The Issue Whether the Petitioner was required to carry workers' compensation insurance coverage for its employees, and if so, the penalty that should be assessed. Whether the Petitioner violated the Stop Work Order entered May 18, 2005, and, if so, the penalty that should be assessed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Tak-A-Way is a Florida corporation which engages in the business of performing small jobs such as removing trash and debris, digging up small driveways, and excavation. Tak-A-Way owns several dump trucks, and it maintains a permanent storage yard for materials and equipment. Tak-A-Way's payroll records for the period January 2003 through May 2005 establish that several persons were listed as "Help" and received regular checks from Tak-A-Way during this period. Donald Oppenheim is the owner and president of Tak-A-Way. He is exempted from workers' compensation coverage. On May 18, 2005, during a routine investigation, an investigator employed by the Department observed two men ripping up an asphalt driveway and loading the asphalt into a truck at a private residence in Pompano Beach, Florida. One man was operating a backhoe, and the other was operating a bobcat. The equipment and trucks being used at the site displayed the name “Tak-A-Way”, and the two men confirmed that they were employed by Tak-A-Way. The men were identified as Andy Oppenheim and Kevin McManus. The Department did not find any record of workers’ compensation insurance in its database for employees of Tak-A- Way, and Mr. Oppenheim confirmed during a conversation with the Department’s investigator that Tak-A-Way had no workers' compensation coverage for any of its employees. The Department's investigator issued a Stop Work Order against Tak-A-Way on May 18, 2005, because it did not have workers’ compensation coverage for its employees; the Stop Work Order was hand-delivered to Mr. Oppenheim on the date of issue. The Stop Work Order required that Tak-A-Way "cease all business operations in this state" and advised that a penalty of $1,000.00 per day would be imposed if Tak-A-Way were to conduct any business in violation of the Stop Work Order. Finally, the Stop Work Order included the following: "This Stop Work Order shall remain in effect until the Division issues an order releasing the Stop Work Order, or until the Division issues an order of conditional release from Stop Work Order pursuant to the employer entering into a payment agreement schedule for periodic payment of penalty." Penalty Assessment for Failure to Have Workers' Compensation Insurance Coverage At the same time that she delivered the Stop Work Order to Mr. Oppenheim, the Department's investigator delivered a Request for Production of Business Records for Penalty Assessment Calculation, in which Mr. Oppenheim was directed to produce business records for the period extending from November 3, 2003, through May 18, 2005.2 Mr. Oppenheim produced Tak-A-Way's business records as requested, and the Department's investigator used the payroll information in the records for calculating the penalty to be assessed for Tak-A-Way's failure to have workers' compensation insurance coverage for its employees. The Department uses the National Council of Compensation Insurance, Inc. ("NCCI") Scopes Manual, which includes risk classifications and definitions used to determine rates for workers' compensation insurance coverage. The payroll records provided by Mr. Oppenheim did not indicate the workers' compensation classification codes assigned to Tak-A-Way's employees, so, in accordance with the NCCI Basic Manual for Workers Compensation and Employers Liability Insurance ("Basic Manual"), the Department's investigator assigned all of Tak-A-Way's operations to what she determined to be the highest- rated classifications of its business operations. As shown in the worksheets attached to both the Amended Order of Penalty Assessment and the Second Amended Order of Penalty Assessment, the Department's investigator classified all of Tak-A-Way's employees under the classification "Excavation," Code 6217, for the period extending from November 3, 2003, through December 31, 2004, which had an approved manual rate of $13.79 per $100.00 in payroll for that period; she classified all of Tak-A-Way's employees under the classification "Concrete," Code 5213, for the period extending from January 1, 2005, through May 18, 2005, with an approved manual rate of $24.66 per $100.00 in payroll for that period; and she classified all of Tak-A-Way's employees under the classification "Erection Permanent Yard," Code 8227, for the period extending from January 1, 2005, through May 18, 2005, with an approved manual rate of $9.38 per $100.00 in payroll for that period. The worksheets showed the premium calculation for each classification to be $19,248.91, $10,130.08, and $365.82, respectively, for a total premium of $29,744.81. The penalty, calculated