The Issue The issue in this case is whether it would be an abuse of discretion to deny Petitioner's request for exemption from employment disqualification.
Findings Of Fact Petitioner is seeking employment with the Lake County Board of County Commissioners, in a service provider function that is regulated by the Agency. As a prospective direct service provider, Petitioner was required to comply with background screening requirements. The Agency's clients are a vulnerable population, consisting of persons with the following statutorily defined developmental disabilities: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. § 393.063(12), Fla. Stat. Without the Agency's services, these clients would otherwise require institutionalization. The Agency's clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. Such clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. Consequently, employment as a direct service provider to the Agency’s clients is considered a position of special trust. The Agency is responsible for regulating the employment of direct service providers in positions of special trust such as that sought by Petitioner. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks undertaken by direct service providers for individuals with disabilities are of a social, personal needs, and/or financial nature. The background screening unit of the Department of Children and Families (“DCF”) performs background screenings for the Agency. Petitioner received notification from DCF, via letter dated January 8, 2016, of her disqualification from employment due to her criminal history. The specific disqualifying offense listed in the letter was aggravated battery with a weapon, in violation of section 784.045, Florida Statutes, a second degree felony. Because Petitioner’s screening indicated a disqualifying offense, Petitioner was required to seek an exemption from disqualification in order to proceed with her application to work as a direct service provider. On or about February 26, 2016, Petitioner submitted to DCF a Request for Exemption form, a completed Exemption Questionnaire form, various criminal records, character references, and other documents in support of granting of exemption from employment disqualification. DCF subsequently forwarded these materials to the Agency for review. The Agency began its exemption review by considering Petitioner's disqualifying offense. In June 1988, Petitioner committed the disqualifying offense of aggravated battery with a weapon. The police report of the incident stated that Petitioner stabbed her husband in the shoulder with a knife during an argument. The stab wound was serious enough to require treatment at the hospital and a subsequent visit to a specialist. On her Exemption Questionnaire form, Petitioner indicated that her husband suffered permanent scarring from the wound. An arrest affidavit for probable cause was issued by the Leesburg Police Department. Petitioner later pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to thirty-six (36) months of probation, payment of fines, court costs, mental health counseling, and a drug and alcohol program. Petitioner successfully completed her probation on August 29, 1991. In the Exemption Questionnaire form, Petitioner set forth her version of the circumstances involved in the disqualifying offense: At 21 years of age, I was dealing with regular occurrences of mental distress within the home, such as emotional, mental, verbal and physical abuse by my ex-husband. On the day of this offense, my ex-husband entered our home in a rageful [sic] manner. Fear gripped me. He began to argue. He also went into the closet, pulling out a motorcycle chain. He began to strike me with it. After running outside, my ex- husband chased me with his belt off, hitting me with the belt buckle. A girl scout’s knife was already in my hand. He continued to hit me with the belt buckle, swinging his arm. As I turned around in self-defense, my ex-husband was struck with the girl scout’s knife. Realizing what happened, I began to cry frantically, (my concern was to get medical attention for him), apologizing and begging for forgiveness. Petitioner’s record indicates no other criminal offenses of any kind, whether disqualifying or non- disqualifying. The Exemption Questionnaire form requires applicants to describe the degree of harm to any victim of their disqualifying offenses. Petitioner wrote, “Thanks be unto God, my ex-husband sustained non-life threatening injuries with permanent scarring.” The Exemption Questionnaire form requires applicants to describe any stressors in their lives at the time of the disqualifying incident and at present. Petitioner wrote that there were stressors in her life at the time of the disqualifying incident. She did not elaborate, but in answer to another question she wrote that at age 21 she “had begun to abuse chemical substances.” She stated that her drug use was short-lived and that she ceased it permanently after the stabbing incident. Regarding whether there are any current stressors in her life, Petitioner wrote that she is "practising [sic] unhealthy habits." Again, Petitioner did not elaborate as to the nature of these unhealthy habits, but at the hearing she explained that she was referencing overeating and not exercising. Petitioner wrote that she is single and lives with her mother, and that her community activities include her family, women's group, church, art workshops, poetry and prose writing, and volunteering for the community development center when needed. The Exemption Questionnaire form asks for an applicant's prior three years' work history and an explanation of any job changes. Petitioner’s employment record indicated she had driven a school bus for several years. Petitioner provided the following explanation for changing jobs: "changed careers from transportation to medical industry to procure an immense financial gain. Have also decided to strive above and beyond my comfort zones to secure a position of my dreams." The Exemption Questionnaire form requires the applicant to list his or her educational history and any specialized training. Petitioner listed the following: Office Support Technology, specializing in Professional Leadership Development; Master Security Officer, specializing in Basic Supervisor, Leadership, & Advanced Manager; Patient Care Technician, specializing in Pharmacy Aide, EKG Aide and Unit Secretary/Coordinator; and Private Investigation, specializing in Legal Assistant & Fraud Insurance. Petitioner listed no specific institution for these certifications or specializations, but other documents submitted by Petitioner indicate that the Office Support Technology and Patient Care Technician courses were provided by Lake Technical College in 1996-97 and 1999, respectively; the Master Security Officer certification was provided by Barton MSO in 2003; and the Private Investigator diploma was received from City College in 2011. In response to the Exemption Questionnaire form’s requirement that the applicant document any history of counseling, Petitioner wrote that she received mental health counseling in 1988 and anger management counseling in 2007. Finally, under the heading “Remorse/accept responsibility,” the Exemption Questionnaire form requires the applicant to document any relevant information related to the acceptance of responsibility for his or her offenses. Petitioner wrote as follows: The harm done to my ex-husband caused me to feel very awful. Because of the forgiveness from my trespasses, the acceptance of the offense towards my ex-husband subsided day by day. Taking responsibility for my actions made me realize that I must become a better person and live a better life by improving myself so that I would someday become a productive citizen and asset to society and my family. Petitioner listed the following specific employment record: CareMinders Home Care, February 2015 to August 2015 (certified nurse assistant); Interim Healthcare, December 2014 to June 2015 (certified nurse assistant); Lake County School Board, October 2005 to August 2013 (school bus driver). In support of her exemption request, Petitioner also submitted a copy of a “Lake County Head Start Parent of the Year” award she received in 1999, a copy of an “International Poet of Merit” award she received in 2000, and reference letters from previous employers and longtime friends. Petitioner’s friends described her as hard-working, compassionate, respectful, and considerate. By letter dated September 26, 2016, the Director of the Agency informed Petitioner that her request for an exemption from disqualification had been denied “based on a Background Screening that was performed on 1/07/2016 . . . . The Agency considered all available information that led to your disqualification, as well as all information provided by you regarding your disqualification. The Agency has denied your request for an exemption because you have not submitted clear and convincing evidence of your rehabilitation.” The Director’s letter informed Petitioner of her right to request an administrative hearing to dispute the Agency’s proposed action. Petitioner timely filed a Request for Administrative Hearing. At the hearing, the Agency presented the testimony of Michael Sauvé, the Agency’s Deputy Regional Operations Manager for the Central Region. Mr. Sauvé testified that the Agency had reviewed all of the documentation submitted by Petitioner in response to the Exemption