Findings Of Fact Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool." Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.
The Issue Has Respondent failed to secure that payment of workers' compensation for his employees, Section 440.107(2), Florida Statutes (2004), justifying the entry of a stop-work order, Section 440.107(7)(a), Florida Statutes (2004), and the entry of a financial penalty against Respondent, Section 440.107(7)(d), Florida Statutes (2004)?
Findings Of Fact William Pangrass is a workers' compensation investigator for Petitioner. On July 27, 2004, following a public complaint, Mr. Pangrass went to a work site location in Gainesville, Florida. This visit was made to ascertain whether Respondent had secured workers' compensation for persons employed at the work site. He observed several persons doing framing and related activities that constituted construction. Respondent was at the work site supervising activities. Mr. Pangrass asked Respondent to provide proof of workers' compensation insurance for persons employed at the work site. Respondent told Mr. Pangrass that Respondent had a leasing arrangement with Modern Business Associates, Inc. (MBA) to provide lease employees for the job, which would make the leasing company responsible for workers' compensation coverage. The personnel leasing company (MBA) takes employees that would ordinarily work for an employer, hires them and leases them back, making the leasing company the employer for purposes of providing workers' compensation insurance. Petitioner's Exhibit numbered 8 is a certificate of liability insurance for MBA in relation to Respondent. However, on the date in question, July 27, 2004, there was a dispute concerning coverage for the employees Travis Guarino and Thomas Hunter. On that subject, Respondent first told Mr. Pangrass that those two employees had just walked on the job that morning and that Respondent had not had time to inform MBA, so that the leased employees could be covered for workers' compensation insurance. Later Respondent told Mr. Pangrass that the employee names had been called into MBA so that workers' compensation insurance could be provided. Mr. Pangrass received a written communication from MBA concerning workers' compensation coverage for the employees at the work site, to include Messrs. Guarino and Hunter. This document is dated July 28, 2004. It is Petitioner's Exhibit numbered 9. It says "the two new employees were covered from the time they began work for Mr. Marston." It refers to them by name with the date of hire/coverage reflected as 7/27/04. When Mr. Pangrass received Petitioner's Exhibit numbered 9, he called MBA and someone, who is not identified in the record, told Mr. Pangrass that they had received his application, taken to mean Respondent's application and that the subject employees were covered as of 5:30 that day. This is taken to mean 5:30 p.m. July 27, 2004. As part of the investigation Mr. Pangrass utilized the Coverage and Compliance Automated System (CCAS). The CCAS printout, Petitioner's Exhibit numbered 1, shows that Respondent and Marston Builders did not have separate workers' compensation insurance coverage apart from that provided by MBA. On July 27, 2004, at 3:27 p.m., Mr. Pangrass served Respondent with a written request for production of business records for penalty assessment calculation, Petitioner's Exhibit numbered 4, requesting various categories of records maintained by Respondent. The next day Mr. Pangrass received from Respondent copies of cancelled checks drawn on the account of Ronnie W. Marston, Jr., d/b/a Marston Builders, Petitioner's Exhibit numbered 5. Some checks were paid to the order of Respondent. Some were paid to Lisa Marston for child support, day care, insurance and registration. One check was written to an auto sales company for the purpose "Nissan Sentra." Some checks were written to named individuals reflected in the list of employees on the work site July 27, 2004. Other checks were written to named individuals not at the work site on that date. The other persons referred to were in addition to Respondent and Lisa Marston. Some checks written to the third-party individuals noted the purposes, such as "sub-work" or "contracting labor." Other checks written to named individuals did not identify the purpose. Concerning payments made to Respondent in