as 1.5 times the premium for each classification, was shown on the worksheets as $28,873.37, $15,195.12, and $548.73, respectively, for a total penalty for the failure to have workers' compensation insurance coverage of $44,617.22. The operations included in the NCCI Scopes Manual classification "Excavation & Drivers," Code 6217, describe most closely the business operations of Tak-A-Way during the period of time covered by the penalty assessment for the failure to have workers' compensation insurance coverage. There is nothing in the record to indicate that the nature of Tak-A-Way's operations changed on or about January 1, 2005, nor did the Department's investigator provide any explanation for the change in classification from "Excavation" to "Concrete" effective January 1, 2005.3 In the absence of any evidence to support the change in classification, the Department has failed to sustain the $44,617.22 penalty assessment for the failure of Tak-A-Way to carry workers' compensation insurance coverage from November 3, 2003, through May 18, 2005. Rather, the premium calculation for the period from January 1, 2005, through May 18, 2005, should be based on the classification of "Excavation," Code 6217, which carried the approved manual rate of $12.77 for that period, and not on the classification of "Concrete," Code 5213.4 Tak-A-Way maintained a permanent storage yard in which its material and equipment was stored during the times material to this proceeding. The Department's investigator correctly included a premium calculation for "Erection Permanent Yard," Code 8227, as part of the calculation of the penalty against Tak-A-Way for failure to carry workers' compensation insurance coverage for its employees. Tak-A-Way obtained workers' compensation insurance coverage from Florida Citrus, Business & Industry, effective June 1, 2005. Penalty Assessment for Violating Stop Work Order On May 24, 2005, the Department’s investigator observed a Tak-A-Way truck traveling in front of her on the street and concluded that Tak-A-Way was conducting business in violation of the Stop Work Order issued May 18, 2005. The Amended Order of Penalty Assessment against Tak-A- Way issued on June 1, 2005, included a penalty of $1,000.00 for Tak-A-Way's violation of the Stop Work Order from May 24, 2005, to May 25, 2005, for a total penalty of $45.617.22. Tak-A-Way conducted business operations after the Stop Work Order was issued. Mr. Oppenheim rented dump trucks owned by Tak-A-Way to Preston Contractors. Mr. Oppenheim, who was the only Tak-A-Way employee involved in the business operations at the time, would drive a truck to one of Preston Contractors' construction sites, towing his pickup truck. He would park the truck and leave the site, and employees of Preston Contractors would fill the truck with construction debris. Mr. Oppenheim would return to the construction site and drive the truck to the landfill and dump the load of debris. At times, there were several Tak-A-Way dump trucks at the Preston Contractors' construction site. According to invoices maintained by Preston Contractors, it paid Tak-A-Way for truck rental and dump fees from February 2005 to September 2005. On November 22, 2005, the Department issued a Second Amended Order of Penalty Assessment, increasing the penalty for Tak-A-Way's violation of the Stop Work Order to $73,000.00, covering the period extending from May 19, 2005, through September 21, 2005, for a total penalty of $117,617.22. Based on the evidence presented, Tak-A-Way was conducting business operations in violation of the Stop Work Order during the period for which the penalty was assessed and had not obtained either an order releasing the Stop Work Order or an Order of Conditional Release from Stop Work Order.
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: Finding that Tak-A-Way, Inc., failed to have workers' compensation insurance coverage for its employees, in violation of Sections 440.10(1)(a) and 440.38(1), Florida Statutes; Finding that Tak-A-Way, Inc., engaged in business operations during the pendency of a Stop Work Order, in violation of Section 440.107(7)(a), Florida Statutes; Assessing a penalty against Tak-A-Way, Inc., equal to 1.5 times premium based on the approved manual rate for the classification "Excavation," Code 6217, for the period extending from November 3, 2003, through May 18, 2005, and on the approved manual rate for the classification "Construction & Erection - Permanent Yard," Code 8227, for the period extending from January 1, 2005, through May 18, 2005 as provided in Section 440.107(7)(a) and (d), Florida Statutes; and Assessing a penalty of $73,000.00, against Tak-A-Way, Inc., for engaging in business operations in violation of the May 18, 2005, Stop Work Order, as provided in Section 440.107(7)(a) and (c), Florida Statutes. DONE AND ENTERED this 8th day of March, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2006.
