The Issue Respondents' alleged violation of subsection 475.25(1)(a), 475.25(1)(c), and 475.25(3), Florida Statutes, as set forth in the Administrative Complaint. Inasmuch as Respondents were not represented by legal counsel at the hearing, the Hearing Officer explained their rights in administrative proceedings to James F. Catron who elected to represent himself and Cooke Catron Realty, Inc.
Findings Of Fact Cooke Catron Realty, Inc. is now and was at all times alleged in the Administrative Complaint a corporation registered as a real estate broker doing business at 5805 Margate Boulevard, Margate, Florida. Respondent James F. Catron is now and was at all times alleged in the Administrative Complaint a registered real estate broker and the active broker and officer of Cooke Catron Realty, Inc. (Stipulation) In January, 1976, Richard H. Goodwin, Jr. and Christine S. Goodwin, his wife, owned a four-unit apartment building at 7650 Southwest 10th Court, North Lauderdale, Florida, described as Lot 7, Block 13, Lauderdale North Park, Section 3. The Goodwins were having marital difficulties and decided to separate at this time and divest themselves of mutually-owned property. In a conversation with a salesman for respondents, Mr. Goodwin learned that James F. Catron was in the business of purchasing investment properties and reselling the same whereupon he would divide any profit with the former owner. Goodwin thereafter entered into negotiations with Catron for the sale of the apartment building. It was orally agreed that Catron would pay $62,700.00 for the property with a $1,000.00 down payment, and assume a first mortgage with Southern Federal Savings and Loan Association of Broward County in the amount of approximately $57,400.00 and a second mortgage with Seacrest Homes, Inc., John E. Abdo, Trustee, in the approximate amount of $5,300.00. It was further agreed that Catron would pay the Goodwins 30 percent of 80 percent of any net profit realized when he resold the property. As a consequence of this agreement, the Goodwins, on January 19, 1976, executed a deposit receipt contract embodying the above terms except that it recited the receipt of $10.00 as a deposit rather than $1,000.00, and made no mention of assumption of the mortgages. However, the sum of $1,000.00 was paid to the Goodwins by Catron. Although Mr. Goodwin testified that Catron signed this contract, Catron denied it and no such contract signed by Catron was placed in evidence at the hearing. (Testimony of R. Goodwin, C. Goodwin, Catron, Petitioner's exhibit 1) Mr. Goodwin, on January 19, 1976, executed a document authorizing Cooke Catron Realty, Inc. to collect rents from the tenants of the apartment building. Catron, anticipating consummation of the purchase, proceeded to collect rentals in the amount of approximately $800.00 per month for the next four and one-half months, for total collections of approximately $3,600.00. He also made some repairs to the property and paid utilities bills. The Goodwins believed that he would take steps to assume the two mortgages on the property and take over the payments thereon. Although Mr. Goodwin testified that he and his wife had executed a warranty deed and delivered it to Catron, Catron denied receipt of such a deed and it was not produced at the hearing. Accordingly, it cannot be found that such a deed was in fact executed and delivered. The rents were collected by a limited partnership called Forest Run, Limited, of which Catron was a partner. Although the February payments were made on the mortgages, they were discontinued when Catron discovered that he could not assume the second mortgage from Seacrest Homes, Inc. without payment of $1,000.00 to the trustee, Abdo. As a consequence, the Goodwins filed suit against the respondents in the Broward County Circuit Court on June 23, 1976, requesting that any agreements concerning the property be rescinded, and that an accounting be ordered and a receiver appointed to administer and manage the property in question. A receiver was appointed by the court. Thereafter, in August 1976, Southern Federal Savings and Loan Association filed suit to foreclose its mortgage on the property and obtained summary judgment in the Broward County Circuit Court on January 25, 1977. The property was thereafter sold at public sale and bought in by Southern Federal. On January 25, 1977, the suit of the Goodwins against respondents was dismissed by stipulation after the parties had reached an amicable settlement in the matter. (Testimony of R. Goodwin, C. Goodwin, Petitioner's Exhibits 2-4)
Recommendation That the charges against the respondents, James F. Catron and Cooke Catron Realty, Inc., be dismissed. DONE and ENTERED this 26th day of October, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Catron and Cooke Catron Realty, Inc. 5805 Margate Boulevard Margate, Florida 33063
The Issue Whether certain payments received by the Petitioner, James Gomia, from the Leon County Clerk of Court subsequent to July 1, 1989, constitute creditable "compensation" within the meaning of Rule 22B-6.001(16), Florida Administrative Code, for purposes of determining Mr. Gomia's retirement benefits.
