The Issue The issues in this case are whether Petitioner violated Subsection 440.107(7)(c), Florida Statutes (2007),1 and, if so, what penalty should be assessed.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation coverage for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. Martinez Construction is a construction business. On June 15, 2005, the Department issued Stop-Work Order No. 05-325- 1A. On June 20, 2005, an Amended Order of Penalty Assessment was issued against Martinez Construction assessing a penalty of $23,472.57. On June 21, 2005, Martinez Construction and the Department entered into a Payment Agreement Schedule for Periodic Payment of Penalty in which Martinez Construction agreed to pay the Department a lump sum of $5,000.00 and to make 24 monthly payments of $769.69. On June 21, 2005, the Department entered an Order of Conditional Release from Stop- Work Order (Conditional Release), which conditionally released the Stop-Work Order that was issued on June 15, 2005. The Conditional Release provided: Until such time as the employer has paid the total assessed penalty of $23,472.57 in full, if the employer fails to comply with the terms and conditions of the Payment Agreement Schedule for Periodic Payment of Penalty attached hereto as Exhibit “A,” the Stop-Work Order to which this order applies will be immediately reinstated, and the unpaid balance of the total penalty to be paid by the employer shall become immediately due. The Conditional Release listed Martinez Construction’s address as 1905 Michigan Avenue, Panama City, Florida. Martinez Construction made payments until July 2006, when it stopped making payments. The unpaid balance on the assessed penalty was $10,008.98. By letter dated May 24, 2007, the Department wrote Martinez Construction advising that it was issuing an Order Reinstating Stop-Work Order because of the failure to make payments as required by the payment schedule to which the parties had agreed. A copy of the Order Reinstating Stop-Work Order was enclosed with the letter and ordered: The Stop-Work Order issued to Employer on June 15, 2005, is immediately reinstated, and pursuant to such immediate reinstatement, the provisions of said Stop- Work Order are in full force and effect. The unpaid balance of the penalty in the amount of $10,008.98 is due pursuant to such immediate reinstatement. Pursuant to such immediate reinstatement, Employer shall cease all business operations in the State of Florida until the DEPARTMENT issues an Order releasing the reinstated Stop-Work Order upon a finding by the DEPARTMENT that Employer has come into compliance with coverage requirements of Chapter 440, Florida Statutes, and has paid the entire unpaid balance of the penalty assessed as specified in (7) above [$10,008.98]. The letter and Order Reinstating Stop-Work Order were sent to Martinez Construction by certified mail to its Michigan Avenue address. The letter and order were returned to the Department as undeliverable. In early January 2006, Hector Martinez (Mr. Martinez) and his family moved from 1905 Michigan Avenue, Panama City, Florida, to 1304 Delaware Avenue, Lynn Haven, Florida. They remained at that address until January 2008. Mr. Martinez was the manager and registered agent for Martinez Construction. The records of the Florida Department of State, Division of Corporations, show that on February 2, 2006, the principal address and mailing address for Martinez Construction was changed to 1304 Delaware Avenue, Lynn Haven, Florida, and that the address for the registered agent was also changed to the 1304 Delaware Avenue address. The Department resent the May 24, 2007, letter and Order Reinstating Stop-Work Order by certified mail to Martinez Construction. The return receipt from the United States Postal Service shows that the documents were delivered to the 1304 Delaware Avenue address on June 1, 2007. The receipt bore a signature stating Luisa Martinez. On June 1, 2007, Mr. Martinez was married to Luisa Alvarez Diaz. Mr. Martinez claims that his wife did not sign the receipt for the certified mail and that he did not receive the documents. According to Mr. Martinez, his wife does not use his surname, but goes by the name of Luisa Alvarez. Mr. Martinez’s testimony is not credible. The letter and Order Reinstating Stop-Work Order were delivered to the 1304 Delaware Avenue address on June 1, 2007. On August 24, 2007, Robert Borden (Mr. Borden), an investigator for the Department, was conducting a random compliance investigation and found a crew working on a jobsite. When Mr. Borden questioned the crew concerning the name of their employer, they replied that they worked for Martinez Construction. Mr. Borden checked the Department’s Coverage Compliance Automated Systems database and discovered that an Order Reinstating Stop-Work Order had been issued to Martinez Construction. Mr. Borden checked with the employee leasing company which Martinez Construction used and found that Martinez Construction had been employing crews for 70 days since the issuance of the Order Reinstating Stop-Work Order. On August 28, 2007, Martinez Construction was issued and personally served an Order Assessing Penalty for Working in Violation of Reinstated Stop-Work Order, assessing a $70,000.00 penalty which represented a penalty of $1,000.00 per day for the 70 days of violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order finding that Petitioner violated Subsection 440.107(7)(c), Florida Statutes, and assessing a penalty of $70,000.00. DONE AND ENTERED this 30th day of June, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of June, 2008.