Questionnaire, as well as additional documents she submitted with her Request for Administrative Hearing. These additional documents included an exemption from disqualification, dated March 26, 2013, granted by the Department of Health, Board of Nursing; and a letter of disqualification from employment from the Agency for Health Care Administration, dated December 30, 2015. Mr. Sauvé testified that in reviewing exemption requests, the Agency considers the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to the victim, the history of the applicant since the incident, and any other evidence indicating that the applicant will not present a danger to a vulnerable population if the exemption is granted. Mr. Sauvé also stated that the Agency seeks consistency in the applicant's account of events in his or her Exemption Questionnaire, and considers the passage of time since the disqualifying incident, whether or not the applicant accepts responsibility for his or her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Mr. Sauvé testified that the Agency noted marked inconsistencies between Petitioner's account of her disqualifying offense and the statements found in the police report. However, the police report of the incident consists of hearsay within hearsay, i.e., the responding officer’s narrative of events as told to him by the involved parties. The police report may not be relied upon in this tribunal for the truth of the matters asserted therein. It is of no use in establishing that Petitioner’s version of events is untruthful or minimizes the seriousness of the incident. In any event, the inconsistencies noted by the Agency were relatively minor critiques of Petitioner’s written narrative. For example, Petitioner stated in her Exemption Questionnaire that she ran outside as her husband chased her and hit her with his belt buckle and that she already had a Girl Scout knife in her hand. She offered no explanation as to how or why the knife came to be in her hand. Given that she freely admitted to stabbing her husband, Petitioner’s failure to detail exactly when she picked up the knife, as he hit her with a motorcycle chain and a belt buckle, seems of little importance. Mr. Sauvé testified that the Agency was also concerned that Petitioner appeared to minimize the seriousness of the incident when she wrote that her husband suffered “non-life threatening injuries with permanent scarring.” Mr. Sauvé contrasted Petitioner’s statement with the police report stating that the victim was “stabbed deep enough that he had to go to [the hospital] for treatment and then to have a specialist work on him due to the seriousness of the cut.” The cut was on the back of the victim’s shoulder and in no account was the incident described as “life threatening.” Petitioner’s description may have lacked detail but was more or less consistent with the police report. Mr. Sauvé testified that the Agency examined Petitioner’s driving record and found three speeding tickets. Such violations are a concern to the Agency because individuals who are granted exemptions could be called upon to transport clients. The Agency must be confident that these clients will be transported safely. More than her written statements, Petitioner’s testimony caused the undersigned to share the Agency’s concern about Petitioner minimizing her disqualifying offense. She seemed much more concerned with explaining the speeding tickets than in expanding upon her brief written statement regarding aggravated battery with a weapon. Petitioner simply read aloud her written statement about stabbing her husband, then launched into a detailed discussion of her speeding tickets. Also, Petitioner could not recall whether her driver’s license had ever been suspended. When confronted with documentation that it had, Petitioner stated that her license had never been suspended “for cause.” None of this testimony was helpful in establishing Petitioner’s unvarnished veracity or her appreciation of the seriousness of her disqualifying offense. Mr. Sauvé testified that the Agency had a concern with Petitioner’s statement that she had changed careers to the medical field to "procure an immense financial gain." Mr. Sauvé noted that it is not unreasonable for a person to seek a decent income, but that it is highly unusual and somewhat disconcerting for a person to enter the field of serving persons with disabilities with the idea of “immense financial gain.” Mr. Sauvé’s concern on this point was well taken. In another case, the undersigned might be inclined to find that the applicant had merely chosen an unartful way to express her hope of bettering her station in life, but Petitioner presents herself as the professional author of two books. She may be presumed to understand the form of the thoughts she puts to paper. Petitioner said nothing at the final hearing to allay the concern Mr. Suave expressed about her stated motivation for entering the field. Mr. Sauvé also discussed three DCF reports involving Petitioner in allegations of abuse. The first report, dated 1989, involved a verified finding of sexual battery against Petitioner's then-husband. According to the report, a relative told the investigator that the husband had a history as a sexual perpetrator. The report stated that Petitioner allowed access to her daughter and that the husband had fondled the child. The report stated that Petitioner had been made aware of what happened but chose to forgive the husband. She remained in the home with him, allowing continued access to the child. DCF cited Petitioner for failure to protect her child. The husband was subsequently arrested and charged with sexual battery. Petitioner testified that her actions should be viewed in light of the fact that she herself was an abuse victim. She stated that she took steps to protect her children as soon as she learned her husband was abusing them. Petitioner presented the testimony of her daughter, Candace Chatman, who stated that she was the child victim identified in the 1989 DCF report. Ms. Chatman testified that, contrary to the report, her mother did not know about the abuse when it was occurring. She stated that she was eight years old and was living with her grandmother at the time of the abuse, which she recalled occurring only once. Ms. Chatman stated that she did not tell her mother about the abuse; rather, she told another child at school about it. Ms. Chatman’s testimony was credible. The second DCF report, dated 1996, involved allegations that Petitioner hit her daughter in the head, resulting in migraine headaches. According to the report, the daughter stated that Petitioner "does hit her in the head" and once threw a bowl at her, hitting her in the face. DCF rendered findings of “some indicators” for the maltreatments of beatings, physical injury, and family violence that threatens a child, though the report assessed the risk as “low” because of the presence of family members to monitor the situation. Neither Petitioner nor Ms. Chatman directly addressed the 1996 report in their testimony. The hearsay report may not be relied upon for the truth of the matters asserted therein, but the undersigned is entitled to take notice of Petitioner’s silence as to the very serious allegation made in the report. Mr. Sauvé discussed the final DCF report, dated 2002. This incident pertained to an allegation involving Petitioner's sons, who were then aged 13 and 8. The older boy had been sexually abused by Petitioner’s spouse, and was now believed to be sexually “acting out” with his younger brother. The DCF report states that Petitioner denied any knowledge of an incident between the boys, and that Petitioner alternatively admitted and then denied having knowledge of the older boy’s prior molestation. Child services authorities advised Petitioner to separate the boys at any time they might be unsupervised. The younger child started going to his grandmother’s house after school, where he stayed until Petitioner picked him up on her way home from work. At the hearing, Petitioner testified that she had never seen the 2002 DCF report. She first denied that any abuse was occurring in her home in 2002, then stated that she had not been aware of anything untoward. Petitioner denied any knowledge that her older son had been molested by her husband. She testified that her admission to the authorities that molestation had occurred “was a way to get him counseling” because of the way he had been acting out in school. During cross-examination, Petitioner denied knowing why child services advised her to separate the boys. She stated that she did not ask why. The authorities simply told her that everything would be all right if she separated them and so she complied. Petitioner’s testimony as to the 2002 DCF report cannot be credited. This finding is not based on any contradiction between Petitioner’s testimony and the facts as stated in the hearsay DCF report; rather, it is based on the inherent lack of credibility in Petitioner’s statements. Especially problematic is her claim that she did not even ask the authorities why her sons should be kept apart. Petitioner’s unwillingness to admit any knowledge of, or even curiosity as to what the authorities alleged was happening in her home, raises serious concerns as to her character and judgment. Petitioner’s overall presentation tended to undermine her case. As noted above, she seemed unduly preoccupied with traffic tickets as opposed to the far more