Findings Of Fact Mr. Gomia's Employment. The Petitioner, James Gomia, has been employed by the Clerk of Court in and for Leon County, Florida, for the past eleven years. At all times relevant to this proceeding, Mr. Gomia has been employed as an Assistant Finance Director and Deputy Clerk. By virtue of his employment with the Clerk's office Mr. Gomia is eligible to participate in the Florida Retirement System pursuant to Chapter 121, Florida Statutes. Mr. Gomia's Compensation. At all times relevant to this proceeding, Mr. Gomia received a monthly base salary from his employment with the Clerk's office. The Clerk's office operates for budget purposes on a fiscal year which begins October 1st and ends September 30th. In addition to his base salary, Mr. Gomia has been paid the following amounts (hereinafter referred to as "Additional Compensation"), during the following months: Month Amount September, 1989 $1,750.00 May, 1990 500.00 September, 1990 1,750.00 May, 1991 600.00 September, 1991 2,150.00 Mr. Gomia has been paid Additional Compensation twice a year since he was employed by the Clerk's office. The Clerk's Policy of Paying Additional Compensation. It has been the policy of Paul F. Hartsfield, Leon County Clerk of Court, to pay Additional Compensation to employees of the Clerk's office, with one exception not relevant to this proceeding, for at least the past twenty years. Additional Compensation has been paid to Clerk's office employees twice a year. One payment is made in May/June and the other payment is made in September/October/November. The amount of Additional Compensation paid to each employee is the same. For example, in May, 1991, all employees received $600.00 as Additional Compensation. The amount to be paid as Additional Compensation is included in the budget submitted by the Clerk's office each year for approval by the Board of County Commissioners. The amount requested is included as part of a lump-sum request for the amount of funds necessary to pay all salary, including employees' base salary. Although the amount of the payments to be made as Additional Compensation is broken out in the work papers to the budget each year, those figures are only seen by the financial personnel and not the Board of County Commissioners. Lack of Written Policy. The decision of whether Additional Compensation is paid is within the sound discretion of the Clerk to make. The Clerk of Court is under no legal obligation to make such payments even if included in an approved budget. The policy of paying Additional Compensation has not been reduced to writing. Nowhere has the Clerk stated in writing that the Clerk's office has a policy: That applies all employees will receive Additional Compensation equally; Additional Compensation will be paid no later than the eleventh year of employment; Additional Compensation will be paid for as long as an employee continues employment; and Additional Compensation will be paid at least annually. The only written indication that Additional Compensation will be paid to employees is the inclusion of the dollar amount necessary to make the payments in the work papers of the Clerk's office budget. Nowhere in the work papers to the budget or the budget itself are the conditions set out in finding of fact 13 included. Even if the work papers (or the budget) of the Clerk's office were sufficient to constitute a formal written policy, the policy evidenced in the work papers only applies to the fiscal year the work papers relate to. Therefore, if the work papers or budget constitute a written policy it is only a policy to pay Additional Compensation for the upcoming fiscal year and not on a recurring basis. Although a policy of paying Additional Compensation to Clerk's office employees exists, that policy has not formally been reduced to writing. Mr. Hartsfield, the Leon County Clerk of Court, admitted that there was no formal written policy during his deposition and in a letter dated November 12, 1991, attached as Respondent's exhibit 1 to Mr. Hartsfield's deposition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order declaring that the Additional Compensation paid to James Gomia between September, 1989, and September, 1991, was not paid as "average final compensation" for purposes of Rule 22B-6.001(6), Florida Administrative Code, and dismissing Mr. Gomia's Amended Petition with prejudice. DONE and ENTERED this 2nd day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1992. APPENDIX Case Number 92-2504 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Gomia's Proposed Findings of Fact Findings of fact 1, 4 and 6-11. Hereby accepted. The Department's Proposed Findings of Fact Findings of fact 1-3. Findings of fact 4 and 6. Finding of fact 16. Conclusion of law. Findings of fact 4, 6 11 and 13. Finding of fact 4 and 6. Whether the payments come within the Department's rules is a conclusion of law. COPIES FURNISHED: Harry H. Mitchell, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Burton