Findings Of Fact Herbert W. Mize is a compliance officer for the Petitioner, the Department of Labor and Employment Security. On January 14, 1986, Mr. Mize was performing field checks in Hillsborough County. He arrived at a citrus grove, staying on the outside due to the canker problem. Ten to fifteen workers were up on ladders among the citrus trees. The Petitioner, Marvin James, was driving a vehicle loading up citrus. Mr. Mize asked Mr. James who was crew leader on the job at that time. Mr. James stated that he was the crew leader. A 1977 Dodge van was parked nearby. Mr. James told Mr. Mize that it was his van and that he drove workers to work that day in his van. The same 1977 Dodge van had previously been insured by Mr. James by the U.S. Fire Insurance Company, but Mr. James did not have insurance on the 1977 Dodge van on January 14, 1986. P. Ex. 4, 5, and 6. Mr. Mize gave a notice of noncompliance to Mr. James, and Mr. James acknowledged that he had seen it by signing it at the bottom. P. Ex. 3. Relevant to this case, Mr. James was informed by Mr. Mize that he was in noncompliance with state law by failure to carry and exhibit proper certificate of registration as a farm labor contractor and by failure to obtain adequate vehicle insurance. Id. Mr. James testified that he was very familiar with the law requiring farm labor contractor registration and vehicle insurance to transport workers since he had been a crew leader since 1978. Mr. James testified that on January 14, 1987, he was working for Carl Junior Mears, but only to load citrus, and that he did not transport workers in his van and did not supervise workers in the grove. His testimony is rejected as not credible for the following reasons: Mr. James testified that he was "under his van working" when Mr. Mize came up. He gave no explanation why he was working on his van instead of loading citrus as he testified at another point. Mr. Mears admitted that Mr. James did direct and supervise workers in the grove from time to time, and also admitted that Mr. James "sent" workers to him. Both of the worker witnesses presented by Mr. James testified that they had known James for a number of years, which indicates that they have had some sort of formal working relationship with him. If Mr. James in fact had told Mr. Mize that he was not the crew leader, it would have been logical for Mr. Mize to have then asked "well, who is the crew leader?" But Mr. James insisted that he did not tell Mr. Mize where the crew leader was because Mr. James said Mr. Mize did not ask. This is not believable. Mr. James testified that Mr. Mears was the crew leader, and that he was available in the grove on January 14, 1986. Considering the fact that Mr. James was familiar with the requirements of the law, if it were true that Mr. Mears was present in the grove, it would logically be expected that Mr. James would have tried to be helpful and would have voluntarily told Mr. Mize who Mr. Mears was and where he was even if Mr. Mize had somehow failed to ask. It is particularly unbelievable that Mr. James would not have, on his own, told Mr. Mize where Mr. Mears was located since Mr. James admitted that Mr. Mize that day cited him for crew leader violations, and Mr. James signed the citation. P. Ex. 3. The demeanor of Mr. Mize indicated credibility, while the demeanor of Mr. James indicated a lack of credibility. Mr. Mears paid Mr. James for his services as a crew leader. On January 14, 1986, Mr. James drove workers to the citrus groves in his 1977 Dodge van and he was supervising them as a crew leader, both for pay from Mr. Mears. Mr. James was not registered on January 14, 1986 as a crew leader, and did not have insurance on the 1977 Dodge van he used to transport workers.
Recommendation For these reasons it is recommended that the Department of Labor and Employment Security enter its final order finding that the Respondent, Marvin James, on January 14, 1986, violated section 450.30(1), Fla. Stat., by failing to have a certificate of registration in full force and effect and in his possession and violated section 450.33(5), Fla. Stat., by failing to have a policy of insurance on his 1977 Dodge van used to transport farmworkers, and assessing a civil penalty of two thousand dollars ($2,000). DONE and ENTERED this 13th day of July, 1987. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1704 The following are rulings upon findings of fact by number or paragraph number as proposed by the parties which have been rejected. Findings of fact proposed by the Petitioner: None. Findings of fact proposed by the Respondent: Paragraph 2: Rejected for the reasons stated in finding of fact 7. Paragraph 3: Rejected for the reasons stated in fending of fact 7. Paragraph 4: Mr. Mize had no need to talk to workers in the grove since Mr. James admitted he was the crew leader, and did not tell Mr. Mize then that Mr. Mears was the crew leader. Paragraph 5: Mr. Mize testified that he saw workers on ladders, and made it clear that his number was only an estimate. Paragraph 6: Rejected for the reasons stated in finding of fact 7. Paragraph 7: Rejected for lack of testimony in the record as to these facts. Paragraph 8: Rejected in the conclusions of law. COPIES FURNISHED: Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Marvin James 1501 Island Avenue Dade City, Florida 33525 Moses E. Williams, Esquire Department of Labor and Employment Security Montgomery Building, Room 117 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Did Respondent engage in unlawful employment practices against Petitioner on the basis of race, and if so, what remedies are available to redress the wrong? Sections 760.10 and 760.11, Florida Statutes.
