Findings Of Fact At all times material hereto, Respondent has been licensed in the State of Florida as a life and health insurance agent. His licensure as a life and variable annuity contracts agent occurred on April 5, 1993. On September 9, 1994, Respondent pled nolo contendere to criminal charges pending before the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. The charges were third degree grand theft, a felony, and practicing law while his license was suspended, a misdemeanor. Upon entry of his plea, adjudication was withheld, and Respondent was placed on probation for two years and ordered to make restitution in the amount of $400. Respondent did not notify Petitioner in writing within 30 days after pleading nolo contendere to that felony. Respondent's plea and criminal charges related to a fee in the amount of $l,000 which Respondent collected from a client to perform legal services at a time when Respondent's license to practice law was suspended. Although Respondent refunded $600 of that fee to the client, Respondent determined that the client had received $400 worth of services and refused to refund that amount until after the client filed litigation and obtained a civil judgment against Respondent. On or about October 20, 1995, the Florida Department of Corrections filed with the Broward County Circuit Court an affidavit alleging that Respondent had violated the Circuit Court's Order of Probation in a number of different ways. Based upon that affidavit, the Circuit Court issued a Warrant for Respondent's arrest on October 24, 1995. On January 11, 1996, Respondent was disbarred, effective immediately, by the Supreme Court of Florida. At the time of the final hearing in this cause, Respondent was not actively engaged in the insurance business. Rather, Respondent had been employed at the Miami Market for approximately 1-1 years, taking inventory and supervising crews.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the First Amended Administrative Complaint filed against him and revoking his licenses and his eligibility for licensure as an insurance agent. DONE and ENTERED this 5th day of March, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1996. APPENDIX TO RECOMMENDED DOAH CASE NO. 95-4700 Petitioner's proposed findings of fact numbered 1, 4-12, and 15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed finding of fact numbered 14 has been rejected as being subordinate to the issues herein. COPIES FURNISHED: Ross S. Burnaman, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Mr. David Felix Monaco Apartment 207E 7610 Stirling Road Hollywood, Florida 33024 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue in the case is whether the Respondent, an insurance agent, has complied with applicable continuing education requirements.
Findings Of Fact The Respondent is a licensed life insurance and variable annuity insurance agent, holding license number A104253, and has held the license at all times material to this case. The Respondent is required to meet applicable continuing education requirements set forth by statute. Based on the type of license held by the Respondent, he must complete 28 hours of continuing education instruction during each reporting period. The instruction must be related to the type of insurance the Respondent is authorized to sell. During the reporting period from December 1, 1995 through November 30, 1997, the Respondent completed 28 hours of continuing education instruction; however, only 21 hours of the instruction are creditable to life and variable annuity insurance agents for purposes of complying with the continuing education requirement. Because seven of the Respondent’s 28 hours are not related to his licensure status, they are not applicable to his continuing education requirement; accordingly, the Respondent had a deficit of seven hours for the relevant reporting period. One of the courses completed by the Respondent was "LTC Strategies and Laws" (Course ID 30180) on November 25, 1997. Credit for this three-hour course is available only to licensed health insurance agents. The Respondent is not a licensed health insurance agent, and is not entitled to credit for this course. Another of the courses completed by the Respondent was "Senior Citizen Insurance" (Course ID 4301) on November 25, 1997. The credit for this eight-hour course is divided; four hours of credit is applicable to life insurance agents and four hours is applicable to health insurance agents. The Respondent is entitled only to the four hours of credit available to life insurance agents. By Preliminary Notice of Non-Compliance dated June 15, 1999, the Respondent received notice that, according to the Department’s review of the records, he had not completed the continuing education requirement. The Notice included a number of resolution alternatives, ranging from the licensee’s correction of the records by providing additional information, to resolving the matter by payment of a fine and completion of the hours, to a licensee-initiated license termination. The Department sent the Preliminary Notice to all addresses of record on file for the Respondent. The Respondent did not respond to the June 15 Preliminary Notice of Non-Compliance. On August 17, 1997, the Department issued a Final Notice of Non-Compliance, again advising that the continuing education requirement was unmet, again including options for resolving the deficiency, and advising of the right to request a formal administrative hearing. The Department sent the Final Notice by certified mail to the licensee’s permanent address of record. In response to the Final Notice, the Respondent requested a formal administrative hearing. The Respondent also sent additional information to the Department apparently unaware that some of the completed course hours were inapplicable to his licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order suspending the licensure of Lannie J. Gregory for not less than one month or until Lannie J. Gregory completes seven additional continuing education hours appropriate to his licensure, whichever is later, and imposing a fine of $1,000. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 24th day of May, 2000. COPIES FURNISHED: Lannie J. Gregory 2680 West Lake Road Palm Harbor, Florida 34684-3120 Miguel Oxamendi, Senior Attorney Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent, Fredric Stuart Zelanka, has been licensed by Petitioner, Department of Financial Services, as an insurance agent, holding license number A293609. Jerrod Keith Zelanka is Respondent's son. Jerrod Keith Zelanka also uses the name Rod Keith. Using one name or the other, Jerrod Keith Zelanka was the owner, president, and director of American Professional Insurance Services, Inc., also known as AmPro Insurance. Respondent's insurance agency had been Accredited Insurance Group, Inc. Due to his health problems in 2000, Respondent turned his insurance business over to his son and thereafter was employed by AmPro. On September 11, 2003, the Department entered a Final Order suspending Jerrod Keith Zelanka's insurance license and eligibility for licensure for a period of nine months. Respondent knew that Jerrod Keith Zelanka's insurance license and eligibility for licensure had been suspended, not only because of their relationship but also because the administrative proceeding which resulted in Jerrod Keith Zelanka's suspension had been consolidated with a disciplinary proceeding against Respondent. Respondent received a three- month suspension as a result of that proceeding. Due to a stay of Jerrod Keith Zelanka's suspension entered by the appellate court, which was terminated after the court affirmed the Department's Final Order in that case, his suspension did not begin until July 16, 2004, and ended April 15, 2005. Both the Final Order suspending Jerrod Keith Zelanka's license and the Final Order suspending Respondent's license advised them that, during their periods of suspension, they were prohibited from engaging in or attempting to engage in any transaction or business for which a license is required or to directly or indirectly own, control, or be employed in any manner by an insurance agent or agency. In March 2005, Jerrod Keith Zelanka requested that the Department reinstate his suspended insurance license, effective April 16, 2005. On April 19, 2005, the Department issued its Notice of Denial, denying reinstatement. Jerrod Keith Zelanka requested an administrative hearing on that denial. A hearing was held, and on February 23, 2006, the Department entered a Final Order denying his application for reinstatement of his suspended license. Accordingly, Jerrod Keith Zelanka has not been a licensed insurance agent since July 16, 2004. On October 13, 2005, Charmaine Davis-Matthei called AmPro, which was located very close to her office, during her lunch break to obtain a quote to insure her two vehicles. Since the quote she was given was favorable, she went there when she finished working at 5:00 p.m., that day. The only person at AmPro's office during the time she was there was Jerrod Keith