M. Michaels Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1566 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Susan Kirkland General counsel Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issues in this case are whether SDPhotonics, LLC (Respondent), failed to provide workers' compensation coverage; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing section 440.107, Florida Statutes. Section 440.107 mandates, in relevant part, that employers in Florida must secure workers’ compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. At all times relevant, Respondent was a limited liability company, organized under the laws of the State of Florida, with its principal office currently located at 4304 Scorpius Street, UCF High Technology Incubator, Orlando, Florida. Dennis Deppe is the founder and CEO of SDPhotonics, LLC, which is a research and development company. Respondent is a non-construction type entity. Mr. Marquez is an insurance analysist II/investigator for the Department in the central part of the state. He has 12 years of experience in this position. His duties include making sure that businesses comply with the workers’ compensation laws of Florida. In order to perform his duties, Mr. Marquez has several methods to check for particular workers’ compensation coverage. Initially, Mr. Marquez may check the Division of Corporations website, “Sunbiz.org,” to obtain the name of the corporation; its federal identification number; the mailing and principle address(es), the registered agent; and corporate officer information. With this information, Mr. Marquez may check Petitioner’s internal database called: coverage and compliance automated system (CCAS). Using a corporate name, Mr. Marquez could check CCAS to see whether a corporation has workers’ compensation coverage. Insurance companies are also required to submit workers’ compensation coverage information, and Mr. Marquez could check that registry. Corporate officers may request an exemption from workers’ compensation coverage; however, the officer must apply for the exemption. Mr. Marquez could check that registry as well. In mid-December 2015, Mr. Marquez was assigned to check on Respondent’s workers’ compensation coverage. Mr. Marquez checked Petitioner’s CCAS system and determined that Respondent did not have a workers’ compensation policy or any active exemptions for its officers. On December 16, 2015, Mr. Marquez went to Respondent’s physical location and discovered that no one was present. He left a business card with a written request for someone to contact him. On December 17, 2015, Dr. Deppe contacted Mr. Marquez via telephone. Mr. Marquez identified himself and explained the reason for the call to Dr. Deppe. As was his custom, Mr. Marquez requested the name of Respondent’s workers’ compensation insurance carrier, the policy number and the effective date of the coverage. Dr. Deppe thought there was coverage through Paychex,3/ but he was unable to provide the requested information. Dr. Deppe stated he would look into it and return the call. On December 18, 2016, Mr. Marquez spoke with Dr. Deppe again. During that conversation, Dr. Deppe confirmed that Respondent did not have workers’ compensation coverage, but that he was working to have it by the end of the day. Later that same morning, Mr. Marquez met with Dr. Deppe and again requested the name of Respondent’s workers’ compensation insurance carrier, the policy number and the effective date of the coverage. Dr. Deppe was unable to provide the requested information, although he did provide the name of his insurance agent. Additionally, Dr. Deppe provided the names of Respondent’s five employees: James Beadsworth, Jason Leshin, Nick Cox, Jeremy Leshin, and Dennis Deppe. Mr. Marquez then stepped outside to his vehicle, and via his computer consulted the CCAS database to determine whether Respondent had secured workers’ compensation coverage or an exemption from the requirements for coverage for his employees. At that time, Mr. Marquez determined that Respondent did not have any current workers’ compensation coverage for its employees and Respondent did not have an exemption from such coverage from the Department. Mr. Marquez telephoned his supervisor, Robert Cerrone, who authorized the service of a Stop-Work Order along with a Request for Production of Business Records (Request) on Dr. Deppe on December 18, 2015. Both were served on Respondent at approximately 11:30 a.m. on December 18, 2015. The following Monday, Dr. Deppe presented to Petitioner’s Orlando field office, paid $1,000.00 towards the penalty and provided proof of coverage with the Hartford Casualty Insurance Company. Ms. Proano confirmed that the appropriate classification code for Respondent’s CEO was 8810 (for a clerical position) and for Respondent’s employees was 4511 (for “analytical laboratories, including laboratory, outside employees, collectors of samples”). These codes were derived from the Scopes Manual, which lists all of the various jobs that may be performed in the context of