regardless of the number of hours that you worked for the district? A. Yes. Q. And regardless of what any actual expenses might be? A. Correct. Q. Now, sometime in 1990 you became an employee of the district on a part-time basis; is that right? A. That's when they started taking out taxes and all and that reverted to more of a salary type reimbursement rather than expense. In other words, I was paying income tax and Social Security and everything and at that time it was considered more of a salary. Q. And they started doing that in 1990 sometime? A. I don't remember the date. It was approximately then. Q. When you started receiving a salary, you stopped getting the reimbursement; is that right? A. Right. Q. Isn't it true that when you first started getting the salary that the amount of the salary was several hundred dollars a month more than what the reimbursement had been? A. I couldn't tell you. Q. Isn't it a fact that the last-- A. I don't believe that would be right, though, because it didn't go up very much any one time, I don't think. I would have to see the figures to tell for sure. Q. All right. Isn't it a fact that the last time you received a monthly reimbursement you were receiving about $540 a month? A. I don't have those figures in front of me. Q. You don't remember? A. No. Q. Isn't it a fact that when you first got a salary in October 1990, you got $833 a month? A. I still couldn't tell you. I don't have those figures in front of me. I have them wrote down if I can get my papers. Q. All right. You don't know how much you get now? A. Yeah, but this ain't 1990. Respondent's Exhibit 3 at 29-32. The state argued in the ethics case that Meloy has been salaried since October 1990 and was required to be certified as a firefighter before enrolling in the FRS as a member of the Special Risk Class. The state now argues that Meloy has never been salaried and cannot enroll in the FRS as member of the regular class. The state cannot have it both ways. Meloy is entitled to membership in the FRS for the period after June 29, 1992. During that time, the District has paid a salary to Meloy that is compensation for duties performed in a regularly established position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' request for Meloy to participate in the FRS. DONE AND ENTERED this 7th day of January, 2002, in Tallahassee, Leon County, Florida. _________ ________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2002. COPIES FURNISHED: J. Frank Porter, Esquire Porter & Jessell, P.A. 1424 Dean Street Ft. Myers, Florida 33901 Thomas E. Wright, Esquire Division of Retirement P.O. Box 3900 Tallahassee, Florida 32315-3900 Erin B. Sjostrom, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Mallory Harrell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner is a recipient of benefits disbursed by the Respondent and herein challenges the department's practice with the administering of "shelter" payments in the Respondent's Program of Aid to Families With Dependent Children (AFDC). The Petitioner is a mother who presently receives full AFDC shelter assistance payments through this program. In March of 1977 she applied for these benefits and was initially determined to be ineligible. The basis of this ineligibility was the interpretation, by the department, of its rules that shelter payments were available only to recipients who had a payments obligation on the dwelling in which they lived. In other words, the Petitioner was determined to be ineligible for payments because she did not live in the same house for which she had a mortgage obligation. The department construes its rules in its Assistance Payments Manual to restrict shelter payments only to recipients who actually live in the dwelling for which they are obligated to make payments. The Petitioner later moved into the dwelling for which she makes a mortgage payment. At that time she was ruled eligible for payments and received monthly assistance payments. In addition, the Petitioner was granted retroactive sustenance payments from the date of her initial application. The Petitioner alleges that the Assistance Payments Manual promulgated by the department and used by its staff members is an invalid rule in that it fits the definition of a rule in Section 120.52(14), F.S., and has not been formally adopted through rulemaking proceedings as required by Chapter 120, F.S. The department acknowledges that the Assistance Payments Manual has not been adopted as a rule pursuant to Chapter 120, F.S., the Administrative Procedure Act. This case went to final hearing on December 21 , 1977, at Orlando, Florida. The Petitioner did not appear at that proceeding. Testimony was taken from Cheri Beck, a payments supervisor for the Department of Health and Rehabilitative Services. Also, the deposition of Ms. Beck taken on December 19, 1977, was received into evidence. An additional deposition, that of Sylvia McElroy, another employee of the Respondent, was also received. After reviewing the submissions and the testimony received, it is the determination of the undersigned that the Petitioner has not demonstrated that she is substantially affected by the alleged rule and has inadequate standing to maintain this proceeding. The crucial aspect of the Petitioner's circumstance is that although she was initially determined to be ineligible for assistance payments because of the restrictions in the Assistance Payments Manual, she was later granted eligibility and issued retroactive payments. Therefore at the time this matter went to hearing the Petitioner was not adversely affected by any determination of the Respondent based upon the use of their Assistance Payments Manual. The Petitioner has suffered no loss which can be attributed to the alleged rule. Without having adequately demonstrated that she is Substantially affected by the alleged rule, Petitioner is not entitled to a determination of its validity. The First District Court of Appeal considered