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers' compensation, as alleged in the Stop-Work Order and 3rd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation, is the state agency responsible for enforcing the requirement that employers in the State of Florida secure the payment of workers' compensation for their employees and corporate officers. Respondent, Shriji Krupa, Inc., is a Florida corporation engaged in business operations as a gas station (self-service and convenience-retail) in the State of Florida. Mr. Hemant Parikh, one of Respondent's corporate officers, testified that, on November 20, 2012, Respondent was inspected by Petitioner's Compliance Investigator, Mike Fuller. Mr. Fuller advised Mr. Parikh that Respondent needed to close the store. According to Mr. Hemant Parikh, at the time of inspection, Respondent had two corporate officers and four additional employees. Mr. Parikh explained that, at the time of inspection, Respondent had two store locations with three employees working at each locale. Mr. Shrikant Parikh, another corporate officer, testified that, at the time of inspection, Respondent was operating under the mistaken belief that its corporate officers were exempt from workers' compensation coverage. Pursuant to the record evidence, on November 28, 2012, Mr. Fuller served a Stop-Work Order and Order of Penalty Assessment on Respondent. Pursuant to the Stop-Work Order, Respondent was ordered to cease all business operations for all worksites in the state based on the following: Failure to secure the payment of workers' compensation in violation of sections 440.10(1), 440.38(1), and 440.107(2) F.S., by: failing to obtain coverage that meets the requirements of Chapter 440, F.S., and the Insurance Code. After receiving the Stop-Work Order, on that same date, Respondent obtained workers' compensation coverage with an effective date of November 29, 2012. Respondent has maintained appropriate coverage to date. Following the Stop-Work Order, Respondent submitted various records for Petitioner's review.2/ Petitioner's sole witness was Ms. Lynne Murcia. Ms. Murcia works in Petitioner's Bureau of Compliance wherein she calculates penalties for those employers found in violation of the workers' compensation laws. Ms. Murcia performs approximately 200 penalty calculations per year. Ms. Murcia first became involved with Respondent in January 2013, when she received an assignment to perform a penalty calculation. Ms. Murcia reviewed all records previously submitted by Respondent. From the records received, Ms. Murcia was able to determine that Respondent employed four or more employees on a regular basis. Ms. Murcia explained that "employees" include corporate officers that have not elected to be exempt from workers' compensation. After conducting a search within the Florida Division of Corporations, Ms. Murcia was able to determine that no exemptions existed for Respondent's corporate officers. Ms. Murcia further conducted a proof of coverage search via Petitioner's Coverage and Compliance Automated System ("CCAS"), which is a database that contains all insurance coverage and exemptions for each employer throughout the State of Florida. The search revealed that Respondent possessed appropriate coverage from November 29, 2012, to the present; however, no prior coverage was indicated. Ms. Murcia conducted a penalty assessment for the non- compliance period of November 29, 2009, through November 28, 2012. From the records submitted by Respondent, Ms. Murcia correctly identified Respondent's employees and gross wages paid during the penalty period. All of the individuals listed on the Penalty Worksheet of the 3rd Amended Order of Penalty Assessment, dated August 27, 2014, were "employees" (as that term is defined in section 440.02(15)(a), Florida Statutes) of Respondent during the period of noncompliance listed on the penalty worksheet. From a description of the Respondent's business operations, Ms. Murcia determined Respondent's classification code. She explained that classification codes are established by the National Council of Compensation Insurance ("NCCI"). A classification code is a four-digit code number that is assigned to a specific group of tasks, duties, and responsibilities for a specific grouping of business. Ms. Murcia further testified that the classification codes are associated with a manual rate which is the actual dollar amount of risk associated with a particular code.3/ The manual rates are also established by NCCI. Class Code 8061, used on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment, and as defined by the NCCI Scopes Manual, is the correct occupational classification for Respondent. From the assigned classification code number, 8061, Ms. Murcia calculated the appropriate manual rate for the penalty period. The manual rates used on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment are the correct manual rates. The total penalty of $21,205.19 is the correct penalty for the employees listed on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent Shriji Krupa, Inc., violated the requirement in chapter 440, Florida Statutes, to secure workers' compensation coverage, and imposing a total penalty assessment of $21,205.19. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of October, 2014.