serious matters that concerned the Agency. Her testimony was rambling, discursive, and argumentative. The undersigned could not help but note that Ms. Chatman often interjected comments, sotto voce, in an effort to keep her mother on point during her testimony. As the hearing progressed, Petitioner became increasingly angry at the Agency for failing to recognize her “compassion.” Petitioner’s initial burden is to demonstrate, by clear and convincing evidence, that she is entitled to an exemption. The “clear and convincing” standard requires evidence sufficient “to convince the trier of fact without any hesitancy.” In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert. denied, 516 U.S. 1051, 116 S. Ct. 719, 133 L. Ed. 2d 672 (1996). Petitioner’s presentation clearly failed to rise to this standard. Petitioner appears to have turned her life around somewhat after a history of abuse, but she failed to convince either the Agency or the undersigned that she is sufficiently rehabilitated to be trusted to work with persons who are vulnerable and highly susceptible to abuse, neglect, and exploitation due to their developmental disabilities. In light of all the evidence presented at the hearing, it cannot be found that the Agency abused its discretion in denying Petitioner's request for an exemption. Taken in its entirety, the evidence supports the Agency's determination that the evidence of Petitioner's rehabilitation was insufficient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying the request of Petitioner for exemption from employment disqualification. DONE AND ENTERED this 27th day of February, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 27th day of February, 2017. COPIES FURNISHED: Jeannette L. Estes, Esquire Agency for Persons with Disabilities Suite 422 200 North Kentucky Avenue Lakeland, Florida 33801 (eServed) Sonya Nicole Samuels 496 Goss Avenue Leesburg, Florida 34748 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees as required by Section 440.107, Florida Statutes (2008). Respondent is a Florida Corporation engaged in the construction business. Respondent was incorporated on February 21, 2008. Jose Garcia, John Jones and Jamar Armstrong are corporate officers of Dice Construction, Inc. and have been since its’ inception. On December 16, 2008, Petitioner's investigator, Michael Robinson, conducted an investigation at 5524 Marathon Parkway, Jacksonville, Florida. Mr. Robinson observed one worker on the roof removing shingles and another worker on the ground cleaning up the shingles. The workers at the site identified themselves to Mr. Robinson as James Sutton and Derrick Sutton. The workers stated they were employees of Dice Construction, Inc. Mr. Robinson then spoke with Fernanda Dice, Respondent's president. Mr. Dice stated that he had an exemption from workers’ compensation insurance. Mr. Robinson was able to confirm that Mr. Dice had a current valid construction exemption, specifically for carpentry and remodeling. However, Mr. Dice did not have a roofing exemption that would apply to the type of work being performed on December 17, 2008. Additionally, neither worker at the site had a workers’ compensation insurance policy nor an exemption. On December 17, 2008, Mr. Robinson issued and personally served on Respondent a Stop-Work Order and Order of Penalty Assessment for failure to comply with statutory requirements. Mr. Robinson also issued a Request for Production of Business Records for Penalty Assessment Calculation. The specific records requested were enumerated and described on the request. In response to the request, Respondent only provided bank statements for a two-month period. Mr. Dice subsequently told Mr. Robinson, “I didn’t have any bank statements because I cash the checks to pay bills right there, and I didn’t have no circulation in my bank account.” Mr. Dice never produced documentation sufficient to calculate Respondent’s payroll. Since Respondent’s actual payroll could not be determined, Petitioner imputed the payroll as the average weekly wage rate multiplied by 1.5. pursuant to Section 440.107, Florida Statutes (2008). Respondent provided no documentation showing that the three corporate officers listed with the Florida Division of Corporations were not working for the corporation. Petitioner issued an Amended Order of Penalty Assessment based upon the imputed payroll on January 14, 2009, in the amount of $96,094.44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent issue a final order affirming the Stop-Work Order and Amended Order of Penalty Assessment in the amount of $96,094.44. DONE AND ENTERED this 14th day of August, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 14th day of August, 2009 COPIES FURNISHED: Fernanda Dice Dice Construction, Inc. 12256 Cobblefield Circle, South Jacksonville, Florida 32224 Paige Billings Shoemaker, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue The issue is whether the Stop Work Order issued on July 27, 2007, and the Amended Order of Penalty Assessment were lawful.
Findings Of Fact The Division is a component of the Department of Financial Services. The Department is charged with the administration of portions of the "Workers' Compensation Law." Versa-Tile is a corporation headquartered in Mary Esther, Florida. Versa-Tile is engaged in flooring, which is a construction activity. Michelle Newcomer is an Insurance Analyst II with the working title of Workers' Compensation Compliance Investigator. She maintains an office in Pensacola, Florida. It is her job to travel to work sites and to verify compliance with the Workers' Compensation Law. She is authorized by the Division to issue an SWO and to calculate and assess penalties. On July 24, 2007, Ms. Newcomer was conducting compliance investigations at random sites in the Alys Beach area of Walton County, Florida. While doing so she noticed three individuals in the garage at the rear of a house at 23 Whitby. They were removing tools from a toolbox and "working." Ms. Newcomer identified the men as Adrian Womack and Kent Degallerie. The third man on the site was named "Barker." Barker asserted that he was not doing any work, but was there just to give the men a ride. He was deemed not involved in the work being accomplished at the site. Ms. Newcomer interviewed Adrian Womack and Kent Degallerie. They both told her that they were exempt officers of Versa-Tile. It is found as a fact that the 2006 For Profit Corporate Annual Report of Versa-Tile signed on April 26, 2006, and filed with the Department of State on May 1, 2006, listed Adrian Womack and Kent Degallerie as corporate officers of Versa-Tile. They were not corporate officers of Versa-Tile prior to April 26, 2006. Adrian Womack worked for Versa-Tile from July 29, 2005, until April 25, 2006, as an employee. He was not an officer and was not, and could not be, exempt. Kent Degallerie worked for Versa-Tile from May 6, 2005, until April 25, 2006, as an employee. He was not an officer and was not, and could not be, exempt. Nicholas Womack, who was not present at the Alys Beach site, is listed therein as president of Versa-Tile and has been exempt during all times pertinent. As corporate officers, Adrian Womack and Kent Degallerie could be exempt from the usual requirement that workers be covered by workers' compensation insurance even though they were also employees of Versa-Tile who were paid wages. Ms. Newcomer obtained their full names and social security numbers so that she could verify their claimed exemption. She determined from the Department's Coverage and Compliance Automated System that there were no records of exemption being obtained for them. Ms. Newcomer confirmed with an examiner in the Pensacola office that Adrian Womack and Kent Degallerie were not on the list of exempt persons. She issued a Request for Production of Business Records dated July 24, 2007. She personally served these documents on Adrian Womack and Kent Degallerie. She issued an SWO, dated July 27, 2007, and personally served it on Nicholas Womack. If a person is a ten percent owner of a corporation or limited liability company they are entitled to obtain an exemption from the Department. An exemption is obtained by completing the "Notice of Election to be Exempt" form. This form when properly completed and accompanied by certain required documents, a $50 application fee, and submitted to the Division, will cause the Division to grant an exemption. If the Department determines that a person is exempt upon receiving a properly submitted form and payment, the Department will issue a card reflecting exemption. Neither Adrian Womack nor Kent Degallerie had such a card on July 24, 2007. During all times pertinent, the Department had no record indicating it had received any payment from Nicholas Womack, Adrian Womack, or Kent Degallerie that would have been tendered on behalf of Adrian Womack or Kent Degallerie. On July 27, 2007, Ms. Newcomer met with Nicholas Womack, president of Versa-Tile in her office in Pensacola and personally served him a Request for Production of Business Records. Later, Nicholas Womack provided employment records to Ms. Newcomer. On July 30, 2007, the Department and Versa-Tile entered into an agreement that permitted Versa-Tile to go back to work. Using workers' compensation class code 5348 for employees Adrian Womack and Kent Degallerie, Ms. Newcomer correctly calculated the premium that should have been paid, if they were mere employees, as $8,455.56, and