Findings Of Fact 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on October 31, 2008, the Amended Order of Penalty Assessment issued on November 26, 2008, the Second Amended Order of Penalty Assessment issued on May 4, 2009, and the Third Amended Order of Penalty Assessment issued on August 5, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the Third Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-327-D2, and being otherwise fully advised in the premises, hereby finds that: 1. On October 31, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein CONNIE ARGUELLO, D.D.S. P.A. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On November 3, 2008, the Stop-Work Order and Order of Penalty Assessment was served by personal service on CONNIE ARGUELLO, D.D.S. P.A. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On November 26, 2008, the Department issued an Amended Order of Penalty Assessment in Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. The Amended Order of Penalty Assessment assessed a total penalty of $4,318.14 against CONNIE ARGUELLO, D.D.S. P.A. The Amended Order of Penalty Assessment included a Notice of Rights wherein CONNIE ARGUELLO, D.D.S. P.A. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On December 2, 2008, the Amended Order of Penalty Assessment was served by personal service to CONNIE ARGUELLO, D.D.S. P.A. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On December 24, 2008, the Department received a letter from CONNIE ARGUELLO, D.D.S. P.A. requesting an administrative-hearing. The Department subsequently issued a Final Order Denying Petition as Untimely on January 30, 2009. 6. After the Final Order Denying Petition as Untimely was entered, CONNIE ARGUELLO, D.D.S. P.A. demonstrated that a timely petition for administrative review had previously been filed with the Department, and an Order Withdrawing Final Order Denying Petition as Untimely was entered on March 26, 2009. The petition for administrative review was then forwarded to the Division of Administrative Hearings on April 23, 2009, and the matter was assigned DOAH Case No. 09-2189. 7. On May 4, 2009, the Department issued a Second Amended Order of Penalty Assessment in Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. The Second Amended Order of Penalty Assessment assessed a total penalty of $4,116.63 against CONNIE ARGUELLO, D.D.S. P.A. The Second Amended Order of Penalty Assessment was served on CONNIE ARGUELLO, D.D.S. P.A. through the Division of Administrative Hearings. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 8. On August 5, 2009, the Department issued a Third Amended Order of Penalty Assessment in Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. The Third Amended Order of Penalty Assessment assessed a total penalty of $3,744.47 against CONNIE ARGUELLO, D.D.S. P.A. The Third Amended Order of Penalty Assessment was served on CONNIE ARGUELLO, D.D.S. P.A. through the Division of Administrative Hearings. A copy of the Third Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and is incorporated herein by reference. 9. On August 14, 2009, CONNIE ARGUELLO, D.D.S. P.A. signed a Payment Agreement Schedule for Periodic Payment of Penalty in Case No. 08-327-D2. A copy of the Payment Agreement Schedule for Periodic Payment of Penalty is attached hereto as “Exhibit E” and incorporated herein by reference. 10. On August 14, 2009, the Department issued an Order of Conditional Release from Stop-Work Order in Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. A copy of the Order of Conditional Release from Stop-Work Order is attached hereto as “Exhibit F.” 11. On November 4, 2009, a Joint Stipulation for Dismissal was filed in DOAH Case No. 09-2189. Subsequently, on November 9, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
Findings Of Fact 1, On August 4, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-269-D5 to ARTEZANOS, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein ARTEZANOS, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop- Work Order and Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On February 3, 2012, the Stop- Work Order and Order of Penalty Assessment was served by certified mail on ARTEZANOS, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit 1” and incorporated herein by reference. 3, On February 13, 2012, ARTEZANOS, INC. filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings (hereinafter “DOAH”) on February 24, 2012, and the matter was assigned DOAH Case No. 12-0757. A copy of the petition is attached hereto as “Exhibit 2” and incorporated herein by reference. 