Findings Of Fact Petitioner meets the definition of "person" in Section 760.02(6), Florida Statutes, entitled to assert claims for relief under the Florida Civil Rights Act. It was not disputed that Respondent is an "employer" within the meaning Section 760.02(7), Florida Statutes. Based upon the record it is inferred that Respondent is an employer subject to the Florida Civil Rights Act in the conduct of its employment practices. Respondent is a corporation with three shareholders who each have a one-third interest in the business. In the corporation the shareholders are Vehad Ghagvini and his brothers. Vehad Ghagvini is the president of the corporation and responsible for the day-to-day operation. Vicki Goodman serves as the Human Resources Administrator for the company and is responsible for matters associated with claims of discrimination by company employees. At times relevant Larry Smith was a supervisor for Respondent. On two separate occasions Petitioner worked for Respondent. The first occasion was from November 8, 1999, through June 7, 2000. His position with the company was that of a laborer. When he separated from employment on June 7, 2000, it was based upon his own decision. At that time it was indicated in his personnel record that Petitioner would be subject to being rehired and it was commented that Petitioner was considered to be a hard worker and reliable. The personnel records show the signature of Larry Smith as supervisor when Petitioner terminated his employment with Respondent on June 7, 2000. Petitioner returned to employment with Respondent in October 2000, and was involuntarily terminated on December 5, 2000, from his position of a laborer. According to the papers describing his separation from employment on December 5, 2000, he was terminated for "failure to attend job responsibilities; excessive absences on Saturdays." The form indicated that his work evaluation was poor. It was indicated that Respondent did not intend to rehire Petitioner beyond that date. Other comments in the discharge indicated that Petitioner "was a reliable and diligent worker during previous employment with the company but failed to work to same standards this time around." Petitioner was required to work on Saturday. He did not work on October 7, 2000, a Saturday, the Saturday of the week of October 9, 2000, the Saturday of the week of October 23, 2000, the Saturday of the week of October 30, 2000, the Saturday of the week of November 13, 2000, and Saturday, December 2, 2000. During this time frame Petitioner worked as a service truck operator with duties that included fueling Respondent's equipment on road construction jobs that were ongoing on the Saturday dates that Petitioner missed. Before his termination Petitioner had been counseled on October 17, 2000, and in November 2000 concerning his absences on Saturdays. Petitioner's testimony that he was only required to work on Saturday on a voluntary basis and that meant that he only needed to work one Saturday in his more recent employment is not accepted. Attached to Respondent's Exhibit numbered 5 is an EEO summary from Respondent pointing out that employees of various races had been subject to termination in a pattern that does not discriminate based upon race. Petitioner's termination on December 5, 2000, is in keeping with that practice. Petitioner has portrayed his dismissal from employment with Respondent as originating with his mistreatment by his supervisor, Larry Smith, not his absence from the job. As Petitioner describes it, about a week or two before he was terminated in December 2000, Larry Smith approached Petitioner and told Petitioner that he did not want Petitioner having conversations with females on the job. Petitioner is an African-American. At that time there were two Caucasian females working at the same location Petitioner worked. In particular, one of the females on the job asked Petitioner to take her position directing traffic on the roadway while she went to the restroom. Before she returned Mr. Smith pulled up and saw Petitioner holding the flag for directing traffic. Mr. Smith asked Petitioner why he was holding the flag. Petitioner explained that he was helping the female employee while she went to the restroom by directing traffic until she returned. Later Mr. Smith came back and told Petitioner that he did not want Petitioner having conversations with that female employee. Petitioner surmised that the reason that Mr. Smith had for Petitioner not speaking to the female employee was in relation to the difference in their races, Petitioner's race and that of the female employee. This opinion was reinforced in Petitioner's mind because a similar conversation about not speaking to the female employee occurred three times. Mr. Smith stated his position in such a manner as to have his comments pertain to both female employees on the job. Mr. Smith's remarks were not stated in a manner where he literally said that he did not wish Petitioner to speak to the female employees because Petitioner was an African- American or Black and that the other persons were Caucasian or White. Another incident described by Petitioner was one in which an African-American employee of Don Olsen Tire Company came to repair a tire on a piece of equipment belonging to Respondent. One of the female employees asked for a ride with that individual in his truck back to another location where her van was located. Petitioner, the Don Olsen truck driver, and the female employee rode in the tire repair truck. This was observed by Mr. Smith. Mr. Smith approached the female employee and told her that he did not appreciate that she was disrespecting him and his wife by being in the truck with two black guys. Later that day, a Friday, Mr. Smith approached Petitioner and stated that he did not want Petitioner having a conversation or anything to do with females on the job. The following Monday Petitioner was terminated. Petitioner believes that he was terminated because of the circumstances with the female employees of another race that have been described. Mr. Smith also told the Don Olsen employee that he did not want that individual back on the job site fixing anything because the white female employee had been in that individual's truck. There was no showing that Petitioner made Respondent's upper level managers aware of Mr. Smith's comments concerning conversations which Petitioner had with Caucasian females on the job. According to company records, at one time Petitioner had been informed by Respondent concerning the procedures for making complaints about employment practices related to issues of alleged discrimination. At the time that Petitioner was terminated, Mr. Smith pulled up beside him on the job site and commented to the effect "I don't need you no more." That was the only reason given at a subsequent time when Petitioner spoke to Mr. Ghagvini concerning Petitioner's termination. Mr. Ghagvini said that he had heard from Superintendent Smith and that he was going to leave it at that. Petitioner presented no evidence concerning his claim that Whites were allowed to stand around and talk and that black employees were not allowed to do so, or that black employees were in any manner worked harder than white employees. Notwithstanding the prospect that Mr. Smith's motives when telling Petitioner not to speak to female employees on the job was racially motivated, the reason for Petitioner's dismissal was in relation to his failure to attend his duties on Saturday at various times. That explanation was not created as a pretext to divert attention from racial discrimination. After his termination from Respondent, Petitioner filed for unemployment and received those unemployment payments until his eligibility ran out. In that time period he looked for jobs. Eventually Petitioner obtained a position as a pipe layer with Sayaler Utility. He began employment with that company in October 2002, and the employment was continuing at the time of the hearing. Petitioner receives $8.00 an hour for his work and works on an average 35 hours a week. When he was dismissed from his employment with Respondent, Petitioner was receiving $8.50 an hour and was working an average of 35 hours a week.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by FCHR dismissing Petitioner's Petition for Relief in all respects. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 14th day of February, 2003. COPIES FURNISHED: Lonnie Jennings Post Office Box 782 Greenville, Florida 32331 Vehad Ghagvini, President Vicki Goodman, Personnel Representative Sandco, Inc. 2811 Industrial Plaza Drive Tallahassee, Florida 32310 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent contracted for the employment of farm workers with a farm labor contractor before the contractor displayed a current certificate of registration in violation of Section 450.35, Florida Statutes (1989).