multiplied that figure by the statutory penalty of 1.5. She correctly determined the total to be $12,683.35. The parties stipulated that to the extent the figure applies, it is correct. Nicholas Womack at all times pertinent had an exemption. Adrian Womack and Kent Degallerie were granted exemptions by the Department on July 30, 2007. These were the first exemptions from workers' compensation coverage that they had ever received while in a business relationship with Versa- Tile. The Division receives from 90,000 to 96,000 construction exemption applications yearly. They also receive between 30,000 to 35,000 non-construction exemption applications annually. The applications may be provided by applicants to the Department by hand-delivery at a field office or to the Department headquarters in Tallahassee, or by mail to a field office or to the Department headquarters in Tallahassee. Errors may occur in this process because of mistakes or omissions in the applications filed by the applicant or because of data entry errors by personnel in the Department. However, the process is sufficiently simple and automated that usually, when a complete application is filed, the exemption issues, and the applicant is, thereafter, provided a card reflecting the exemption via mail. There are ten field offices in the state to which applicants may file applications for exemptions. The field office in Panama City, Florida, at least the portion that accepted exemption applications, closed in 2005. However, the forms still listed Panama City as an address to which one might mail an application for exemption. The president of Versa-Tile, Nicholas Womack, has filed for and obtained three exemptions since he created Versa- Tile. Prior to incorporating Versa-Tile, he owned another business by the name of Nicholas Womack Flooring, Inc. He previously had two officers, Michael Smith and Mitchell Smedley, working with him at Versa-Tile, but he removed them as corporate officers so that Adrian Womack and Kent Degallerie could be corporate officers. Mr. Smith's exemption was revoked April 27, 2006, by the filing of a Notice of Revocation of Election to be Exempt with the Department. This roughly coincided with the naming of Adrian Womack and Kent Degallerie as corporate officers. Department of State corporate records, as of May 1, 2006, reflected that Versa-Tile had three officers: Nicholas Womack, Adrian Womack, and Kent Degallerie. In order to obtain a certificate of exemption, Nicholas Womack filed the appropriate form with the Department, along with proof that he held a contractor's license, stock certificates, and $50.00. He followed this process on three occasions while president of Versa-Tile. The evidence of record reveals exemptions granted to Nicholas Womack on January 25, 2005, and May 18, 2006, while president of Versa-Tile. He claims not to ever have received a certificate evidencing exemption from the Department while president of Versa-Tile. Nicholas Womack testified that on only one of the occasions, when he was operating Nicholas Womack Flooring, Inc., did the Department mail him a card reflecting his exemption and stated that occurred in 2001 or 2002. Nicholas Womack understands that by not obtaining coverage under workers' compensation insurance he and the other two corporate officers of Versa-Tile would not be compensated should they be injured on the job. Nicholas Womack explained to Adrian Womack and Kent Degallerie that they were eligible for an exemption, and if they got an exemption and were injured, they would not be covered by workers' compensation insurance. Nicholas Womack testified that thereafter he helped the two men fill out the appropriate forms and ensured that all necessary attachments, including two money orders in the correct amount, were present and then mailed the applications, one in each envelope, to the Department's Panama City office. As soon as the applications were mailed, Nicholas continued allowing the men to work for Versa-Tile without waiting for the exemptions to be granted. Adrian Womack and Kent Degallerie first received exemption on July 30, 2007. Subsequent to July 30, 2007, Nicholas asked Adrian Womack if he had received an exemption card. Adrian Womack said that he had not. Adrian Womack and Kent Degallerie both stated that they had not received an exemption card after filing for exemption in July 2007. Nicholas Womack's testimony that he only received one certificate of exemption in seven years of enjoying an exempt status lacks credibility. Even considering that the Department is large and it annually processes huge amounts of paperwork, it is quite improbable that on six occasions they would fail to send Nicholas Womack a certificate. That being the case, Nicholas Womack's testimony that he mailed completed applications for Adrian Womack and Kent Degallerie to the Department's Panama City office and never received any type of response, when considered in concert with his other testimony, is not credible. It is a fact that Nicholas Womack, Adrian Womack, and Kent Degallerie were eligible for an exemption subsequent to April 26, 2006. If exempt, they were responsible for their own expenses should they suffer an injury while on the job. If they failed to get an exemption, they were likewise responsible for their own expenses should they suffer an injury while on the job. This situation is very different from that where an employer fails to obtain coverage for workers not having an ownership interest in the employer, as was the case with Versa- Tile prior to April 26, 2006.
Recommendation Based upon the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order requiring Versa-Tile and Marble, Inc., to pay a penalty of $12,683.35. DONE AND ENTERED this 25th day of January, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2008. COPIES FURNISHED: Kristian E. Dunn, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Michael James Rudicell, Esquire Michael J. Rudicell, P.A. 4303 B Spanish Trail Road Pensacola, Florida 32504 Daniel Sumner, General Counsel Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact On September 6, 2001, Petitioner Bowers filed with the Florida Commission on Human Relations (Commission) a Charge of Discrimination against Respondent, Big Red Waste, Inc. The Charge recited that the most recent or continuing date of discrimination was July 10, 2001, for a finite, one-time act of alleged unlawful employment practice, to wit: termination on the basis of race (Black) and in retaliation. One hundred and eighty days from the filing of Petitioner's Charge with the Commission would have been on or about March 5, 2002. On September 19, 2003, the Commission entered a Dismissal and Notice of Rights. On December 23, 2003, the Commission entered an Amended Dismissal and Notice of Rights. The Commission's Amended Dismissal and Notice of Rights (Amended Dismissal) recited that on May 14, 2002, the Commission had received notice that Respondent had filed a voluntary Chapter 7 Petition in Bankruptcy. Therefore, it is presumed that as of May 14, 2002, an automatic stay of proceedings before the Commission was in effect. The Commission's Amended Dismissal also stated: . . . It has been more than 180 days since Complainant's complaint was filed, and since no determination has been made due to the automatic stay that was issued in Respondent's bankruptcy case, and since Complainant has been previously notified by the Commission of his obligation to file a Notice of Claim [in the federal bankruptcy court], the Commission hereby dismisses this Charge of Discrimination and provides the following Notice to Complainant. Since the Commission did not make a determination of cause or no cause on your complaint within 180 days of the filing of the complaint, you may proceed as if the Commission determined there was reasonable cause. Section 760.11(8), Florida Statutes; Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So. 2d 891 (Fla. 2002). You must initiate a civil lawsuit within 1-year from the date of this dismissal, or an administrative action with the Division of Administrative Hearings within 35 days of the date of this dismissal, provided neither date has exceeded a total of four (4) years from the initial date of the violation. Section 760.11(4), Florida Statutes; Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). If more than four (4) years have passed once the automatic stay is lifted on Respondent's bankruptcy case, you must file your civil lawsuit, or your administrative action within 30 days of the lifting of the automatic stay. Morsani v. Major League Baseball, 739 So. 2d 610 (Fla. 2nd DCA 1999). If the Respondent has not emerged from bankruptcy, and if you determine you do not want to wait until Respondent emerges from bankruptcy, you may file a Motion for Relief from Automatic Stay, and present your argument and authorities to the bankruptcy judge assigned to Respondent's bankruptcy case. The Commission does not assist Complainants with filing the Motion for Relief from Automatic Stay. You must consult an attorney on your own for that purpose. [Bracketed material added for clarity.] One year from the Commission's December 23, 2003, Amended Dismissal will be December 22, 2004. Thirty-five days from the Commission's December 23, 2004, Amended Dismissal would have been January 27, 2004. Four years from July 30, 2001, the initial date of the violation, will be July 29, 2005. On February 12, 2004, Petitioner sent a