4. On February 29, 2012, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-269-D5 to ARTEZANOS, INC. assessing a total penalty in the amount of $209,107.32. The Amended Order of Penalty Assessment included a Notice of Rights wherein ARTEZANOS, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 5. On March 9, 2012, the Petitioner served on Respondent the Department’s First Interlocking Discovery Requests via overnight mail. 6. On March 15, 2012, the Amended Order of Penalty Assessment was served via DOAH on ARTEZANOS, INC. A copy of the Motion to Amended Order of Penalty Assessment, Penalty Assessment Worksheet and the Order Granting Motion to Amend Order of Penalty Assessment is attached hereto as “Exhibit 3” and incorporated herein by reference. 7. On April 11, 2012, the Petitioner filed with DOAH a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(), Florida Statutes. A copy of the Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes (without Exhibits) is attached hereto as “Exhibit 4” and incorporated herein by reference. 8. On April 26, 2012, the Administrative Law Judge entered an Order granting the Department’s Motion in part and denying in part. The Administrative Law Judge granted the Department’s request to deem matters admitted as a result of the Respondent’s failure to object or otherwise respond to such requests. Additionally, the Respondent was given until May 8, 2012, to filea motion to withdraw or amend the technical admissions and to provide responses to the Department’s requests for admissions. The Order stated that the Department could renew their Motion to Relinquish Jurisdiction if the Respondent had not responded to the Order by May 8, 2012. A copy of the Order Regarding Motion to Deem Matters Admitted is attached hereto as “Exhibit 5” and incorporated herein by reference. 9. On May 9, 2012, the Department filed a Renewed Motion to Relinquish Jurisdiction as a result of the Respondent failing to file a motion to withdraw or amend the technical admissions or to provide responses to the Department’s requests for admissions. A copy of the Renewed Motion to Relinquish Jurisdiction is attached hereto as “Exhibit 6” and incorporated herein by reference. 10. On May 10, 2012, the Administrative Law Judge entered an Order granting the Department’s Renewed Motion to Relinquish Jurisdiction and the Department received a copy of an Order Closing File and Relinquishing Jurisdiction. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit 7” and incorporated herein by reference. 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, issued on August 4, 2011, and the Amended Order of Penalty Assessment, issued on February 29, 2012, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition received from ARTEZANOS, INC., as well as the Stop- Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment and being otherwise fully advised in the premises, hereby finds that:
The Issue The issue is whether a delay of 706 days between the date Respondent entered a stop work order against Petitioner's former business and the date Respondent referred Petitioner's request for hearing to a hearing officer to conduct an informal proceeding pursuant to Subsection 120.57(2), Florida Statutes (2005)(an informal hearing),1 is harmless error within the meaning of Section 120.68.
Findings Of Fact Respondent is the state agency responsible for enforcing the Florida Workers' Compensation Law enacted in Chapter 440. On May 7, 2004, Petitioner was a closely held Florida corporation wholly owned by Mr. Martin Valka. Petitioner was engaged in the construction business as a tile setter. The principal place of business was 5327 Mayfair Court, Cape Coral, Florida. On May 7, 2004, an investigator for Respondent determined that Petitioner was in violation of applicable law and issued a stop work order in accordance with the requirements of Subsection 440.107(1). The stop work order precluded Petitioner from conducting business until the matter was resolved. The stop work order also imposed a penalty equal to 1.5 times the premium Petitioner would have paid for workers' compensation insurance coverage. On May 10, 2004, Respondent issued an Amended Order of Penalty Assessment Number 04-166-D7-1 (Amended Order). The Amended Order assessed Petitioner with a penalty of $4,039.76. Respondent more recently amended the penalty assessment to $3,779.89, which is the assessment at issue in this proceeding. On May 27, 2004, Petitioner filed a written petition requesting an informal hearing. The next day, the investigator's supervisor reviewed the petition, determined it was procedurally deficient, and denied the petition. The investigator informed Petitioner by telephone of the supervisor's determination. However, Respondent did not inform Petitioner that the denial of the petition was without prejudice to file an amended petition correcting the procedural