workers’ compensation. The manual is produced by the National Council on Compensation Insurance, Inc., the nation’s most authoritative data collecting and disseminating organization for workers’ compensation. The corresponding approved manual rates for the classification codes 8810 and 4511 were applied using the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rule 69L-6.027 to determine the appropriate penalty. Petitioner is statutorily authorized to use an audit period of two years from the issuance of the Stop-Work Order. Respondent employed less than four employees during 2013 and 2014, and did not have to have worker’s compensation cover. Petitioner only computed the penalty for 2015 because Respondent had five employees during that time. Petitioner has demonstrated by clear and convincing evidence that Respondent failed to secure workers’ compensation for its employees as required by chapter 440, Florida Statutes. Petitioner determined the appropriate penalty using section 440.107(7)(d)1. The amount of Respondent’s penalty, $6,092.10, is subject to a reduction of $3,843.23, which is the amount it paid to obtain the appropriate insurance. The amended penalty amount is $2,248.87.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order upholding the Amended Order of Penalty Assessment, and assess a penalty in the amount of $2,248.87.5/ DONE AND ENTERED this 22nd day of July, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 22nd day of July, 2016.
Findings Of Fact Respondent Amy Ostrau is a registered real estate salesman having been issued License No. 0144468 by the Board of Real Estate. The last known address of the Respondent is c/o Ann Ford, Inc., 7370 Northwest 5th Street, Ft. Lauderdale, Florida 33317. The Respondent, at all material times alleged herein, was a registered real estate salesman employed by Ann Ford Realty, Inc. On or about March 29, 1980, Respondent obtained a written deposit receipt and contract for sale and purchase from a prospective purchaser, H. Steven Hill. The contract indicated that the selling broker Ann Ford, Inc., broker, held an initial deposit of $500.00. (Respondent's Exhibit 1) The $500.00 deposit check was received by Respondent from a friend of Hill because Hill did not have a check available at that time. Respondent placed the deposit check in her office file and it remained there until Friday, April 11, 1980 when a second deposit check, in the amount of $17,750.00, was presented by the buyer. At this time, the first deposit check was returned to Hill by the Respondent. Respondent presented the second deposit check to her broker and it was then deposited by mail into the broker's escrow account on April 15, 1980. The check evidently was credited to the broker's account on April 15, 1980. (The response to request for admissions refers to the pertinent month as August, which is obviously in error.) On or about April 17, 1980, and as a result of a request by Hill, a building inspection was conducted on the house. The inspection disclosed several deficiencies in the house and the estimated repair cost for the deficiencies exceeded the amount specified in the contract for repairs. Payment of the second deposit check in the amount of $17,750.00 was stopped on April 21, 1980 by Hill, and, as a result, there was no earnest money deposit remaining in the escrow account. Respondent's husband, an attorney, Norman M. Ostrau, represented the purchaser, H. Steven Hill, in the transaction. Respondent was asked by Hill to hold the $500.00 earnest money deposit check until the contract was accepted and signed by the sellers. Pursuant to these instructions, Respondent failed to turn over the deposit check to her employer immediately upon receipt of the same. A civil action for damages is pending in the Broward County Circuit Court brought on behalf of the sellers of the property against the buyer and broker, with counterclaim by the buyer. (Respondent's Exhibit 2)
Recommendation That the Board of Real Estate suspend the license of Respondent, Amy Ostrau, for a period of thirty (30) days pursuant to Subsection 475.25(1)(k), Florida Statutes. DONE and ENTERED this 4th day of March, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 4th day of March, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard, Suite 101 Fort Lauderdale, Florida 33307 Michael Rifkin, Esquire OSTRAU & RIFKIN 8751 West Broward Blvd. Suite 302 Plantation, Florida 33324 Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues to determine in this matter are whether Respondent Alpha and Omega Builders of Jacksonville, Inc., failed to secure workers’ compensation coverage for its employees; and, if so, whether Petitioner Department of Financial Services, Division of Workers’ Compensation (Department), correctly calculated the penalty assessment it imposed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440 that employers in Florida secure workers’ compensation insurance coverage for their employees. See § 440.107(3), Fla. Stat. Respondent is a