Zelanka, who identified himself as "Rod" and proceeded to wait on her. He reviewed her necessary information, explained different options to her, explained the coverage being purchased, typed the information into the computer, created her policy, printed it and had her sign it, obtained the down payment on the policy from her, and gave her a receipt for her premium payment. On October 21, 2005, after purchasing a new vehicle, Davis-Matthei returned to AmPro to change her auto insurance policy. On that date, Respondent waited on her, made the required changes, and gave her a receipt for the additional money she was required to pay for the change in her policy. The applications for coverage dated October 13 and October 21, 2007, both carry Respondent's name and license number as the insurance agent binding the coverage. Both carry an unreadable but dissimilar signature. Since Respondent was not present at AmPro on October 13, 2005, during the Davis-Matthei transaction and only Jerrod Keith Zelanka was, there are few possible conclusions. One is that Respondent allowed Jerrod to sign Respondent's name when Jerrod engaged in the business of insurance. Another is that Respondent signed his name although he was not present when Jerrod sold insurance to Davis-Matthei. Since the record in this case suggests that Respondent was the only licensed agent at AmPro at the time in question, it can only be concluded that he knew that Jerrod was engaging in the unlicensed transaction of insurance business at AmPro. In addition to the 2003 three-month suspension imposed upon Respondent briefly described above, the Department imposed a $750 administrative fine and one-year probation against Respondent pursuant to a Consent Order entered February 19, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Sections 626.611(7) and 626.621(12), Florida Statutes; finding Respondent not guilty of violating Section 626.611(8), Florida Statutes; and suspending Respondent's license and eligibility for licensure for a period of six months. DONE AND ENTERED this 24th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2007. COPIES FURNISHED: Alex Sink, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Robert Alan Fox, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Fredric Zelanka 5099 Monterey Lane Delray Beach, Florida 33484
Findings Of Fact Respondent is a resident of the State of Illinois and is employed by Mutual Benefit Life Insurance Company as an associate, selling life and health insurance. He has been licensed by the State of Illinois as an insurance agent for 22 years and has engaged in the insurance business for that length of time. On or about February 26, 1988, the Florida Department of Insurance advised Respondent, by letter, that his application for taking the exam was denied for the following reasons: On or about January 11, 1982 you pleaded guilty to the offense of Forgery, a felony involving moral turpitude as contained in Count II of a Bill of Indictment for Case Number 81CF299. You failed to divulge the fact on your application for qualification as a nonresident agent that on or about April 28, 1982, your licensing authority in the State of Illinois was revoked; and that on or about December 14, 1982, the Director of Insurance's Order of April 28, 1982 revoking your licensing authority was rescinded and you were required to pay a civil penalty of One Thousand dollars ($1,000.00). The Department cited Section 626.785(1); 626.611(1), (2), (7) and (14); and Section 626.621(8), Florida Statutes, as authority for its action. In the latter part of 1977, Respondent sold to Dr. Hanshaw, of Quincy, Illinois, a $100,000.00 life insurance policy on each of Dr. Hanshaw's two children. The cash value of Dr. Hanshaw's existing life insurance was used to pay for the premiums on the children's policies. In 1979, the children's policies had lapsed due to Respondent's inability to get Dr. Hanshaw, owner of the policies, to execute a form reinstating the policies. Finally, after repeated attempts to obtain Dr. Hanshaw's signature on the reinstatement forms, and after a telephone conversation with Dr. Hanshaw, Respondent caused a person in Respondent's office to sign Dr. Hanshaw's name to the reinstatement forms in order to reinstate the insurance. Respondent then transmitted the forms to the home office and the policies were reinstated. Respondent's total compensation for the reinstatement was $30.68. Respondent felt he had the permission of Dr. Hanshaw to sign Dr. Hanshaw's signature to the forms. Approximately one year later, Dr. Hanshaw decided to surrender the policy on his life, and found the surrender value to be approximately $2,700.00 less than he felt it should be. The difference was due to the year's worth of premiums on the children's policies which had been deducted from the cash surrender value of Dr. Hanshaw's policy after the children's policies had been reinstated. Dr. Hanshaw promptly inquired of Respondent about the cash surrender value. At that time Respondent advised Dr. Hanshaw of the above reason for the lesser amount of the cash value. Respondent also reminded Dr. Hanshaw that he had caused Dr. Hanshaw's signature to be signed by a third party in order to prevent the children's policies from lapsing the previous year pursuant to Dr. Hanshaw's instructions. Dr. Hanshaw denied he had so instructed Respondent to reinstate the policies. Respondent then offered and Dr. Hanshaw accepted, a personal check from Respondent for the amount of the cash value loss allegedly experienced by Dr. Hanshaw. Some time thereafter, Dr. Hanshaw filed a Complaint with the Adams County Illinois State Attorney and on October 27, 1981, a Bill of Indictment was filed against Respondent. After plea negotiations, Respondent pleaded guilty to Count II of the Indictment (Forgery) and on March 22, 1982, the Court accepted Respondent's plea, dismissed all other Counts in the indictment, sentenced Respondent to two years probation and imposed a fine of $2,500.00, plus court costs. Part of the plea negotiation included the State Attorney's help in obtaining favorable treatment in any licensing procedure. On March 4, 1984, Respondent's Probation was successfully discharged. As a result of the aforesaid plea of guilty to forgery, a felony in the State of Illinois, the Illinois Department of Insurance issued an Order revoking Respondent's insurance license. However, the Order of Revocation did not take effect since Respondent timely sought a hearing on the allegations of the Order of Revocation. As a result of the hearing, Respondent's insurance license was not revoked. Instead, Respondent paid a civil penalty of $1,000.00, plus court reporter costs. Respondent testified that he was not aware of the consequences of his plea of guilty on other insurance licenses he might wish to obtain once he had discharged his debt to society. He has since discovered these effects, but after presentation of the above facts has been able to obtain other insurance licenses in other states. On or about September 24, 1987, Respondent filed an Application For Qualification as a Nonresident Life and Health Agent with the Department of Insurance. In that application, Respondent answered "No" to question 9 which asked if his license had ever been declined, suspended, placed on probation or administratively fined. However, on question 12, Respondent clearly states that he had been charged with and convicted of a felony, the location of that offense, that there was one charge of forgery, a $2,500.00 fine, two years probation, and that his Illinois license had been stayed. The negative response in question 9 forms the basis of Petitioner's reason for denial stated in paragraph 2(b) above. Respondent did not mislead, misrepresent or misstate anything to the Department of Insurance with his negative response to Question 9 of the Application. Respondent's license had clearly never been declined, suspended, placed on probation or revoked since the Illinois Order of Revocation never took effect. Nor did he mislead misrepresent or misstate anything to the Department with his negative response in reference to an administrative fine. He felt the fine he actually paid was not what question 9 was asking since he had paid a civil and not an administrative fine. He also thought that the license action was part and parcel of the criminal action. Nowhere in the application is "administrative fine" defined. Reasonable people can differ on the meaning of "administrative fine" especially where one state uses the term civil fine. These facts bear out the vagueness of the term's meaning. Before a person can misstate a fact there must be some agreement or mutual understanding as to what the fact is being stated for. There was clearly no such understanding in this case. The answer does not even come close to fraud since no intent to defraud the Department was demonstrated by the evidence. Additionally, his response to Question 12, together with the information he supplied along with the Application, was sufficient notice to the Department of the facts surrounding his Illinois