inadequacies, which, of course, were unknown to Petitioner because the denial did not state with particularity the reasons for the denial and did not state a deadline for filing an amended petition. Petitioner requested a written notice of Respondent's determination that the request for hearing was inadequate and the grounds for the determination. Respondent did not respond. Respondent took no further action for approximately 706 days. The stop work order remained in effect. On June 30, 2004, the investigator recorded a note in the investigative file that Petitioner had not paid the fine. The investigator referred the matter to "collections." On May 4, 2006, Respondent referred Petitioner's request for hearing to the director of the Division of Workers' Compensation for assignment of a hearing officer to conduct an informal hearing. Petitioner filed an amended petition in the informal hearing. Respondent moved to dismiss the amended petition, in relevant part, on the ground that the amended petition raised disputed issues of fact not raised in the original petition. The hearing officer conducted an informal hearing based on written submissions. He concluded he had no jurisdiction because of the presence of disputed issues of fact and recommended referral to DOAH. Respondent committed several procedural errors under Chapter 120 (the APA). Respondent failed to issue a written denial of the request for hearing, failed to issue a written denial within 15 days of the date of the request, failed to state with particularity the reasons for the denial, and failed to deny the request for hearing without prejudice, stating a deadline for filing an amended petition to correct any procedural deficiencies.2 The procedural violations were not harmless error. They prejudiced Petitioner and may have affected the fairness of the proceeding. The procedural violations prejudiced Petitioner in several ways. The resulting delays prevented Petitioner from conducting its business for approximately 706 days. Petitioner ceased to exist. The delays denied Petitioner the financial ability to pay the fine at issue in this proceeding. The 706- day stop work order deprived Petitioner of the financial means to retain counsel to represent Petitioner. Mr. Valka obtained employment in a different occupation, but that was inadequate and did not last. Mr. Valka became a "stay-home dad." The delays caused by procedural errors may have impaired the fairness of the proceeding. The delays operated to enforce a stop work order for 706 days with no recourse to Petitioner that complied with relevant due process requirements in the APA. Petitioner's request for hearing, unlike the normal penal proceeding under the APA, did not toll the imposition of an administrative penalty in the form of a stop work order. The request for hearing tolled only that part of the penalty proposed as an assessment of money. The procedural errors resulted in delays that may have impaired Petitioner's ability to cross examine witnesses for Respondent and Respondent's exhibits. The delays may have resulted in the unavailability of witnesses, or at least their ability to recall facts, as well as the unavailability of exhibits Petitioner needed to support a defense. The delay may have impaired discovery.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing the stop work order and proposed assessment against Petitioner. DONE AND ENTERED this 23rd day of May, 2008, in Tallahassee, Leon County, Florida. S 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 23rd day of May, 2008.
Findings Of Fact 1. On January 4, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-002-D7 to MANUEL VALDEZ. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein MANUEL VALDEZ was advised that any request for an administrative proceeding to challenge or contest the Stop- Work Order and Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On January 14, 2011, the Stop-Work Order and Order of Penalty Assessment was served on MANUEL VALDEZ via certified mail. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. On February 2, 2011, the Department issued an Amended Order of Penalty Assessment to MANUEL VALDEZ. The Amended Order of Penalty Assessment assessed a total penalty of $42,521.76 against MANUEL VALDEZ. The Amended Order of Penalty Assessment included a Notice of Rights wherein MANUEL VALDEZ was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 4. On February 14, 2011, the Amended Order of Penalty Assessment was served via process server on MANUEL VALDEZ. A copy of the Amended Order of Penalty Assessment and Proof of Service is attached hereto as “Exhibit 2” and incorporated herein by reference. 