letter to the Commission stating that the Commission's "right to sue" letter did not include a blank Petition for Relief. However, the referral packet from the Commission to the Division included no "right to sue letter." The Commission's response to the Order of the undersigned dated May 3, 2004, does not contain a "right to sue" letter. On February 17, 2004, the Commission entered an Order to Show Cause Why Case Should Not Be Closed Because of Bankruptcy Proceedings (Commission's Order to Show Cause). The Commission's Order to Show Cause noted that Respondent had filed a Voluntary Petition for Bankruptcy, Chapter 11, on October 9, 2001, and that the same case was converted to a Chapter 7 bankruptcy proceeding on May 7, 2002. The Commission's Order to Show Cause also noted that a letter advising Petitioner of the bankruptcy was sent on May 20, 2002, and that a final order distributing all assets and dismissing the bankruptcy case was entered on September 9, 2002. The Commission ordered the parties to show cause, before March 19, 2004, why the discrimination case before the Commission should not be closed. The referral packet from the Commission to the Division included a Response to the Commission's Order to Show Cause, filed with the Commission by the trustee in bankruptcy, on or about March 8, 2004. That Response recites that Respondent's Chapter 7 bankruptcy proceeding was dismissed by a September 9, 2002, Order and that "upon the dismissal order becoming final all of the assets of Big Red Waste, Inc., reverted to that corporation and the automatic stay was terminated and vacated as to all creditors and claimants against Big Red Waste, Inc." The bankruptcy court docket was provided to the Division by the Commission in response to the May 3, 2004, Order herein. Assuming a 30-day appeal period, the dismissal by the Bankruptcy Court became final, at the latest, as of October 8, 2002. Therefore, the latest date the automatic stay was lifted would also have been October 8, 2002, although the September 9, 2002, date of the Bankruptcy Court's Order would be reverted-to, absent an appeal, and there is no evidence of an appeal. According to the Commission's response to the May 3, 2004, Order herein, the Petition for Relief in the instant discrimination case was "inadvertently dated March 13, 2004," but was filed with the Commission on March 9, 2004. The Petition for Relief recites repeatedly, "see attached complaint." There was no complaint attached to the Petition in the packet referred by the Commission to the Division, and none was provided in response to the May 3, 2002, Order herein. Therefore, pursuant to the terms of the May 3, 2004, Order herein, it is presumed that the "complaint" referred to in the Petition for Relief is the September 6, 2001, Charge of Discrimination, and it may further be presumed that no continuing pattern of discrimination continued after the finite termination date of July 1, 2001. However, by the Petition for Relief, Petitioner attempted to add as a party Respondent, Respondent's president, Yvonne Kiawtkowski. Petitioner has as yet demonstrated no good cause to add Respondent's president, in her individual capacity, to this administrative discrimination case when she was not individually charged in the original Charge before the Commission. The copy of the Petition for Relief and Attachments sent to the most recent address in the Commission file for Respondent's Corporation apparently were returned to the Commission. The same has occurred with regard to all papers mailed by the Division to that address. Therefore, no Notice of Hearing can be sent by the Division to Respondent's Corporation. Telephone calls by the undersigned's secretary to Big Red Waste, Inc.'s last known phone number, which was provided in the Commission's referral packet, have resulted in an oral response that the party at that phone number is not Big Red Waste, Inc. Recently, the Commission determined that Ms. Kiawtkowski has a new personal address. On June 21, 2004, the Petition for Relief and Attachments were returned to the Commission from that address too. The Commission has stated it cannot determine whether Ms. Kiawtkowski ignored the certified mail receipt for this mailing or whether she no longer resides in that area.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of July, 2004, 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 15th day of July, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wayne N. Bowers 10951 Laureate Drive, Apartment 601 San Antonio, Florida 78249 Yvonne Kwiatkowski, President Big Red Waste, Inc. Post Office Box 549 Alachua, Florida 32615 Yvonne Kwiatkowski, President Big Red Waste, Inc. Post Office Box 730981 Ormond Beach, Florida 32173
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order for Specific Worksite Only (“SWO”) and Amended Order of Penalty Assessment (“AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Allstate is a corporation engaged in business in the State of Florida. Allstate was organized on May 23, 2005. Edgar A. Ezelle is the president and registered owner of Allstate. The address of record for Allstate is 8217 Firetower Road, Jacksonville, Florida 32210. In March 2017, Respondent was hired as the general contractor to renovate a hotel at a jobsite located at 3050 Reedy Creek Boulevard. When Respondent accepted the project, Prestige Handyworkers, LLC (“Prestige”), a subcontractor, was working on the jobsite. Although Prestige was hired by the previous general contractor, Respondent continued to work with Prestige. On June 15, 2017, the Department’s investigator, Kirk Glover, conducted a routine visit to the jobsite to conduct a compliance investigation. Mr. Glover observed six individuals performing construction-related work at the site. Mr. Glover conducted an interview of the individuals and took notes during the course of his interviews. Mr. Glover identified the individuals as: Luis Miguel Paz; Joseph A. Pizzuli; Roger Penley, Jr.; Georgios Rapanakis; Stavros Georgios Rapanakis; and Joseph Youngs. The six individuals were employed by subcontractor Prestige to perform work on behalf of Allstate. Luis Miguel Paz, Joseph A. Pizzuli, and Roger Penley, Jr., were engaged in painting work; Georgios Rapanakis and Stavros Georgios Rapanakis were supervising the other workers; and Joseph Youngs was engaged in cleanup of the construction site. The workers did not testify at the final hearing. Mr. Glover then contacted Allstate president, Edward Ezelle, who confirmed he was the general contractor for the jobsite and that he retained Prestige as the subcontractor for the site. Mr. Glover conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Prestige or its employees. Prestige did not have workers’ compensation coverage for its employees. The search of CCAS revealed that Mr. Ezelle had an active workers’ compensation coverage exemption, effective July 27, 2015, through July 26, 2017. Based on the results of his investigation, on June 16, 2017, Mr. Glover issued an SWO to Allstate for failure to maintain workers’ compensation coverage for its employees. On June 19, 2017, Mr. Glover hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”). The Records Request directed Respondent to produce business records for the time period of June 16, 2015, through June 15, 2017. Respondent did not provide any business records to the Department. Mr. Ezelle testified that Allstate did not conduct business in Florida for the period of September 2016 through March 2017. While the undersigned has no reason to doubt Mr. Ezelle’s testimony that his business was not active during that time period, Respondent failed to produce records in response to the Records Request to support his testimony. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, June 16, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses the imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Glover’s observations at the jobsite on June 16, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5474 to calculate the penalty. Classification code 5474 applies to work involving painting. Ms. Jackson applied the approved manual rates for classification 5474 for each of the six individuals working on the jobsite. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $11.05 for the period of June 16, 2015, through December 31, 2015; and $11.02 for the period of January 1, 2016, through June 15, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Georgios Rapanakis and Starvos Georgios Rapanakis had a workers’ compensation exemption for the period of June 16, 2015, through June 10, 2016. However, they were not covered by an exemption from June 11, 2016, through June 15, 2017. Although Mr. Ezelle has an exemption, his exemption was not in effect for a short period of July 19, 2015, through July 26, 2015. None of the other employees had an exemption. Based upon the Department’s calculation, the penalty assessment for the imputed payroll would be $153,908.20. On November 17, 2017, the Department filed a Motion for Leave to Amend Order of Penalty Assessment (“Motion for Leave to Amend”). The Department sought leave from the undersigned to amend the penalty assessment. The Department, as a party, is not authorized to amend a penalty without leave from the undersigned after the matter was filed with the Division. See § 120.569(2)(a) and Fla. Admin. Code R. 28-106.202. Despite the AOPA reflecting an issued date of July 14, 2017, the record supports a finding that the AOPA was issued November 17, 2017, the date the undersigned granted the Department’s Motion for Leave to Amend. Thus, the Department issued the AOPA for the imputed payroll 105 business days after Respondent received the Records Request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order as follows: finding that Respondent failed to secure and maintain workers’ compensation coverage for its subcontractors; and dismissing the Amended Order of Penalty Assessment against Respondent. DONE AND ENTERED this 26th day of January, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of January, 2018. COPIES FURNISHED: Christina Pumphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Edgar Ezelle Allstate Custom Contracting, Inc. 8217 Firetower Road Jacksonville, Florida 32210 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Whether the petitioner is entitled to an award under section 57.111, Florida Statutes, of attorney’s fees and costs incurred in the appellate matter Witmer v. Department of Business and Professional Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994), and, if so, the amount of such award.