The Issue Whether GMD Carpet, Inc., failed to comply with coverage requirements of the workers’ compensation law, Chapter 440, Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440 of the Florida Statutes, which require that employers secure workers’ compensation coverage for their employees. Respondent, whose principal is Emmanuel Simone, Jr. (Mr. Simone), is in the business of providing carpet installation services. At all times material to this case, Respondent is an employer within the meaning of Section 440.02(16)(a), Florida Statutes. At all times material to this case, Respondent was legally obligated to provide workers' compensation insurance in accordance with the provisions of Chapter 440, Florida Statutes, for Mr. Simone and four other individuals employed by GMD. On or about May 21, 2004, Petitioner became aware that Mr. Simone and another GMD employee were working a carpet installation job in Broward County, Florida. Upon inquiry, Petitioner accurately determined that GMD had not furnished the required coverage, and that there was no valid exemption from the coverage requirement. Accordingly, on May 21, 2004, a Stop Work and Penalty Assessment Order was properly entered. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that GMD employed three other individuals under circumstances which obliged Respondent to provide workers’ compensation for these employees. Based upon Respondent's payroll records, Petitioner recalculated the penalty assessment to be imposed in accordance with the requirements of Chapter 440, and issued an Amended Order in the amount of $1,916.65 on May 25, 2004. Respondent did not intend to violate the law. Rather, he mistakenly believed that he held a valid exemption; that his wife was not an employee, but rather a helper; and that the three other carpet installers were subcontractors to whom he had no insurance-related obligations. It is undisputed that Petitioner correctly calculated the penalty prescribed by law in the amount of $1,916.65 based upon Respondent's records and applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Petitioner enter a final order confirming the Stop Work Order and imposing a penalty in the amount of $1,916.65, as set forth in the Amended Order. DONE AND ENTERED this 15th day of October, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 15th day of October, 2004. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Emmanuel Simone, Jr. Debra Simone GMD Carpet, Inc. 717 North 31st Avenue Hollywood, Florida 33021 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florid a 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether the Stop-Work Order and 2nd Amended Order of Penalty Assessment issued by Petitioner, Department of Financial Services, Division of Workers' Compensation (Department), on July 1, 2015, and February 29, 2016, respectively, should be upheld.
Findings Of Fact The Department is the state agency responsible for enforcing the various requirements of chapter 440. Respondent is a Florida corporation with offices located at 1904 28th Avenue North, St. Petersburg, Florida. The company is engaged in the construction business, and its activities fall within the statutory definition of "construction industry." See § 440.02(8), Fla. Stat. Respondent also does business under the name of M & M Construction of South Florida, but both are the same corporate entity with the same Federal Employer Identification Number and use the same bank accounts. Respondent's assertion that the two are separate and work done under the "d/b/a" name cannot be used to establish liability under chapter 440 is rejected. On July 1, 2015, Munal Abedrabbo, a Department compliance inspector, made a random inspection of a job site at 4115 East Busch Boulevard, Tampa, where remodeling work on a commercial building was being performed. When he entered the premises, Mr. Abedrabbo observed Bernard Reed on a ladder painting an interior ceiling. After identifying himself, he informed Mr. Reed that he needed to verify his insurance coverage. Mr. Abedrabbo was directed to Mr. Cook, Respondent's vice-president and part owner, who acknowledged that he was the general contractor on the job and had three employees/painters working that day, Reed, James Dabnes, and John Russell. Mr. Cook informed the inspector that the three employees were leased from Paychek, Inc., an employee leasing company, and that firm provided workers' compensation coverage for the leased employees. Mr. Abedrabbo returned to his vehicle and accessed on his computer the Department of State, Division of Corporations, Sunbiz website to verify Respondent's status as a corporation. After verifying that it was an active corporation, he then checked the Department's Coverage and Compliance Automated System to verify whether Respondent had a workers' compensation policy or any exemptions. He was unable to find any active policy for Respondent, as the most recent policy had lapsed in January 2013. Mr. Cook has an exemption, covering the period October 20, 2014, through October 19, 2016, but the