license. The information supplied in Question 12 renders the response in Question 9 as immaterial. Therefore, the reasons given by the Department in Paragraph 2(b) above cannot stand as a basis for denying Respondent's licensure application. The reason given by the Department in paragraph 2(a) above involves the Respondent's forgery conviction. The forgery conviction does include an allegation of an intent to defraud. However, the facts of this case fails to demonstrate that moral turpitude was involved. This is especially true since this was a plea bargained case and the technical aspects of a crime do not bear the importance those aspects would if a trial had taken place or if Respondent had known the full effect such a plea would have on future licenses. Moreover, Respondent has rehabilitated himself. The Order rescinding the revocation of Respondent's license in Illinois specifically incorporates the Conclusion of Law made by the Hearing Officer, to-wit: "4. That, although convicted of the felony of forgery, the Licensee has demonstrated that he is sufficiently rehabilitated to warrant the public trust as required by Section 502(h) of the Illinois Insurance Code." Further, the testimony of Angelo P. Schiralli at the hearing attests to the honesty and trustworthiness of Respondent. Respondent is a person of honesty and trustworthiness and has had no problems with the law since 1979.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's application be accepted and he be permitted to take the Life and Health Agent's exam. DONE and ENTERED this 18th day of November, 198, in Tallahassee, Florida. DIANE CLEAVINGER 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 18th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1625 The facts contained in paragraphs 1, 3, 4 and 10 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 2, 5, 6, 7, 8 and 11 of Petitioner's proposed findings of fact are adopted in substance, in so far as material. The facts contained in paragraph 9 of Petitioner's proposed findings of fact are irrelevant. The facts contained in the first two paragraphs of Petitioner's proposed findings of fact numbered 12 are adopted. The first sentence of the third paragraph is adopted. The last sentence of the third paragraph was not shown by the evidence. The fourth paragraph is adopted as to the first sentence. The remainder of the fourth paragraph is rejected. The first sentence of the fifth paragraph is subordinate. The remainder of the fifth paragraph is rejected. The first sentence of paragraph 13 of Petitioner's proposed findings of fact is subordinate. Remainder of the paragraph is rejected. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 15 of Respondent's proposed findings of fact are adopted in substance, in so far as material. The facts contained in paragraph 10 of Respondent's proposed findings of fact are subordinate. COPIES FURNISHED: Robert C. Byerts, Esquire Department of Insurance Agency Regulation Section 413-B Larson Building Tallahassee, Florida 32399-0300 Donald H. Reed, Jr., Esquire First American Bank Building 2250 Glades Road Boca Raton, Florida 33431 Honorable William Gunter State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Joseph Anthony Isabella, was licensed by Petitioner, Department of Insurance (Department), as a life insurance agent, having been issued license number A128269. On July 26, 1989, an Information was filed in the Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, Florida, Case No. 89-10384CF A02, charging Respondent with one count of obtaining property or services in return for a worthless check, contrary to Section 832.05(4), Florida Statutes. Specifically, the Information alleged that: . . . JOSEPH ANTHONY ISABELLA on or about the 15th day of DECEMBER, 1988 in the County of Palm Beach and State of Florida, did unlawfully obtain services, goods, wares or other things of value from ABE GREEN, by means of a check in the amount of $8,515.00 drawn on the CAPITAL BANK, a banking corporation, bearing account number 4203001757, knowing at the time of the drawing, making, uttering, issuing or delivering of the said check that the said JOSEPH ANTHONY ISABELLA had not sufficient funds on deposit in or credit with such bank with which to pay the same on presentation. . . . Such offense constituted a felony of the third degree. On or about March 8, 1991, Respondent pled guilty to the charge, and on March 20, 1991, the court entered an order (nunc pro tunc to March 8, 1991) withholding adjudication of guilt and placing Respondent on probation for a period of one year under the supervision of the Department of Corrections. The conditions of probation included the following: PROBATION TO TERMINATE ONCE RESTITUTION IS PAID IN FULL. PAY $7,000.00 RESTITUTION TO ABE GREEN. Respondent failed to make restitution to Mr. Green, and on January 6, 1992, an affidavit of violation of probation was filed and a warrant was issued; however, the warrant was not executed, returned, and filed until September 22, 1994. Ultimately, by April 16, 1995, restitution had been paid, the notice of violation of probation was withdrawn, and Respondent's probation was "terminated successfully." At no time did Respondent inform the Department in writing of having pled guilty to the aforesaid crime.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent guilty of violating the foregoing provisions of law and that, for such violation, the final order suspend Respondent's license for a period of 12 months. DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 25th day of May, 1999.
The Issue Whether Royal Roofing and Restoration, Inc. (Respondent or Royal Roofing), failed to secure workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (Petitioner or Department), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact Petitioner is the state agency charged with enforcing the requirement of chapter 440, that Florida employers secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent is a Florida for-profit corporation organized on July 28, 2015, and engaged in the business of roofing and storm damage restoration. The company was formed, and initially conducted business, in Tallahassee, Florida, but expanded to the Panama City area in 2016. Traci Fisher is Respondent’s President and Registered Agent, with a mailing address of 1004 Kenilworth, Tallahassee, Florida 32312. DOAH Case No. 17-0879 On May 4, 2016, Department Compliance Investigator Jesse Holman, conducted a routine workers’ compensation compliance inspection at 374 Brown Place in Crestview, Florida. Mr. Holman observed four men removing shingles from the roof of a residential structure at that address. Mr. Holman first interviewed a worker who identified himself as Dustin Hansel and reported that he and the other three workers on site were a new crew for Respondent, the permit for the job had not yet been pulled, and the workers were not aware of the rate of pay for the job. Mr. Hansel telephoned Respondent’s sales manager, Dillon Robinson, who then spoke directly with Mr. Holman via telephone. Mr. Robinson informed Mr. Holman that Respondent obtained workers’ compensation coverage through Payroll Management Inc. (PMI), an employee-leasing company. Mr. Holman identified the three remaining workers at the jobsite as Milton Trice, Winston Perrotta, and Kerrigan Ireland. Mr. Holman contacted PMI and secured a copy of Respondent’s then-active employee roster. None of the workers at the jobsite, including Mr. Hansel, were included on Respondent’s employee roster. Upon inquiry, Mr. Holman was informed that PMI had no pending employee applications for Respondent. Mr. Holman consulted the Department’s Coverage Compliance Automated System (CCAS) and found Respondent had no workers’ compensation insurance policy and no active exemptions. During Mr. Holman’s onsite investigation, the workers left the jobsite. Mr. Holman could not immediately reach Ms. Fisher, but did speak with her husband, Tim Fisher. Mr. Fisher informed Mr. Holman that the crew was on their way to the PMI Fort Walton office to be enrolled on Respondent’s employee roster. On May 5, 2016, based on his investigation, and after consultation with his supervisor, Mr. Holman issued Respondent Stop-Work Order (SWO) 16-148-1A, along with a Business Records Request (BRR) for records covering the audit period of July 27, 2015 through May 4, 2016. Later that day, Mr. Holman spoke to Ms. Fisher, who informed him the crew did not have permission to begin the work on that date, as she had not yet pulled the permit for the reroof. Ms. Fisher further explained that the crewmembers had been instructed to complete applications with PMI prior to departing Tallahassee for Crestview. Ms. Fisher confirmed the crewmembers were completing applications at PMI Fort Walton that same day. Mr. Holman met with Ms. Fisher the following day and personally served SWO 16-148-1A. Ms. Fisher delivered to Mr. Holman an updated employee roster from PMI which included Mr. Hansel, Mr. Perrotta, and Mr. Ireland; a letter documenting Mr. Trice was not employed by Respondent; and