the checking account, all checks that were written to Respondent had dates in 2004. Prior to 2004, Respondent personally had been exempt from receiving workers' compensation coverage as a sole proprietor, notwithstanding his status as an employee. He is no longer entitled to elect exemption from coverage under terms set forth in Section 440.05, Florida Statutes, effective December 31, 2003. This is further reflected in the employer exemptions report pertaining to Respondent maintained by Petitioner, Petitioner's Exhibit numbered 2. When the law changed, corporate officers could still elect exemption, sole proprietors could not. At all times relevant to the inquiry, Respondent was a sole proprietor. Based upon his belief that Messers. Guarino and Hunter were employed at the work site without workers' compensation coverage, Mr. Pangrass issued a stop-work order on July 27, 2004, at 3:27 p.m., Petitioner's Exhibit numbered 6. This decision was supported by the field interview worksheet completed by Mr. Pangrass, Petitioner's Exhibit numbered 3. Based upon information discovered in the cancelled checks showing the payments that have been referred to, Mr. Pangrass entered an Amended Order of Penalty Assessment on August 4, 2004, calling for $106,135.46 in penalties under authority set forth in Section 440.107(7)(d), Florida Statutes (2004). The Amended of Order of Penalty Assessment is Petitioner's Exhibit numbered 7. It has attached a worksheet setting forth calculations pertaining to the persons who received the checks described. These calculations include class codes, the period of non-compliance, the gross payroll, the payroll column divided by 100, approved manual rate, premium calculations and penalty calculations the product of the proper premium multiplied by 1.5. The class codes were derived from the Scopes Manual, a listing published by NCCI that includes all occupations with job descriptions and classification numbers assigned to them. The Scopes Manual is used in the insurance industry and has been adopted by Petitioner in Florida Administrative Code Rule 69L-6.021. The classification code selected to perform penalty calculations was that of "Carpentry- Detached One or Two Family Dwellings." This classification is Number 5645. The calculation of an assessed penalty included workers found at the work site on July 27, 2004, who were paid by MBA. As reflected in the cancelled checks, Petitioner's Exhibit numbered 5, those workers were also paid by Respondent. For this reason, they were considered to be dually employed and payments not received from the lease company entitled the employees to workers' compensation coverage from Respondent. Calculations in the penalty worksheet supporting the assessment included payments to Respondent and Lisa Marston. The portion of the check payments received in the name of Respondent were outside the December 21, 2003 date, when the right to select to exemption from workers' compensation coverage as an employee who was a sole proprietor had expired. The calculations and the worksheet include checks written to Lisa Marston upon the theory that the payments benefit Respondent no less so had they been paid to Respondent directly, who in turn paid Lisa Marston. Calculations in the worksheet leading to the assessed penalty included checks written to individuals regardless of the stated purpose for the check, as well as those for whom the purpose of the payments was not made known.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a Final Order be entered keeping the stop-work order in effect pending payment of the modified penalty assessed for failure to secure payment of workers' compensation. DONE AND ENTERED this 23rd day of March, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2005. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Ronnie W. Marston d/b/a Marston Builders 25506 North West County Road 241 Alachua, Florida 32615 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues are whether the individuals included in the Amended Order of Penalty Assessment were employees of Respondent during the penalty period designated therein and, if so, whether Respondent failed to secure workers' compensation coverage in violation of Section 440.107, Florida Statutes (2003); and whether Petitioner should impose a penalty against Respondent in the amount of $156,880.87.