exemption is with a different company, Thomas Cook Carpenter, LLC. Mr. Abedrabbo spoke again with Mr. Cook and informed him that Department records showed no insurance coverage for his employees. Mr. Cook telephoned Paychek, Inc., and then confirmed that the three painters had no workers' compensation insurance. Mr. Cook explained that before he allowed Mr. Reed to begin work, Mr. Reed had shown him an insurance certificate that turned out to be "falsified," and then "conveniently lost it" when the inspector appeared. He also explained his firm "was caught with our pants down once before" and he did not want it to happen again. For that reason, he contended he was especially careful in hiring leased employees. Even so, he does not deny that Respondent has had no insurance in place since January 2013 and Paychek, Inc., failed to provide coverage. The Department issued a Stop Work Order and Penalty Assessment the same day. To determine the amount of Respondent's unsecured payroll for purposes of assessing a penalty in accordance with section 440.107(7)(d)(1), Florida Statutes, the Department requested Respondent to provide business records for the preceding two years. This period of non-compliance is appropriate, as Respondent was actively working in the construction industry during that time period without securing insurance. The request informed Mr. Cook that if complete records were not provided, the Department would use the imputation formula found in section 440.107(7)(e) to calculate the penalty. After reviewing the information provided by Respondent, on August 18, 2015, the Department issued an Amended Order of Penalty Assessment in the amount of $114,144.52 for the period July 7, 2014, through June 30, 2015. Based on two depositions of Mr. Cook, a 2nd Amended Order of Penalty Assessment in the amount of $105,663.48 was issued on February 29, 2016. The Department penalty auditor calculated the final penalty assessment using the "imputed" method because insufficient business records were provided to determine Respondent's payroll for all relevant time periods, except the month of October 2014. In addition to missing bank statements and check images, Respondent failed to provide its entire second bank account. Although Mr. Cook contends some records were in the possession of M & M Construction of South Florida, and he could not access them in a timely manner, this does not excuse Respondent's failure to timely produce all relevant records. Under the imputed method, the penalty auditor used the average weekly wage ($841.57) times two to determine Respondent's payroll for the imputed portions. See Fla. Admin. Code R. 69L-6.028(2); § 440.107(7)(e), Fla. Stat. The gross payroll was then divided by 100 in order to be multiplied by the applicable approved manual rates. The Department applied the proper methodology in computing the penalty assessment. A class code is a numerical code, usually four digits, assigned to differentiate between the various job duties or scope of work performed by the employees. The codes were derived from the Scopes Manual Classifications (Manual), a publication that lists all of the various jobs that may be performed in the context of workers' compensation. The Manual is produced by the National Council on Compensation Insurance, Inc., an authoritative data collecting and disseminating organization for workers' compensation. The Manual provides that class code 5474 applies to painters who perform painting activities. Reed, Dabnes, and Russell were assigned this code. Mr. Cook agrees this code is correct. Mr. Cook was assigned class code 5606 (construction executive) and placed on the penalty assessment because he is an owner of the corporation and was managing the work. Although Mr. Cook argues he had an exemption and should not be placed on the assessment, Department records reflect that Mr. Cook had an exemption with a different company during the audit period. Therefore, his inclusion in the employee census was correct. Because Respondent's business records included checks written to Kerry Francum for tile work, he was assigned class code 5348 (tile work) and placed on the penalty assessment as an employee. At his deposition, Mr. Cook acknowledged that Francum performed tile work for his firm and was an employee. At hearing, Mr. Cook changed his testimony and contended Francum was only a material supplier, not a subcontractor, and should not be on the penalty assessment. This assertion has not been accepted. Mr. Francum's inclusion on the assessment is appropriate. Respondent's business records also indicated a check was written to Kerry Randall, a tile subcontractor. At hearing, however, Mr. Cook established, without contradiction, that because of Mr. Randall's violent temper, he was paid a one-time fee of $1,000.00 and let go before he performed any work. Mr. Randall should be removed from the assessment. The Department has demonstrated by clear and convincing evidence that the 2nd Amended Order of Penalty Assessment is correct, less any amount owed for Mr. Randall.