Findings Of Fact 12. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on October 31, 2008, the Amended Order of Penalty Assessment issued on November 26, 2008, the Second Amended Order of Penalty Assessment issued on May 4, 2009, and the Third Amended Order of Penalty Assessment issued on August 5, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the Third Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-327-D2, and being otherwise fully advised in the premises, hereby finds that: 1. On October 31, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein CONNIE ARGUELLO, D.D.S. P.A. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On November 3, 2008, the Stop-Work Order and Order of Penalty Assessment was served by personal service on CONNIE ARGUELLO, D.D.S. P.A. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On November 26, 2008, the Department issued an Amended Order of Penalty Assessment in Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. The Amended Order of Penalty Assessment assessed a total penalty of $4,318.14 against CONNIE ARGUELLO, D.D.S. P.A. The Amended Order of Penalty Assessment included a Notice of Rights wherein CONNIE ARGUELLO, D.D.S. P.A. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On December 2, 2008, the Amended Order of Penalty Assessment was served by personal service to CONNIE ARGUELLO, D.D.S. P.A. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On December 24, 2008, the Department received a letter from CONNIE ARGUELLO, D.D.S. P.A. requesting an administrative-hearing. The Department subsequently issued a Final Order Denying Petition as Untimely on January 30, 2009. 6. After the Final Order Denying Petition as Untimely was entered, CONNIE ARGUELLO, D.D.S. P.A. demonstrated that a timely petition for administrative review had previously been filed with the Department, and an Order Withdrawing Final Order Denying Petition as Untimely was entered on March 26, 2009. The petition for administrative review was then forwarded to the Division of Administrative Hearings on April 23, 2009, and the matter was assigned DOAH Case No. 09-2189. 7. On May 4, 2009, the Department issued a Second Amended Order of Penalty Assessment in Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. The Second Amended Order of Penalty Assessment assessed a total penalty of $4,116.63 against CONNIE ARGUELLO, D.D.S. P.A. The Second Amended Order of Penalty Assessment was served on CONNIE ARGUELLO, D.D.S. P.A. through the Division of Administrative Hearings. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 8. On August 5, 2009, the Department issued a Third Amended Order of Penalty Assessment in Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. The Third Amended Order of Penalty Assessment assessed a total penalty of $3,744.47 against CONNIE ARGUELLO, D.D.S. P.A. The Third Amended Order of Penalty Assessment was served on CONNIE ARGUELLO, D.D.S. P.A. through the Division of Administrative Hearings. A copy of the Third Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and is incorporated herein by reference. 9. On August 14, 2009, CONNIE ARGUELLO, D.D.S. P.A. signed a Payment Agreement Schedule for Periodic Payment of Penalty in Case No. 08-327-D2. A copy of the Payment Agreement Schedule for Periodic Payment of Penalty is attached hereto as “Exhibit E” and incorporated herein by reference. 10. On August 14, 2009, the Department issued an Order of Conditional Release from Stop-Work Order in Case No. 08-327-D2 to CONNIE ARGUELLO, D.D.S. P.A. A copy of the Order of Conditional Release from Stop-Work Order is attached hereto as “Exhibit F.” 11. On November 4, 2009, a Joint Stipulation for Dismissal was filed in DOAH Case No. 09-2189. Subsequently, on November 9, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on August 23, 2010, the Amended Order of Penalty Assessment issued on September 13, 2010, and the Order Closing File which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the Petition for Request of Hearing, and the Order Closing File, and being otherwise fully advised in the premises, hereby finds that: 1. On August 23, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-341-1A to AN & YA CONSTRUCTION, INC. 2. On August 23, 2010, the Stop-Work Order and Order of Penalty Assessment was personally served on AN & YA CONSTRUCTION, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On September 13, 2010, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-341-1A to AN & YA CONSTRUCTION, INC. The Amended Order of Penalty Assessment assessed a total penalty of $75,724.80 against AN & YA CONSTRUCTION, INC. 4. On September 20, 2010, the Amended Order of Penalty Assessment was served by certified mail on AN & YA CONSTRUCTION, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On October 8, 2010, AN & YA CONSTRUCTION, INC filed a Petition for Request of Hearing (“Petition”) with the Department in response to the Amended Order of Penalty Assessment. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On November 24, 2010, the Petition was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-10421. 7. On April 28, 2011, an Order Closing File was entered in Division of Administrative Hearings Case. No. 10-10421. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue Whether the Respondent, Steve Mundine Construction, Inc., timely challenged the Second Amended Order of Penalty Assessment and, if not, whether pursuant to the doctrine of equitable tolling Respondent’s untimely filed challenge should be accepted.