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is the state agency responsible for issuing occupational licenses to veterinarians with access to the backside of a racetrack and for regulating such licensees. Sections 550.10(1)(b) and .105(2)(d)2, Florida Statutes. Dr. Witmer has been licensed to practice veterinary medicine in Florida since January 1, 1993, and, as of October 19, 1993, he was authorized to practice veterinary medicine at Florida racetracks by virtue of a pari-mutuel wagering occupational license (“license”) issued by the Department. He has been domiciled in Florida at all times material to this matter. On October 19, 1993, Dr. Witmer was a partner in a professional practice in veterinary medicine with its principal office at 1450 Southwest Third Street, Pompano Park, Broward County, Florida. His professional practice had three full-time employees and a net worth, including both personal and business investments, of less than $2 million. In the Administrative Complaint and Emergency Order of Suspension dated October 19, 1993, the Department took two actions with respect to Dr. Witmer’s license.1 First, in the administrative complaint, it put Dr. Witmer on notice that the Department had initiated a disciplinary action against him, charging him with violations of a statute and a rule governing his license which, if proven, would justify the imposition of penalties, including revocation or suspension of his license. Secondly, in the emergency order of suspension, it summarily suspended Dr. Witmer’s license. Dr. Witmer requested a formal administrative hearing pursuant to section 120.57(1), Florida Statutes, to challenge the truth of the allegations contained in the administrative complaint. The request was forwarded to the Division of Administrative Hearings and assigned DOAH Case Number 93-6638. That action was pending at the time Dr. Witmer filed the application for attorney’s fees and costs at issue in this proceeding. Underlying proceeding On the basis of the allegations contained in the administrative complaint and its determination that Dr. Witmer’s interest in his license was “far outweighed by the immediate danger to the public health and safety and to the integrity of harness racing in the State of Florida,” the Department suspended Dr. Witmer’s pari-mutuel wagering occupational license as of October 19, 1993, ordered him to cease and desist from all activities authorized by the license, and barred him from entering any pari-mutuel establishment as a patron for the duration of the emergency suspension. Dr. Witmer chose to seek immediate judicial review of the emergency order pursuant to sections 120.60(8) and 120.54(9)(a)3, Florida Statutes (1993). It is this appellate proceeding which is the proceeding underlying Dr. Witmer’s application for attorney’s fees and costs at issue herein. State agencies are authorized by section 120.60(8), Florida Statutes (1995) to immediately suspend a license under the following circumstances and subject to the following conditions: If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(9) on agencies making emergency rules. Summary suspension, restriction, or limitation may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon. Section 120.54(9)(a), Florida Statutes, provides in pertinent part: If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that: * * * 3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. . . . The agency’s findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable. On February 2, 1994, the District Court of Appeal for the Fourth District of Florida issued its opinion in Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Case Number 93-3232, reported at 631 So. 2d 338. The court quashed the Emergency Order of Suspension, concluding that the order was “facially inadequate,” and ruling that “the Department’s findings of immediate danger to the public welfare are not supported by specific facts and reasons as required by 120.54(9)(a)3, Florida Statutes.” Id. at 340, 343. The district court in Witmer observed that its review was limited to a determination of whether the order complied with the requirements of section 120.54(9)(a)3 and based its analysis upon the following rules of law: If the facts alleged in the complaint and [emergency] order are sufficient to demonstrate immediacy, necessity and fairness, no hearing is required prior to the emergency suspension. . . . The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public. (Citation omitted.) Where, as here, no hearing was held prior to the entry of the emergency order, every element necessary to its validity must appear on the face of the order. (Citation omitted.) The order must be “factually explicit and persuasive concerning the existence of a genuine emergency.” (Citation omitted.) Witmer, 631 So. 2d at 341. In reaching its conclusion that the emergency order was facially inadequate, the court in Witmer held that the Department failed to allege facts in the complaint and order to establish the essential elements of the violations upon which the emergency suspension was based. Firstly, the court found that the charge in the emergency order that Dr. Witmer had failed to report gratuities was not supported by any allegations of fact in the complaint and order. Id. at 341. Secondly, the court found that the Department failed to allege that Dr. Witmer’s actions related to horse racing or to race horses, an essential element of a violation of section 550.235(2), Florida Statutes, and of rule 61D-1.002(10), Florida Administrative Code. Id. at 342. Thirdly, the court found that the Department failed to allege that Dr. Witmer reached an agreement with a second person to commit the violation, an essential element of any conspiracy, including one to violate section 550.235(2) and rule 61D-1.002(10). Id. Finally, the court concluded that the public harm alleged by the Department in the order was too attenuated to support the emergency suspension of Dr. Witmer’s license. Id. at 343. The district court issued its mandate to the Department on February 18, 1994, directing it to act in accordance with the opinion quashing the Emergency Order of Suspension. The Department did not seek review of the decision of the district court in the Florida Supreme Court. Consequently, the decision of the district court had the effect of nullifying the emergency suspension of Dr. Witmer’s license. Summary Dr. Witmer was a small business party, as that term is defined for purposes of section 57.111, at the time the Department entered the emergency order.2 The evidence is sufficient to establish that the Department initiated an action against Dr. Witmer when it entered an Emergency Order of Suspension. This order was issued under the authority granted state agencies in section 120.60(8), Florida Statutes. The order had the effect of immediately and summarily suspending Dr. Witmer’s pari-mutuel wagering occupational license. Dr. Witmer had the right to seek immediate judicial review of the emergency order pursuant to section 120.54(9)(a)3. The appellate court quashed the emergency order because it was legally insufficient to support the suspension of Dr. Witmer’s license under the standards of section 120.54(9)(a)3. The Department did not appeal or seek further review of the appellate court’s decision. Dr. Witmer, therefore, prevailed in the administrative proceeding initiated by the Department. The Department presented no evidence to establish that its action in ordering the emergency suspension of Dr. Witmer’s license had a reasonable basis in law and fact or that any special circumstances exist which would make an award of attorney’s fees and costs in this case unjust.3 The monetary value of the attorney’s fees rendered in connection with the appellate proceeding culminating in the decision quashing the Emergency Order of Suspension is $9,715.00, and the costs incurred total $250. These fees and costs are reasonable and were necessary to prosecute the appellate proceeding.4