5. On February 18, 2011, MANUEL VALDEZ filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on August 1, 2011, and the matter was assigned DOAH Case No. 11-3850. A copy of the petition is attached hereto as “Exhibit 3” and incorporated herein by reference. 6. On September 7, 2011, the Petitioner filed with DOAH a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)(i), Florida Statutes. A copy of the Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)@), Florida Statutes is attached hereto as “Exhibit 4” and incorporated herein by reference. 7. On September 29, 2011, the Department a received copy of an Order granting Petitioner’s Motion to Deem Matters Admitted and to relinquishing jurisdiction pursuant to Section 120.57 (1)(i), Florida Statutes. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 5” and incorporated herein by reference. 8. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment issued January 4, 2011 and February 2, 2011, respectively, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition received from MANUEL VALDEZ, as well as the Stop- Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment and being otherwise fully advised in the premises, hereby finds that:
Findings Of Fact 11. — The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 3, 2009, and the Fourth Amended Order of Penalty Assessment issued on February 5, 2010, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Fourth Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-014-D2, and being otherwise fully advised in the premises, hereby finds that: 1. On February 3, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-014-D2 to ASSOCIATED WINDOW AND DOOR, INC. (ASSOCIATED). The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Stop- Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On February 3, 2009, the Stop-Work Order and Order of Penalty Assessment was served via personal service on ASSOCIATED. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 10, 2009, the Department issued an Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Amended Order of Penalty Assessment assessed a total penalty of $99,761.78 against ASSOCIATED. The Amended Order of Penalty Assessment included a Notice of Rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569.and 120.57, Florida Statutes. 4. The Amended Order of Penalty Assessment was served on ASSOCIATED by personal service on April 13, 2009. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 30, 2009, the Department issued a Second Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Second Amended Order of Penalty Assessment assessed a total penalty of $76,081.13 against ASSOCIATED. The Second Amended Order of Penalty Assessment contained a Notice of Rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 6. The Second Amended Order of Penalty Assessment was served on ASSOCIATED by personal service on May 1, 2009. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On May 22, 2009, ASSOCIATED filed a timely Petition for a formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09- 3044. . 8. On February 5, 2010, the Department issued a Fourth Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Fourth Amended Order of Penalty Assessment assessed a total penalty of $1,256.24 against ASSOCIATED. The Fourth Amended Order of Penalty Assessment was served on ASSOCIATED through the Division of Administrative Hearings. A copy of the Fourth Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and is incorporated herein by reference. 9. ‘On February 10, 2010, ASSOCIATED filed a Motion to Close File Due to Settlement in DOAH Case No. 09-3044. A copy of the Motion to Close File Due to Settlement filed by ASSOCIATED. is attached hereto as “Exhibit E.” 10. On February 10, 2010, Administrative Law Judge Errol H. Powell entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the February 10, 2010 Order Closing File is attached hereto as “Exhibit F.”
The Issue The issues in this case are whether Petitioner violated Subsection 440.107(7)(c), Florida Statutes (2007),1 and, if so, what penalty should be assessed.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation coverage for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. Martinez Construction is a construction business. On June 15, 2005, the Department issued Stop-Work Order No. 05-325- 1A. On June 20, 2005, an Amended Order of Penalty Assessment was issued against Martinez Construction assessing a penalty of $23,472.57. On June 21, 2005, Martinez Construction and the Department entered into a Payment Agreement Schedule for Periodic Payment of Penalty in which Martinez Construction agreed to pay the Department a lump sum of $5,000.00 and to make 24 monthly payments of $769.69. On June 21, 2005, the Department entered an Order of Conditional Release from Stop- Work