a $1000 check as downpayment on the penalty. Respondent initially submitted business records in response to the BRR on May 23 and 25, 2017. DOAH Case No. 17-1558 On June 8, 2016, Mr. Holman conducted a random workers’ compensation compliance inspection at 532 Rising Star Drive in Crestview. The single-family home at that address was undergoing renovations and Mr. Holman observed three men on the roof removing shingles. None of the men on the roof spoke English, but a fourth man, who identified himself as Jose Manuel Mejia, appeared and stated he worked for Respondent, and that all the workers onsite were paid through PMI at a rate of $10.00 per hour. Mr. Mejia admitted that one of the worker’s onsite, Emelio Lopez, was not enrolled with PMI and explained that Mr. Mejia brought him to the worksite that day because he knew Mr. Lopez to be a good worker. The remaining workers onsite were identified as Juan Mencho and Ramon Gonzalez, both from Atlanta, Georgia. Mr. Mejia produced some PMI paystubs for himself and Mr. Mencho. Mr. Mejia stated that he and his crews also received reimbursement checks directly from Respondent for gas, rentals, materials, and the like. Mr. Holman contacted PMI, who produced Respondent’s then-active employee roster. Mr. Mejia and Mr. Mencho were on the roster, but neither Mr. Gonzalez nor Mr. Lopez was included. Mr. Holman next contacted Ms. Fisher, who identified Mr. Mejia as a subcontractor, but was not familiar with any of the other men Mr. Holman encountered at the worksite. Mr. Holman consulted via telephone with his supervisor, who instructed him to issue an SWO to Respondent for failing to secure workers’ compensation coverage for its employees. Mr. Holman issued SWO 16-198-1A by posting the worksite on June 8, 2016. Department Facilitator Don Hurst, personally served Ms. Fisher with SWO 16-198-1A in Tallahassee that same day. SWO 16-148-1A Penalty Calculation1/ Department Penalty Auditor Eunika Jackson, was assigned to calculate the penalties associated with the SWOs issued to Respondent. On June 8, 2016, Ms. Jackson began calculating the penalty associated with SWO 16-148-1A. Ms. Jackson reviewed the documents submitted by Respondent in response to the BRR. The documents included Respondent’s Wells Fargo bank statements, check images, and PMI payroll register for the audit period.2/ Based on a review of the records, Ms. Jackson identified the following individuals as Respondent’s employees because they received direct payment from Respondent at times during the audit period: David Rosinsky, Dylan Robinson, Jarod Bell, Tommy Miller, and David Shields. Ms. Jackson determined periods of non-compliance for these employees based on the dates they received payments from Respondent and were not covered for workers’ compensation via PMI employment roster, separate policy, or corporate officer exemption. Ms. Jackson deemed payments to each of the individuals as gross payroll for purposes of calculating the penalty. Based upon Ms. Fisher’s deposition testimony, Ms. Jackson assigned National Council on Compensation Insurance (NCCI) class code 5551, Roofing, to Mr. Miller; NCCI class code 5474, Painting, to Mr. Rosinsky; NCCI class code 8742, Sales, to Mr. Bell and Mr. Robinson; and NCCI class code 8810, clerical office employee, to Mr. Shields. Utilizing the statutory formula for penalty calculation, Ms. Jackson calculated a total penalty of $191.28 associated with these five “employees.” Ms. Jackson next calculated the penalty for Dustin Hansel, Kerrigan Ireland, Milton Trice, and Winston Perrotta, the workers identified at the jobsite as employees on May 4, 2016. The Department maintains that the business records submitted by Respondent were insufficient to determine Respondent’s payroll to these “employees,” thus, Ms. Jackson used the statutory formula to impute payroll to these workers. Ms. Jackson calculated a penalty of $14,970.12 against Respondent for failure to secure payment of workers’ compensation insurance for each of these four “employees” during the audit period. The total penalty associated with these four “employees” is $59,880.48. Ms. Jackson calculated a total penalty of $60,072.96 to be imposed against Respondent in connection with SWO 16-148- 1A. Business Records In compliance with the Department’s BRR, Respondent submitted additional business records on several occasions-- March 21, May 3 and 31, June 7, and August 15 and 24, 2017--in order to establish its complete payroll for the audit period. While the Department admits that the final documents submitted do establish Respondent’s complete payroll, the Department did not issue amended penalty assessment based on those records in either case. The Department maintains Respondent did not timely submit records, pursuant to Florida Administrative Code Rule 69L-6.028(4), which allows an employer 20 business days after service of the first amended order of penalty assessment to submit sufficient records to establish payroll. All business records submitted by Respondent were admitted in evidence and included as part of the record. The undersigned is not limited to the record before the Department at the time the amended penalty assessments were imposed, but must determine a recommendation in a de novo proceeding. The undersigned has relied upon the complete record in arriving at the decision in this case. Penalty Calculation for Ireland, Trice, and Perrotta For purposes of workers’ compensation insurance coverage, an “employee” is “any person who receives remuneration from an employer” for work or services performed under a contract. § 440.02(15)(a), Fla. Stat. Respondent did not issue a single check to Mr. Ireland, Mr. Trice, or Mr. Perrotta during the audit period. Mr. Ireland, Mr. Trice, and Mr. Perrotta are not included on any PMI leasing roster included in the record for the audit period. The uncontroverted evidence, including the credible and unrefuted testimony of each person with knowledge, established that Mr. Ireland, Mr. Trice, and Mr. Perrotta were newly hired for the job in Crestview on May 4, 2016, and began working that day prior to submitting applications at PMI, despite Ms. Fisher’s directions otherwise. Petitioner did not prove that either Mr. Ireland, Mr. Trice, or Mr. Perrotta was Respondent’s employee at any time during the audit period. Petitioner did not correctly calculate the penalty of $44,911.26 against Respondent for failure to secure workers’ compensation insurance for Mr. Ireland, Mr. Trice, and Mr. Perrotta during the audit period. Penalty Calculation for Hansel Ms. Fisher testified that Mr. Hansel has owned several businesses with which Respondent has conducted business over the years. Originally, Mr. Hansel owned a dumpster rental business, now owned by his father. Mr. Hansel also owned an independent landscaping company with which Respondent occasionally transacted business. When Respondent expanded business into the Panama City area, Ms. Fisher hired Mr. Hansel as a crew chief to supervise new crews in the area. The job on May 4, 2016, was his first roofing job. A review of Respondent’s records reveals Respondent issued the following checks to Mr. Hansel during the audit period: December 4, 2015, in the amount of $360, $300 of which was for “dumpster rental” and the remaining $60 for “sod”; May 4, 2016, in the amount of $200 for “sod repair”; May 6, 2016, in the amount of $925 as reimbursement for travel expenses; May 9, 2016, in the amount of $1,011.50 (with no memo); and May 21, 2016, in the amount of $100 for “7845 Preservation.” Mr. Hansel was included on Respondent’s PMI leasing roster beginning on May 13, 2016. Petitioner proved that Mr. Hansel was Respondent’s employee at times during the audit period. Petitioner did not prove that Respondent’s records were insufficient to determine payroll to Mr. Hansel during the audit period, which would have required an imputed penalty. Petitioner did not correctly calculate the penalty of $14,970.42 against Respondent for failure to secure workers’ compensation insurance coverage for Mr. Hansel during the audit period. Sod repair by Mr. Hansel is a service performed for Respondent during the audit period. Reimbursement of travel expenses is specifically included in the definition of payroll for purposes of calculating the penalty. See Fla. Admin. Code R. 69L- 6.035(1)(f) (“Expense reimbursements, including reimbursements for travel” are included as remuneration to employees “to the extent that the employer’s business records and receipts do not confirm that the expense incurred as a valid business expense.”). Dumpster rental is neither work performed on behalf of, nor service provided to, Respondent during the audit period. The correct uninsured payroll amount attributable to Mr. Hansel is $2,296.50. Petitioner correctly applied NCCI class code 5551, Roofing, to work performed by Mr. Hansel based on the observation of Mr. Holman at the worksite on May 4, 2016. With respect to Mr. Hansel’s services for sod and sod repair, Petitioner did not correctly apply NCCI class code 5551. Petitioner did not introduce competent