corporation located in Jacksonville, Florida, engaged in the roofing industry. Ms. Beckstrom, the Jacksonville supervisor for workers’ compensation compliance investigators, testified at the final hearing. Ms. Beckstrom largely read from the January 30, 2018, investigative report and narrative completed by Investigator Frank Odom, who did not testify at the final hearing.1/ Ms. Beckstrom did not perform the investigation of Respondent, but authorized Mr. Odom to do so. On January 30, 2018, Mr. Odom investigated the worksite at 5065 Soutel Drive, Jacksonville, Florida, which is the J. Fralin Funeral Home, a commercial business (the Soutel Drive site). Mr. Odom’s narrative stated, “[a]s I approached the site I observed 3 individuals on the roof installing shingles.” Much of the remaining portions of Mr. Odom’s narrative, which ultimately led to his determination that Respondent employed these three individuals without workers’ compensation insurance, is inadmissible hearsay. Although Ms. Beckstrom testified extensively on what Mr. Odom wrote in the investigative report and narrative, the undersigned cannot base findings of fact on inadmissible hearsay unless it explains or supplements other evidence. In contrast, Mr. Jessie, the owner of Respondent, testified at the final hearing that Mr. Odom contacted him the morning of January 30, 2018, by telephone. When Mr. Odom asked if Respondent had three individuals working on the Soutel Drive site, Mr. Jessie testified that he told Mr. Odom that these individuals were not supposed to be working.2/ Mr. Jessie stated that when he arrived at the Soutel Drive site after receiving the call from Mr. Odom, the three individuals had left. On cross-examination, Mr. Jessie did not recognize the names of Roberto Flores, Alex Alvarado, or Dagoberto Lopez, who Mr. Odom identified in the investigative report and narrative as the three individuals working on the roof at the Soutel Drive site. Mr. Jessie testified that he normally employs workers through an organization called Action Labor, who in turn secures the applicable workers’ compensation insurance for them. Mr. Jessie testified that he had arranged, through Action Labor, for three individuals to work on the Soutel Drive site, and that Action Labor had provided him a “ticket” for three individuals to work at the site. His testimony is credited. Although not crystal clear from his testimony, the undersigned understood Mr. Jessie to refer to Action Labor as an employee leasing company.3/ Mr. Jessie further testified that after meeting with Mr. Odom at the Soutel Drive site, he received a Stop-Work Order and Order of Penalty Assessment, as well as a Request for Production of Business Records for Penalty Assessment Calculation (Request for Production). The Request for Production requested several categories of business records from Respondent, for the time period of January 31, 2016, through January 30, 2018, to determine Respondent’s payroll during that time period (audit period). The Request for Production requested that Respondent provide all payroll documents, account documents, disbursements, workers’ compensation coverage, temporary labor service and day labor service records, subcontractors, and documentation of subcontractors’ workers’ compensation insurance coverage. At the final hearing, Ms. Murcia, the Department’s penalty auditor, testified that because Respondent had not timely provided sufficient records in response to the Request for Production, the Department issued the Amended Order. Ms. Murcia testified that the Department received some records requested pursuant to the Request for Production in February 2019 (which was well after the response deadline of 10 business days), but that they were incomplete and thus not sufficient to calculate a penalty. Because Respondent failed to provide sufficient records in response to the Request for Production, the Department calculated the Amended Order based on a completely imputed payroll. Ms. Murcia explained that the Department calculates a gross payroll for an employer (who provides insufficient records) at the statewide average weekly wage multiplied by 1.5 for each employee for the period requested for the calculation of the penalty. Based on this imputation calculation, the Amended Order imposed a penalty in the amount of $166,791.18. The evidence presented at the final hearing was insufficient to establish that the three individuals observed at the Soutel Drive site on January 30, 2018, were Respondent’s employees or subcontractors on that day or at any time during the audit period. The evidence presented at the final hearing established that Respondent failed to timely present sufficient records pursuant to the Request for Production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Department enter a final order dismissing the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, against Respondent. DONE AND ENTERED this 3rd day of April, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 3rd day of April, 2019.