this identical question in the case of Florida Department of Offender Rehabilitation v. Leroy Jerry, So.2d , (Case No. FF-303, Jan. 10, 1978). In that opinion the court determined that a Prisoner incarcerated in a State institution was not entitled to a determination of the validity of an alleged rule Since he had not demonstrated he had suffered any hardship because of the operation of the rule. In a similar fashion the Petitioner here has had any possible loss of benefits restored to her by the Respondent. She no longer has cause to receive a resolution of this Petition Pursuant to Section 120.56, F.S. It is, therefore, ORDERED: That the Petition is dismissed. Further, since the Petitioner has no standing to receive a determination of her Petition, no ruling is made on the Proposed findings submitted at the final hearing. DONE and ORDERED this 20th day of January, 1978, in Tallahassee, Florida. KENNETH G. OERTEL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1978. COPIES FURNISHED: Charles L. Colbrunn, Esquire Greater Orlando Area Legal Services, Inc. 128 W. Central Boulevard Orlando, Florida 32802 James Mahorner, Esquire Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32304 Ms. Liz Cloud Department of State 403 E. Gaines Street Tallahassee, Florida 32304
The Issue The issue presented is whether Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program should be approved.
Findings Of Fact Petitioner is employed as a Captain with the Metro-Dade Fire Department. Petitioner earned a Bachelor of Arts Degree from the State University of New York at Buffalo, an accredited academic institution, on February 12, 1969. At the time that Petitioner attended that university, it did not offer courses in fire science. Petitioner applied to Respondent for supplemental compensation at the bachelor's degree level. His university transcript, which accompanied his application, indicates that Petitioner's major study concentration area was psychology. The Metro-Dade Fire Department requires its officers to attend an officers' training program. That program does not award college credits, and Petitioner did not attend that program as part of the course-work required to earn his bachelor's degree. Rather, it is an in-service training program. Although that program does include some instruction in some basic psychological principles, there is no indication that that program is different from in- service training programs for supervisors and managers in any occupation. Although Metropolitan Dade County does offer a tuition refund program for its employees, that program is unrelated to the State's Firefighters Supplemental Compensation Program and has different criteria. Further, Petitioner's bachelor's degree was not earned in conjunction with that program. Petitioner's job description as a captain does require that he possess supervisory skills. Those supervisory skills appear to be the same supervisory skills required in any occupation. His job description does not require that he have a degree or training in psychology. The only educational requirement for employment as a fire captain with the Metro-Dade Fire Department is graduation from a standard high school or possession of a Florida G.E.D. Petitioner's transcript for his bachelor's degree does not reveal a sufficient number of course hours which are readily identifiable and applicable as fire-related. Although it does reveal the titles of the courses taken by Petitioner in earning his bachelor's degree, it is not accompanied by any catalog from the university which explains the contents of any of the courses taken by him. Accordingly, none of the courses taken by Petitioner is readily identifiable and applicable as fire-related. Petitioner is not employed by the Metro-Dade Fire Department as a psychologist or counselor. To the extent that his job requires him to utilize basic psychological-managerial principles, it is because his job includes being a supervisor-manager and not because his job requires an expertise in psychology.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April, 1991. LINDA M. RIGOT 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 23rd day of April, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's first, second, fourth through twelfth, fifteenth, and seventeenth unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting argument. Petitioner's third unnumbered paragraph has been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's thirteenth and sixteenth unnumbered paragraphs have been rejected as being irrelevant to the issues involved herein. Petitioner's fourteenth unnumbered paragraph has been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 2, 4, 5, 9, and 10 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 11, and 13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony Respondent's proposed findings of fact numbered 6 and 12 have been rejected as being irrelevant to the issues involved herein. Respondent's proposed findings of fact numbered 7 and 8 have been rejected as being unnecessary for determination of the issues herein. Copies furnished: Andrew K. Levine, Esquire Department of Insurance and Treasurer Division of State Fire Marshall 412 Larson Building Tallahassee, Florida 32399-0300 Dean J. John 6890 Scott Street Hollywood, Florida 33024 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. lst DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether Petitioner, who on November 17, 1999 (two days prior to the final hearing in this case) was certified by Respondent to be eligible to receive, effective June 1, 1999, firefighter supplemental compensation pursuant to Section 633.382, Florida Statutes, is entitled to any further relief from Respondent in this administrative proceeding (which was initiated by Petitioner after he had received Respondent's June 2, 1999, notice of its preliminary determination that Petitioner was not entitled to firefighter supplemental compensation).