Order (Conditional Release), which conditionally released the Stop-Work Order that was issued on June 15, 2005. The Conditional Release provided: Until such time as the employer has paid the total assessed penalty of $23,472.57 in full, if the employer fails to comply with the terms and conditions of the Payment Agreement Schedule for Periodic Payment of Penalty attached hereto as Exhibit “A,” the Stop-Work Order to which this order applies will be immediately reinstated, and the unpaid balance of the total penalty to be paid by the employer shall become immediately due. The Conditional Release listed Martinez Construction’s address as 1905 Michigan Avenue, Panama City, Florida. Martinez Construction made payments until July 2006, when it stopped making payments. The unpaid balance on the assessed penalty was $10,008.98. By letter dated May 24, 2007, the Department wrote Martinez Construction advising that it was issuing an Order Reinstating Stop-Work Order because of the failure to make payments as required by the payment schedule to which the parties had agreed. A copy of the Order Reinstating Stop-Work Order was enclosed with the letter and ordered: The Stop-Work Order issued to Employer on June 15, 2005, is immediately reinstated, and pursuant to such immediate reinstatement, the provisions of said Stop- Work Order are in full force and effect. The unpaid balance of the penalty in the amount of $10,008.98 is due pursuant to such immediate reinstatement. Pursuant to such immediate reinstatement, Employer shall cease all business operations in the State of Florida until the DEPARTMENT issues an Order releasing the reinstated Stop-Work Order upon a finding by the DEPARTMENT that Employer has come into compliance with coverage requirements of Chapter 440, Florida Statutes, and has paid the entire unpaid balance of the penalty assessed as specified in (7) above [$10,008.98]. The letter and Order Reinstating Stop-Work Order were sent to Martinez Construction by certified mail to its Michigan Avenue address. The letter and order were returned to the Department as undeliverable. In early January 2006, Hector Martinez (Mr. Martinez) and his family moved from 1905 Michigan Avenue, Panama City, Florida, to 1304 Delaware Avenue, Lynn Haven, Florida. They remained at that address until January 2008. Mr. Martinez was the manager and registered agent for Martinez Construction. The records of the Florida Department of State, Division of Corporations, show that on February 2, 2006, the principal address and mailing address for Martinez Construction was changed to 1304 Delaware Avenue, Lynn Haven, Florida, and that the address for the registered agent was also changed to the 1304 Delaware Avenue address. The Department resent the May 24, 2007, letter and Order Reinstating Stop-Work Order by certified mail to Martinez Construction. The return receipt from the United States Postal Service shows that the documents were delivered to the 1304 Delaware Avenue address on June 1, 2007. The receipt bore a signature stating Luisa Martinez. On June 1, 2007, Mr. Martinez was married to Luisa Alvarez Diaz. Mr. Martinez claims that his wife did not sign the receipt for the certified mail and that he did not receive the documents. According to Mr. Martinez, his wife does not use his surname, but goes by the name of Luisa Alvarez. Mr. Martinez’s testimony is not credible. The letter and Order Reinstating Stop-Work Order were delivered to the 1304 Delaware Avenue address on June 1, 2007. On August 24, 2007, Robert Borden (Mr. Borden), an investigator for the Department, was conducting a random compliance investigation and found a crew working on a jobsite. When Mr. Borden questioned the crew concerning the name of their employer, they replied that they worked for Martinez Construction. Mr. Borden checked the Department’s Coverage Compliance Automated Systems database and discovered that an Order Reinstating Stop-Work Order had been issued to Martinez Construction. Mr. Borden checked with the employee leasing company which Martinez Construction used and found that Martinez Construction had been employing crews for 70 days since the issuance of the Order Reinstating Stop-Work Order. On August 28, 2007, Martinez Construction was issued and personally served an Order Assessing Penalty for Working in Violation of Reinstated Stop-Work Order, assessing a $70,000.00 penalty which represented a penalty of $1,000.00 per day for the 70 days of violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order finding that Petitioner violated Subsection 440.107(7)(c), Florida Statutes, and assessing a penalty of $70,000.00. DONE AND ENTERED this 30th day of June, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2008.