The Issue Did Respondent, John McCary General Contractor, Inc. (McCary), fail to secure workers’ compensation insurance for employees as required by chapter 440, Florida Statutes (2016)?1/ If so, what is the appropriate penalty?
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation insurance for the benefit of their employees. § 440.107(3), Fla. Stat. McCary is a roofing contractor owned and operated by John McCary. It is in the construction industry. On November 18, 2016, Mr. Howe, a compliance investigator for the Division, visited a house where McCary was tearing off the roof. Mr. Howe recorded the names of each employee. He conducted an investigation that included speaking to Mr. McCary, re-interviewing the employees, checking with the employee leasing company that McCary used, and checking the Davison database of insured individuals. Mr. Howe could not find a record of workers’ compensation coverage for at least one employee. This triggered further investigation that resulted in Mr. Howe issuing a Stop-Work Order to McCary on November 18, 2016, for failure to secure workers’ compensation insurance in violation of sections 440.10(1), 440.38(1) and 440.107(2). After that, the Division followed its usual practice of requesting documents, reviewing its databases, soliciting information and explanations from the employer, and analyzing the information and documents obtained. Division Exhibit 9 shows that the Division asked McCary for business records on November 21, 2016, and that McCary did not provide them until December 12, 2016. The Division’s investigation and analysis resulted in the evidence admitted in this proceeding. The evidence proved the allegations of the Division’s Third Amended Order of Penalty Assessment, including its attached Penalty Calculation Worksheet. McCary did not comply with workers’ compensation insurance coverage requirements for the period May 1 through November 18, 2016. During that period, McCary employed Arcenio Rosado, Domingo Esteves, Javier Restrepo, Jose Alfredo Fuentes, Carlos Toledo, Edwin Valle, Kelly Alvarez, Kyle Shiro, Claudia Florez, and Nelson Geovany Melgar Rodenzo and that they performed work for it. McCary would have paid $4,744.06 in insurance premiums to provide workers’ compensation coverage for these employees during that period. During that period, McCary also used the services of two subcontractors, Star Debris Removal and E C Roofing, LLC. These subcontractors did not have workers’ compensation insurance for their employees during the May 1 through November 18, 2016, period. Premiums to provide coverage to the employees of the two subcontractors who worked on McCary’s projects would have totaled $100,771.09. From May 1 to November 18, 2016, McCary made cash payments of $195,856.02 that its documents could not confirm to be for a valid business expense. Florida Administrative Code Rule 69L-6.035(1)(k) requires that 80 percent of that amount be deemed wages or salaries paid employees when calculating the premiums used to determine the ultimate penalty. Eighty percent of McCary’s unaccounted-for cash payments is $156,684.82. That amount is legally deemed to be a payroll expense. McCary would have paid $29,143.38 to provide coverage for the employees represented by the cash payments. Altogether, McCary would have paid $134,658.53 to provide workers’ compensation coverage to the uncovered employees represented by the actual and deemed payroll during the May 1 to November 18, 2016, period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding that John McCary General Contractor, Inc., failed to secure payment of required workers’ compensation insurance coverage from May 1 to November 18, 2016, in violation of section 440.107, Florida Statutes, and imposing a penalty of $269,317.06, reduced by $1,000.00. DONE AND ENTERED this 17th day of July, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 17th day of July, 2018.
The Issue Whether a civil penalty should be assessed against the Respondent, or whether the license held by Respondent should be suspended or revoked.