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In August 1994, Petitioner applied to Respondent for entry in the Firefighters Supplemental Compensation Program (1994 Application). The application materials that Respondent received were a completed and signed Firefighters Supplemental Compensation Program Transcript Request form; a copy of Petitioner's transcript from North Carolina Central University (reflecting that he had graduated on May 10, 1986, with a Bachelor of Science degree in biology), along with a cover letter to Respondent from the Office of the University Registrar; a job description; and a letter to Respondent from Petitioner, which read as follows: Enclosed [y]ou will find information regarding my educational earnings. I received a Bachelor of Science (Biology) in May, 1986 from North Carolina Central University in Durham. Additionally, I have earned 29 credits at Miami Dade Community College [a]nd I [a]m [a] Paramedic. Please [r]eview [t]his information and include me in the supplemental compensation program. I[']d [l]ike to thank you in advance for your time and consideration. The job description that was included in the application materials Respondent received was for the classification of Fire Fighter and read as follows: NATURE OF WORK: Skilled fire-fighting work in combating, extinguishing and preventing fires, and in the operation and maintenance of fire department equipment, apparatus and quarters. Work involves responsibility for protecting life and property by fire-fighting and rescue activities, usually under close supervision. Employees of this class are required to learn and participate in the operation of fire apparatus and equipment, and the performance of hazardous tasks under emergency conditions which may require strenuous exertion under such handicaps as smoke and cramped surroundings. Although fire-fighting and rescue activities are the primary responsibilities of this class, the major portion of time is spent in drilling and studying methods, techniques and organization, and in routine duties in the care and maintenance of fire department property and equipment. Employees of this class may be assigned to duty as communications officer, chief driver and aide, and fire prevention inspector, which involves the application of specialized abilities and knowledge developed through experience and training. Specific orders and directions are given by superior officers, but the work requires initiative and a thorough individual understanding of fire- fighting methods. ILLUSTRATIVE EXAMPLES OF WORK PERFORMED: (The examples of work as listed in this class specification are not necessarily descriptive of any one position in the class. The omission of specific statements does not preclude management from assigning specific duties not listed herein if such duties are a logical assignment to the position. Examples of work performed are not to be used for allocation purposes.) Attends training courses; participation in fire drills and attends classes in fire- fighting and first aid; reads and studies assigned materials related to fire-fighting and prevention. Responds to fire alarms with a company; operates pumps, aerial ladders and auxiliary equipment; lays and connects hose; holds nozzles and directs fog or water streams; raises and climbs ladders; uses chemical extinguishers, bars, hooks, lines and other equipment. Performs general maintenance work in the upkeep of fire department property; cleans and washes walls and floors; makes minor repairs to property and equipment; washes, hangs, and dries hoses; washes, cleans, polishes and tests apparatus. Performs limited fire prevention activities; inspects commercial and residential properties for the existence of fire hazards, and seeks removal of such hazards through education and persuasion. When assigned to the Rescue Division the Fire-Fighter should be able to accurately and efficiently evaluate and gather patient assessment information; interpret assessment finding; formulate a working diagnosis (i.e. possible M.I.); plan, prioritize and implement necessary treatment as per Rescue protocol and/or physician direction via the radio; evaluate treatment outcome and re- assess the patient's status; plan and implement additional treatment or modifications as indicated by re-assessment and follow-up evaluation. When assigned as a fire inspector, inspects buildings and premises; reviews plans for compliance with fire regulations specified in the City of Miami Building Code; checks on complaints; and may aid investigation of arson cases when assigned to fire prevention duties. Performs other related work as required. DESIRABLE KNOWLEDGE, ABILITIES AND SKILLS: (The knowledge, skills and abilities identified in this class specification represent those needed to perform the duties of this class. Additional knowledge, skills and abilities may be applicable for individual