Findings Of Fact Based upon all of the evidence received at the hearing, the following findings of relevant facts are determined: Respondent, David Torres, is a farm labor contractor licensed in Florida. On January 31, 1991 Larry Coker, during a routine grove inspection, observed a crew of farm workers picking fruit in the Happy Acres Grove, in Hardee County, under the supervision of Respondent. Respondent utilized Billy Handford and Antonio Torres to transport the farm workers to the grove. Mr. Handford was employed to recruit and transport farm workers for a fee to be paid by Respondent. Billy Handford did not have a Florida FLC license which authorized him to engage in this occupation. On January 31, 1991, Billy Handford recruited and transported six farm workers from the Bartow area to the Happy Acres grove in Hardee County. Respondent was cited for three violations of Chapter 450, on January 31, 1991.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent has violated Section 450.35, Florida Statutes (1989). It is further RECOMMENDED that Respondent be fined $500 (dollars) and such fine to paid within thirty days from date of the final order entered by the Division. DONE and ORDERED this 26th day of August, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 this 26th day of August, 1991. COPIES FURNISHED TO: FRANCISCO R. RIVERA, ESQUIRE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 2012 CAPITAL CIRCLE, S.E. SUITE 307, HARTMAN BUILDING TALLAHASSEE, FL 32399-0658 DAVID TORRES, POST OFFICE BOX 842 HAINES CITY, FL 33844 FRANK SCRUGGS, SECRETARY DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 303 HARTMAN BUILDING 2012 CAPITAL CIRCLE, S.E. TALLAHASSEE, FL 32399-2152 STEPHEN BARRON, GENERAL COUNSEL DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 307 HARTMAN BUILDING 2012 CAPITAL CIRCLE S.E. TALLAHASSEE, FL 32399-2152
The Issue As to Case No. 19-5096, whether Tyval committed the deficiencies alleged in the Administrative Complaint; and, if so, whether Tyval’s license to operate an assisted living facility (“ALF”) should be revoked, and/or whether Tyval is subject to administrative fines and survey fees; and, if so, the amount of the administrative fines and survey fees to be imposed. As to Case No. 20-0014, whether Tyval committed the deficiencies alleged in the Administrative Complaint; and, if so, whether Tyval is subject to administrative fines; and, if so, the amount of the administrative fines to be imposed. As to Case No. 19-6305, whether Tyval’s application for renewal of its ALF license should be denied.
Findings Of Fact AHCA is the state agency responsible for licensing ALFs in Florida and enforcement of applicable state statutes and administrative rules pursuant to chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapters 58A-5 and 59A-36. At all times material hereto, Tyval has been licensed by AHCA to operate a six-bed ALF located at 3526 Genevra Avenue, Boynton Beach, Florida 33436. Tyval’s facility is located within a single family three-bedroom home. As a licensed ALF, Tyval is required to comply with all applicable state statutes and administrative rules. AHCA conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine compliance with the regulatory scheme governing such facilities. AHCA personnel typically conduct the surveys, which may involve an on-site tour of the facility, observing residents, reviewing resident records, reviewing staff files, conducting interviews, and documenting the survey findings. There are different types of surveys, including complaint surveys, monitoring surveys, and revisit surveys. A deficiency or deficient practice is a violation of an applicable statute or rule resulting from a survey. AHCA must classify deficiencies according to the nature and severity of the violation. Pursuant to section 408.813(2), deficiencies are classified as Class I, II, III, and IV. A Class I violation poses an imminent danger to the resident or a 2 See Lavernia v. Dep’t of Prof’l Reg., Bd. of Med., 616 So. 2d 53, 54 (Fla. 1st DCA 1993). substantial probability of death or serious physical or emotional harm to the resident. A Class II violation directly threatens the physical or emotional health, safety, or security of the resident. A Class III violation indirectly or potentially threatens the physical or emotional health, safety, or security of the resident. The January 15 through 18, 2019, Survey On January 15 through 18, 2019, AHCA conducted an unannounced complaint survey at Tyval’s facility. The complaint was made to AHCA by Paul Valerio, an investigator with the Florida Attorney General’s office, who went to the facility on January 14, 2019, to investigate an unrelated complaint. Upon his arrival at the facility on the morning of January 14, 2019, Mr. Valerio spoke with Stacy Smith, who was the only Tyval staff member present at the facility. Mr. Valerio then walked around the inside of the facility, at which time he observed two residents (Resident Nos. 1 and 2) in the living room area sitting in separate recliner chairs with bedsheets tied around their waists. The bedsheets were secured by knots tied to the back of the recliners. Mr. Valerio observed that the two residents were unable to exit the chairs on their own. Mr. Valerio was concerned when he saw the two residents tied to their chairs, so he took pictures of them (AHCA’s Exhibit Nos. 14 and 15) and subsequently reported his concerns to AHCA. While Mr. Valerio was still at the facility on January 14, 2019, Valrie Powell, the administrator of Tyval, arrived at the facility. Mr. Valerio introduced himself to Ms. Powell and explained the purpose of his visit. During the visit, Mr. Valerio requested financial documents from Ms. Powell. Ms. Powell then walked through the living room area to a back room and, in doing so, walked past the two restrained residents. Ms. Powell was still at the facility when Mr. Valerio left. When Mr. Valerio left the facility, he observed the two residents still tied to their chairs. At no point during Mr. Valerio’s visit did Ms. Powell remove the restraints or instruct Ms. Smith to remove the restraints. The next morning, January 15, 2019, Nicolas Frias, an AHCA medical and health care analyst, arrived at Tyval to conduct the survey in response to Mr. Valerio’s complaint. Upon his arrival, Mr. Frias explained the purpose of the visit and requested records. Mr. Frias conducted his physical survey at the facility on January 15 and 16, 2019. Mr. Frias could not interview Resident Nos. 1 and 2 because they were mentally incapable of being interviewed. Mr. Frias interviewed Resident No. 3, who recalled seeing Resident No. 1 previously being tied with a bedsheet to a chair. On January 16, 2019, Ms. Powell informed Mr. Frias that she was not aware of any residents being restrained and that Ms. Smith had not reported any incidents on January 14, 2019. However, Ms. Powell acknowledged that residents are susceptible to harm if they are restrained. During his survey, Mr. Frias observed a half-bed rail attached to Resident No. 2’s bed. Mr. Frias took a photograph of Resident No. 2’s bed and the half-bed rail attached to the bed. AHCA’s Ex. 17. Resident No. 2 was incapable of properly utilizing or avoiding the half- bed rail without assistance, and there was no physician’s order or consent from the resident or resident’s representative to allow for the use of the half- bed rail. During his survey, Mr. Frias also observed that Tyval staff members had not been adequately trained to recognize and report abuse and neglect of residents, and they were not familiar with the State of Florida’s abuse prevention hotline. In