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. § 440.107, Fla. Stat. (2002). Respondent is an "S" corporation domiciled in Florida and engaged in the construction industry. The company was incorporated in late October 2003 and began operating at or near that time. At all times relevant to this proceeding, David Roquet was the president and sole shareholder of the company. On April 7, 2004, Petitioner conducted an investigative sweep of areas in Pasco County, including the Lexington Oaks Subdivision. While in the Lexington Oaks Subdivision, one of Petitioner's investigators observed five individuals working on a residence under construction. These individuals were framing the house and performing other carpentry work. At the time of the investigation, John Sullivan, an investigator for Petitioner, spoke to Maurilio Carrizales, one of the five individuals working at the site. Later, Mr. Sullivan also spoke with Mr. Roquet after he arrived at the construction site. On April 7, 2004, Mr. Sullivan issued a Stop Work Order against Respondent after he determined that Maurilio Carrizales and other individuals working on the construction project did not have workers' compensation insurance. That same day, Petitioner issued to Mr. Roquet, as Respondent's president, a Request for Production of Business Records for Penalty Assessment Calculation. On April 12, 2004, pursuant to the Division's request, Mr. Roquet provided the Division with copies of Respondent's business records, which included check stubs, payroll records, tax records, and workers' compensation documents. Respondent's business records revealed that Respondent made direct payments to Maurilio Carrizales, Raudel Carrizales, Victor Carrizales, and George Betz for the construction work they performed for the company. According to the check stubs and tax records, Respondent treated these individuals as subcontractors and did not withhold any taxes from the direct payments that were made to them. Respondent did not have workers' compensation coverage on the individuals named in paragraph 7 during the penalty periods covered in the Amended Order of Penalty Assessment. There was no documentation in Respondent's business records which indicated that Maurilio Carrizales, Raudel Carrizales, Victor Carrizales, and George Betz had workers' compensation coverage or exemptions from such coverage during the penalty period. Moreover, Petitioner, which maintains a database of all workers' compensation exemptions in the State of Florida, determined that there were no exemptions from workers' compensation coverage for Mr. Roquet,1/ Raudel Carrizales, Maurilio Carrizales, Victor Carrizales, and George Betz for the time periods which are at issue in this proceeding. Based on Petitioner's review of its records and on the business records provided by Respondent, Petitioner issued an Amended Order of Penalty Assessment which assessed a penalty of $156,880.87 against Respondent for failing to secure workers' compensation as required by Subsection 440.107(2), Florida Statutes (2003). The penalty amount of $156,880.87 was determined by multiplying the payroll amount by the workers' compensation approved manual rate for carpentry of $37.91. That amount was then multiplied by 1.5. See Subsection 440.107(7)(d), Florida Statutes (2003), for the method of calculating penalties. The penalty assessed in the Amended Order is based on Petitioner's determination that Mr. Roquet, Maurilio Carrizales, Raudel Carrizales, Victor Carrizales, and George Betz were Respondent's employees during designated time periods and on the gross payments Respondent made to those employees. The Penalty Assessment Worksheet, upon which the total penalty amount is based, listed Respondent's employees and its gross payments to the employees and the periods which Petitioner determined the employees had no workers' compensation coverage or exemptions, as follows: (1) from October 30, 2003, until December 17, 2003, Mr. Roquet was paid $22,994; (2) from October 31, 2003, until December 31, 2003, Maurilio Carrizales was paid $33,536; (3) from October 31, 2003, through December 31, 2003, Raudel Carrizales' was paid $33,536; (4) from January 1, 2004, until April 7, 2004, Maurilio Carrizales was paid $57,023; (5) from February 1, 2004, through April 7, 2004, Raudel Carrizales was paid $24,666; (6) from January 4, 2004, until April 7, 2004, Victor Carrizales was paid $99,938; and (7) from January 16, 2004, until January 23, 2004, George Betz was paid $4,190. During this proceeding, Respondent stipulated that during the time period at issue in this proceeding George Betz did not have either workers' compensation coverage or a valid exemption from such coverage.2/ Respondent's net or ordinary income for 2003, as reported on its Internal Revenue Service Form 1120S (IRS Form 1120S) for the tax year 2003, was $22,994. Based on its review of this document, Petitioner determined that in 2003, Mr. Roquet received compensation of $22,994 from the company. Contrary to Petitioner's conclusion, the $22,994 was not compensation to Mr. Roquet and should not have been attributed to him as such. The ordinary income of Respondent, a corporation, reported on IRS Form 1120S prepared for the tax year 2003, does not represent