Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Respondent Arline Halpin ("Halpin") and Respondent Tony W. Twiddy ("Twiddy") have lived together since some time in 1990 in a residence they own jointly. Twiddy previously held a Class "E" Recovery Agent license issued by the Department that expired on April 14, 1988. Twiddy's attempts to renew that license were denied by the Department. By Final Order dated May 3, 1989, the Department revoked the Class "A" Private Investigative Agency license No. A00-01398 issued to T. S. T. Detective Agency, Inc., a company owned and operated by Twiddy and also revoked the Class "C" Private Investigator license No. C00-00811 issued to Twiddy. In that Final Order, the Department ordered Twiddy to cease conducting regulated activities. In a Final Order dated July 20, 1990, the Department imposed an administrative fine in the amount of $2,000 against Twiddy as a result of a finding that he performed unlicensed repossessions between October 13, 1989, and January 15, 1990, in Broward County, Florida, and because he failed or refused to cooperate with Department investigators in violation of Section 493.319(1)(o), Florida Statutes (1989). Twiddy contends that he did not receive notice that his Class "E" and Class "C" Private Investigator licenses had been revoked until January 7, 1991. The evidence established, however, that in August of 1990 Twiddy was aware of problems with his licensure status. Furthermore, it is clear that Twiddy knew or should have known that he did not have a valid Class "E" or "EE" license from April 14, 1988 to the present. Based upon all of the evidence, it is concluded that, at all times pertinent to this proceeding, Twiddy was aware that he was not licensed to conduct repossessions. Halpin received a Class "C" Private Investigator's license and a Class "E" Recovery Agent license on May 30, 1990. She also received a Class "A" Private Investigative Agency license for A. T. Detective on August 10, 1990. Effective October 1, 1990, the Department began issuing Class "R" Recovery Agency licenses. Prior to October 1990, a recovery agent did not have to work for a licensed agency. A. T. Detective received a Class "R" Recovery Agency license on November 20, 1990. Halpin is the sole shareholder and president of A. T. Detective Agency, Inc. ("A. T. Detective") and A. T. M. Towing, Inc. ("A. T. M."). A. T. Detective is engaged in the business of repossessing automobiles. A. T. Detective employs licensed repossessors to locate and seize cars that were to be repossessed. A. T. M. is engaged in the towing business, including the towing of illegally parked cars and the towing of repossessed cars. Both A. T. Detective and A. T. M. operate out of the same location. Twiddy is the general manager for A. T. M. Twiddy denies any ownership, employment or managerial involvement with A. T. Detective. Twiddy contends that he simply coordinated the towing activities performed by A. T. M. for A. T. Detective. There is no evidence that Twiddy received any direct payments from A. T. Detective or that he was officially an employee of that company. However, the evidence established that he was actively engaged in the management of the company, he was actively involved in the employment decisions, he engaged in skip-tracing on behalf of the company and he directed the employees of both the detective agency and the towing company. In sum, the evidence established that Twiddy, with the knowledge and acquiescence of Halpin, was actively engaged in running the operations of A. T. Detective. While the evidence established that Twiddy directed the activities of some of A. T. Detective's licensed repossessors and that he was present during many of the repossessions, no persuasive or conclusive evidence was presented of any specific repossessions by Twiddy after May 1990 without a licensed repossessor being present. During the course of the hearing, Respondents Halpin and A. T. Detective stipulated that on one occasion per month during the period from August 1990 through December 1992 they failed to maintain a complete and accurate inventory of personal effects or other personal property recovered in the course of repossessions as alleged in Count III of the Administrative Complaint in Case No. 93-1184. Consequently, those Respondents violated Section 493.6404(1), Florida Statutes, on 29 occasions during the time period. Similarly, Respondents Halpin and A. T. Detective conceded that on one occasion per month during that same time period they failed to give written notification to a debtor advising the debtor of the whereabouts of personal effects within five working days of a repossession. Accordingly, those Respondents violated Section 493.6404(2), Florida Statutes, on 29 occasions during the time period.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of State enter a Final Order finding Respondents Arline Halpin and A. T. Detective Agency, Inc., guilty of the violations alleged in Counts I, II, III and IV of the Administrative Complaint issued in Case No. 93-1184, that a fine of $1,000 be imposed for the violations of Counts I and II, a fine of $250 be imposed for the violations of Count III and a fine of $250 be imposed for the violations of Count IV. In addition, the Class "R" Recovery Agency license issued to A. T. Detective Agency should be suspended for six months following which a probationary period of six months should be imposed. Arline Halpin's Class "E" Recovery Agent license should be placed on probation for a period of one year. Count V of the Administrative Complaint should be dismissed. It is further RECOMMENDED that the Department of State enter a Final Order finding Respondent Tony W. Twiddy guilty of the violations alleged in Counts I and II of the Administrative Complaint in Case No. 93-1098, that he be ordered to pay an administrative fine in the amount of $225 for Count I and $750 for Count II and that he be ordered to cease and desist all regulated activities. Count III of the Administrative Complaint should be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of April, 1994. J. STEPHEN MENTON 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 22nd day of April 1994. APPENDIX Petitioner's Proposed Findings of Fact: Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Adopted and pertinent in part in Findings of Fact 5. Rejected as unnecessary. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Subordinate to Finding of Fact 11. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. [no proposal submitted] Subordinate to Finding of Fact 1. Rejected as unnecessary. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 14. Respondents' Proposed Findings of Fact: Respondents' proposed Findings of Fact and conclusions of law consists of a mixture of argument, proposed factual findings and proposed conclusions of law. No specific rulings are made with respect to Respondents' proposals because separate Findings of Fact have not been identified. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Myron B. Berman, Esquire Post Office Box 1113 North Miami Beach, Florida 33160 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation coverage for its employees; and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure the payment of workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Respondent operates a painting company in Florida. Respondent began operations in 2014. On August 19, 2016, Kirk Glover, a Compliance Investigator with the Department, investigated a shopping plaza located at 353-367 Cypress Parkway, Kissimmee, Florida. At the site, Investigator Glover observed three individuals painting the exterior of a building. Two of the individuals were actively painting with paint rollers. The third was carrying a bucket of paint. Investigator Glover approached the three individuals and requested their names. The individuals identified themselves as Manuel Espino, Bienvenido Ferreras-Varcas, and Pedro Quinga. The individuals also relayed that they were employed by Respondent. The individuals provided Investigator Glover their rates of pay and length of employment with Respondent. At the final hearing, Investigator Glover testified that his duties for the Department include inspecting businesses to determine whether the business has obtained the required workers’ compensation coverage. Investigator Glover explained that a business with four or more employees that performs construction- related work must have workers’ compensation coverage. Therefore, Investigator Glover believed that Respondent should have secured sufficient workers’ compensation coverage for all three employees at the worksite. After receiving the employees’ names, Investigator Glover searched the Department’s Coverage and Compliance Automated System (“CCAS”) database. CCAS is a Department database that tracks workers’ compensation insurance coverage. CCAS contains data from insurance carriers, as well as any workers’ compensation exemptions filed with the Department. Insurance providers are required to report coverage and cancellation information, which the Department then inputs into CCAS. Inspector Glover initially noted that according to CCAS, the Department did not have on file any request from Respondent for an exemption from workers’ compensation coverage. An exemption is a method by which a business’s corporate officer may exempt himself from the requirements of chapter 440. See § 440.05, Fla. Stat. CCAS also informed Investigator Glover that on the date of his inspection, Respondent had an active employee leasing agreement with FrankCrum, an employee staffing company. Inspector Glover explained that a business is not required to obtain workers’ compensation insurance for its employees if coverage is properly provided by or through an employee leasing policy with another company. Investigator Glover contacted FrankCrum. FrankCrum relayed that only one employee, Edwin Perez, was covered under its leasing arrangement with Respondent. Conversely, none of the three individuals Investigator Glover found at the worksite (Mr. Espino, Mr. Ferreras-Varcas, and Mr. Quinga) were covered by the employee leasing policy. After determining that neither CCAS nor FrankCrum had record of any workers’ compensation coverage for the three individuals he found at the worksite, Investigator Glover contacted Respondent’s owner-of-record, Joseph Iturria. In the ensuing conversation, Mr. Iturria verified that Mr. Espino, Mr. Ferreras-Varcas, and Mr. Quinga were all Respondent’s employees on the date of the inspection. At the final hearing, Mr. Iturria testified that as of August 19, 2016, Mr. Espino and Mr. Ferreras-Varcas had worked for Respondent for a few months, while Mr. Quinga had worked for Respondent for one or two days. On August 19, 2016, based on the findings of his investigation, Investigator Glover issued a Stop-Work Order to Respondent. With the Stop-Work Order, Investigator Glover served a Request for Production of Business Records for Penalty Assessment Calculation. The Department requested several categories of business records from Respondent for the period of August 20, 2014, through August 19, 2016. The requested documents pertained to: employer identification, payroll documents, account documents, disbursements, workers’ compensation coverage, professional employer organization, temporary labor service, exemptions, subcontractors, and subcontractor’s workers’ compensation coverage. Thereafter, Respondent submitted several business records to the Department. These business records included Mr. Iturria’s personal tax return for 2014, Respondent’s corporate tax return for 2015, and Respondent’s corporate bank statements for 2016. Based on its investigation, the Department determined that Respondent failed to secure sufficient workers’ compensation coverage for its employees, in violation of chapter 440. Therefore, the Department calculated a penalty for Respondent. The Penalty Calculation: To calculate the appropriate penalty for Respondent’s failure to secure adequate workers’ compensation coverage for its employees, the Department first ascertained Respondent’s period of non-compliance. In determining this period of non-compliance, the Department referred to Florida Administrative Code Rule 69L-6.028(2), which provides that: The employer’s time period or periods of non- compliance means the time period(s) within the two years preceding the date the stop- work order was issued to the employer within which the employer failed to secure the payment of compensation pursuant to Chapter 440, F.S., and must be either the same time period as set forth in the business records request for