positions in the employing departments.) Some knowledge of the street system and physical layout of the City of Miami. Ability to learn a wide variety of fire- fighting duties and methods within a reasonable working test period. Ability to establish and maintain effective working relationships with other employees and the general public. Ability to understand and follow oral and written instructions. Ability to perform limited mechanical work involved in maintaining fire-fighting and rescue apparatus, equipment and tools. Physical strength, endurance, agility and freedom from serious physical defects as shown by a physical examination. Coordination and dexterity. DESIRABLE BASIC TRAINING AND EXPERIENCE: Graduation from high school or State of Florida Equivalency Certificate OR Equivalent combination of training and experience. By letter dated August 23, 1994, Respondent advised Petitioner that it had determined that he was not qualified to receive supplemental compensation. The letter, which was received by Petitioner on September 6, 1994, read as follows: After reviewing your transcript, it has been determined that you do not possess an appropriate Major Study Concentration Area to qualify for the Firefighters Supplemental Compensation Program at the Bachelor level. Rule 4A-37.084, Florida Administrative Code, does not list Biology as a "Major Study Concentration Area." Rule 4A-37.084, Florida Administrative Code, states: "4A-37.084 Definitions. For purposes of this part, terms used in Rules 4A-37.082-4A- 37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined as follows: 'Bachelor's Degree' means a Bachelor of Arts or Bachelor of Science degree conferred by an accredited post-secondary institution provided the major study concentration area is readily identifiable and applicable as fire related. A firefighter may receive Supplemental Compensation based on possession of a Bachelor's Degree regardless of whether or not an Associate Degree was previously earned. In no event shall receipt of a transcript for an Associate Degree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation. The major study concentration area, at least 18 semester hours or 27 quarter hours, [must] be readily identifiable and applicable as fire related. Specific Authority 633,45(2)(a) FS. Law Implemented 633.382(2) FS. History-New 01-03-90." 1/ At this level of the Firefighters Supplemental Compensation Program it has been determined that your Bachelor Degree is not readily identifiable and applicable as fire related, per Rule 4A-37.084, Florida Administrative Code. Pursuant to Section 120.57, Florida Statutes, and Rule Chapters 4-121 and 28-5, Florida Administrative Code (F.A.C.), you have a right to request a proceeding to contest this action by the Department. You may elect a proceeding by completing the attached Election of Rights form or filing a Petition. Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail, the Petition or Election should be addressed to the Florida Department of Insurance, at 612 Larson Building, Tallahassee, Florida 32399-0300. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered to 448 Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0300. The Petition of Election must be received by, and filed in the Department within twenty-one (21) days of the date of your receipt of this notice. If a proceeding is requested and there is no dispute of fact, the provisions of Section 120.57(2), Florida Statutes, would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request. If you dispute material facts which are the basis for this agency's action, you may request a formal adversarial proceeding pursuant to Section 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapters 4-121 and 28-5, F.A.C. and contain: A statement identifying with particularity the allegations of the Department which you dispute and the nature of the dispute; An explanation of what relief you are seeking and believe you are entitled to; Any other information which you contend is material. These proceedings are held before a State hearing officer of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request the hearing be conducted in Tallahassee. Unless a Petition or Election or your written submission challenging this action is received by the Department within twenty-one (21) days from the date of the receipt of this notice, the right to a proceeding shall be deemed waived. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding. Any request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. Petitioner did not file a "Petition or Election or . . . written submission challenging this action [described in Respondent's August 23, 1994 letter]" within 21 days of the date of his receipt of the letter. He next corresponded with Respondent in May of 1999, when he applied for a second time for entry in the Firefighters Supplemental Compensation Program. Along with a completed and signed Application for Initial Entry into Supplemental Compensation Program (Second Application), he sent Respondent a copy of his transcript from North Carolina Central University and an "official job description for current position held: FIREFIGHTER/PARAMEDIC," which was different than the job description that had accompanied his 1994 Application and which read as follows: Firefighter Definition: The term firefighter is used to describe all individuals assigned to the various areas within the City of Miami Fire Department. The responsibilities of a Firefighter are very diverse and require specialized training in many areas. Fire Suppression: These individuals are responsible for protecting life and property by means of fire extinguishment. This individual must have a working knowledge of pumps, water friction and resistance tables as well as ropes, foams and nozzles, infra- red cameras and basic building construction and style. Throughout the fire service, physical fitness is important. Hazardous Material Team: Work involves protecting life and property from toxic substances. Must have a working knowledge of fundamental chemistry and chemical interactions with each other. Must be able to identify Department of Transportation Placards to determine substances being transported by vehicles. Additionally, individuals must be familiar with explosive ranges of gases and mixture that have the potential to explode or cause harm to others. Must understand hazardous materials containment areas and the various levels of protective clothing w[o]rn. Emergency Medical Services: Work involves protecting life through use of basic life support and advance life support methods. Individuals involved in these services work under the license and management of a medical director. Paramedics are generally assigned to these positions when possible. Individuals should be able to accurately gather and interpret patient information to formulate a working diagnosis and provide necessary treatment as per protocol or physician[']s direction. Personnel [are] responsible for calculating and administering various drugs under stressful conditions (i.e. cardiac arrest and major trauma) and reporting patient status and treatment via radio to the medical director. A working knowledge of anatomy and physiology, medical terms and conditions is required. Fire Prevention Bureau: Work involves inspecting buildings and premises; reviewing plans for compliance with fire regulations specified in the City of Miami Building Code; checking on complaints; investigating arson cases and conducting public education throughout the City of Miami. Petitioner did not indicate, in submitting his Second Application, that he was seeking anything other than prospective entry in the Firefighters Supplemental Compensation Program. Respondent preliminarily determined that Petitioner's Second Application should be denied because his "Major Study Concentration Areas of Biology does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code, for entry in the program," and so advised Petitioner, who subsequently requested an administrative hearing on the matter. Respondent, however, subsequently changed its mind regarding Petitioner's eligibility for the program and, by letter dated November 17, 1999 (two days prior to the final hearing in this case) advised Petitioner that, "[u]pon [f]urther review of [his] application, it had "found [Petitioner] to be eligible" and that he would receive supplemental compensation effective June 1, 1999. Respondent also prepared and sent to Chief James Fisher of the City of Miami Fire Rescue an Official Acceptance Notification, which read as follows: James E. Kemp, Social Security Number, . . ., has met the eligibility requirements for entry into the Firefighters Supplemental Compensation Program. Effective June 1, 1999, Mr. Kemp will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.085 for possession of a Bachelor's degree. Mr. Kemp will be eligible to receive up to $110.00 a month until such time as he may become ineligible in accordance with Rule 4A- 37.087. Please insure that the referenced firefighter's name and the amount of Supplemental Compensation paid, appears on your Quarterly Report (form FSTE-3). If any further information is needed, please do not hesitate to contact us. (A copy of this Official Acceptance Notification was sent to Petitioner.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding that Petitioner is not entitled to the additional relief he is seeking. DONE AND ENTERED this 5th day of January, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 January, 2000.
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. ist DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 12
The Issue The issues presented are whether Petitioner is entitled to supplemental compensation payments, and, if so, whether those payments should be retroactive.