substantial evidence of the applicable NCCI class code and premium amount for landscaping services performed during the audit period.3/ Uninsured payroll attributable to Mr. Hansel for roofing services during the audit period is $2,036.50. The approved manual rate for workers’ compensation insurance for NCCI class code 5551 during the period of non- compliance--May 9 and 21, 2016--is $18.60. The premium amount Respondent would have paid to provide workers’ compensation insurance for Mr. Hansel is $378.79 (One percent of Mr. Hansel’s gross payroll during the non-compliance period--$20.36--multiplied by $18.60). The penalty for Respondent’s failure to secure worker’s compensation coverage insurance for Mr. Hansel during the period of non-compliance is calculated as two times the amount Respondent would have paid in premium for the non- compliance period. The correct penalty for Respondent’s failure to maintain workers’ compensation coverage for Mr. Hansel during the period of non-compliance is $757.58. Penalty Calculation for Salesmen Independent contractors not engaged in the construction industry are not employees for purposes of enforcing workers’ compensation insurance requirements. See § 440.02(15)(d)1., Fla. Stat. Sales is a non-construction industry occupation. The Department calculated a penalty associated with payroll attributable to the following persons identified by Ms. Fisher as independent salesmen: Dylan Robinson, Kevin Miller, Marc Medley, Mike Rucker, Colby Fisher, David Jones, Jarod Bell, Matt Flynn, and Todd Zulauf. Section 440.02(15)(d)1. provides that an individual may be an independent contractor, rather than an employee, as follows: In order to meet the definition of independent contractor, at least four of the following criteria must be met: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal regulations; The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual; The independent contractor holds one or more bank accounts in the name of the business entity for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation; The independent contractor performs work or is able to perform work for any entity in addition to or besides the employer at his or her own election without the necessity of completing an employment application or process; or The independent contractor receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists. If four of the criteria listed in sub- subparagraph a. do not exist, an individual may still be presumed to be an independent contractor and not an employee based on full consideration of the nature of the individual situation with regard to satisfying any of the following conditions: The independent contractor performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work. The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform. The independent contractor is responsible for the satisfactory completion of the work or services that he or she performs or agrees to perform. The independent contractor receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis. The independent contractor may realize a profit or suffer a loss in connection with performing work or services. The independent contractor has continuing or recurring business liabilities or obligations. The success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures. Ms. Fisher testified that each of the above-named salesmen sold roofing jobs for her at various times during the audit period on a commission-only basis. The contractors inspect homeowner roofs, draft schematics, use their own equipment (e.g., drones), incur all of their own expenses, and handle the insurance filing for the homeowner’s insurance to pay on the claim. Ms. Fisher further testified that each of the salesmen also sells for other roofing contractors in the Tallahassee area. She pays the salesmen on a per-job basis. Ms. Fisher does not compensate the salesmen for the time involved in inspecting a roof, preparing schematics, or making the sale. Nor does Ms. Fisher reimburse the salesmen for travel to sales jobsites. Ms. Fisher’s testimony was credible, persuasive, and uncontroverted. Respondent introduced in evidence four “Independent Contractor Checklists” allegedly completed by Mr. Robinson, Mr. Medley, Mr. Fisher, and Mr. Flynn. Each form checklist follows the format of section 440.02(15)(d)1., listing the criteria set forth in subparagraphs a. and b. The forms indicate that they each meet all the criteria listed in subparagraph b.: they perform, or agree to perform services for a specific amount of money and control the means of performing the service; they incur the principal expenses related to the service performed; they are responsible for satisfactory completion of the services performed; they receive compensation for the services performed on a per-job or commission basis; they may realize a profit or suffer a loss in connection with performing the services; they have continuing and recurring business liabilities or obligations; and the success or failure of their business depends on the relationship of business receipts to expenditures.4/ In its Proposed Recommended Order, Petitioner conceded the nine men identified by Respondent as independent sales contractors “would not be considered employees of Respondent” because the “salesmen would seem to meet the majority of [the] requirements [of section 440.02(15)(d)1.b.].” Respondent issued Dylan Robinson, Mark Medley, Colby Fisher, Matt Flynn, Kevin Miller, Mike Rucker, Jarod Bell, David Jones, and Todd Zulauf an IRS FORM 1099-MISC for income paid during the 2016 tax year. Respondent did not prove by clear and convincing evidence that the above-named salesmen were Respondent’s employees during the audit period. For SWO 16-148-1A, Respondent did not correctly calculate the penalty because Respondent included a penalty associated with Petitioner’s failure to provide workers’ compensation insurance coverage for Dylan Robinson and Jarod Bell. Penalty in the amount of $20.70 associated with Dylan Robinson and Jarod Bell should not be included in the total penalty. The correct penalty amount for SWO 16-148-1A, based on records submitted by Respondent on or before March 20, 2016, is $929.16. Draft Revised Second Amended Order of Penalty Assessment The additional records submitted by Respondent revealed payments made to persons during the audit period who were not included in the Department’s Second Amended Order of Penalty Assessment. The Department and Respondent disagreed at hearing whether the payments qualified as payroll. At hearing, Petitioner submitted a draft revised second amended penalty calculation for SWO 16-148-1A based on all records received from Respondent. The revised penalty is in the amount of $61,453.50. Ms. Jackson populated the spreadsheet with the name of every individual to whom a check was written on Respondent’s business bank account during the audit period, removing only those payments to individuals and entities which, to Petitioner’s knowledge, were not Respondent’s employees. Respondent’s calculations in the revised penalty suffer from some of the same errors as in the second amended penalty calculation--they include individuals Petitioner did not prove were Respondent’s employees, as well as payments which were not uninsured payroll. For the reasons explained herein, Petitioner did not prove that salesmen David Jones, Dylan Robinson, Jarod Bell, Kevin Miller, Mark Medley, Matt Flynn, Mike Rucker, Tim Fischer, and Colby Fisher were Respondent’s employees during the audit period. Respondent did not accurately calculate the penalty associated with those persons. Respondent made payments to David Shields during the audit period, which the Department argues should be included as payroll. The Department included payments to Mr. Shields in its draft revised second amended order of penalty assessment and assigned NCCI class code “8810” for clerical work. Mr. Shields is a licensed professional roofing contractor who acts as “qualifier” for Respondent’s business. A qualifier is a licensed professional who certifies plans for permit applications submitted by another business. Respondent pays Mr. Shields a flat fee per permit application qualified by him. The record evidence does not support a finding that Mr. Shields provides clerical services to Respondent. Mr. Shields provides some sort of professional services to Respondent, and is likely an independent contractor providing his own materials and supplies, maintaining his own business accounts, and liable for his own business success. Assuming Mr. Shields were Respondent’s employee, the Department introduced no evidence of an appropriate NCCI class code for Mr. Shields’ services. The Department did not prove that payments to Mr. Shields should be included as Respondent’s uninsured payroll during the audit period. Respondent paid Susan Swain a total of $258 during the audit period for clerical work. Ms. Fisher maintained Ms. Swain’s work was casual at first, and the payments reflect a time when she worked on-again, off-again, handling the paperwork for restoration insurance