Findings Of Fact The Respondent, Carolina Rosenberg, trading as Eastview Apartments, is licensed by the Petitioner, the Division of Hotels and Restaurants, Department of Business Regulation, and is in business at 1530 Washington Avenue in Miami Beach, Florida. A Notice to Show Cause was issued by Petitioner on September 1, 1978, notifying Respondent that certain evidence, which, if true, is good and sufficient cause pursuant to Section 509.261, Florida Statutes, to assess a civil penalty against the Respondent, or to suspend or revoke her License #23- 5830H for failure to return a security deposit of $175.00 to Paul C. Kent and failure to provide a written notice making a claim against said security deposit. Paul C. Kent was a tenant in Eastview Apartments, Unit #518, from September of 1977, through June, 1978. As a condition of renting such unit, Mr. Kent was required to and did pay a security deposit in the amount of $175.00. Mr. Kent was not required to and did not sign a written lease, and at no time during his tenancy was he furnished with a copy of Section 83.49, Florida Statutes. He was not furnished with any specific address for Respondent Rosenberg, the owner, or for a person authorized to receive written notices on her behalf. Mr. Kent said that he gave the manager of Eastview Apartments thirty (30) days' oral notice of his intent to terminate his tenancy. Respondent Rosenberg was notified personally of his intention to terminate his tenancy two (2) weeks before the end of the last month for which he paid rent. No written notice was furnished to Mr. Kent of the Respondent's intention to impose a claim upon his security deposit, and such monies were not returned to him. Respondent Rosenberg testified that the tenant, Mr. Kent, had moved out in the middle of the month, that she felt she had the right to retain the security deposit for the expense of getting the apartment ready to lease again, and that Mr. Kent never came back to ask for the security deposit. Submitted into evidence without objection was a receipt for rental payments dated August 30, 1977, on which it was stated "Received from Paul C. Kent $50.00 for security deposit on 518," and "Balance due $125.00." Said receipt was signed by Kay Kukla, who was the manager of Eastview Apartments at that time. A receipt for $25.00, signed by said manager, was marked "Balance of security paid in full." The Petitioner Division submitted a memorandum of law. This instrument was considered in the writing of this order. To the extent the proposed memorandum has not been adopted in, or is inconsistent with, factual findings in this order it has been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Carolina Rosenberg, be assessed a fine of $200.00. DONE and ORDERED this 21st day of December, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo. M. Gallay, Esquire Department oil Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ms. Carolina Rosenberg c/o Eastview Apartments 1530 East Washington Avenue Miami Beach, Florida
The Issue Whether Respondent violated Section 475.025(1)(b), Florida Statutes, and, if so, what the appropriate penalty is.
Findings Of Fact At all times relevant hereto, O. Dane Streets was licensed by the Florida Real Estate Commission as a real estate broker having been issued License No. 0085710-1 for an address in Lakeland, Florida. In the Spring or early Summer of 1991, Nathan Price, a minister in Orlando, Florida, contacted Respondent to solicit Respondent's participation in representing Price's daughter, Melissa Howard, in purchasing real estate in Orlando. Price and Respondent have been business and social acquaintances for more than 10 years, and Price was helping his daughter and son-in-law in purchasing a home. The Howard's found a house they liked, Respondent obtained the listing information from the listing broker and prepared a contract for sale and purchase (Exhibit 1). As modified and accepted by all parties, this contract provided for a $1000 earnest money deposit to be held in escrow by Respondent's real estate company. In lieu of obtaining the deposit from Price or Howard, Respondent told Howard to give the earnest money deposit to the selling broker as all of the transactions were to be conducted in Orlando. The $1000 earnest money deposit was given to neither Respondent nor the listing broker, ReMax Southwest in Orlando. The failure of Respondent to follow up to insure that the earnest money deposit had been given to the listing broker in this transaction does not reach the status of fraud or dishonest dealing as Respondent had no such intent. Shortly before the August 21, 1991 closing date, Price advised Respondent that the mortgage lender was asking about the earnest money deposit. Respondent immediately obtained a cashier's check dated August 8, 1991 (Exhibit 2) in the amount of $1000 which Price presented at the closing on August 21, 1991. In his testimony, Respondent acknowledged that he erred in not obtaining the earnest money deposit or failing to check to be sure the deposit had been made with the listing broker. Since Respondent is located in Lakeland and the property being purchased is in Orlando when the closing was held, Respondent thought everything would be simplified if the deposit was held by the listing broker. When the listing broker learned that the deposit of $1000 had never been received by Respondent and placed in escrow, a complaint was made to the Florida Real Estate Commission, and these proceedings followed. Respondent has held licenses from the Florida Real Estate Commission for some 20 years, and this is the first time any charges have been brought against his license.