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of enforcing and assuring employers meet the requirements of chapter 440, Florida Statutes. The law in Florida requires employers to maintain appropriate workers’ compensation coverage for their employees. At all times material to this case, the Respondent was doing business in Florida and was subject to the requirements of the law. On May 6, 2015, Stephanie Scarton, an investigator employed by the Petitioner, stopped at one of the Respondent’s construction sites and initiated an investigation as to whether the Respondent maintained appropriate workers’ compensation for the two employees found at the job site. After determining that the requisite documentation for workers’ compensation coverage was not produced, Ms. Scarton issued a Stop-Work Order (Petitioner’s Exhibit A). The Stop- Work Order advised the Respondent that he, Steven Mundine, d/b/a, Steve Mundine Construction, Inc., was in violation of Florida law by “failing to obtain coverage that meets the requirements of chapter 440, F.S., and the Insurance Code.” Petitioner’s Exhibit A included a Notice of Rights that provided, in part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. * * * FAILURE TO FILE A PETITION WITHIN THETWENTY-ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THEAGENCY ACTION. [Emphasis in original] In response to the Stop-Work Order, the Respondent met with Cathy Nunez on May 7, 2016, and executed an Agreed Order of Conditional Release from Stop-Work Order (Petitioner’s Exhibit B). In addition to signing the agreed order, the Respondent submitted an affidavit that provided: I Steve Mundine have terminated Bill Busch and Karl G. Kerr. I am no longer conducting business as Steve Mundine Const. Inc. I have opened a new company Paradigm Building, LLC but will not work til we applied and received exemptions. Including Richard Hans. Under the terms of the Agreed Order of Conditional Release from Stop-Work Order the Respondent represented that he would remit periodic payments of the remaining penalty amount pursuant to a Payment Agreement Schedule for Periodic Payment of Penalty with the Department or pay the remaining penalty amount in full within 28 days after the service of the Stop-Work Order. As a condition of receiving the conditional release the Respondent remitted $1,000.00 toward the penalty amount. In order to assist the Petitioner with the accurate calculation of the penalty that would be due, the Respondent was advised that he needed to submit records. When the Respondent asked Cathy Nunez if he needed to retain a lawyer, she did not tell him that he did not need a lawyer. She advised him that a lawyer was not required to produce the records that were needed to make the penalty calculation. The Respondent did produce records to the Petitioner and in turn an Amended Order of Penalty Assessment (Petitioner’s Exhibit C) was completed that advised the Respondent that he owed a total penalty of $63,837.82. Cathy Nunez hand-delivered the Amended Order of Penalty Assessment to the Respondent on July 24, 2015. Included was a second Notice of Rights that advised the Respondent of his right to challenge the assessment. Additionally, the Respondent was advised that a petition to seek administrative review of the action had to be filed within twenty-one days. After considering additional records submitted by the Respondent, the Petitioner prepared a Second Amended Order of Penalty Assessment (Petitioner’s Exhibit D) to itemize the revised amount owed by the Respondent. The Second Amended Order of Penalty Assessment ordered the Respondent to pay a total penalty of $47,006.28. Stephanie Scarton delivered the Second Amended Order of Penalty Assessment to the Respondent on December 22, 2015. At the same time (December 22, 2015), Ms. Scarton presented the Respondent with a Payment Agreement Schedule for Periodic Payment of Penalty (Petitioner’s Exhibit E). The payment agreement acknowledged that the Respondent had previously remitted $1,000.00 toward his penalty and allowed for the remaining $46,006.28 to be repaid over the course of 60 monthly payments. The Respondent did not agree to sign the payment agreement. Accordingly, a blank agreement was left with the Respondent, not the one providing for the payments previously described. On December 22, 2015, the Respondent disagreed with the repayment amount and believed the penalty had been incorrectly calculated. On December 22, 2015, the Respondent knew he had a limited amount of time to challenge the Second Amended Order of Penalty Assessment. On December 22, 2015, Ms. Scarton hand-delivered to the Respondent the Second Amended Order of Penalty Assessment including a Notice of Rights. The only documents not left with the Respondent on December 22, 2015, were copies of the payment agreement signed by Ms. Scarton. On December 22, 2015, the Notice of Rights provided to the Respondent was identical to the Notice of Rights previously provided to him. Before leaving the Respondent on December 22, 2015, Ms. Scarton reminded the Respondent he had a limited amount of time to file a petition seeking administrative review of the agency action. The Petitioner did not misrepresent the procedural requirements to challenge the agency action, did not lull the Respondent into a false sense of security or inaction, and did not advise the Respondent as to whether he should retain a lawyer in connection with an administrative review of the penalty assessment. The weight of the credible evidence supports the finding that when the Respondent eventually filed a petition to challenge the agency action, it was beyond the 21 days allowed by law.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining the Respondent’s request for administrative review of the Second Amended Order of Penalty Assessment was not timely filed. DONE AND ENTERED this 27th day of May, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2016. COPIES FURNISHED: Christopher Ivey Miller, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) John Laurance Reid, Esquire Dickens Reid PLLC 517 East College Avenue Tallahassee, Florida 32301 (eServed) Young J. Kwon, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Michael Joseph Gordon, Esquire Florida Department of Financial Services Workers Compensation Compliance 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact 10. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on September 24, 2010, and the 2nd Amended Order of Penalty Assessment issued on May 5, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 10-423-D3, and being otherwise fully advised in the premises, hereby finds that: 1. On September 24, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-423-D3 to Hal’s Floor Covering, Inc. (hereinafter Hal’s). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Hal’s was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On September 24, 2010, the Stop-Work Order and Order of Penalty Assessment was served on Hal’s by personal service. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 25, 2010, the Department issued an Amended Order of Penalty Assessment to Hal’s in Case No. 10-423-D3. The Amended Order of Penalty Assessment assessed a total penalty of $9,049.83 against Hal’s. The Amended Order of Penalty Assessment included a Notice of Rights wherein Hal’s was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. The Amended Order of Penalty Assessment was served on Hal’s by personal service on February 18, 2011. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On November 12, 2010, Hal’s filed a timely Petition for formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 10-10613. 6. On May 5, 2011, the Department issued a 2nd Amended Order of Penalty Assessment to Hal’s in Case No. 10-423-D3. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $1,502.86 against Hal’s. The 2nd Amended Order of Penalty Assessment was served on Hal’s on May 12, 2011 through the Division of Administrative Hearings. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On May 16, 2011, the Department filed a Notice of Settlement in DOAH Case No. 10-10613. A copy of the Notice of Settlement filed by the Department is attached hereto as “Exhibit D.” 8. On May 16, 2011, Administrative Law Judge Elizabeth W. McArthur entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the May 16, 2011 Order Closing File is attached hereto as “Exhibit E.”
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 5, 2010, the Amended Order of Penalty Assessment issued on May 13, 2010, and the 2nd Amended Order of Penalty Assessment issued on October 6, 2010, attached as “Exhibit A”, “Exhibit C”, and “Exhibit G“, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the requests for administrative hearing received from GGR, L.L.C., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On April 5, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-111-D4 to GGR, L.L.C. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein GGR, L.L.C. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On April 13, 2010, the Stop-Work Order and Order of Penalty Assessment was personally served on GGR, L.L.C. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3, On April 27, 2010, GGR, L.L.C. filed a Response to Stop-Work Order and Request for Hearing (“Petition”) with the Department which contested the Stop-Work Order and Order of Penalty Assessment issued by the Department. A copy of the Petition is attached hereto as “Exhibit B”. 4. On May 13, 2010, the Department issued an Amended Order of Penalty Assessment to GGR, L.L.C. The Amended Order of Penalty Assessment assessed a total penalty of $329,549.82 against GGR, L.L.C. 5. On May 24, 2010, the Amended Order of Penalty Assessment was served by certified mail on GGR, L.L.C. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On June 21, 2010, GGR, L.L.C. filed a Response to Amended Order of Penalty Assessment (“Amended Petition”) with the Department which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-4762. A copy of the Amended Petition is attached hereto as “Exhibit D”. 7. On September 17, 2010, GGR, L.L.C. filed a Notice of Voluntary Dismissal of its Amended Petition with the Division of Administrative Hearings in DOAH Case No. 10-4762. On September 23, 2010, Administrative Law Judge J. D. Parrish entered an Order Closing File in DOAH Case No, 10-4762. A copy of the Notice of Voluntary Dismissal and Order Closing File are attached hereto as “Exhibit E” and “Exhibit F”, respectively. 8. On October 6, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to GGR, L.L.C. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $284,375.20 against GGR, L.L.C. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein GGR, L.L.C. was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2nd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 9. On October 18, 2010, the 2nd Amended Order of Penalty Assessment was served on GGR, L.L.C. by certified mail. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit G” and incorporated herein by reference. 10. GGR, L.L.C. failed to respond to the 2nd Amended Order of Penalty Assessment, resulting in the issuance of this Final Order.