claims. Later, Ms. Swain came to work for Respondent full-time and was added to the PMI leasing roster. Section 440.02(15)(d)5. provides that a person “whose employment is both casual and not in the course of the trade, business, profession or occupation of the employer” is not an employee. The statute defines “casual” employment as work that is anticipated to be completed in 10 working days or less and at a total labor cost of less than $500. See § 440.02(5), Fla. Stat. In its Proposed Recommended Order, the Department argues Ms. Swain’s wages should be included as payroll because the “testimony regarding Ms. Swain does not suggest that she was employed for less than 10 days[.]” However, it was the Department’s burden to prove that Ms. Swain was a statutory employee. The Department did not prove that Ms. Swain’s wages should be included within Respondent’s uninsured payroll. The largest portion of the penalty assessed by the Department, as well as in the draft revised second amended penalty assessment, against Respondent is in connection with various roofers who were employed by Respondent at times during the audit period. Each of the roofers was included on Respondent’s PMI leasing roster, but received checks directly from Respondent in addition to PMI payroll checks. The Department included all the direct payments to those roofers as payroll for purposes of calculating a penalty in this case. As Ms. Fisher explained, the company bids a reroof on a per job basis--usually a per square foot price. Ms. Fisher adds each roofing contractor’s name to the PMI leasing roster to ensure that each roofer is covered by workers’ compensation insurance for the duration of the job. When the job is completed (which is a matter of just a few days), the contractor reports to Ms. Fisher what amount of the contract price was spent on materials, supplies, or other non-labor costs. Ms. Fisher cuts a check to the contractor for that amount and authorizes PMI to issue payroll checks for the “labor cost” (the difference between the contract price and the non-labor costs). Ms. Fisher refers to this process as “back-charging” the contractors for their materials, maintenance, tools, and other non-labor costs. The Department is correct that the direct payments are payroll to the roofing contractors. See Fla. Admin. Code R. 69L-6.035(1)(b) and (h) (remuneration includes “payments, including cash payments, made to employees by or on behalf of the employer” and “payments or allowances made by or on behalf of the employer for tools or equipment used by employees in their work or operations for the employer.”). The Department would be correct to include these payments in the penalty calculation if they represented uninsured payroll. However, the evidence supports a finding that the direct payments to the roofing contractors were made for the same jobs on which Respondent secured workers’ compensation coverage through PMI. The roofing contractors were covered for workers’ compensation throughout the job, even though they may have received partial payment for the job outside of the PMI payroll checks.5/ The direct payments were not for separate reroofs on which the roofers were not otherwise insured. The Department did not correctly calculate penalties associated with the following roofing contractors: Donald Tontigh, Joseph Howard, Keith Mills, Aaron Kilpatrick, Gustavo Tobias, Jose Mejia, and Tommy Miller. Ms. Fisher also received cash payments from Respondent during the audit period. These payments were made in addition to her payroll through PMI. Ms. Fisher described these payments as “cash tickets,” which were paid outside of her PMI payroll to reimburse her for investments made in the company. For purposes of calculating the penalty in this case, these “cash tickets” are clearly payroll, as that term is to be calculated pursuant to rule 69L-6.035. Similar to the issue with the roofing contractors, the question is whether the payments represent uninsured payroll. Ms. Fisher did not hold a corporate officer exemption at any time relevant hereto. Ms. Fisher testified that she was covered through PMI payroll leasing. In contrast to the roofing contractors, Ms. Fisher’s direct payments do not directly coincide with any particular job or specific time frame during which Ms. Fisher was covered for workers’ compensation insurance through PMI. The evidence was insufficient to determine that the amounts were insured payroll. The Department properly calculated a penalty associated with payroll attributable to Ms. Fisher. Respondent made one payment of $75 to Donald Martin during the audit period. The Department calculated a penalty of $27.90 associated with this payment to Mr. Martin. Ms. Fisher explained that Mr. Martin was a down-on-his-luck guy who came by the office one day complaining that Mr. Hansel owed him some money. Ms. Fisher offered to put him on a roofing crew and wrote him the $75 check to help him out. Ms. Fisher’s testimony was both credible and unrefuted. Mr. Martin was never hired by Respondent, put on any roofing crew, or added to the PMI leasing roster. Mr. Martin was not Respondent’s employee because he did not receive remuneration for the “performance of any work or service while engaged in any employment under any appointment or contract for hire” with Respondent. § 440.02(15)(a), Fla. Stat. Cale Dierking works for Respondent full-time in a clerical position. During the audit period, Respondent paid Mr. Dierking directly by check for $1,306.14. This payment was made outside of Mr. Dierking’s PMI payroll checks. Ms. Fisher testified that she paid Mr. Dierking directly on one occasion when “PMI’s payroll got stuck in Memphis, I believe it was a snow-in situation where payroll checks didn’t come.” Rather than ask her employee to go without a timely paycheck, she advanced his payroll. Ms. Fisher’s testimony was both credible and unrefuted. The payment to Mr. Dierking is clearly payroll. However, Mr. Dierking was covered for workers’ compensation through PMI for the period during which the check was issued. Thus, there is no evidence that it was uninsured payroll. The Department did not correctly calculate a penalty associated with payments to Mr. Dierking. The correct penalty to be assessed against Respondent for failure to secure workers’ compensation coverage for its employees during the audit period in connection with SWO 16-148- 1A is $770.60. Penalty Calculation for SWO 16-198-1A Ms. Jackson calculated a total penalty against Respondent in connection with SWO 16-198-1A in the amount of $19,115.84, as reflected in the Second Amended Order of Penalty Assessment. The Department correctly imputed penalty against Respondent in the amount of $91.68 each for uninsured payroll to Mr. Gonzalez and Mr. Lopez. The evidence supported a finding that these workers were Respondent’s statutory employees on June 8, 2016, and were not enrolled on the PMI leasing roster. The Department did not correctly calculate the penalty associated with salesmen Dylan Robinson, Jarod Bell, Kevin Miller, Mark Medley, Matt Flynn, and Todd Zulauf. The Department did not correctly calculate the penalty associated with roofing contractors Abraham Martinez- Antonio, Edwin Kinsey, Dustin Hansel, Efrian Molina-Agustin, Jose Mejia, Joseph Howard, Keith Mills, Samuel Pedro, and Tommy Miller. The Department did not correctly calculate the penalty against Respondent associated with Mr. Shields, Respondent’s qualifier. Based on a review of Respondent’s complete “untimely” records, the Department discovered direct payments made to additional employees not included on the Second Amended Order of Penalty Assessment. Respondent made a direct payment to Ethan Burch in the amount of $602.50 during the audit period. Ethan Burch is one of Respondent’s full-time clerical employees. The evidence is insufficient to determine whether the payment of $602.50 was insured or uninsured payroll. As such, the Department did not prove it correctly calculated the penalty associated with Mr. Burch. Respondent also made a direct payment to Chelsea Hansel in the amount of $965 during the audit period. Ms. Hansel is another clerical employee. Ms. Hansel’s PMI enrollment was delayed due to some background investigation. Respondent paid Ms. Hansel for work she completed prior to enrollment. The direct payment to Ms. Hansel constitutes uninsured payroll. The Department correctly calculated the penalty associated with the payment to Chelsea Hansel. The correct penalty amount to be imposed against Respondent for failure to secure payment of workers’ compensation coverage for its employees (Gonzalez, Lopez, and Chelsea Hansel) during the audit period in connection with SWO 16-198-1A is $187.80.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that Royal Roofing and Restoration, Inc., violated the workers’ compensation insurance law and, in DOAH Case No. 17-0879, assessing a penalty of $770.60; and in DOAH Case No. 17-1558, assessing a penalty of $187.80. DONE AND ENTERED this 24th day of January, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 24th day of January, 2018.