the calculation of penalty or an alternative time period or period(s) as determined by the Department, whichever is less. Based on the instructions set forth in rule 69L-6.028(2), the Department determined that Respondent’s period of non-compliance was August 20, 2014, through August 19, 2016, which was the time period for which the Department requested business records from Respondent. After determining Respondent’s period of non- compliance, the Department next calculated the penalty it should impose upon Respondent. In accordance with section 440.107(7)(d)1., the penalty the Department must assess against an employer who has failed to obtain workers’ compensation coverage is: a penalty equal to 2 times the amount the employer would have paid in premium when applying approved manual rates to the employer’s payroll during periods [of non- compliance] within the preceding 2-year period or $1,000, whichever is greater. Therefore, the Department reviewed the business records Respondent provided to determine the amount of Respondent’s payroll during the period of non-compliance. Initially, the Department excepted from the period of non-compliance the time period from September 12, 2014, through March 14, 2015. For these dates, Respondent produced proof that it had secured a valid workers’ compensation insurance policy for its employees. For the remaining period of non-compliance in 2014 (August 20 through September 11), the only relevant documentation Respondent presented for the Department’s consideration was Mr. Iturria’s personal tax return with a schedule C form for an entity called Renew Painting and Renovation, LLC. However, Renew Painting and Renovation, LLC, is a separate business from Respondent. Consequently, Respondent did not provide sufficient records for the Department to accurately determine Respondent’s payroll for August 20 through September 11 (the period of non- compliance in 2014). For the remaining period of non-compliance in 2015 (March 15 through December 31), Respondent provided the Department a copy of its 2015 corporate income tax return. This tax return listed the salaries and wages Respondent paid in 2015. Using this document, the Department was able to prorate Respondent’s employee salaries and taxes paid and determine an appropriate payroll for Respondent’s employees in 2015. With no other records from Respondent, the Department decided to use these 2015 tax figures in lieu of the alternative which would have been to impute Respondent’s gross payroll for 2015. See § 440.107(7)(e), Fla. Stat. For the period of non-compliance in 2016 (January 1 through August 19), Respondent submitted to the Department copies of corporate bank statements. However, Respondent did not provide the images of any checks it wrote in 2016. Without the check images, the Department was not able to determine the purpose of each payment (e.g., wages, materials, expenses, etc.), or how much it paid its employees. Therefore, the Department could not determine Respondent’s payroll for the period of non- compliance in 2016. Furthermore, although Respondent had entered an employee leasing policy with FrankCrum, none of the three individuals Investigator Glover found at the worksite were covered by the leasing arrangement. As a result, all of the 2016 period of non-compliance was included in the penalty audit period. As discussed above, for the two periods of non- compliance (August 20 through September 11, 2014, and January 1 through August 19, 2016), Respondent failed to provide business records sufficient to enable the Department to determine Respondent’s payroll or the actual wages it paid its employees. Consequently, the Department exercised its option to impute Respondent’s weekly payroll. To calculate the imputed weekly payroll for each employee, the Department determined the statewide average weekly wage effective at the time of the Stop- Work Order for each identified employee and corporate officer, multiplied by two. See § 440.107(7)(e), Fla. Stat., and Fla. Admin. Code R. 69L-6.028(3)(a). The Department imputed the payroll for all three employees Investigator Glover observed at the worksite on August 19, 2016 (Mr. Espino, Mr. Ferreras-Varcas, and Mr. Quinga), for all periods of non-compliance. Using records Respondent filed with the Florida Division of Corporations, the Department identified Respondent’s corporate officers as Joseph Iturria, Craig Foss, and Julio A. Feliciano, Jr. Therefore, the Department also included these three individuals in the imputed portions of the penalty during all periods of non-compliance for which they were registered as corporate officers but did not hold active workers’ compensation exemptions. See Fla. Admin. Code R. 69L-6.028(3)(b). On September 6, 2016 (after the period of non- compliance), Mr. Iturria and Mr. Foss acquired workers’ compensation exemptions from the Department. Pursuant to section 440.05(5), workers’ compensation exemptions become effective when issued by the Department or 30 days after the Department receives the applications, whichever occurs first. Thus, workers’ compensation exemptions are not retroactive. Consequently, the workers’ compensation exemptions Mr. Iturria and Mr. Foss acquired after the issuance of the Stop-Work Order had no impact on the imputed payroll for the period of non- compliance. The business records Respondent provided to the Department were not sufficient to enable the Department to identify the exact type of work Respondent’s employees performed during the period of non-compliance. Investigator Glover observed that the three individuals working for Respondent on August 19, 2016, were painting. According to the Scopes Manual issued by the National Council on Compensation Insurance, Inc. (“NCCI”), class code 5474 is the general painting classification.2/ Therefore, the Department applied class code 5474 to all Respondent’s employees and officers for the entire penalty period. See Fla. Admin. Code R. 69L-6.028(3)(d) and 69L-6.021(2)(jj)(painting is classified as “construction activity”). Accordingly, to calculate the premium amount for the workers’ compensation insurance Respondent should have paid for its employees, the Department applied the manual rates corresponding to class code 5474. Thereafter, based on: 1) the total periods of non- compliance, 2) Respondent’s