The Issue The issues in this case are whether 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. That section mandates, in relevant part, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. At all times relevant, All Florida was a Florida corporation engaged in the business of well drilling for water, a construction business, with its principal office located at 2250 Havana Avenue, Fort Myers, Florida. On August 3, 2010, Amy Thielen (Ms. Thielen), a compliance investigator for the Department, conducted an on-site investigation at a work site located at 129 Montrose Street, Fort Myers, Florida. Ms. Thielen observed a parked truck with the All Florida logo on it at this work site and an individual working nearby. After identifying herself to the individual, the individual identified himself as Edward Perez (Mr. Perez), an employee of and working for All Florida at that time. Ms. Thielen then consulted the Department's Coverage and Compliance Automated System (CCAS) database to determine if All Florida had workers' compensation coverage. The insurance companies report any workers' compensation coverage to the Department through this CCAS database, which is kept current. The CCAS showed that All Florida had two periods in which its workers' compensation coverage lapsed: March 3, 2009, through October 24, 2009, and a second period when the workers' compensation policy was cancelled from January 9, 2010, to August 3, 2010. Ms. Thielen contacted All Florida's last workers' compensation carrier and was informed that there was no workers' compensation policy in place. There was no workers' compensation coverage in effect on August 3, 2010, when Ms. Thielen confirmed that Mr. Perez was working for All Florida. Ms. Thielen testified that any construction company could obtain an exemption from having workers' compensation coverage through an application to the Department. All Florida did not have an exemption for any corporate officers.2/ Ms. Thielen checked the Department of State, Division of Corporations', records and learned that Robert Henshaw (Mr. Henshaw) was the president and only officer of All Florida. Based on her investigation, Ms. Thielen determined that All Florida did not have the requisite workers' compensation coverage at that time. After consulting with her supervisor, Ms. Thielen issued a Stop-Work Order to All Florida on August 11, 2010. A stop-work order is an enforcement action issued against employers that forces the employer to cease all business operations in Florida until they obtain the requisite workers' compensation coverage and return to full compliance. At the time Ms. Thielen served All Florida with the Stop-Work Order, she also served a request for production of business records for penalty assessment calculation to All Florida. This document requests certain business records from the employer for a three-year period in order for an audit to be performed to properly calculate the penalty assessment. All Florida produced the requested business records to the Department. Melissa Geissler (Ms. Geissler), a penalty calculator for the Department's Bureau of Compliance, calculated the penalty assessment based on All Florida's business records. Based on a review of the produced business records, the initial penalty assessment was $18,216.73. On September 8, 2010, Mr. Henshaw, acting on behalf of All Florida, executed a "payment agreement schedule for periodic payment of penalty" with the Department. Mr. Henshaw paid ten percent of the penalty assessment, put the remainder of the penalty assessment in a payment plan, and obtained the requisite worker's compensation coverage. The Department then issued an "Order of Conditional Release from Stop-Work Order," thus allowing All Florida to continue to operate while paying the remaining penalty assessment in specific increments. After the original penalty assessment order was issued, All Florida submitted additional business records, and the Department sought to and did revise the penalty assessment amount downward. As the case was already at the Division, the Department, with All Florida's consent, requested that a second amended order of penalty assessment be issued, reducing the penalty amount to $13,267.24. On October 20, 2010, the Division issued an Order allowing the second amended order of penalty assessment to be issued. In April 2011, after still more business records were delivered to the Department, the Department issued a third amended order of penalty assessment. This time the penalty assessment was reduced to $12,721.73. On August 24, 2011, the Department filed a motion to amend order of penalty assessment. There was insufficient time for All Florida to respond to the motion, and, at hearing, All Florida, through its president, Mr. Henshaw, voiced no objection to the reduction in the penalty assessment amount. Ms. Geissler's duties at the Department include reviewing financial documentation from employers, identifying payroll transactions, and verifying workers' compensation coverage. Ms. Geissler testified that she utilizes the CCAS database to confirm whether any employer has secured workers' compensation coverage. When she finds a payroll transaction that reflects such coverage, that transaction is not used in the penalty assessment calculation; otherwise, the transaction is used in calculating the coverage cost amount. Ms. Geissler also testified that she utilizes the penalty worksheet authorized in Florida Administrative Code Rule 69L-6.027 to aid in the penalty calculation process. Ms. Geissler conducted an audit of All Florida based on the business records it provided to the Department. Ms. Geissler determined the amount of workers' compensation premium that All Florida would have paid had it been in compliance with Florida law between August 12, 2007, and August 11, 2010 (excluding October 25, 2009, through January 8, 2010, when there was coverage). Ms. Geissler testified that, during this three-year period, All Florida was an active construction based employer. It was confirmed that there were four employees (including Mr. Henshaw) of All Florida. In order to calculate the appropriate penalty, Ms. Geissler took 1/100th of the gross payroll and multiplied that figure by the approved manual rate applicable to class code 6204 (the class code designated to specialist contractors engaged in drilling work as found in the approved Scopes Manual3/). The approved manual rates are determined by the National Council on Compensation Insurance, adopted by the Florida Office of Insurance Regulation, and represent the recent trends in workers' compensation loses associated with each individual class code. After reviewing all of the business records submitted by All Florida, and using the applicable formula, Ms. Geissler credibly testified that the final penalty assessment was $12,721.73. Ms. Geissler's calculations for the penalty assessment were performed in accordance with the requirements of section 440.107(7) and rule 69L-6.027. Mr. Henshaw did not provide any testimony during the proceeding, but rather made the statement that there was no point in fighting the allegation, "everything is correct."