addition, staff member files lacked adequate documentation of training regarding assisting residents with self- administration of medications and staff member files were unavailable for review. During his survey, Mr. Frias also observed that resident medications were stored on the top of the medication cart located in the dining room of the facility, and therefore, the medications were accessible by any person who was inside the dining room facility. Staff members also had not received adequate training regarding assisting residents with self-administration of medications. During his survey, Mr. Frias also observed that Tyval’s comprehensive emergency management plan (“CEMP”) dated October 29, 2018, indicated that the facility needed to have 32 gallons of fuel immediately available to operate its power generator for 96 hours in the event of an emergency. However, Mr. Frias observed a power generator inside a shed located on the south side of the property with only 25 gallons of fuel stored inside the shed. Mr. Frias also observed that Tyval did not have a portable generator on the property, and that Tyval failed to prepare a detailed emergency environmental control plan (“EECP”) to address the event of loss of primary power in the facility during an emergency. AHCA cited Tyval with two Class II deficiencies resulting from the January 15 through 18, 2019, survey. Tyval was cited for a Class II deficient practice (Tag 0030) for failing to honor resident rights and provide a safe and decent living environment free from abuse and neglect, including the use of physical restraints, in violation of section 429.28 and rule 58A-5.0182(6).3 Tyval was also cited for a Class II deficient practice (Tag 0077) for Ms. Powell’s failure to provide adequate management of staff by not ensuring staff members were adequately trained to recognize and report incidents of abuse and neglect, and for Ms. Powell’s failure to implement actions to 3 On July 1, 2019, rule 58A-5.0182(6) was transferred to rule 59A-36.007(6). continually honor resident rights to prevent hazardous situations, in violation of section 429.52 and rule 58A-5.019(1).4 AHCA also cited Tyval with a Class III deficiency (Tag 0055) for failing to adequately store resident medications, by not keeping the medications locked in the medication cart at all times, in violation of rule 58A-5.0185(6).5 AHCA also cited Tyval with a Class III deficiency (Tag 0161) for failing to maintain a staff member’s personnel record, in violation of section 429.275(2) and rule 58A-5.024(2).6 AHCA also cited Tyval with a Class III deficiency (Tag 0200) for failing to prepare a detailed EECP to address the event of loss of primary electrical power in the facility because of an emergency, in violation of rule 58A-5.036.7 March 2 and May 21, 2019, Revisit Surveys On March 2, 2019, Mr. Frias conducted a revisit survey at Tyval. During the March 2019 revisit survey, Ms. Powell informed Mr. Frias that she terminated Ms. Smith, a staff member who had restrained residents. During the March 2, 2019, revisit survey, Mr. Frias observed that a staff member’s personnel record failed to indicate she held a current and valid cardiopulmonary resuscitation (“CPR”) certification. This employee worked alone in the facility each week from Friday to Monday. Rule 58A- 5.0191(5) requires that a staff member who holds a valid card documenting CPR certification be in the facility at all times.8 4 On July 1, 2019, rule 58A-5.019(1) was transferred to rule 59A-36.010(1). 5 On July 1, 2019, rule 58A-5.0185(6) was transferred to rule 59A-36.008(6). 6 On July 1, 2019, rule 58A-5.024(2) was transferred to rule 59A-36.015(2). 7 On July 1, 2019, rule 58A-5.036 was transferred to rule 59A-36.025. 8 On July 1, 2019, rule 58A-5.0191(5) was transferred to rule 59A-36.011(5). During the March 2, 2019, revisit survey, Mr. Frias observed that Tyval had still not prepared a detailed EECP to address the event of loss of primary electrical power in the facility because of an emergency, in violation of rule 58A-5.036. AHCA cited Tyval with an uncorrected Class III deficient practice (Tag 0161) for failing to maintain a personnel record for a staff member, which contained the staff member’s valid CPR certification in violation of section 429.275(2) and rule 58A-5.024(2). AHCA also cited Tyval with an uncorrected Class III deficient practice (Tag 0200) for failing to prepare a detailed EECP to address the event involving the loss of primary electrical power in the facility during an emergency in violation of rule 58A-5.036. During the May 21, 2019, revisit survey, Tyval provided a detailed EECP, dated March 21, 2019, and a letter from the local emergency management agency, dated April 17, 2019, approving this EECP. At the May 21, 2019, revisit survey, Mr. Frias observed a propane tank and a portable power generator, which was connected to the propane tank. Mr. Frias also observed an electrical switch attached to the exterior wall of the facility’s building. Nevertheless, AHCA cited Tyval with an uncorrected Class III deficient practice (Tag 0200) following the May 21, 2019, revisit survey for Tyval’s purported failure to acquire an alternate power source and fuel supply that was in accordance with the Florida Building Code, in violation of rule 58A-5.036. The persuasive evidence adduced at hearing clearly and convincingly demonstrates that Tyval committed the two Class II violations alleged in the Administrative Complaint in Case No. 19-5096. A Tyval staff member’s tying of Resident Nos. 1 and 2 to recliner chairs with bed sheets, so they cannot exit the chairs on their own, and imposing a half-bed rail on Resident No. 2’s bed without proper consent or a physician’s order were improper physical restraints, which directly threatened Resident Nos. 1 and 2’s physical or emotional health, safety, or security. As such, Tyval failed to provide Resident Nos. 1 and 2 with a safe and decent living environment free from abuse or neglect in violation of section 429.28 and rule 58A-5.0182(6). These actions were intentional or negligent acts by Tyval or its staff members, which seriously affected the health, safety, or welfare of Resident Nos. 1 and 2. Moreover, as the administrator of Tyval, Ms. Powell failed to provide adequate management of staff by not ensuring staff members were adequately trained to recognize and report incidents of abuse and neglect, and Ms. Powell failed to implement actions to continually honor resident rights to prevent hazardous situations, in violation of section 429.52 and rule 58A-5.019(1). Ms. Powell’s actions were intentional or negligent and seriously affected the health, safety, or welfare of Resident Nos. 1 and 2. The persuasive evidence adduced at hearing clearly and convincingly demonstrates that Tyval committed an uncorrected Class III deficient practice by failing to maintain a personnel record for a staff member, which contained the staff member’s valid CPR certification in violation of section 429.275(2) and rule 58A-5.024(2). This practice indirectly or potentially threatened the physical or emotional health, safety, or security of Tyval residents. The persuasive evidence adduced at hearing clearly and convincingly demonstrates that Tyval committed an uncorrected Class III deficient practice by failing to prepare, as of the March 2, 2019, revisit survey, a detailed EECP to address the event involving the loss of primary electrical power in the facility during an emergency in violation of rule 58A-5.036. This practice indirectly or potentially threatened the physical or emotional health, safety, or security of Tyval residents. The