Findings Of Fact At all times material hereto, Petitioner has been a certified firefighter, having become certified in February 1999. On December 17, 1994, Petitioner received a Bachelor of Science degree with a major in hospitality administration. In 1999, Petitioner applied for admission to the Firefighters Supplemental Compensation Program at the bachelor's degree level. Petitioner's current job title with the Miami-Dade Fire Department is "firefighter." He submitted a copy of his job description. The "Nature of Work" in his job description is described as "specialized work in the protection of life and property through combatting [sic] fires, performing emergency medical rescue duties and participating in fire prevention activities." Petitioner agrees that his main job duties are fire prevention, fire suppression, protection of life and property, and medical rescue. Petitioner's job description lists the following under "Knowledges [sic], Abilities and Skills": Knowledge of modern firefighting techniques and principles. Knowledge of basic mechanical principles in operating a variety of complex equipment and apparatus. Knowledge of department regulations and operational procedures. Knowledge of firefighting equipment and gear on assigned apparatus. Knowledge of the fundamental principles of hydraulics. Knowledge of emergency medical rescue practices, methods, and techniques. Knowledge of the geography of the metropolitan area. Knowledge of fire prevention principles and programs. Knowledge of the need for personal hygiene and clean living quarters. Ability to react promptly and correctly in emergency situations. Ability to assess a situation, draw valid conclusions, and take appropriate action. Ability to read, retain and apply guidelines, regulations and policies to a variety of situations. Ability to understand and carry out written and verbal instructions. Ability to use basic hand and power tools. Ability to read, interpret and comprehend diagrams, charts, and gauges. Physical strength and agility sufficient to perform assigned duties including physical tasks requiring sustained effort. None of the skills listed in Petitioner's job description relates to a major in hospitality administration. A college degree is not required in order to become a firefighter for the Miami-Dade Fire Department. The level of education required is either a high school diploma or the equivalency. Rule 4A-37.084, Florida Administrative Code, lists nine major study concentration areas for which supplemental compensation will be paid to qualified firefighters. Hospitality administration is not one of the nine majors listed in the Rule. The Department has never awarded an applicant supplemental compensation for a Bachelor of Science degree with a major in hospitality administration. The Department makes a determination of whether a particular college degree which is not one of the nine listed in the Rule is readily identifiable as applicable to fire department duties by reviewing the applicant's job description and verifying the degree received according to the applicant's college transcript. Petitioner's major is not readily identifiable to his fire department duties as evidenced by the transcript and job description Petitioner submitted to the Department. If a required job activity is prevalent, it should appear on the official job description. Unlike protection of life and property and fire suppression which are listed on Petitioner's job description, customer service is not a main part of a firefighter's duties nor is it listed on Petitioner's job description. Petitioner has not yet achieved the rank of lieutenant or fire chief with the Miami-Dade Fire Department although he intends to achieve those ranks over time. A lieutenant's or a fire chief's job descriptions would reflect different duties from those listed on a regular firefighter's job description. Petitioner's Fire Chief is Chief Paulison. Paulison declined to write a letter to the Department stating that Petitioner's degree is directly related to Petitioner's job duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for supplemental compensation. DONE AND ENTERED this 19th day of April, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 19th day of April, 2000. COPIES FURNISHED: Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Elenita Gomez, Esquire Department of Insurance Division of Legal Services 200 Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Walter W. Wray 2983 Northwest 200th Terrace Miami, Florida 33056