calculated payroll for the periods of non-compliance, and 3) the estimated premium for workers’ compensation insurance, the Department issued the Amended Order of Penalty Assessment (“Penalty Assessment”) on November 11, 2016. The Penalty Assessment imposed a penalty of $76,621.62 against Respondent. At the final hearing, Mr. Iturria expressed that he has always attempted to fully comply with every applicable law. Mr. Iturria asserted that following Investigator Glover’s visit, he acted quickly to address his business’s workers’ compensation issues. Mr. Iturria voiced that since this incident, he has taken steps to implement better business and payroll practices, and he will not make the same mistake again. Based on the competent substantial evidence in the record, the Department demonstrated, by clear and convincing evidence, that Respondent failed to secure workers’ compensation insurance coverage or workers’ compensation exemptions for its employees for the periods of August 20 through September 11, 2014, and March 15, 2015, through August 19, 2016. Accordingly, the Department met its burden of proving that Respondent violated chapter 440 and should be penalized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, Renew Painting, Inc., violated the requirement in chapter 440 to secure workers’ compensation coverage, and imposing a total penalty of $76,621.62. DONE AND ENTERED this 16th day of August, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 16th day of August, 2017.
The Issue The issue in this case is whether Petitioner's request for exemption from disqualification from employment in a position of trust should be granted.
Findings Of Fact AHCA is a state agency required to conduct background screenings for individuals who provide certain types of healthcare related services under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner is seeking to become owner of a licensed nurse registry for pediatric and special needs care. As such, Petitioner is required to have a background screening check pursuant to section 408.809. Petitioner is interested in the field because his daughter was born with several disabilities. After completing Petitioner's background screening, Petitioner's 2011 disqualifying felony criminal offenses of owning, operating, or maintaining an assisted living facility without a license were identified. On March 6, 2019, Petitioner submitted a request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). In Petitioner's exemption package, he listed his work history, which included the following employment: Home Reach, LLC, from April 2013 to October 2013; Five Star Home Health from October 2013 to March 2014; unemployment from March 2014 to August 2014; Home Reach, LLC, from August 2014 to August 2018; and a leave of absence from Home Reach, LLC, starting August 2018. Petitioner also detailed his plans to comply with AHCA's laws and regulations in his exemption package. He explained that he has retained a consultant, Elisabeth Jean-Baptiste ("Jean- Baptiste"), to assist him. She is the director of the FEDEN Healthcare Education Institute, an entity that provides continuing legal and regulatory education in the healthcare field. Petitioner included in his exemption package documentation that he completed a 12-hour Adult Family Care Home course, which covered the rules and regulations for running a healthcare business. On May 15, 2019, as part of the exemption application process, Petitioner participated in a telephonic exemption hearing with AHCA. After the telephonic hearing and discussion, AHCA denied Petitioner's request for an exemption by letter dated May 30, 2019. Subsequently, Petitioner requested an administrative hearing. Disqualifying Offenses On May 26, 2011, Petitioner was arrested and charged with a two-count felony of operating, owning, or maintaining an assisted living facility without a license. Petitioner's criminal charges stem from him operating Heaven Sent Group Home, which he labeled "sober living" houses. At the two facilities Petitioner owned and operated, medication was distributed, and daily activities for the residents were performed without being licensed as an assisted living facility. On June 27, 2011, AHCA also charged Petitioner by Administrative Complaint in Case No. 2011001367 for operating Heaven Sent Group Home, which was the same unlicensed assisted living facility subject matter as the criminal Case No. 2011CF001679A. On or about September 20, 2011, Petitioner pled no contest in Case No. 2011CF001679A to the two felony counts of operating, owning, or maintaining an assisted living facility without a license. The court withheld adjudication and sentenced Petitioner to three years of probation, 100 hours of community service, court costs, and fines. On January 25, 2012, AHCA issued a Final Order in Case No. 2011001367, imposing a $99,000.00 fine for Petitioner's unlicensed activity. By letter dated October 2, 2013, Petitioner was notified that he completed his terms of probation and was no longer under the supervision of the Department of Corrections for Case No. 2011CF001679A. Hearing At hearing, Petitioner explained that he opened two facilities in 2007 to help the underprivileged. His residents included those that were released from incarceration or mentally ill and did not have place to live. He testified that most of his residents came from the courts or were referred by New Horizons. Petitioner denied receiving any AHCA notices sent to him regarding his operating the two unlicensed assisted living facilities prior to the 2011 cease and desist on Heaven Sent Group Home. Petitioner further claimed that he did not know he needed a license for the facilities he was running. Petitioner did admit that he was completely responsible for his wrongdoings and not being educated and aware of the rules and regulations regarding operating a group home or an assisted living facility. During the final hearing, Petitioner presented the testimony of Roshina Lakram, who testified that she knew Petitioner for 30 years and that he had been helping people struggling with drugs and mental illnesses with his sober living homes. Vanessa Risch ("Risch"), the health services and facilities consultant manager for AHCA's Background Screening Unit, testified at hearing that in making the decision to deny Petitioner's