persuasive evidence adduced at hearing does not clearly and convincingly demonstrate that Tyval committed an uncorrected Class III deficient practice by failing to acquire an alternate power source and fuel supply that was in accordance with Florida’s Building Code, in violation of rule 58A-5.036. As detailed above, during the May 21, 2019, revisit survey, Tyval provided a detailed EECP, dated March 21, 2019, and a letter from the local emergency management agency, dated April 17, 2019, approving this EECP. At the May 21, 2019, revisit survey, Mr. Frias observed a portable power generator, which was connected to a propane tank. Mr. Frias also observed an electrical switch attached to the exterior wall of the facility’s building. Tyval’s Incomplete Renewal Application On July 16, 2019, Tyval applied to renew its ALF license. Accompanying the application was a check written by Tyval made payable to AHCA to purportedly cover the required filing fee for renewal. AHCA did not accept Tyval’s renewal application because the amount handwritten on the legal line of the check (“Seven Hundred and Forty nine”) was inconsistent with the amount handwritten in the numerical box on the check (“777.49/100”). Based on this inconsistency, AHCA could not deposit the check, the filing fee payment was not received by AHCA, and AHCA did not deem the application received. The application specifically advised Tyval that: “Applications will not be considered for review until payment has been received.” (emphasis in original). The application further advised Tyval that: “The application will be withdrawn from review if all the required documents and fees are not included with your application or received within 21 days of an omission notice.” (emphasis in original). On July 22, 2019, AHCA returned the application and check to Tyval with a cover letter stating the following reason for the return: “LEGAL LINE DOES NOT MATCH NUMERIC BOX.” On August 1, 2019, AHCA received the same renewal application from Tyval along with another check made payable to AHCA in the amount of $777.49. AHCA deposited the check and was therefore officially in receipt of the renewal application on August 1, 2019. Subsequently, Erika Potter-Morgan, a health services and facilities consultant for AHCA, processed and reviewed the renewal application and identified the following errors or omissions: (1) section 1.B. of the application did not list Tyval Assisted Living Facility, LLC, as the licensee name; (2) section 2.C. did not list the total number of beds; (3) the total license fee was $789.49, so the check received by AHCA on August 1, 2019, was $12.00 short; (4) failing to submit documented proof of business liability insurance; (5) failing to submit documentation that Tyval has received a satisfactory sanitation inspection within the previous 365 days conducted by the county health department; and (6) failing to provide the name of a safety liason contact person regarding Tyval’s EECP. On August 16, 2019, Ms. Potter-Morgan emailed a letter to Ms. Powell at the email addressed identified by Ms. Powell in the renewal application. The letter outlined the errors and omissions and indicated the application was incomplete. The letter informed Ms. Powell that if the errors and omissions were not corrected within 21 calendar days, then the renewal application would be withdrawn from consideration.9 The requested documentation was due to AHCA no later than September 6, 2019. No response to the August 16, 2019, letter was received by AHCA. On October 1, 2019, AHCA issued the Notice of Intent to Deem Application Incomplete and Withdrawn based on Tyval’s failure to provide the documentation and information required by the August 16, 2019, letter. On October 31, 2019, AHCA received additional documentation from Tyval. However, the error in section “B” of the application had not been corrected and the liability insurance and safety liaison information was not 9 The renewal application specifically provided: “By providing your e-mail address, you agree to accept e-mail correspondence from the Agency.” provided. As of the date of the final hearing, AHCA still had not received a correction to section “B” of the application, the documentation regarding liability insurance, or the safety liaison information. In its proposed recommended order, Tyval contends that AHCA is precluded by section 120.60, Florida Statutes, from denying the renewal application because it failed to process the application within 30 days of July 16, 2019, and the letter requesting omitted items was not sent to Tyval until August 16, 2019, more than 30 days after July 16, 2019. However, as detailed above, Tyval’s application was not deemed received by AHCA on July 16, 2019, because the check received by AHCA on July 16, 2019, had inconsistent amounts written on it, so the check could not be deposited by AHCA and it was instead returned to Tyval. AHCA did not deem Tyval’s application received until August 1, 2019, when Tyval resent its original renewal application along with a check that AHCA could deposit. The omissions letter was sent within 30 days of August 1, 2019. In sum, Tyval’s renewal application was incomplete and, therefore, properly deemed withdrawn and denied by AHCA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order: (1) revoking Tyval’s ALF license; (2) imposing a total administrative fine of $11,000.00; (3) imposing a survey fee of $500.00; and (4) denying Tyval’s renewal license application. DONE AND ENTERED this 30th day of April, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 30th day of April, 2020. COPIES FURNISHED: Shaddrick A. Haston, Esquire Ullman Bursa Law 3812 Coconut Palm Drive, Suite 200 Tampa, Florida 33619 (eServed) Mary J. Howard, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330A St. Petersburg, Florida 33701 (eServed) Nicola Brown, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330H St. Petersburg, Florida 33701 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue in this case is whether Respondent violated Sections 450.33(5), (6), (9), and (10) and 450.35, Florida Statutes (1997), by failing to make, keep, or preserve payroll records; failing to maintain the required inspection of a vehicle used to transport workers; failing to maintain insurance on such a vehicle; utilizing an unregistered crew leader; allowing an unlicensed driver to transport workers; driving without authorization; transporting workers without authorization; and, if so, what penalty, if any, should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating farm labor in the state. Respondent is a registered farm labor contractor and crew leader pursuant to certificate of registration CO4-957228I98R. Respondent’s certificate of registration was effective through September 30, 1999. On December 10 and 11, 1998, Respondent and his crew were harvesting fruit in Polk County, Florida. Compliance Officer Teresa McCutchen approached the crew and asked for the crew leader. Respondent identified himself as the crew leader and produced his certificate of registration. The registration did not authorize Respondent to drive or transport farm workers. Respondent transported his crew to the field on December 10, 1998, through Respondent’s employee, Mr. Roberto Gomez-Gonzalez. Mr. Gomez-Gonzalez is an unlicensed driver and acted as a farm labor contractor, within the meaning of Section 450.28(1)(a), without being registered as a farm labor contractor. At Respondent’s direction, Mr. Gomez-Gonzalez drove Respondent’s crew to the field on December 10, 1998, in a blue 1984 Chevrolet van. The license plate on the van was issued to