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 assessing Respondent the penalty in the 2nd Amended Order of Penalty Assessment, less any amount owed for Mr. Randall. DONE AND ENTERED this 21st day of November, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of November, 2016.
The Issue Whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Petitioner, John F. Parks (Petitioner), was employed at Serenity West, an assisted living facility in Zephyrhills, Florida, on or about January 3, 2000. While employed there, Petitioner's duties included passing medications and dressing and otherwise assisting residents with activities of daily living. Pursuant to Chapter 435, Florida Statutes, the owner or administrator of an assisted living facility is required to conduct a level one background screening on all employees hired on or after October 1, 1998, who perform personal services for vulnerable persons. The purpose of background screening is to protect the public welfare by preventing individuals that have demonstrated behavior that may be harmful to vulnerable individuals from working in Florida’s health care facilities. Respondent, the Agency for Health Care Administration (Agency), conducted a level one background screening on Petitioner which revealed that, in 1979, Petitioner had pled guilty to the charge that he had committed a lewd and lascivious act in violation of Section 798.02, Florida Statutes. On or about April 7, 2000, the Agency notified Petitioner and his employer that it had received information that disqualified Petitioner from working as a caretaker of vulnerable persons. Petitioner was also advised of his right to seek an exemption from disqualification. On or about April 13, 2000, Petitioner filed an Application Request for Exemption from Disqualification (Application). The Agency's Application form required that the applicant explain the reason for the employment disqualification and provide a copy of the Florida Department of Law Enforcement criminal history, the arrest report, and the court disposition for any disqualifying violation. Petitioner completed the Application and included, as part of his application, copies of the arrest report and the court disposition related to the disqualifying offense. The documents submitted by Petitioner indicated that on April 4, 1979, he pled guilty to committing a lewd and lascivious act, a second degree misdemeanor, in violation of Section 798.02, Florida Statutes. According to those documents, Petitioner entered the plea in the County Court in and for Hillsborough County, Florida, in Case No. 79-2630. On April 24, 2000, the Agency conducted an exemption hearing on Petitioner's request for exemption from employment disqualification. The following day, the Agency denied Petitioner's request and advised him that as a result of the denial, he continued to be "ineligible for employment in those positions that require working with residents or patients of nursing homes, home health agencies, assisted living facilities, homemaker-companion-sitter services, or nurse registries." Petitioner challenged the Agency's denial of his request for exemption from employment disqualification and requested a formal hearing. The Agency forwarded the request to the Division of Administrative Hearings on or about October 25, 2000. In the December 1, 2000, Order Granting Continuance and Re-Scheduling Hearing, the final hearing was scheduled for January 4, 2001. A copy of the Order was mailed to Petitioner at his address of record, 5647 19th Street, Zephyrhills, Florida 33540. Petitioner provided several letters of reference to the Agency as part of his application for request for exemption. These letters appeared to be from a neighbor, as well as former colleagues and employers. The letters were favorable and described Petitioner as dependable, a good worker, a valued employee, and knowledgeable in his field. Most of the letters spoke highly of his patience and kindness toward the residents. Petitioner failed to appear at the hearing and no evidence of his rehabilitation was presented. Therefore, Petitioner is not eligible for or entitled to the exemption from employment disqualification that he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 21st day of February, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 February, 2001. COPIES FURNISHED: Tracey S. Cottle, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Suite 3426C Tallahassee, Florida 32308 John Parks 5647 19th Street Zephyrhills, Florida 33540 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact On or about December 14, 1988, the Department of Health and Rehabilitative Services ("DHRS") began an investigation of M.E.R.'s treatment of her aged mother, E.C. An investigation of the treatment of E.C. by M.E.R. was conducted by an investigator of DHRS during December, 1988 and January, 1989. An investigative summary was prepared by the DHRS investigator, who recommended that M.E.R.'s name be placed in the abuse registry. The investigative report was reviewed by the appropriate authorities, and M.E.R.'s name was placed in the adult abuse registry. M.E.R. was notified of her