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that All Florida failed to secure workers' compensation coverage and assessing a penalty of $12,721.73 against All Florida. DONE AND ENTERED this 5th day of October, 2011, 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 5th day of October, 2011.
The Issue The issues are whether Respondent materially understated payroll in violation of Section 440.107, Florida Statutes (2003), and, if so, what penalty, if any, should be imposed against Respondent; and whether Respondent's workers are not employees defined in Section 440.02, Florida Statutes.
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 a corporation domiciled in Florida and engaged in the business of stucco and plastering. On March 2, 2004, Petitioner's compliance officer conducted a random site inspection of a single-family residence under construction at 12061 Cypress Links Drive, Fort Myers, Florida. Two work crews were present on the construction site. One crew was finishing drywall seams inside the house. The other crew was applying stucco to the outside of the house. The compliance officer is the only employee for Petitioner who investigated and developed the substantive information that forms the basis of Petitioner's proposed agency action. Other employees calculated the actual amounts of the proposed penalties. On March 3, 2004, the compliance officer conducted a conference in his office with Ms. Sandra Gomez and Mr. Francesco Zuniga; and Mr. Juan Rivera and Ms. Licia Rivera. Mr. and Mrs. Rivera are the principal officers for Respondent. The compliance officer determined that the crew working inside the house worked for Mr. Zuniga and that the crew working outside the house worked for Ms. Gomez. The compliance officer further determined that Ms. Gomez and Mr. Zuniga were subcontractors for Respondent and that neither Ms. Gomez nor Mr. Zuniga had workers compensation insurance. The compliance officer issued stop work orders against Ms. Gomez and Mr. Zuniga that are not within the purview of this proceeding. The compliance officer determined that Respondent maintained workers' compensation insurance through the Hartford Insurance Company (Hartford) and took no action against Respondent except to issue an order for Respondent to produce its business records for the preceding three years (the business records) for audit by Petitioner. The compliance officer reported to Hartford that Respondent had uninsured subcontractors working for Respondent. The compliance officer also requested and received from Hartford a copy of the last premium audit report for Respondent (the audit report). On March 10, 2004, Respondent produced the business records previously requested by the compliance officer. The production of records fully satisfied the request issued by the compliance officer. The compliance officer determined there was a discrepancy between the audit report's description of employee duties and related information in the business records. The compliance officer determined that Respondent had materially understated or concealed payroll and had materially misrepresented or concealed employee duties by representing that Respondent was in the drywall business and not in the stucco business. On March 10, 2004, Petitioner issued Stop Work and Penalty Assessment Order Number 04-94-D6 (the Initial Order). The Initial Order alleged that Respondent violated Subsection 440.107(2), Florida Statutes (2003), by materially understating or concealing payroll and proposed a penalty equal to the greater of 1.5 times the premiums Respondent would have paid over the preceding three years or $1,000. Petitioner subsequently amended the Initial Order to charge Respondent with materially misrepresenting or concealing employee duties. Petitioner issued the Initial Order without conducting any further review of Respondent or its principals. The compliance officer told Mr. Rivera that it would not be helpful for Respondent to retain counsel and that counsel would only further delay release of the stop work order. The compliance officer did not provide Respondent with any information concerning methods of avoiding the penalty except for Respondent to provide proof of an exemption or proof of insurance for Respondent's subcontractors. The compliance officer did not advise Respondent that proving independent contractor status for some or all of Respondent's subcontractors before the effective date of statutory amendments on October 1, 2003, would reduce the proposed penalty against Respondent. The compliance officer did not interview the Hartford employee who prepared the audit report. The audit report was limited to the period from December 17, 2002, through December 17, 2003. The audit report stated that Hartford had not provided a copy to Respondent and had not audited Respondent's general ledger. The compliance officer did not identify or interview the Hartford employee who