Respondent for a 1994 Pontiac two-door sedan. The 1984 Chevrolet lacked insurance coverage for the transportation of farm workers and had not received the required safety inspections. Respondent did not maintain required payroll records for his crew. On December 11, 1998, Officer McCutchen returned to the field with Compliance Officer Joe Machado to interview the Spanish-speaking crewmembers. That morning, Respondent had driven the crewmembers to the field in the 1984 blue Chevrolet van. Respondent has a prior history of similar violations. On January 7, 1997, Respondent entered into a settlement agreement with Petitioner. Petitioner had assessed a civil penalty of $1,250 against Respondent for failure to maintain insurance on a vehicle used to transport workers, failure to maintain safety inspections, and the unauthorized transportation of workers. Pursuant to the settlement agreement, Respondent paid a civil penalty of $1,000. Section 450.35 authorizes Petitioner to impose a civil penalty up to $7,000 for the seven violations in the Administrative Complaint. The $5,750 civil penalty is reasonable based on the facts in this case and Respondent’s prior disciplinary history involving similar violations. Failure to impose a civil penalty would result in an economic inducement for Respondent to violate state requirements to maintain vehicle insurance, safety inspections, and payroll records. Respondent could reduce the cost of goods sold by evading the cost of insurance premiums, vehicle maintenance required to comply with safety inspections, and accounting fees for record keeping. A civil penalty operates to negate the economic benefit to Respondent from violating applicable law and also tends to reduce the competitive advantage Respondent’s violations give him over other businesses which comply with state law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the allegations in the Administrative Complaint and imposing a civil penalty of $5,750. DONE AND ENTERED this 7th day of December, 1999, 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 December, 1999. COPIES FURNISHED: Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Francisco R. Rivera, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Porfirio Loredo Post Office Box 5503 Eloise, Florida 33880
The Issue Whether the Respondent discriminated against Ruby D. Johnson on the basis of a handicap in violation of the Human Rights Act of 1977, as amended?
Findings Of Fact The Petitioner began employment with the Respondent at its Lake City, Florida, plant during 1977 or 1978. The Respondent manufactures metal parts for automobiles. The Petitioner was employed by the Respondent as a parts assembly worker. At the time the Petitioner began employment with the Respondent, she informed the Respondent that she did not have any handicap. On June 28, 1984, the Petitioner was accidently struck on the head with a broom by another employee while at work. She was struck with the straw end of the broom. The Petitioner did not return to her job for approximately two months after being struck on the head. The Petitioner was treated by George G. Feussner, M.D. When Dr. Feussner authorized the Petitioner's return to work, he recommended that she not be required to perform any work requiring standing or leaning, climbing or operation of dangerous equipment for approximately three to four weeks. In September, 1985, the Petitioner experienced dizziness and fell while at work. In a letter dated October 2, 1985, Dr. Feussner informed the Respondent of the following: Despite and [sic] extensive evaluation of this lady, I cannot find objective findings to go along with her symptoms. I believe that she should be able to return to work at her regular job, but I still think that it would be dangerous considering her emotional dedication to her symptoms she is likely to injure herself if she works around dangerous equipment or at heights. She should therefore find a job that does not involve these activities... The Petitioner, when she tried to return to work, was not allowed to work because she had filed a workmen's compensation claim as a result of her alleged condition. This claim was being disputed by the Respondent's workmen compensation insurance carrier. On October 31, 1985, the Respondent laid off several employees with seniority equal to or greater than the Petitioner's seniority. Employees were laid off because of a lack of work. The Petitioner would have been laid off also, but was not because of the disputed claim over workmen's compensation. In November, 1985, the Petitioner's workmen compensation claim was denied. At that time the Petitioner was informed that she was also being laid off. In October, 1986, the Respondent began recalling the employees it had laid off in November, 1985. The Petitioner was not recalled, however, because of the restrictions on the Petitioner's ability to work. The Petitioner filed a Petition for Relief from an Unlawful Employment Practice with the Commission in October, 1986. On November 13, 1987, the Commission issued a Notice of Determination: No Cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations enter a final order denying the Petitioner's Petition for Relief. DONE and ENTERED this 7th day of September, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1988. COPIES FURNISHED: Ruby D. Johnson 1802 North Georgia Street Lake City, Florida 32055 William B. Hatfield Supervisor of Human Relations ITT Thompson Industries - Metal Division Post Office Box 928 Valdosta, Georgia 31603-0928 Donald A. Griffin Executive Director Commission On Human Relations, Florida 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Commission On Human Relations, Florida 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1025 =================================================================
Findings Of Fact On October 1, 1978, Respondent initiated its Young Adult Conservation Corps program (YACC) at its Everglades Youth Camp. This facility is located in Palm Beach County on the J. W. Corbett Wildlife Management Area. It has traditionally served as a summer camp for children ages 8 through 14. The YACC was an experimental program funded by the Federal Government and was intended to train hard-core unemployed young people, ages 16 to 23. The enrollees in the program were required to live at the camp, which is located in a remote and isolated area. Petitioner was hired on a temporary basis to serve as a "houseparent." In this capacity, Petitioner was assigned responsibility for the enrollees conduct after the work day. He was to provide guidance during the evening hours and insure that enrollees observed the nightly curfew. Respondent received unconfirmed reports that Petitioner was fraternizing with a female enrollee and warned him that such conduct as unacceptable by letter dated December 7, 1978. Petitioner, who was single and about the same age as the enrollees, was not successful in maintaining the degree of enrollee discipline sought by Respondent. Because Petitioner's difficulty in maintaining the desired atmosphere resulted, in part, from his youth and marital status, Respondent determined that he should be replaced by an older, married couple. This was essentially a policy decision. However, Respondent had also decided to fire Petitioner because of his increasingly poor attitude toward his job and his inability to control the enrollees. By memorandum dated January 5, 1979, Respondent advised Petitioner that he was discharged based on the policy decision to fill houseparent positions with married couples. No reference was made to Respondent's performance in this memorandum.