The Issue Whether the "voluntary surrender" of the Respondent's license as an insurance agent to the Department, and his statement that he will not seek to renew that license on or before the next expiration period, while an administrative complaint is pending before the Division of Administrative Hearings deprives the Division and the Department of jurisdiction from seeking discipline of that license under the provisions of Chapters 624 and 626, Florida Statutes.
Conclusions The Division of Administrative Hearings, has jurisdiction over the subject matter of and the parties to this proceeding. Chapters 624, 626, and Section 120.57(1), Florida Statutes. By the terms of Section 120.57(1), there are only three grounds upon which the Hearing Officer may relinquish jurisdiction: Determination that no substantial interest is affected by the proposed agency action; Determination that the proceeding does not involve a disputed issue of material fact; or Determination that the affected parties have waived their rights to a proceeding. In the instant case, it is undisputed that substantial interest of the Respondent will be affected by the proposed agency action. On December 10, 1993, Respondent voluntarily surrendered to the Department his insurance licenses and eligibility for appointment under the Florida Insurance Code, and simultaneously acknowledged that he does not intend to renew said licenses. By surrendering his insurance licenses to the Department, Respondent has evinced his intention not to contest the charges contained in the Second Amended Administrative Complaint. As such the factual allegations of the Complaint may be taken as true. Respondent asserts that he is unable to defend against the allegations of the Second Amended Administrative Complaint due to his assertion that he and his "essential witnesses" are targets of a federal criminal investigation. This argument is misplaced. See: Patchett v. Commission on Ethics, 18 FLW D2407 (Fla. 1st DCA 1993). Respondent further alleged that he does dispute the factual allegations in the Complaint but is financially unable to defend himself. However, Respondent may not hide from the consequences of his actions behind the surrender of his licenses. Boedy v. Department of Professional Regulation, 433 So.2d 544 at 544 (Fla. 1st DCA 1983). In Boedy, the Court adopted the rationale stated in the Final Order of the Board of Medical Examiners stating "to suggest that physicians should be able to immunize themselves from prosecution by simply going inactive suggests a form of self-regulation of the medical profession which was obviously rejected by the Legislature when it chose to enact Chapter 458, Florida Statutes.: Id. Likewise, it would be contrary to the Legislative mandates of Chapter 626, Florida Statutes and specifically the provisions of Section 626.641, Florida Statutes and specifically the provisions of Section 626.641, Florida Statutes to allow a licensee to avert prosecution for violations of the Florida Insurance Code by simply "surrendering" his license. This same line of reasoning was repeated by the Court in Couch v. Turlington, 465 So.2d 557 (Fla. 1st DCA 1985). The court in the Couch asserts that inherent in the regulatory agency's power to establish the terms of issuance of a certificate "is the implied power to govern the terms and conditions under which a certificate may be altered by the holder thereof." Id. at 559. Extending this rationale to the instant case, the Department seeks the imposition of a revocation pursuant to Section 626.641, Florida Statutes, and it is not for Respondent to set the conditions of his surrender as a means of avoiding the sanction. By surrendering his license to the Department Respondent has indicated his intent not to contest the charges contained in the Second Amended Complaint. Therefore, Respondent has waived his right to a formal administrative proceeding. The surrender has the same effect as the withdrawal of Respondent's request for a administrative proceeding and places him in the same position as if he had not responded to the Administrative Complaint within the twenty-one days as required pursuant to Rule 4-121.084, Florida Administrative Code. Rule 4-121.084(4), Florida Administrative Rules, states that failure to timely request a hearing "shall constitute a waiver of the licensee's right to such a hearing, and the Department is authorized to enter a final order imposing a penalty or to take other action without further proceeding." It is therefore appropriate for the Division to relinquish jurisdiction to the Department of Insurance to conduct informal proceedings, pursuant to Section 120.57(2), Florida Statutes or for entry of a Final Order. Rule 60Q-2.033(1), Florida Administrative Code. In view of the foregoing, it is ORDERED: Jurisdiction of this cause is relinquished to the Department of Insurance for the entry of a Final Order or other proceedings as deemed appropriate. The file of the Division of Administrative Hearings in this case is closed. DONE AND ORDERED this 2nd day of February, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1994. COPIES FURNISHED: Gary R. Dorst, Esquire J. Cheney Mason, Esquire Barnet Bank Center 390 North Orange Avenue, Suite 2100 Orlando, Florida 32801 John R. Dunphy, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Martin Daniel Patrick has been a life insurance agent for some 32 years. At all times material hereto he was the owner of Dan Patrick & Associates insurance agency at Brooksville, Florida. By Consent Order dated January 7, 1983, MOP's license as an Ordinary Life, including Disability, agent was suspended for a period of 60 days. By Emergency Order of Suspension dated August 3, 1983, his license was suspended based upon the allegations contained in the Administrative Complaint dated August 23, 1983. James R. Patrick has been in the insurance business since 1976. He owned the Jim Patrick Insurance Agency at all times relevant hereto and in August, 1982, purchased the Wardwell Insurance Agency. JRP is licensed as an Ordinary Life, including Disability, agent and as a General Lines agent, and is authorized to sell casualty insurance as well as life and health insurance. By Consent Order dated September 15, 1982 (Exhibit 9), JRP's license was suspended for a period of six months from the date of that order. After purchasing the Wardwell Insurance Agency, JRP decided to open a branch office in Brooksville and so notified the Insurance Commissioner (Exhibit 7). He intended to have Larry Kinner as office manager for the Brooksville office. Kinner had passed his examination but awaited licensure for a much longer period than usual. While awaiting Kinner's licensure, JRP took application forms to Brooksville, was given space in his brother's (MDP) office in Brooksville; employed his niece, Beverly Patrick, to take applications for automobile and other casualty insurance; visited Brooksville frequently to meet with customers to sell casualty insurance; was available by telephone to the Brooksville office when not physically in Brooksville; had another agent in the Wardwell office go to Brooksville frequently to sell policies and accept applications; and had Beverly Patrick forward all applications and premiums received to the Wardwell office at Bartow. After waiting about three months without Kinner receiving his license, JRP closed the Brooksville branch of Wardwell Insurance Agency. During the time this branch office was in existence in Brooksville, the Wardwell name did not appear on the door nor did Wardwell have a telephone number separate from that of Dan Patrick & Associates. The evidence was unrebutted that Beverly Patrick worked for and was under the supervision and control of the Wardwell Insurance Agency and not MDP. One of MDP's