The Issue The issues in this case are whether Professional Staffing and Payroll Services, LLC, failed to secure the payment of workers' compensation coverage for its employees in violation of chapter 440, Florida Statutes (2014), and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation, is the state agency responsible for enforcing the requirement that employers in the State of Florida secure the payment of workers' compensation insurance coverage for their employees, pursuant to chapter 440, Florida Statutes. Respondent, Professional Staffing and Payroll Services, LLC, is a registered Florida limited liability company. At all times relevant to this proceeding, its business address was 1400 Colonial Boulevard, Suite 260, Fort Myers, Florida. Respondent actively engaged in business during the period from February 1, 2015, to June 17, 2015. On June 2, 2015, Petitioner's compliance investigator, Jack Gumph, conducted a workers' compensation compliance investigation at a worksite located at 8530 Palacio Terrace North, Lot 67, Hacienda Lakes, Naples, Florida. At the worksite, Gumph observed five workers nailing down plywood on the trusses of the roof of a house under construction. One of the workers, Fernando Fernandez, identified himself as the job foreman. Mr. Fernandez and the other four workers were employed by J.S. Valdez, Inc. ("JSV"). These workers were engaged in carpentry work installing plywood. This type of carpentry work is classified as National Council on Compensation Insurance ("NCCI") class code 5403 and is considered a type of construction activity under Florida Administrative Code Rule 69L-6.021(2)(cc). The evidence established that JSV was a client company of Global Staffing Services, LLC ("GSS"), and that GSS supplied the workers to JSV. The evidence further established that all five workers Gumph observed at the Palacio Terrace jobsite were employees of GSS. Using the State of Florida's Coverage and Compliance Automated System ("CCAS") computer database, Gumph determined that JSV did not have workers' compensation insurance covering any of its employees, and that GSS had workers' compensation coverage only for two secretarial/clerical employees. Through research in the Florida Department of State, Division of Corporations Sunbiz database ("Sunbiz"), Gumph discovered that GSS was part of three related——as Gumph characterized it, "commingled"——business entities; these entities were GSS, Global Staffing Payroll, LLC ("GSP"), and Professional Staffing and Payroll Services, LLC, the named Respondent in this case. Ivan Hernandez was shown in Sunbiz as being the managing member of GSS and GSP. At that time, the managing member of Respondent was shown as being Martha Coloma. Gumph suspected that Respondent was leasing construction workers, who are engaged in hazardous work, through a staffing company that was characterized as a secretarial/clerical business (NCCI code 8810)——a substantially less hazardous occupation. The effect of classifying of these business as "secretarial/clerical" is that a much lower workers' compensation premium rate applies.2/ Gumph prepared requests for production of business records ("RPBR") for each of the related business entities and visited the business address listed in Sunbiz for GSS to personally serve them on Hernandez. The business was located in a strip mall that housed various types of businesses. As he was entering the business, he noted that the name shown at the entrance was "Professional Staffing." The business manager explained that GSS was opened in 2013, and that on February 1, 2015, the business name had been changed to Professional Staffing and Payroll Services——the named Respondent in this proceeding. Upon inquiry, Gumph was told that Hernandez was "out of state." Almost as soon as he left Respondent's business office, Gumph received a call from Hernandez, who confirmed that he was the owner and chief executive officer of both GSS and Respondent. Gumph scheduled an appointment with Hernandez for June 16, 2015. However, Hernandez did not keep that appointment or call Gumph back to reschedule the appointment. It was obvious to Gumph that Hernandez was avoiding him. In researching the Sunbiz records for Respondent, Gumph also noted that on June 16, 2015, the managing member's name had been changed from Martha Coloma to Ivan Hernandez. He also rechecked the CCAS and NCCI databases for Respondent and noted that only a few days before, a workers' compensation policy had been issued for Respondent. The policy listed the business as "secretarial/clerical" and had a total exposure of $143,000 to cover four secretarial/clerical employees. He also noted that GSS had a workers' compensation policy that was effective from August 15, 2014, to August 15, 2015, and that this policy did not cover any additional insured entities, so its coverage did not extend to Respondent or its employees. Gumph contacted Martha Coloma, who was employed by All Florida Financial Services, LLC, a payroll preparation and bookkeeping firm. Coloma told Gumph that in January 2015, Hernandez had asked her to amend the Sunbiz records for Respondent to be shown as Respondent's managing member. Coloma also told Gumph that Hernandez requested that she find a Professional Employer Organization ("PEO") leasing company that would secure workers' compensation coverage for approximately 40 to 50 of his employees who were engaged in construction