right to request expunction of her name. She requested expunction. Her request was denied, and she was advised of her right to a hearing on the denial. M.E.R. made a timely request for hearing. The matter was referred to the Division of Administrative Hearings, where the parties were directed to file a pleading stating the factual allegations upon which they relied. In response to that order, the DHRS filed a pleading alleging that: M.E.R. did not fill a prescription for Dilantin for E.C. for five days; and M.E.R. did not feed E.C. sufficient food. Review of the investigative summary, which was prepared at the conclusion of the investigation, reveals that the DHRS investigator had been told by M.E.R. that she (M.E.R.) did not have money to purchase the prescription for E.C. but had requested assistance from Catholic Social Services ("CSS"). The investigative summary reflects that the pharmacist advised the investigator that he was contacted by CSS, that CSS did take care of the bill, and that M.E.R. obtained the prescription as soon as CSS acted on her request. See the second page of investigative summary, Exhibit No. 1 to deposition. The investigator, the investigator's supervisors, and the Department's attorney knew or should have known that M.E.R. had a valid reason for not immediately filling the Dilantin prescription when they put her name in the registry and denied expunction, and when the pleading was filed asserting this was a grounds for placing her name in the registry. The DHRS failed to delete this charge although it had evidence from the first that M.E.R. had a valid reason for not having filled the prescription. The DHRS asserted that the other reason that M.E.R. was charged was the failure to feed E.C. This charge related primarily to E.C.'s weight loss. There was evidence to substantiate an allegation that E.C. had lost weight. The investigative summary reveals that the investigator knew that E.C. was getting meals on wheels; however, the records and interviews which she conducted revealed that E.C. suffered a weight loss. Only upon cross- examination at final hearing were the facts fully brought out. This charge was the only one of the two raised in the pleadings based upon substantive fact. Reasonable expenses for legal fees in this case were $15,150.00, based upon the records of the attorney's time records and the testimony of David Dunlop, an attorney practicing in northwest Florida. The record shows 90 hours of time by attorneys and 103 hours by paralegals. The rate for an attorney per hour for this type of litigation is $125.00, and $50.00 for a paralegal.
The Issue Whether the Petitioner is subject to disqualification under the statutes, and Whether the Petitioner should be granted an exemption.
Findings Of Fact In 1992, Petitioner acted as a look-out for Raymond Dickens when Raymond Dickens stole a set of tire rims from the Chevrolet dealer in Quincy. While acting as the look-out, Petitioner decided to disassociate himself from this act, and Petitioner reported the theft, which was in progress, to the police. The police investigated, and spoke with Petitioner about it. Petitioner admitted his part in the theft, identified Dickens and plead nolo contendere to grand theft. On September 23, 1992, the Court withheld adjudication, and placed Petitioner on probation for 18 months. In nine months Petitioner satisfactorily completed the probation. Thereafter, Petitioner took a course in Jacksonville on how to operate heavy equipment, and learned how to drive tractor trailers. His father, who had been a tractor trailer driver until he was injured, gave Petitioner a truck, and Petitioner began to drive with his father who continued to teach him how to be a driver. In 1995, Petitioner was self-employed or driving on contract for several companies. However, in fall of 1995, Petitioner's father did not want to be on the road, and Petitioner applied for and was employed as a human service worker at the State Hospital at Chattahoochee. The background investigation revealed Petitioner's plea to grand theft in 1992, and Petitioner was disqualified from employment. Petitioner requested an exemption, and the Department of Health and Rehabilitative Services denied his request after an appearance before its review committee. Thereafter, Petitioner requested a formal hearing, and, in the interim, was employed as a dump truck driver in Tallahassee until approximately six weeks prior to the formal hearing. Most recently, Petitioner has been putting his truck in order to take it back out on the road. Petitioner wanted an exemption to do work as a human service worker because he did it for five months, did a good job, and enjoyed it although it does not pay as much as truck driving.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Victor Bush be determined not to be required to obtain an exemption because the disqualification which was applied to him was not effective until after the date of commission of the disqualifying offense, or alternatively, that Victor Bush be granted an exemption if the Department determines one is required. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996.