Recommendation It is Recommended that a Final Order be entered finding O. Dane Streets not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged. ENTERED this 21st day of January, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1992. Copies furnished to: Steven N. Johnson, Esquire Darlene F. Keller Division of Real Estate Division Director 400 W. Robinson Street Division of Real Estate Post Office Box 1900 400 W. Robinson Street Orlando, FL 32801-1900 Post Office Box 1900 Orlando, FL 32801-1900 O. Dane Streets Post Office Box 6852 Jack McRay, Esquire Lakeland, FL 33807 Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on September 9, 1981 be DISMISSED. Respectfully submitted and entered this 11th day of May, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 11th day of May, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire CONRAD, SCHERER & JAMES 707 Southeast Third Avenue Post Office Box 14723 Ft. Lauderdale, Florida 33302 Philip Jansen, Esquire JANSEN & DE GANCE, P.A. Post Office Box 7375 Ft. Lauderdale, Florida 33304 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the license #16-7170-H of Robert A. Rinehart should be suspended or revoked, or whether a civil penalty should be assessed.
Findings Of Fact The Respondent, Robert A. Rinehart, trading as 629 Apartments, was at all times pertinent to this cause licensed as a public lodging establishment, holding license control #16-7170-H. A notice to show cause and notice of hearing' was served upon Respondent Rinehart, notifying him that certain evidence had been presented which, if true, was good and sufficient reason to cause his license to be suspended or revoked or to have a fine assessed against him. The Notice to Show Cause indicated also that an administrative hearing would be held to which the Respondent would receive notice, and was dated December 5, 1978. No answer was filed to the Notice to Show Cause. The Notice of Hearing was mailed April 26, 1979, and was returned. The Respondent did not appear at the administrative hearing or send a representative to testify in his behalf. It is found that the address to which the Notice of Hearing was sent was the same address as provided on the existing license held by Respondent, which is active until December 1, 1980. This address is the same address as indicated on the standard form apartment lease entered into evidence as Petitioner's Exhibit 2. The Respondent is under obligation to keep the Petitioner Division advised of his current address to be shown on his official records in the Division of Hotels and Restaurants, Department of Business Regulation, State of Florida. In December of 1976, Respondent Rinehart rented, or permitted his agent to rent, an apartment in 629 Apartments to Carol Miller. Ms. Miller was required to pay a security deposit in the sum of $100.00 shortly after renting the apartment, and later paid an additional security deposit of $35.00 upon acquiring a pet. Subsequently Ms. Miller moved from the apartment after personally notifying Respondent Rinehart of her intent to vacate the rented premises at a time in excess of thirty (30) days before the intended date of her departure. Ms. Miller then again informed Respondent of her intent to move and requested that he give her an address where he could be contacted and to also return her security deposits, however Respondent did not do so. Ms. Miller moved from the licensed premises in September of 1978, and has not received her security deposits, nor has there been a claim submitted by Respondent Rinehart for the deposit. Entered into evidence was a typed rental agreement and a receipt for various sums of monies growing out of the rental agreement with Respondent Rinehart. The testimony of Carol Miller, together with the evidence submitted, is sufficient to show that Respondent Rinehart in fact received security deposits from Ms. Miller as a tenant and failed to return said security deposits to her or to make a claim against them. A proposed recommended order was submitted by the Petitioner Division, and this instrument was considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that a civil penalty be assessed in the amount of $250.00 to be imposed upon the Respondent, Robert A. Rinehart t/a 629 Apartments. DONE and ORDERED this 31st day of August, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Robert A. Rinehart t/a Department of Business 629 Apartments Regulation 629 NE 5th Avenue 725 South Bronough Street Fort Lauderdale, Florida Tallahassee, Florida 32301