work.3/ Coloma was unsuccessful, so Hernandez directed her to obtain another policy for secretarial/clerical employees. She obtained the policy covering the four secretarial/clerical employees. Thereafter, Gumph spoke directly with Hernandez, who confirmed that he employed 40 to 50 construction workers. He told Gumph that he had tried to obtain a policy but had been unable to do so. On June 17, 2015, Gumph issued a Stop-Work Order and Order of Penalty Assessment to Respondent, and also served a RPBR on Respondent. In response, Respondent provided business records consisting of bank statements from a Regions Bank account covering the period from February 1, 2015, to February 28, 2015. Respondent did not provide any copies of checks written during this period. Respondent also provided business records consisting of bank statements and copies of checks from a Fifth Third Bank payroll account for Respondent for the period of March 1, 2015, through June 17, 2015. The evidence establishes that between February 1, 2015, and June 12, 2015, Respondent employed 437 employees—— the great majority of whom worked in construction jobs——for whom Respondent failed to secure workers' compensation insurance coverage. For the period between June 13, 2015, and June 17, 2015, Respondent secured workers' compensation coverage for four secretarial/clerical employees. Based on the business records provided, Lynne Murcia, Petitioner's penalty auditor, calculated the penalty to be assessed against Respondent. Pursuant to section 440.107(7)(d)1., the penalty for failing to secure workers' compensation is equal to two times the amount the employer would have paid in premium when applying approved manual rates to the employer's payroll during the period for which the employer failed to secure coverage during the two-year period preceding issuance of the Stop-Work Order. Here, because Respondent became a business entity on or about February 1, 2015, the penalty period applicable to this proceeding commenced on February 1, 2015, and ran through June 17, 2015, the date on which the Stop-Work Order and Penalty Assessment were served on Respondent.4/ Respondent did not obtain any exemptions from the workers' compensation coverage requirement for the period between February 1, 2015, and June 17, 2015. The business records Respondent provided in response to the RPBR were not sufficient to enable Petitioner to calculate Respondent's payroll for the period commencing on February 1, 2015, and ending on February 28, 2015. Accordingly, Petitioner imputed the gross payroll for Respondent's employees identified in the taxable wage report for the period covering February 1, 2015, through February 28, 2015, the statewide average weekly wage effective at the time of the Stop-Work Order, multiplied by two. The imputed wages for these employees over this period amounted to $2,544,907.68. For the period commencing on March 1, 2015, and ending on June 17, 2015, Respondent provided records sufficient to enable Petitioner to determine Respondent's actual gross payroll. For this period, Respondent's gross payroll amounted to $1,202,781.88. The evidence shows that for the period from February 1, 2015, through June 12, 2015, Respondent failed to secure workers' compensation coverage for any of its employees. On June 13, 2015, Respondent secured workers' compensation covering four secretarial/clerical employees. This coverage did not extend to Respondent's employees engaged in work other than secretarial/clerical work. For the period from June 13, 2015, to June 17, 2015, Respondent's gross payroll was calculated as $22,507.37. In calculating the applicable penalty, Respondent received a credit of $923.98 for the premium paid on the policy secured on June 12, 2015. This amount was deducted from the penalty owed. In calculating the penalty, Murcia determined the NCCI class code applicable to each employee according to his or her job, and applied the pertinent approved NCCI rates to determine the amount of the evaded premium for each employee. Pursuant to this method, Murcia calculated a total penalty of $645,019.36, which was reflected in the Amended Order of Penalty Assessment. In sum, Petitioner demonstrated, by clear and convincing evidence, that Respondent failed to secure workers' compensation coverage for its employees, in violation of chapter 440. The clear and convincing evidence further establishes that Petitioner correctly calculated a penalty of $645,019.36 to be assessed against Respondent pursuant to sections 440.107(7)(d)1. and 440.107(7)(e) and rule 69L-6.028.
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, enter a final order determining that Respondent Professional Staffing and Payroll Services, LLC, violated the requirement in chapter 440, Florida Statutes, to secure workers' compensation coverage and imposing a penalty of $645,019.36. DONE AND ENTERED this 10th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 10th day of February, 2016.