compensation that was paid to Mr. Roquet, the sole shareholder and officer in the company. Because the corporation had initiated operations in late October 2003 and operated only the last two months of 2003, Mr. Roquet had not begun compensating himself in 2003 and had performed no services for the company for which he expected or received remuneration. In mid-October 2003, when Mr. Roquet filed for the corporation's federal identification number, he indicated on the form that he would begin receiving compensation in January 2004. That form was received and approved by IRS on or about October 21, 2003, and consistent with the intent stated therein, Mr. Roquet began receiving compensation from Respondent in January 2004. In 2003, Respondent made a distribution of $6,700 to Mr. Roquet. However, this distribution was not compensation to Mr. Roquet, but was reimbursement to him for expenses he had paid out of his personal funds for some of the company's day-to- day operating costs and was also a withdrawal of dividend distributions from the company. For the reasons stated in paragraphs 13, 14, and 15 above, Respondent's ordinary income of $22,994, and no part thereof, is compensation to Mr. Roquet for purposes of determining any penalty assessment against Respondent. Mr. Roquet, as Respondent's president, entered into an oral agreement with three brothers: Maurilio Carrizales, Raudel Carrizales, and Victor Carrizales. Pursuant to the oral agreement, each brother was a subcontractor of the company and would be paid $1.67 per square foot for the framing work that he completed. With the funds that the company paid, each of the brothers had to buy whatever supplies and materials were needed to complete the job. However, there was no written agreement to describe or define the business relationship between Respondent and each of the brothers. Prior to Respondent's hiring the Carrizales brothers, Mr. Roquet requested information regarding their workers' compensation coverage. Based on information provided, Mr. Roquet mistakenly believed that both Raudel Carrizales and Maurilio Carrizales had workers' compensation coverage through an employee leasing company and that Victor Carrizales had an exemption from such coverage. However, at the time periods relevant to this proceeding, these individuals had neither workers' compensation coverage nor exemptions from coverage. Victor Carrizales, as a sole proprietor of a construction business, had a valid exemption from workers' compensation coverage from October 25, 2000, to October 25, 2002, and from February 15, 2003, until December 31, 2003. The letter of exemption for Victor Carrizales was initially valid from February 15, 2003, until February 14, 2005, but became invalid after December 31, 2003, and individuals previously exempt had to re-apply for exemption. That change in the law became effective January 1, 2004. See Fla. Admin. Code R. 69L-6.012. The portion of the penalty assessment attributable to Victor Carrizales was January 1, 2004, to April 7, 2004, a time period in which he had no workers' compensation coverage or exemption. During this proceeding, Respondent contended that Raudel Carrizales, Maurilio Carrizales, and Victor Carrizales had workers' compensation coverage through a personnel leasing company, Southeast Personnel Services, Inc. (Southeast Personnel). Pursuant to Subsection 468.520(5), Florida Statutes (2003), an employee leasing company is a business entity engaged in employee leasing. "Employee leasing" is an arrangement whereby a leasing company assigns its employees to a client and allocates the direction of and control over the leased employees between the leasing company and the client. § 468.520(4), Fla. Stat. (2003). When the employee leasing company accepts a client, the client becomes an employee of the employer's leasing company. An employee leasing company is the employer of the leased employees and is responsible for providing workers' compensation pursuant to Chapter 440, Florida Statutes (2003). § 468.529(1), Fla. Stat. (2003). Additionally, an employee leasing company assumes responsibility for the payment of wages to the leased employees without regard to payments by the client and for the payment of payroll taxes and collection of taxes from the payroll of leased employees. § 468.525(4)(b) and (c), Fla. Stat. (2003). Records from Southeast Personnel provided to Petitioner reflect that at one time, Raudel Carrizales, through his company, Carrizales Brothers Framing, was associated with that personnel leasing company pursuant to a written agreement (Agreement) entered into on or about October 27, 2003.3/ At the time the Agreement was executed, both Raudel Carrizales and Maurilio Carrizales were listed by Southeast Personnel as employees of Carrizales Brothers Framing. Pursuant to the Agreement, as the leasing company, Southeast Personnel was responsible for providing workers' compensation coverage for its leased employees, who were paid through the leasing company. The Agreement, which refers to leased employees as "assigned employees," provides in relevant part the following: Client "represents and warrants that all wages (including bonuses) paid to any assigned employee are to be paid through SPLI [Southeast Personnel] and