exemption, AHCA considered Petitioner's entire case file including exemption application, education and training records, personal letters of support, personal attestations, one employment reference letter, and Petitioner's explanations during the telephonic exemption hearing. AHCA concluded that Petitioner was not particularly candid during the May 15, 2019, telephonic hearing, because Petitioner failed to mention prior to and during the teleconference that he has the outstanding AHCA fine in the amount of $99,000.00 from his unlicensed activity from Case No. 2011001367. Although Petitioner had some positive letters of recommendation, his failure to be candid and honest in addition to his lack of effort to make any payments toward the outstanding AHCA fine was a major consideration in the denial of Petitioner's exemption. Risch testified that Petitioner failed to meet section 435.07(3)(a) and had not demonstrated by clear and convincing evidence that he was rehabilitated. At hearing, Petitioner also failed to readily admit that he owed the $99,000.00 fine to AHCA when testifying. First, Petitioner did not own up to currently owing the monies, then testified that maybe it happened while his daughter was in the hospital, and finally inquired about a payment plan. At the time of the hearing, Petitioner had not paid any amount towards the fine nor attempted to negotiate a payment plan agreement with AHCA to pay off the delinquent fine. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner was both credible and passionate in his testimony about his future and not wanting to work for other individuals for the rest of his life. He even testified that since it was America, he wanted his own. However, Petitioner failed to testify convincingly regarding the monies owed to AHCA. He was dismissive about his past instead of being honest and forthright regarding the outstanding $99,000.00. Such lack of candor and accurateness regarding the delinquent AHCA fine establishes Petitioner's ineligibility for an exemption from disqualification because he has not demonstrated by clear and convincing evidence that he has been rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Agency for Health Care Administration enter a final order upholding its denial of Petitioner's request for an exemption from disqualification for employment. DONE AND ENTERED this 10th day of October, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2019. COPIES FURNISHED: Chan Gobin 5839 Northwest Drill Court Port St. Lucie, Florida 34986 Lindsay Worsham Granger, Esquire Agency for Health Care Administration Building 1, Mail Stop 7 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue Whether the Petitioner's application for licensure as a resident customer representative insurance agent should be approved.
Findings Of Fact The Petitioner is an applicant seeking to be licensed as a resident customer representative insurance agent. The Respondent is the state agency charged with the responsibility of reviewing and issuing licenses governed by Chapter 626, Florida Statutes. On or about May 29, 2003, the Petitioner filed an internet application that required responses to questions regarding the Petitioner's fitness to be licensed. Among the screening questions listed on the application was the following inquiry: Have you ever been charged, convicted, found guilty, or pled 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? The options to the question noted above required the Petitioner to choose "Y" for affirmative or "N" for a negative response. The Petitioner selected "N." Thus, the Petitioner represented to the Respondent that she had not ever been charged, convicted, found guilty, or pled guilty to a crime. In fact, the Petitioner was charged with a crime and did enter a plea to a crime. On May 25, 1984, the Petitioner filed a Plea Agreement wherein she agreed to plead guilty to the offense of unlawful use of a communication facility. Judge Orrick in the United States District Court, Northern District of California, then accepted the plea and found the Petitioner guilty of a violation of 21 U.S.C. Section 843(b). The Petitioner was placed on probation for a period of three years. With regard to the instant case, the Petitioner admitted she failed to disclose the conviction. The Petitioner maintained her grandchildren distracted her when she was completing the form and checked the wrong response by mistake. The Petitioner did not review the error and advise the Department of the erroneous entry. Additionally, the Petitioner claimed that she did not realize the screening question related to activities in all jurisdictions and thought it meant only criminal conduct in the State of Florida. Again, the Petitioner did not seek any clarification as to the question's meaning prior to submitting an incorrect answer. Moreover, it is determined that the question is unambiguously stated to include jurisdictions beyond the State of Florida. The Petitioner believes that because she was able to successfully achieve citizenship after the criminal incident noted above she should similarly be favorably considered for the instant license. There is no evidence that supports a conclusion that the naturalization and immigration regulations for citizenship comport with the Florida laws regulating the licensure of insurance agents. Moreover, the Petitioner acknowledged that she disclosed the criminal history on her application for citizenship. The omission of pertinent facts regarding her criminal history was therefore not an issue in whether or not she should achieve citizen status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order denying the Petitioner's application for licensure. DONE AND ENTERED this 27th day of April 2004, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April 2004. COPIES FURNISHED: 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 Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Nora Delgadillo 11432 Southwest 75th Terrace Miami, Florida 33173
The Issue The issue is whether two persons were employees or independent contractors of Respondent, pursuant to Chapter 440, Florida Statutes, and, if employees, an additional issue is the penalty that Petitioner should impose against Respondent for his failure to obtain workers’ compensation coverage for the two employees.