Recommendation From the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of an unlawful employment practice as charged in these proceedings. DONE AND ENTERED this 28th day of June, 1983, at Tallahassee, Florida. R. T. CARPENTER, 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 28th day of June, 1983. COPIES FURNISHED: Scott William Katz, Esquire 3959 Lake Worth Road Lake Worth, Florida 33461 G. Kenneth Gilleland, Esquire 620 South Meridian Street Tallahassee, Florida 32301 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32301 Richard Williams, Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent materially understated payroll and thus should be deemed to have failed to secure payment of workers' compensation, which is a sanctionable offense.
Findings Of Fact Petitioner Department of Financial Services ("Department") is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. Respondent Bicon, Inc. ("Bicon") is a corporation domiciled in Florida and engaged in the business of hauling construction debris, which is considered a non-construction activity for the purposes of workers' compensation coverage requirements. Bicon's workers' compensation carrier from October 1, 2003 to May 4, 2005 (the "Focal Period") was Bridgefield Employers Insurance Company ("Bridgefield"). Bridgefield's Policy Number 830-29266 (the "Policy") initially covered Bicon for the period from May 11, 2002 to May 11, 2003. Bridgefield renewed the Policy twice, each time for a one-year period. The premium for the Policy was based on Bicon's payroll. Before the beginning of each policy period, Bicon provided Bridgefield an estimate of its payroll for the upcoming period.2 Bridgefield then established an estimated premium for the period, which Bicon was expected to pay in installments. After the policy period had ended, Bridgefield audited Bicon's records to determine actual exposures. Once the audit had been completed, the estimated premium was adjusted as necessary, upward or downward, to reflect actual exposures for the policy period. The audit covering the first renewal period (May 11, 2003 to May 11, 2004) caused Bridgefield to conclude that there existed a premium shortfall of $274,281.66, for which sum Bridgefield billed Bicon on May 2, 2005.3 Given that the estimated premium for the period had been $22,634.44,4 this was a significant upward adjustment. The premium increase was attributed to exposure arising from Bicon's use of an alleged uninsured subcontractor, which exposure Bridgefield's auditor valued at $816,231.00. Bridgefield's Audit Summary Sheet contains the following instructions pertaining to uninsured subcontractors: If no evidence of coverage is submitted to the insured for a subcontractor and only labor is provided, the auditor must include either payroll of the subcontractor's employees or the Total Contract Price. If the labor and material portions of the contract are not broken down in the Insured's records, the auditor must include the Total Contract Cost prorated according to manual rules. No persuasive or convincing evidence was offered establishing whether the auditor calculated the subcontractor exposure for the first renewal period based on the subcontractor's payroll or, alternatively, on the contract price. Bicon paid $53,091.40 against the audit adjustment, leaving a balance of $221,190.26, which remained outstanding as of the final hearing. Bicon has disputed the findings of Bridgefield's audit, but the record does not disclose the nature and grounds of its objections. The estimated premium for the second renewal period (May 11, 2004 to May 11, 2005)——which had been calculated in March 2004, apparently before the findings from the audit of the first renewal period were available——was $20,097.48.5 The retrospective audit convinced Bridgefield that the estimated premium had fallen short by the amount of $186,653.88, for which Bridgefield billed Bicon on September 13, 2005. This shortfall was attributed to Bicon's use of five alleged uninsured subcontractors, which the insurer claimed gave rise to an exposure appraised at $718,462.00. No persuasive or convincing evidence was offered to establish whether the auditor calculated this exposure based on the subcontractors' respective payrolls or, alternatively, on the contract prices. Bicon disputed these audit findings, and as of the final hearing had not paid any part of the audit adjustment. The record does not disclose the nature and grounds of Bicon's objections to this audit. The Department's case against Bicon is premised on the liability for workers' compensation that attaches to a contractor who engages a subcontractor to perform any part of the contractor's contractual obligations to a third party. In such a situation, if the subcontractor is uninsured, then the contractor is obligated to provide workers' compensation to all of the subcontractor's employees. The Department alleges that, during the Focal Period, Bicon sublet work to the following uninsured subcontractors: Precision Equipment Fabricators & Repair, Inc.; S&S National Waste, Inc.; Mickelson Enterprises, Inc.; and Wheeler Employee Leasing, Inc. The Department alleges further that, in its dealings with Bridgefield, Bicon materially understated the amounts of its uninsured subcontractors' payrolls——a practice that, the Department contends, is deemed by statute to constitute a failure to secure the payment of workers' compensation. Despite these allegations, the Department did not elicit any direct evidence that Bicon's alleged subcontractors were performing jobs or providing services that Bicon was contractually obligated to carry out for third parties. Rather, in this regard, the Department's investigator testified (via affidavit) as follows: [T]he vast majority of the work being performed [by Bicon's alleged subcontractors] was the hauling of debris by truck drivers, which is a non-construction activity. However, the duties performed by the employees of Precision Equipment Fabricators & Repair Inc., were construction in nature, specifically, the installing/erecting of debris chutes at construction sites. Aff. of J. Turner at 3. Notably absent from the investigator's account is any testimony that the alleged subcontractors were performing Bicon's contract work. There