that any such assigned employee will receive no additional wages in any form from Client. Client agrees that it will be solely responsible for damages of any nature arising out of Client's failure to report to SPLI [Southeast Personnel] the payment to an assigned employee of any remuneration for services rendered for Client. In addition, SPLI [Southeast Personnel] shall not be considered to be an employer of any individual for who required payroll information is not supplied during any pay period (except as may be required by law). Client assumes full responsibility for workers' compensation claims, . . . and any and all other obligations or claims pertaining in any way to any individual for whom payroll information is not supplied during any payroll period (except as may be required by law), or who is paid in whole or part by Client, as an employee, independent contractor, or in any other capacity. For workers' compensation coverage to apply through the leasing company, the "assigned employees" must be paid through the leasing company. In this case, none of the employees listed on the Penalty Worksheet were paid by Southeast Personnel for the construction work they did for Respondent. Instead, they were paid directly by Respondent. There is no evidence that these direct payments were ever reported to Southeast Personnel. Rodney Holderbau, a marketing specialist with Southeast Personnel, testified that Raudel Carrizales, Maurilio Carrizales, and Victor Carrizales had workers' compensation coverage through Southeast Personnel, even though they were paid directly by Respondent for the work they did for that company and received no payments for that job from Southeast Personnel. However, no documentary evidence was presented to support this position. Mr. Holderbau's testimony that Raudel Carrizales, Maurilio Carrizales, and Victor Carrizales had workers' compensation coverage during all the alleged periods noted on the Amended Order of Penalty Assessment is neither credible nor persuasive. As a marketing specialist responsible for recruiting companies to become clients of Southeast Personnel, Mr. Holderbau failed to establish that he possessed the qualifications or position within Southeast Personnel to speak on behalf of the company and to interpret the terms of the contract. The claim of Mr. Holderbau is inconsistent with and contradicts the meaning of employee leasing companies within the meaning of Chapter 468, Part XI, Florida Statutes (2003), and the terms of the Agreement between Raudel Carrizales' company, Carrizales Brothers Framing, and Southeast Personnel. Raudel Carrizales allowed the Agreement between Carrizales Brothers Framing and Southeast Personnel to expire on January 31, 2004. Raudel Carrizales, on behalf of his new company, signed another contract with Southeast Personnel on April 13, 2004, six days after the Stop Work Order was issued. Therefore, between January 31, 2004, and April 13, 2004, Raudel Carrizales had no workers' compensation coverage through the employee leasing company. Maurilio Carrizales, who was listed on Southeast Personnel documents as an employee of Carrizales Brothers Framing, had no workers' compensation coverage through Southeast Personnel on January 31, 2004, when the contract between Carrizales Brothers Framing and Southeast Personnel expired. Maurilio Carrizales again became eligible for workers' compensation coverage through Southeast Personnel, as a leased employee, effective April 13, 2004, almost a week after the Stop Work Order was issued. Between January 31, 2004, and April 12, 2004, Raudel Carrizales had no workers' compensation coverage through Southeast Personnel. During the time period alleged in the Amended Order of Penalty Assessment, Raudel Carrizales and Maurilio Carrizales received direct payments from Respondent, thus, circumventing Southeast Personnel and the coverage that they may have had through that employee leasing company. Respondent did not intend to violate the law. Rather, he mistakenly believed that Raudel Carrizales, Maurilio Carrizales, and George Betz had workers' compensation coverage; that Victor Carrizales had an exemption from workers' compensation coverage; and/or that the aforementioned individuals were subcontractors to whom he had no insurance- related responsibility. Nonetheless, these individuals did not have workers' compensation coverage or exemptions from coverage. Thus, they were employees of Respondent and, as such, Respondent was required to provide workers' compensation coverage for them. Petitioner correctly calculated the penalty assessment based on the money paid to Respondent's employees, Raudel Carrizales, Maurilio Carrizales, Victor Carrizales, and George Betz; the class code assigned to each employee utilizing the SCOPES Manual; and the statutory guidelines in Subsection 440.107(d), Florida Statutes (2003). Based on that calculation, the correct penalty assessment in this case is $143.805.33.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order confirming the Stop Work Order and imposing a penalty in the amount of $143,805.33. DONE AND ENTERED this 28th day of December, 2004, in Tallahassee, Leon County, Florida. S 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 28th day of December, 2004.