The Issue Whether Fantastic Construction of Daytona, Inc. (“Respondent”), failed to secure the payment of workers’ compensation 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 The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent is a corporation engaged in the construction industry with headquarters in Daytona Beach, Florida. On November 19, 2015, the Department’s compliance investigator, Scott Mohan, observed five individuals framing a single-family house at 173 Botefuhr Avenue in Daytona, Florida. Mr. Mohan interviewed the individuals he observed working at the jobsite and found they were working for Respondent on lease from Convergence Leasing (“Convergence”). Mr. Mohan contacted Convergence and found that all of the workers on the jobsite were employees of Convergence, except Scott Barenfanger. Mr. Mohan also confirmed that the workers’ compensation policy for Convergence employees was in effect. Mr. Mohan reviewed information in the Coverage and Compliance Automated System, or CCAS, for Respondent. CCAS indicated Respondent’s workers were covered for workers’ compensation by Convergence and that Respondent’s contract with Convergence was active. Mr. Mohan also confirmed, through CCAS, that Foster Coleman, Respondent’s president, had previously obtained an exemption from the workers’ compensation requirement, but that his exemption expired on July 18, 2015. Mr. Mohan then contacted Mr. Coleman via telephone and informed him that one of the workers on the jobsite was not on the active employee roster for Convergence, thus Respondent was not in compliance with the requirement to obtain workers’ compensation insurance for its employees. Mr. Coleman reported to the jobsite in response to Mr. Mohan’s phone call. Mr. Coleman admitted that Mr. Barenfanger was not on the Convergence employee leasing roster. Mr. Coleman subsequently obtained an application from Convergence for Mr. Barenfanger and delivered it to his residence. Mr. Mohan served Mr. Coleman at the jobsite with a Stop-Work Order and a Request for Production of Business Records for Penalty Assessment Calculation (“BRR”). In response to the BRR, Respondent provided to the Department business bank statements, check stubs, copies of checks, certificates of liability insurance for various suppliers and subcontractors, and an employee leasing roster for most of the audit period from November 20, 2013, to November 19, 2015.1/ Respondent did not produce any check stubs for November and December 2013. Mr. Coleman testified, credibly, that his bookkeeper during that time period did not keep accurate records. Mr. Coleman did produce his business bank statements and other records for that time period. Based on the review of initial records received, the Department calculated a penalty of $17,119.80 and issued an Amended Order of Penalty Assessment in that amount on February 18, 2016. On March 17, 2016, Respondent supplied the Department with additional records. Altogether, Respondent submitted over 400 pages of records to the Department. The majority of the records are copies of check stubs for checks issued on Respondent’s business bank account. The check stubs are in numerical order from 1349 to 1879, and none are missing. The check stubs were hand written by Mr. Coleman, who is 78 years old. Some of his writing on the check stubs is difficult to discern. On April 4, 2016, following review of additional records received, the Department issued a Second Amended Order of Penalty Assessment in the amount of $9,629.36. The Department assigned penalty auditor Sarah Beal to calculate the penalty assessed against Respondent. Identification of Employees Ms. Beal reviewed the business records produced by Respondent and identified Respondent’s uninsured employees first by filtering out payments made to compliant individuals and businesses, and payments made for non-labor costs. However, the evidence demonstrated that the Department included on its penalty calculation worksheet (“worksheet”) payments made to individuals who were not Respondent’s employees. Neal Noonan is an automobile mechanic. Mr. Noonan was neither an employee of, nor a subcontractor for, Respondent for any work performed by Respondent during the audit period. Mr. Noonan performed repairs on Mr. Coleman’s personal vehicles during the audit period. Checks issued to Mr. Noonan during the audit period were for work performed on Mr. Coleman’s personal vehicles. The Department’s worksheet included a “David Locte” with a period of noncompliance from June 19, 2014, through December 31, 2014. The basis for including Mr. Locte as an employee was a check stub written on December 10, 2014, to a business name that is almost indiscernible, but closely resembles “Liete & Locke” in the amount of $100. The memo reflects that the check was written for “architect plans.” Mr. Coleman recognized the worksheet entry of David Locte as pertaining to David Leete, an architect in Daytona. Mr. Leete has provided architectural services to Respondent off and on for roughly five years. Mr. Leete signs and seals plans for, among others, a draftsman named Dan Langley. Mr. Langley provides drawings and plans for Respondent’s projects. When Respondent submits plans to a local governing body which requires architectural drawings to accompany permit applications, Mr. Leete reviews and signs the plans. Mr. Leete was neither an employee of, nor a subcontractor for, Respondent during the audit period. The single payment made to Mr. Leete by Respondent during the audit period was for professional architectural services rendered. Mr. Langley was neither an employee of, nor a subcontractor for, Respondent during the audit period. Payments made to Mr. Langley during the audit period were for professional drafting services rendered. Among the names on the Department’s worksheet is R.W. Kicklighter. Mr. Kicklighter is an energy consultant whose office is located in the same building with Mr. Leete. Mr. Kicklighter prepares energy calculations, based on construction plans, to determine the capacity of heating and air-conditioning systems needed to serve the planned construction. Mr. Kicklighter was neither an employee of, nor a subcontractor for, Respondent during the audit period. Payments made to Mr. Kicklighter during the audit period were for professional services rendered. Respondent made a payment of $125 on September 15, 2014, to an entity known as Set Material. Set Material is a company that rents dumpsters for collection of concrete at demolition and reconstruction sites. Removal and disposal of the concrete from the jobsite is included within the rental price of the dumpster. The Department included on the worksheet an entry for “Let Malereal.” The evidence revealed the correct name is Set Material and no evidence was introduced regarding the existence of a person or entity known as Let Malereal. Set Material was neither an employee of, nor a subcontractor for, Respondent during the audit period. The single payment made to Set Material during the audit period was for dumpster rental. The Department’s worksheet contains an entry for “CTC” for the penalty period of January 1, 2014, through May 1, 2014. Respondent made a payment to “CTC” on April 11, 2014, in connection with a job referred to as “964 clubhouse.” The records show Respondent made payments to Gulfeagle Supply, Vern’s Insulation, John Wood, Bruce Bennett, and Ron Whaley in connection with the same job. At final hearing, Mr. Coleman had no recollection what CTC referred to. Mr. Coleman’s testimony was the only evidence introduced regarding identification of CTC. CTC could have been a vendor of equipment or supplies for the job, just as easily as an employee. The evidence is insufficient to support a finding that CTC was an employee of, or a subcontractor for, Respondent during the audit period. The check stub for check 1685 does not indicate to whom the $60 payment was made. The stub reads “yo for Doug.” The Department listed “Doug” as an employee on its worksheet and included the $60 as wages to “Doug” for purposes of calculating workers’ compensation premiums owed. At hearing, Mr. Coleman was unable to recall ever having employed anyone named Doug, and had no recollection regarding the January 7, 2015, payment. The evidence was insufficient to establish that “Doug” was either Respondent’s employee or subcontractor during the audit period. Ken’s Heating and Air was not an employee of, nor a subcontractor to, Respondent for any work undertaken by Respondent during the audit period. Ken’s Heating and Air conducted repairs on, and maintenance of, Mr. Coleman’s personal residence during the audit period. Checks issued to Ken’s Heating and Air during the audit period were payments for work performed at Mr. Coleman’s personal residence. Barry Smith is an electrical contractor. Mr. Smith was neither an employee of, nor subcontractor to, Respondent for any work performed by Respondent during the audit period. Mr. Smith did make repairs to the electrical system at Mr. Coleman’s personal residence during the audit period. Checks issued to Mr. Smith during the audit period were payments for work performed at Mr. Coleman’s personal residence. The remaining names listed on the Department’s penalty calculation worksheet were accurately included as Respondent’s employees.2/ Calculation of Payroll Mr. Coleman’s exemption certificate expired on July 18, 2015, approximately four months shy of the end of the audit period. Payments made by Respondent to Mr. Coleman during the time period for which he did not have a valid exemption (the penalty period) were deemed by the Department as wages paid to Mr. Coleman by Respondent. Respondent’s business records show seven checks written either to Mr. Coleman or to cash during that time period in the total amount of $3,116.52. The