is, however, some circumstantial evidence that Bicon sublet part of its contract work to other entities. In its application for workers' compensation insurance, for example, Bicon described its business operations as follows: "haul[ing] clean recyclable construction materials (sand, gravel, concrete, wood) from construction sites to waste management locations." The Department accepts this description, for in its Proposed Recommended Order, the Department requested a finding that "Respondent is . . . engaged in the business of hauling construction debris, which is a non-construction activity." The undersigned so found above. It is reasonable to infer, from the basic undisputed facts about Bicon's business, that Bicon provided hauling services to third parties (its clients or customers) to whom it was contractually bound. The inference is sufficiently strong that the undersigned is convinced, and finds, that such was the case. The evidence shows that Bicon considered various entities, including S&S National Waste, Inc. ("S&S"); Mickelson Enterprises, Inc. ("Mickelson"); and Wheeler Employee Leasing, Inc. ("Wheeler"), to be its "subcontractors." Indeed, at the Department's request, Bicon produced one of its subcontracts, which is in evidence, wherein Mickelson was designated the "subcontractor." The undersigned is convinced, and finds, that Bicon did, in fact, enter into subcontracts, express or implied, with S&S, Mickelson, and Wheeler. It is undisputed, moreover, that these three companies——S&S, Mickelson, and Wheeler——performed the work of hauling construction debris, which happens to be Bicon's core business. Therefore, it is reasonable to infer, and the undersigned finds, that, to some extent, S&S, Mickelson, and Wheeler provided hauling services to Bicon's customers. None of the aforementioned subcontractors had workers' compensation insurance in place during the Focal Period. The evidence is insufficient to prove that Precision Equipment Fabricators & Repair, Inc. ("Precision") was a subcontractor of Bicon that performed Bicon's contract work. On the contrary, Mr. Turner's testimony, which was not contradicted, shows that Precision was engaged in a different business from Bicon's——one involving construction activities (i.e. installing debris chutes) as opposed to the non- construction work of hauling. There is no persuasive or convincing evidence in the record establishing that Bicon was contractually obligated to anyone to perform such construction services. There is no persuasive or convincing direct evidence that Bicon ever understated the payroll of S&S, Mickelson, or Wheeler in communicating with Bridgefield. There is, indeed, no evidence in the record of any statement made by or on behalf of Bicon, to Bridgefield, concerning either the subcontractors' payrolls or the amounts that Bicon had paid, expected to pay, or owed its subcontractors pursuant to the subcontracts that it had made with them.6 The Department's theory, which is implicit (though unstated) in its litigating position, is that Bicon must have understated the subcontractors' payrolls because: (a) during the audits following the first and second renewal periods, Bridgefield picked up additional exposure, which it attributed to uninsured subcontractors; and (b) no other explanation accounts for the large discrepancies between the estimated premiums and the audited premiums.7 The flaw in this theory is that the incriminating fact which the Department urges be inferred (material understatement of payroll) is plainly not the only possible cause of the known effect (audit findings relating to uninsured subcontractors). Without being creative, the following possibilities, all of which are reasonable and consistent with the proved facts of this case, spring readily to mind: Estimating its anticipated exposures, Bicon told Bridgefield that it estimated its payments to uninsured subcontractors would be $X, and in fact, Bicon had estimated that it would pay uninsured subcontractors $Y——a materially greater sum than $X. Or: in fact, Bicon truly had estimated that its payments to uninsured subcontractors would total $X, but its estimate turned out to be low, and the actual aggregate of such payments was $Y, a materially greater sum. Bicon said nothing to Bridgefield about its payments to uninsured subcontractors until the audits because: prior to the audits, Bridgefield had never asked Bicon to disclose such information. Or: prior to the audits, Bridgefield had asked Bicon an ambiguous question about its estimated payroll exposures, which Bicon reasonably had understood as not inquiring about payments to uninsured subcontractors. Or: although, prior to the audits, Bridgefield had asked Bicon a clear and unambiguous question calling for Bicon to disclose such information, Bicon had remained silent on the issue. Bicon told Bridgefield about its payments to uninsured subcontractors, but Bridgefield, which knew that the actual amount of such exposure would be included at audit in determining the final premium, declined to use the information in calculating the estimated premium. The Department failed to prove, by any standard, that something like 1.a. occurred in fact. Further, the Department failed to exclude numerous hypotheses of innocence——such as 2.a., 2.b., and 3.——which are reasonable and consistent with the evidence. Accordingly, the undersigned declines to infer, from the proved facts, that, in its communications with Bridgefield, (the existence of which must be inferred, for there is no direct evidence of such communications), Bicon materially understated either the amounts of its subcontractors' payrolls or the amounts Bicon paid or owed to its subcontractors for the work they performed for Bicon's customers pursuant to subcontracts. Consequently, it is determined, as a matter of ultimate fact, that Bicon is not guilty of materially understating payroll——and hence failing to secure payment of workers' compensation——as charged under Section 440.107(2), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order rescinding the Stop Work Order and exonerating Bicon of the charge of failing to secure the payment of workers' compensation by materially understating payroll. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 16th day of March, 2006.