Findings Of Fact At the time in question, Respondent was in the business of erecting enclosures for swimming pools. On most of these jobs, Respondent served as a subcontractor of Commercial Residential Construction. On April 7, 1998, Respondent was providing labor and materials, as a subcontractor to Commercial Residential Construction, on a screened-enclosure job located at 2242 Otter Creek Lane in Sarasota. Commercial Residential Construction supplied the aluminum and screen used for this job. For this job, Respondent hired two individuals who had worked for Commercial Residential Construction or other independent contractors in the construction business. Respondent did not have workers’ compensation coverage for the two individuals working with him on this job. Respondent’s agreement with these two persons was to pay them, on a weekly basis, a specified percentage of the total price that Respondent was to receive for the work. If the contractor refused to pay Respondent due to unsatisfactory work, then Respondent would not pay the two individuals. The two individuals had to supply their own tools. Sometimes they transported themselves to the job site; sometimes, as a matter of convenience, Tom Dybalski, the owner of Respondent, transported them or was transported by them. The two individuals did not testify. Petitioner called Mr. Dybalski as a witness; otherwise, Petitioner’s witnesses consisted exclusively of staff and investigators. However, these witnesses were unable to establish the statements of the two putative employees because of hearsay. The findings of fact contained in this recommended order are derived from Mr. Dybalski’s testimony or admissions made to one of Petitioner’s investigators. However, the administrative law judge has not relied on hearsay testimony, which is admissible under the exception for admissions against interest, that Mr. Dyblaski admitted that the two individuals were employees. Mr. Dyblaski is an aluminum contractor, not an attorney, and his “concession” concerning a complex matter, especially given his obvious ignorance of the applicable legal criteria, is not entitled to any weight. Admissible evidence does not establish whether the two individuals had exemptions from workers’ compensation. Mr. Dybalski testified that he did not know whether they did. The two individuals did not testify, so it is impossible to determine from this source whether they had exemptions. The record is similarly devoid of competent evidence establishing Respondent’s contention that the two individuals were employees of Commercial Residential Construction while working on the subject job.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order finding Respondent guilty of failing to obtain workers’ compensation coverage to two employees and imposing a penalty in the amount of $1000. DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Division of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 A. Brent McPeek Attorney 3986 South Tamiami Trail Venice, Florida 34293 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
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 Respondents committed the offenses alleged in the Administrative Complaints.
Findings Of Fact Respondent William Negron holds a Class "E" Recovery Agent License (number E91-00022) and a Class "C" Private Investigator License (number C93-00478). Respondent Collateral Services of America, Inc. (CSA) holds a Class "R" Recovery Agency License (Number R91-00085). On October 2, 1998, Respondents repossessed an auto carrier from a debtor pursuant to a subcontract from MDL & Associates, which is a recovery agency owned by Mark and Debbie Lasik. This auto carrier was loaded with motor vehicles. Respondents regularly employ Jose Castellanos to perform services on a piecework basis. Mr. Castellanos and one of his associates were hired by Respondents to unload the motor vehicles that were on the auto carrier. Respondents paid Mr. Castellanos and his associate the sum of $200.00 to unload the autos from the auto carrier. There was no evidence that this sum was unreasonable. Respondent Negron timely reported the repossession of the auto carrier to the Miami Springs Police Department, the police department with jurisdiction of the area in which the repossession occurred. Mr. Negron testified, credibly, that he told the police officer to whom he made the report who he was and that he had repossessed the auto carrier pursuant to a subcontract with Mark Lasik, a principal of MDL & Associates. The police report reflected that the recovery was made by MDL & Associates and that the contact person at MDL & Associates was Mark Lasik. The police officer who took the report from Respondent did not testify at the formal hearing. On or about January 23, 1998, Respondent Negron repossessed a 1997 BMW automobile. Respondent Negron, in completing a condition report 1/ for the BMW, reported that the mileage was 13,000 miles. The BMW had a digital readout, so that the mileage could not be read without the car being turned on. Respondent Negron testified that his company had the key and that one of his employees read the mileage and reported the same on the condition report. 