Findings Of Fact The Respondent is a registered building contractor, having been issued license number RB 0010555. On December 12, 1980, Benjamin Kyler entered into a contract with Sweet E. Glover to construct a house for her at 2020 Southwest First Street, Ocala, Florida. At no time material hereto was Benjamin Kyler properly licensed to perform contracting in the State of Florida. The Respondent obtained the building permit to enable Benjamin Kyler to perform the construction contract with Sweet Glover. Benjamin Kyler received approximately $1,650, but he performed only a minimal amount of construction on the Glover residence. The Respondent knew that Benjamin Kyler was engaged in the construction of a residence for Sweet Glover, and the Respondent also knew that Benjamin Kyler was not licensed to contract in the State of Florida. The Respondent was paid a fee for pulling the building permit for Benjamin Kyler.
Recommendation From the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Isaac Butler, be found guilty of violating Section 489.129(1)(e) and 489.129 (1)(f), Florida Statutes, and that his license be revoked. THIS RECOMMENDED ORDER entered on this 1st day of February, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Mr. Isaac Butler RFD 1, Box 752 Anthony, Florida 32617 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether the Petitioner has jurisdiction over the Respondent and, if so, whether Respondent committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact The administrative complaint that underpins this proceeding was filed June 20, 1996. At that time, the Respondent was the holder of pari-mutuel wagering occupational license number 0541161-1081 as a trainer. This occupational license was the renewal of a pre-existing license for a period of one year that expired June 30, 1996. There was no evidence that the occupational license that expired June 30, 1996, was renewed by the Respondent. In 1986, 1987, and 1988, Dr. Douglas Slavin was the owner of thoroughbred race horses that raced in Florida. Respondent was, during those years, employed by Dr. Slavin as the trainer for his race horses. In 1988, Respondent purchased from Dr. Slavin a race horse named Political Regent. Respondent had trained Political Regent for racing at pari-mutuel facilities in Florida. This transaction occurred in Florida. In 1988, Respondent and Respondent’s son, Gregory Sacco, took to New Jersey a horse named Political Pocket. This horse was owned by Dr. Slavin and had been trained by Respondent for racing at pari-mutuel facilities in Florida. Dr. Slavin had given Respondent and his son permission to take Political Pocket to New Jersey. Without Dr. Slavin’s permission and unknown to him, Respondent and his son sold Political Pocket to a third party in New Jersey. Respondent failed to pay Dr. Slavin for Political Regent or for Political Pocket. After Dr. Slavin discovered that Political Pocket had been sold, he instituted a lawsuit in the Circuit Court in and for Dade County, Florida, against Respondent and his son, Gregory Sacco. The Case Number for this suit was 89-14563 CA 08. On June 24, 1992, a final judgment was entered against Respondent and his son, Gregory Sacco, based, in part, on the transactions involving Political Pocket and Political Regent. This judgment was entered on a joint and several basis.1 As of the time of the formal hearing, the judgment entered in Case No. 89-14563 CA 08 had not been satisfied.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law contained herein. It is further recommended that the final order declare Respondent to be ineligible for licensure in the State of Florida so long as his debt to Dr. Slavin remains unpaid. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997