Findings Of Fact 1. On October 7, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-432-D3 to J & L CONSTRUCTION SERVICES, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein J & L CONSTRUCTION SERVICES, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On August 3, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on J & L CONSTRUCTION SERVICES, INC. .A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. On November 15, 2010, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-432-D3 to J & LCONSTRUCTION SERVICES, INC. assessing a total penalty in the amount of $90,803.79. The Amended Order of Penalty Assessment included a Notice of Rights wherein J & L CONSTRUCTION SERVICES, INC. - was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 4. On August 3, 2011, the Amended Order of Penalty Assessment was served by personal service on J & L CONSTRUCTION SERVICES, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit 2” and incorporated herein by reference. 5. On August 24, 2011, J & L CONSTRUCTION SERVICES, INC. filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on January 26, 2012, and the matter was assigned DOAH Case No. 12-0411. A copy of the petition is attached hereto as “Exhibit 3” and incorporated herein by reference. . 6. On February 2, 2012, the Petitioner served on Respondent the Department’s First Interlocking Discovery Requests via overnight mail. 7. On March 7, 2012, the Petitioner filed with DOAH a Motion to Compel Discovery Responses. A copy of the Motion to Compel Discovery Responses (without Exhibits) is attached hereto as “Exhibit 4” and incorporated herein by reference. 8. On March 14, 2012, the Petitioner filed a Unilateral Motion to Continue Administrative Hearing. A copy of the Unilateral Motion to Continue Administrative Hearing is attached hereto as “Exhibit 5” and incorporated herein by reference. 9. On March 26, 2012, per the Administrative Law Judge’s Order, the Petitioner attended a Telephonic Conference with the Judge regarding the outstanding Motion to Compel Discovery Responses and the Unilateral Motion to Continue. 10. On March 26, 2012, the Petitioner filed a Motion to Relinquish Jurisdiction. A copy of the Motion to Relinquish Jurisdiction (without Exhibit) is attached hereto as “Exhibit 6” and incorporated herein by reference. 11. On April 11, 2012, the Department received a copy of an Order Closing File and Relinquishing Jurisdiction. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit 7” and incorporated herein by reference. 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, issued on October 7, 2010 and the Amended Order of Penalty Assessment, issued on November 15, 2010, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition ~ received from J & L CONSTRUCTION SERVICES, INC., as well as the Stop- Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment and being otherwise fully advised in the premises, hereby finds that:
Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 18, 2009, and the Amended Order of Penalty Assessment issued on April 7, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Findings Of Fact 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 22, 2011, the Amended Order of Penalty Assessment issued on March 24, 2011, and the 2nd Amended Order of Penalty Assessment, issued on March 8, 2012, attached as “Exhibit A,” “Exhibit B,” and Exhibit “D” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from AMSTARR, INC., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On February 22, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-060-1A to AMSTARR, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein AMSTARR, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop- Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 2. On February 22, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on AMSTARR, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 24, 2011, the Department issued an Amended Order of Penalty Assessment to AMSTARR, INC. The Amended Order of Penalty Assessment assessed a total penalty of $80,945.25 against AMSTARR, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein AMSTARR, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4, On October 27, 2011, the Amended Order of Penalty Assessment was served by personal service via a process server on AMSTARR, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On November 28, 2011, AMSTARR, INC. timely filed a request for administrative hearing with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on January 6, 2012, and the matter was assigned DOAH Case No. 12-0080. A copy of the petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On March 8, 2012, the Department issued a 2nd Amended Order of Penalty Assessment to AMSTARR, INC. The Amended Order of Penalty Assessment assessed a total penalty of $2,256.78 against AMSTARR, INC. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein AMSTARR, INC. was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2nd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 7. On March 13, 2011, the 2nd Amended Order of Penalty Assessment was served by electronic mail on AMSTARR, INC. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On March 26, 2012, AMSTARR, INC., entered into a Settlement Agreement with the Department. The Settlement Agreement stated that AMSTARR, INC. must accept service of the 2nd Amended Order of Penalty Assessment. The Settlement Agreement also stated that AMSTARR, INC. must pay the penalty in full, or pay a down-payment of $1,000.00 and enter into a Payment Agreement Schedule for Periodic Payment within thirty days of the execution of the Settlement Agreement. Additionally, AMSTARR, INC. agreed that upon execution of the Settlement Agreement his Petition shall be deemed dismissed with prejudice. A copy of the Executed Settlement Agreement is attached hereto as “Exhibit E” and incorporated herein by reference. 9. On March 26, 2012, the Department filed a Notice of Settlement with the Division of Administrative Hearings. A copy of the Notice of Settlement is attached hereto as “Exhibit F” and incorporated herein by reference. 10. On April 2, 2012, the Administrative Law Judge issued an Order Closing File and Relinquishing Jurisdiction. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit G” and incorporated herein by reference. ll. As of the date of this Final Order, AMSTARR, INC. has failed to comply with the conditions of the Settlement Agreement. AMSTARR, INC. has neither paid the penalty amount in full, nor has AMSTARR, INC. entered into a Payment Agreement Schedule for Periodic Payment.