clients is James Gordon, who is employed by the Hernando State Bank as loan officer. In the fall of 1982 Gordon wanted to update his policies and talked to MDP about this during an incidental visit by MDP to the bank. Gordon worked up a spread sheet on his policies and arranged an appointment for MDP to come to his house to present a program to him and his wife. The exact date of this meeting was not established. At this meeting MDP presented a program to the Gordons, who wanted additional time to think about it. Within about two weeks of this meeting, Gordon notified MDP that he accepted the program and would have a check for the premium available when MDP next visited the bank. Gordon signed this application on February 7, 1983 (Exhibit 23), and wrote a check for the premium the same date. The only one to whom Gordon spoke about this insurance was MDP; however, his signature on the application was witnessed by David Pugh, a son-in-law of MDP who is a licensed insurance agent and works in the Dan Patrick agency in Brooksville. For the 60- day period following January 7, 1983, the license of MDP was suspended. Although the information regarding the program was probably prepared by MDP before January 7, 1933, the meeting with the Gordons at which the program was explained occurred subsequent to January 7, 1983. MDP contacted Vera Cannon in April or May, 1983, to update life insurance policies. He had sold her the original policy some ten years ago. On August 1, 1983, MDP picked up the existing policies from Vera Cannon to prepare a proposal to update the policies. She made an appointmemt with MDP for August 17, 1983, at which meeting MDP presented to her a proposal. David Pugh accompanied his father-in-law at this appointment. Respondent testified that he told Curtis Cannon, the husband of Vera Cannon, that his license was suspended and that Pugh would be handling the insurance; however, at the meeting with Vera Cannon, Respondent presented the proposals. MDP also contacted Becky Cannon, wife of Mark and sister-in-law of Vera, on August 18, 1983, for the purpose of selling additional life insurance. An appointmemt was made for August 22, 1983; however, Becky Cannon cancelled the appointment with MDP and set up another appointment for the following week. Before that date arrived, Becky recalled seeing something in the paper about Respondent's emergency suspension and called the insurance department. When told that MDP's license was suspended, Becky cancelled the appointment and told Vera that MDP's license was suspended. Vera then called Respondent's office to demand the return of the premium she paid. Pugh returned her check immediately. Gene Daniel is part owner of Branche-Daniel Corp d/b/a Brooksville Crown and Bridge. He contacted MDP regarding health insurance for his employees and for casualty insurance for his property. For this insurance he was referred to JRP, and he testified he purchased health insurance for his employees from Brenda Coley, a licensed agent in the Wardwell agency. Daniel does not recall when he spoke to MDP regarding his application for health insurance. Exhibit 22 contains an application, which appears to be dated January 10, 1983 (and 3-7-83) which is signed by Deanna L. Pugh, as agent, and a check signed by Daniel dated January 11, 1983. Daniel described himself as an absentee owner of the business to which he comes sporadically to sign documents and checks. No credible evidence was presented regarding the date of his conversation with MDP or that the latter did more than refer him to an agent licensed to sell the insurance Daniel desired. None of the parties to whom Respondents sold insurance allegedly in violation of Chapter 626, Florida Statutes, suffered any loss or complained of the treatment received from Respondents. During the time the Wardwell agency worked out of MDP's office in Brooksville, JRP's license was under suspension yet he was always available by telephone, when not in Brooksville, to answer questions from and give instructions to, Beverly Patrick. JRP testified that he made frequent trips to Brooksville, sometimes several days in one week. During these visits he met with customers to sell insurance.
Recommendation It is RECOMMENDED that the license of James Royal Patrick as an Ordinary Life, including Disability, and General Lines agent be suspended for a period of one (1) year. It is further RECOMMENDED that the license of Martin Daniel Patrick as an Ordinary Life, including Disability, agent be suspended for a period of one (1) year. ENTERED this 14th day of December, 1983, at Tallahassee, Florida. K. N. AYERS, 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 14th day of December, 1983. COPIES FURNISHED: Curtis A. Billingsley, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire 1300 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Honorable Bill Gunter Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is: RECOMMENDED that the Respondent's qualifications and eligibility for licensure as an insurance agent be REVOKED. DONE and ORDERED this 20th day of December, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of December, 1985. COPIES FURNISHED: Leland L. McCharen, Esq. Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32301 Joseph Dennis Turner, Sr. 2219 West Skagway Avenue Tampa, Florida 33604-1039 Hon. William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Don Dowdell, Esq. General Counsel State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 DEPARTMENT OF INSURANCE AND TREASURER, DIVISION OF INSURANCE, vs . JOSEPH DENNIS TURNER, SR., a/k/a JOSEPH D. TURNER CASE NO. 85-3225 APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), the following are my specific rulings on the proposed findings of fact submitted by each of the parties to this case. Petitioner's Findings of Fact Paragraph Ruling Accepted; see paragraph 2, R.O. Rejected as argument. Partially accepted; see paragraph 6, R.O. Respondent's Findings of Fact Paragraph Ruling Accepted; see paragraph 1, R.O. Accepted; see paragraph 3, R.O. Accepted; see paragraph 4, R.O. Accepted; see paragraph 5, R.O. Rejected as argument and conclusions of law. Accepted; see paragraph 1, R.O. Accepted; see paragraph 2, R.O. i`_ E=_
The Issue Whether Petitioner's application for licensure as a health insurance agent should be granted.
Findings Of Fact By application dated December 18, 2001, Visser applied to the Department for a license as a health insurance agent. On the application, Visser answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? In March 1999, a three-count information was filed in the Circuit Court of the Tenth Judicial Circuit In and For Polk County, State of Florida, charging Visser with burglary of a dwelling, a second degree felony; grand theft dwelling $100 or more, a third degree felony; and possession of cannabis less than 20 grams, a first degree misdemeanor. On July 27, 1999, Visser pled nolo contendere to all three counts. Adjudication was withheld. Visser was placed on probation, required to reimburse the Lakeland Police Department $250 for the costs of investigation, assessed $500 in court costs, and required to perform 60 hours of community service. Visser completed her probation, and an Order Terminating Probation was entered on November 21, 2002. The Department denied her application for licensure by letter dated May 17, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.831(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Naomi A. Visser for licensure as a health insurance agent. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 21st day of January, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Naomi A. Visser 1617 London Grove Port Road Grove City, Ohio 43123 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