2/ The BMW was stolen from Respondents' storage facility and subsequently recovered by law enforcement. Gold Coast Towing towed the stolen BMW for law enforcement and completed a report reflecting that the mileage was 12,499. There was no evidence as to whether Gold Coast Towing estimated the mileage or whether it had a key to the car and actually read the mileage. Adrian Lopez was employed as a Recovery Agent Intern on or about January 13, 1998. Respondent Negron was Mr. Lopez's sponsor as a Recovery Agent Intern. On January 11, 1999, Mr. Lopez filed a complaint with Mr. Wood against Respondents because he had been unable to get credit from Petitioner for the time he had worked for Respondents as an intern. Petitioner admitted into evidence the licensure file of Mr. Lopez. This file contains an Intern Biannual Progress Report for the period January 23, 1998 to July 23, 1998. This form was signed and notarized on July 24, 1998, by Mr. Negron as sponsor for Mr. Lopez. The form was not time-stamped when received by Petitioner. The copy of the form submitted into evidence by Petitioner contains a fax footprint reflecting that the copy was faxed by CSA on January 13, 1999. Whether it was faxed directly to Mr. Wood was not established. There is no allegation that this report was not timely. Also on January 13, 1999, Respondents faxed to Petitioner a form reflecting that Mr. Lopez's employment had been terminated. This termination notice was dated January 11, 1999. There was no allegation that this notice was not timely. Respondents did not submit a biannual report for the internship of Mr. Lopez for the period July 24, 1998 through January 13, 1999. Because that report was not filed, Mr. Lopez had difficulty establishing the amount of internship credit to which he was entitled. Mr. Wood, after reviewing Respondents' records, determined that Mr. Lopez was entitled to seven months of credit. Mr. Lopez receives disability income benefits from the Department of Labor. After Mr. Lopez filed his complaint, Mr. Negron telephoned him and threatened to report to the Department of Labor that Mr. Lopez received much more money than he actually was paid. This was an attempt to coerce Mr. Lopez into withdrawing the complaint since such a report would jeopardize Mr. Lopez's disability benefits. There was no evidence that Mr. Negron made any type of report with the Department of Labor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the allegations contained in DOAH Case No. 99-2759 and those in Counts II and III of DOAH Case No. 99-3022. It is further RECOMMENDED that the final order find Respondents guilty of the violations alleged in Count I and Count IV of DOAH Case No. 99-3022, and that it impose an administrative fine against Respondents in the amount of $150.00 for each violation. DONE AND ENTERED this 11th day of April, 2000, in Tallahassee, Leon County, Florida CLAUDE B. ARRINGTON 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 11th day of April, 2000.
The Issue Whether Respondent failed to secure workers' compensation coverage as required by law, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner Department is the State Agency responsible for enforcing those portions of Chapter 440, Florida Statutes, requiring that employers secure payment of workers' compensation benefits for their employees. On November 6, 2006, Petitioner's Investigator Michael Robinson, conducted a random visit at the construction site of a new residence at 2631 Bluewave Drive, in Middleburg, Florida. At that time, he observed Respondent Keith Myer, installing metal framing for drywall installation.2/ This is a construction industry function. No evidence of current corporate status of Custom Interiors & Design, Inc., was presented at hearing. No evidence of the number of employees employed by the corporation was presented, either. There was no evidence to show which, if any, corporate officer Mr. Myer might be. The impression given at hearing by Respondent Myer was that he was the corporation's sole employee. At the jobsite on November 6, 2006, Mr. Myer told Mr. Robinson that he had secured the payment of workers' compensation through Staff Masters, which is a staffing company.3/ Mr. Myer was unable to provide Mr. Robinson with any documentation that would support Respondent's claim of having secured the payment of workers' compensation through Staff Masters. Mr. Myer presented no such evidence at hearing, either. Investigator Robinson utilized the Agency's Coverage and Compliance Automated System (CCAS) database that contains all policy information from workers' compensation insurance carriers to insureds, and determined that Respondent did not have any State of Florida workers' compensation insurance policy in force and effect on November 6, 2006. Mr. Myer presented no such policy at hearing, either. At all times material, 2000 through 2004, Section 440.05, Florida Statutes, has allowed a sole proprietor, partner, or corporate officer actively engaged in construction to apply for an exemption from workers' compensation benefits. From 2005 through 2006, only corporate officers could elect "out". Only the named individual on the application was exempt from carrying workers' compensation insurance coverage. Respondent Myer d/b/a Custom Interiors & Design, Inc., has no current valid workers' compensation exemption, but he had an exemption that had expired in September 2002. At all times material, 2000 through 2006, Sections 440.05(3) and 440.05(6), Florida Statutes, have limited the duration of construction workers' compensation exemptions to a period of two years. At the end of two years, the exemption automatically expires or terminates. Respondent Myer testified that he was not aware that his exemption had lapsed, even though the law states that a construction exemption has a duration of two years. Although Respondent denied receiving an expiration notification letter from the Agency, Investigator Robinson testified, and documents were admitted in evidence which show, that on or about June 19, 2002, the Agency sent a letter to Respondent Myer at his last known business address as shown on his exemption card, notifying him that his exemption was due to expire. The documents in evidence also suggest that Respondent or a similar name filed an incomplete exemption application in October 2002, but no witness's testimony addressed this issue. While the Agency's investigator