Department included that amount on the worksheet as wages paid to Mr. Coleman. Check 1873 was written to cash, but the check stub notes that the payment of $1,035.69 was made to Compliance Matters, Respondent’s payroll company. Check 1875 was written to cash, but the check stub notes that the payment of $500 was made to Daytona Landscaping. The evidence does not support a finding that checks 1873 and 1875 represented wages paid to Mr. Coleman. The correct amount attributable as wages paid to Mr. Coleman during the penalty period is $1,796.52. Respondent’s employees Tyler Eubler, Brian Karchalla, Keith Walsh, and John Strobel, were periodically paid by Respondent during the audit period in addition to their paychecks from Convergence. Mr. Coleman testified that the payments were advances on their wages. He explained that when working on a job out of town, the crew would arrive after Convergence had closed for the day, and Mr. Coleman would pay them cash and allow them to reimburse him from their paychecks the following day. Unfortunately for Respondent, the evidence did not support a finding that these employees reimbursed Mr. Coleman for the advances made. The Department correctly determined the payroll amount attributable to these employees. The Department attributed $945 in payroll to “James Sharer.” The Department offered no evidence regarding how they arrived at the name of James Sharer as Respondent’s employee or the basis for the payroll amount. James Shores worked off-and-on for Respondent. Mr. Coleman recognized the worksheet entry of “James Sharer” as a misspelling of Mr. Shores’ name. Respondent’s records show payments totaling $535 to Mr. Shores during the audit period. The correct amount of payroll attributable to Mr. Shores from Respondent during the audit period is $535. The Department included wages totaling $10,098.84 to Mr. Barenfanger during the period of noncompliance from November 20, 2013, to December 31, 2013. The Department imputed the average weekly wage to Mr. Barenfanger for that period because, in the Department’s estimation, Respondent did not produce records sufficient to establish payroll for those two months in 2013. See § 440.107(7)(e), Fla. Stat. The voluminous records produced by Respondent evidenced not a single payment made to Mr. Barenfanger between January 2014, and November 19, 2015. Even if Mr. Coleman had not testified that he did not know or employ Mr. Barenfanger before November 19, 2015, it would be ludicrous to find that he worked weekly for Respondent during the last two months of 2013. Mr. Coleman testified, credibly, that Mr. Barenfanger worked the jobsite for Respondent on November 18 and 19, 2015, but not prior to those dates. The evidence does not support a finding that the worksheet entry for Mr. Barenfanger in the amount of $10,098.84 accurately represents wages attributable to Mr. Barenfanger during the period of noncompliance. The Department’s worksheet includes an employee by the name of Ren W. Raly for the period of noncompliance from January 1, 2014, through May 1, 2014, and a Ronnie Whaley for the period of noncompliance from June 19, 2014 through December 31, 2014. Mr. Coleman testified that he never had an employee by the name of Raly and he assumed the first entry was a misspelling of Ronnie Whaley’s name. Mr. Coleman testified that Ronnie Whaley was a concrete finisher and brick layer who did work for Respondent. Mr. Coleman testified that he submitted to the Department a copy of Mr. Whaley’s “workers’ comp exempt,” but that they must not have accepted it. The records submitted to the Department by Respondent do not contain any exemption certificate for Ronnie Whaley. However, in the records submitted to the Department from Respondent is a certificate of liability insurance dated February 25, 2014, showing workers’ compensation and liability coverage issued to Direct HR Services, Inc., from Alliance Insurance Solutions, LLC. The certificate plainly states that coverage is provided for “all leased employees, but not subcontractors, of Ronald Whaley Masonry.” The certificate shows coverage in effect from February 1, 2013, through February 1, 2015. Petitioner did not challenge the reliability of the certificate or otherwise object to its admissibility.3/ In fact, the document was moved into evidence as Petitioner’s Exhibit P1. Petitioner offered no testimony regarding whether the certificate was insufficient proof of coverage for Mr. Whaley during the periods of noncompliance listed on the worksheet. The evidence does not support a finding that Mr. Whaley was an uninsured individual during the periods of noncompliance. Thus, the wages attributed to Mr. Whaley by the Department were incorrect. Ms. Beal assigned the class code 5645—Carpentry to the individuals correctly identified as Respondent’s uninsured employees because this code matched the description of the job being performed by the workers on the jobsite the day of the inspection. Ms. Beal correctly utilized the corresponding approved manual rates for the carpentry classification code and the related periods of noncompliance to determine the gross payroll to the individuals correctly included as Respondent’s uninsured employees. Calculation of Penalty For the employees correctly included as uninsured employees, Ms. Beal applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to determine the penalty to be imposed. For the individuals correctly included as uninsured employees, and for whom the correct payroll was calculated, the correct penalty amount is $2,590.06. The correct penalty for payments made to Mr. Coleman during the penalty period is $571.81. The correct penalty for payments made to James Shores is $170.24. The correct total penalty to be assessed against Respondent is $3,332.11. The Department demonstrated by clear and convincing evidence that Respondent was engaged in the construction industry in Florida during the audit period and that Respondent failed to carry workers’ compensation insurance for its employees at times during the audit period as required by Florida’s workers’ compensation law. The Department demonstrated by clear and convincing evidence that Respondent employed the employees named on the Second Amended Order of Penalty Assessment, with the exception of Ken’s Heating and Air, CTC, Don Langly, Ren W. Raly, R.W. Kicklighter, Dave Locte, Let Malereal, Ronnie Whaley, and “Doug.” The Department did not demonstrate by clear and convincing evidence that it correctly calculated the gross payroll attributable to Mr. Coleman and Mr. Shores. The Department demonstrated by clear and convincing evidence that Ms. Beal correctly utilized the methodology specified in section 440.107(7)(d)1. to determine the appropriate penalty for each of Respondent’s uninsured employees. The Department did not demonstrate by clear and convincing evidence that the correct penalty is $9,629.36. The evidence demonstrated that the correct penalty to be assessed against Respondent for failure to provide workers’ compensation insurance for its employees during the audit period is $3,332.11.
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 Fantastic Construction of Daytona, Inc., violated the workers’ compensation insurance law and assessing a penalty of $3,332.11. DONE AND ENTERED this 18th day of August, 2016, 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 18th day of August, 2016.
The Issue Whether Gio & Sons, Inc. (Respondent) violated Sections and 440.38, Florida Statutes, and if so, what penalty should be imposed. References to sections are to the Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440, Florida Statutes, which require that employers secure workers’ compensation coverage for their employees. Respondent, whose principal is Giovanny Martinez, Jr. (Mr. Martinez), is in the business of providing drywall 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 all persons employed by Respondent to provide drywall installation services within Florida. In particular, Chapter 440 requires that the premium rates for such coverage be set pursuant to Florida law. At all times material to this case, Respondent failed to obtain workers' compensation coverage on behalf of over 150 employees. It is undisputed that Respondent had not furnished the required coverage, and that there was no valid exemption from this requirement. Accordingly, on February 26, 2004, the Stop Work Order was properly entered. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that Respondent employed the individuals referred to in paragraph 5, whose identities are not in dispute, under circumstances which obliged Respondent to provide workers' compensation coverage for their benefit. Based upon Respondent’s payroll records, Petitioner correctly calculated the penalty amount imposed by law under all the circumstances of the case, and issued the Amended Order imposing a penalty assessment in the amount of $107,885.71. Mr. Martinez does not dispute the factual or legal merits of Petitioner's case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order that affirms the Amended Order in the amount of $107,885.71. DONE AND ENTERED this 15th day of December, 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 December, 2004. COPIES FURNISHED: Joe Thompson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Giovanny Martinez, Jr. Gio & Sons, Inc. 6910 Southwest 18th Court Pompano Beach, Florida 33068 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