The Issue The issues in this case are whether Respondent failed to maintain good moral character by engaging in sexual conduct while on duty as a police officer and making false statements under oath, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for the certification and regulation of law enforcement officers in Florida. Petitioner certified Respondent as a law enforcement officer on April 3, 1987, pursuant to certificate number 38354. During the fall of 2002, Respondent was employed as a police officer by the Sanford Police Department in Sanford, Florida. Respondent frequently conducted official business at a local Wal-Mart when Respondent was on duty and also visited the Wal-Mart for personal reasons when Respondent was off duty as a police officer. At the Wal-Mart, Respondent developed both a professional and personal relationship with Ms. Sheila Gill, a loss prevention employee at the Wal-Mart. Respondent and Ms. Gill spoke frequently both in person and by telephone. Some of the telephone conversations between Respondent and Ms. Gill included sexual banter. When Respondent and Ms. Gill talked in person at the Wal-Mart, the two usually stood close to one another or arm-in-arm, exhibiting personal intimacy. Respondent and Ms. Gill were sometimes together in the loss prevention office at the Wal-Mart when no one else was present. The loss prevention office has one door and no windows. Security personnel at the Wal-Mart use the loss prevention office, in relevant part, to process individuals accused of shoplifting and to transfer the custody of accused shoplifters to police officers, including Respondent. At all times relevant to this proceeding, the loss prevention office was equipped with a closed-circuit television camera to permit Wal-Mart security personnel to monitor the loss prevention office and to provide a videotape record. On October 13, 2002, Respondent and another police officer responded to a call from Wal-Mart security personnel regarding an accused shoplifter. After the other police officer left the loss prevention office with the accused, Respondent and Ms. Gill were alone in the office. They moved to an area of the office in which the video camera recorded only a portion of their actions. Respondent and Ms. Gill then engaged in sexual conduct at about 4:11 p.m., while Respondent was on duty for the Sanford Police Department. On October 27, 2002, Respondent was on duty for the Sanford Police Department and was alone with Ms. Gill in the loss prevention office at the Wal-Mart. Ms. Tracy Harden was employed at the Wal-Mart as the Assistant Store Manager. Ms. Harden attempted to enter the loss prevention office in response to a complaint of a stolen wallet that Ms. Harden received from a customer. Ms. Harden found the door locked. Ms. Harden unlocked the door, entered the loss prevention office, and observed Respondent and Ms. Gill alone together in the office. Respondent and Ms. Gill were sitting embraced and quickly separated when Ms. Harden entered the room. Ms. Gill was not working at the Wal-Mart on October 27, 2002. After observing Ms. Gill in the loss prevention office with Respondent, Ms. Harden met with Ms. Gill to question her about her presence in the store that day and her conduct with Respondent. Ms. Harden suspended Ms. Gill and directed her to leave the store. Ms. Harden retrieved the videotape from the security camera in the loss prevention office. However, she did not view the tape because she did not know how to operate the equipment. Ms. Harden locked the tape in the filing cabinet in her office and left work for the day. When Ms. Harden arrived at the Wal-Mart the next day, she found the filing cabinet in her office dented and its lock broken. Upon examining the contents of the cabinet, Ms. Harden discovered the tape was the only item missing from the filing cabinet. Ms. Gill had taken the videotape from the filing cabinet and discarded it. Ms. Harden complained to the Sanford Police Department about Respondent's behavior with Ms. Gill in the Wal-Mart loss prevention office on October 27, 2002. The Sanford Police Department conducted an internal investigation into the complaint. The internal investigation included an interview with Respondent on November 7, 2002. Respondent made two false statements under oath. Respondent denied that, on October 27, 2002, Respondent was touching Ms. Gill or in close proximity to Ms. Gill in the loss prevention office. Respondent also denied ever touching Ms. Gill, hugging her, having any type of close physical contact with her, or engaging in any inappropriate or unprofessional conduct with Ms. Gill while Respondent was on duty for the Sanford Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character and revoking Respondent's certification. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kristine R. Kutz, Esquire 200 East Robinson Street, Suite 200 Orlando, Florida 32801 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