was exploring all possible coverage of Respondent, Respondent was added to the payroll of the general contractor, Maronda Homes, which was on- site at the Bluewave Drive address, so that Respondent became covered by Maronda Homes' workers' compensation insurance policy. As a result, the Agency did not issue a stop-work order against Respondent. There is no evidence that Respondent Myer or Custom Interiors & Design, Inc., were sub-contractors for, or employees of, any general contractor at any date prior to November 9, 2006, so as to be covered by that general contractor's workers' compensation policy pursuant to Section 440.10, Florida Statutes. On November 20, 2006, Investigator Robinson served Respondent with a "Request for Production of Business Records for Penalty Assessment Calculation," seeking copies of business records for a period of three years, pursuant to Section 440.107(7)(d)1., Florida Statutes. This was for the purpose of determining whether Respondent had secured workers' compensation coverage, whether he or his employees had current valid workers' compensation exemptions, and to determine any civil penalties that might be owed for failing to secure the payment of workers' compensation. At the time the records request was issued, Florida Administrative Code Rule 69L-6.015, stated, in relevant part: In order for the Division to determine that an employer is in compliance with the provisions of Chapter 440, F.W., every business entity conducting business within the state of Florida shall maintain for the immediately preceding three year period true and accurate records. Such business records shall include original documentation of the following, or copies, when originals are not in the possession of or under the control of the business entity: All workers' compensation insurance policies of the business entity, and all endorsements, notices of cancellation, nonrenewal, or reinstatement of such policies. * * * Records indicating for every pay period a description of work performed and amount of pay or description of other remuneration paid or owed to each person by the business entity, such as time sheets, time cards, attendance records, earnings records, payroll summaries, payroll journals, ledgers or registers, daily logs or schedules, time and materials listings. All contracts entered into with a professional employer organization (PEO) or employee leasing company, temporary labor company, payroll or business record keeping company. If such services are not pursuant to a written contract, written documentation including the name, business address, telephone number, and FEIN or social security number of all principals if an FEIN is not held, of each such PEO, temporary labor company, payroll or business record keeping company; and For every contract with a PEO: a payroll ledger for each day period during the contract period identifying each worker by name, address, home telephone number, and social security number or documentation showing that the worker was eligible for employment in the United States during the contract for his/her services, and a description of work performed during each pay period by each worker, and the amount paid each pay period to each worker. A business entity may maintain such records or contract for their maintenance by the PEO to which the records pertain. * * * All check ledgers and bank statements for checking, savings, credit union, or any other bank accounts established by the business entity or on its behalf; and All federal income tax forms prepared by or on behalf of the business and all State of Florida, Division of Unemployment Compensation UCT-6 forms and any other forms or reports prepared by the business or on its behalf for filing with the Florida Division of Unemployment Compensation. In response to the records request, Respondent provided only W-2 forms for 2003 through 2005, and duplicate checks for 2006. The W-2 forms show the "employer" as Customer Interiors & Design, Inc., and Keith Myer as an "employee." Each of the checks shows the payor as "Custom Interiors & Design, Inc., Keith Myer, Angela Myer," and shows the payee as "Keith Myer." According to the W-2 forms, Respondent Myer's personal gross income from Custom Interiors & Design, Inc., in calendar year 2003 was $13,250.00; in calendar year 2004 was $16,500.00, and in calendar year 2005 was $34,625.00. Using these W-2 forms and checks, the Agency investigator calculated a gross payroll from the period November 9, 2003 to December 31, 2004, as $17,604.17; for January 1, 2005 to December 31, 2005, as $34,625.00; and for January 1, 2006 to November 9, 2006, as $14,600.00. Based on Respondent's materials, Investigator Robinson calculated a penalty for the three-year time period of November 6, 2003, through November 6, 2006. In calculating the penalty, he assigned Class Code 5445, to the framing work performed by Respondent utilizing the SCOPES Manual; multiplied the class code's assigned approved manual rate with the payroll per one hundred dollars, and then multiplied all by 1.5. The approved manual rate for Class Code 5445 fluctuated from year to year, and Mr. Robinson's penalty worksheet reflected such fluctuations. After several tries, the Order of Penalty Assessment, which assessed a penalty of $18,937.37, was served on Respondent by certified mail on March 1, 2007. Respondent Myer did not dispute any of the formulas or mathematics employed. He did not challenge his "employee" status. He only asserted that the penalty is excessively high for an honest mistake.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation enter a final order approving the penalty of $18,937.37 against Respondent. DONE AND ENTERED this 28th day of September, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 28th day of September, 2007.