had responsibility for Respondent's account, the Hartford agent responsible for Respondent, or the Hartford underwriter. The compliance officer did not request Hartford's complete file for Respondent. The audit report included a copy of an exemption for a person identified in the record as Mr. Stinnett who was included in Petitioner's penalty calculation. The audit report and penalty calculation each identified Mr. Stinnett by the same social security number. On March 16, 2003, Petitioner amended the amount of the proposed fine to $526,593.44 pursuant to Amended Order of Penalty Assessment Number 04-094-D7-2 (the Amended Order). Petitioner issued a Second Amended Order of Penalty Assessment Number 04-094-D7-3 (the Second Amended Order) on March 23, 2004. The Second Amended Order reduced the proposed penalty to $90,131.51. Petitioner reduced the $526,593.44 fine proposed in the Amended Order by $426,461.91. The latter sum pertained to penalties assessed for the period preceding October 1, 2003, and for the period following December 31, 2003. The parties agree that statutory amendments authorizing Petitioner to issue a stop work order to an employer that materially misrepresents employee duties or materially understates or conceals payroll became effective on October 1, 2003, and cannot be applied to Petitioner retroactively. In addition, the parties agree that Hartford's audit report for Petitioner did not cover the period after December 31, 2003. Respondent paid the proposed fine of $90,131.51. On March 23, 2004, Petitioner issued a Release of Stop Work Order (the Release) that removed the Stop Work Order issued on March 10, 2004. In a Third Amended Order of Penalty Assessment Number 04-094-D7-4 (the Third Amended Order) dated May 26, 2004, Petitioner reduced the proposed penalty by $21,679.28 to $68,432.23. Petitioner discovered errors totaling $16,261.42 that occurred when employees input numbers to calculate the proposed penalties against Respondent. The remaining portion of the reduction in the amount of $5,417.86 was attributable to the deletion of Mr. Sinnett from the penalty calculation. In a Fourth Amended Order of Penalty Assessment Number 04-094-D7-5 (the Fourth Amended Order) dated June 1, 2004, Petitioner further reduced the proposed penalty by $1,531.97 to $66,926.00. Respondent provided additional information concerning exemptions for a few workers. On June 7, 2004, Petitioner issued a Fifth Amended Order of Penalty Assessment Number 04-094-D7-5 (the Fifth Amended Order) deleting the charge that Respondent materially misrepresented or concealed employee duties. Petitioner admits that Hartford committed errors in the audit report and in recording the description of duties that Respondent reported to Hartford. Mr. Rivera personally reported to the appropriate Hartford employee that Respondent's primary business was stucco and that Respondent hired subcontractors to perform drywall plastering. The Fourth Amended Order dated June 1, 2004, as amended by the Fifth Amended Order, remain at issue in this proceeding. The Fourth Amended Order proposes a penalty in the amount of $66,920.26. The Fifth Amended Order limits the grounds for the proposed penalty to the charge that Respondent materially understated or concealed payroll by excluding subcontractors from Respondent's payroll from October 1 through December 31, 2003 (the relevant period), and by excluding either subcontractors or independent contractors thereafter. If a worker included in the penalty calculation were an independent contractor, within the meaning of former Subsection 440.02(15)(d)1, Florida Statutes (2003), the worker should be excluded from the penalty calculation during the relevant period. Effective January 1, 2004, however, Subsection 440.02(15)(d)1, Florida Statutes (2003), no longer excluded independent contractors in the construction industry from the definition of an employee. Thus, a determination of whether a worker was an independent contractor is not probative of that portion of the proposed penalty covering any period after December 31, 2003. Prior to January 1, 2004, former Subsection 440.02(15), Florida Statues (2003), did not except subcontractors from the definition of an employee unless the subcontractor satisfied the definition of an independent contractor. Effective January 1, 2004, Subsection 440.02(15)(c)2, Florida Statutes (2003), excluded from the definition of an employee those subcontractors that did not satisfy the definition of an independent contractor if a subcontractor either executed a valid exemption election or otherwise secured payment of compensation coverage as a subcontractor. There is insufficient evidence to support a finding that subcontractors included in that part of the penalty assessment attributable to the period after December 31, 2003, either elected a valid exemption or otherwise secured payment for compensation coverage. These subcontractors would not be excluded from the definition of an employee after December 31, 2004, even if they were independent contractors. Except for constitutional arguments raised by Respondent over which DOAH has no jurisdiction, Respondent owes that part of the penalty attributable to any period after December 31, 2003. It is undisputed that the workers included in that part of the penalty assessment attributable to the relevant period were subcontractors. Respondent's ledger clearly treated those workers as subcontractors and reported their earnings on Form 1099 for purposes of the federal income tax. Petitioner treated those workers as subcontractors in the penalty calculation. The Workers' Compensation Law in effect during the relevant period did not expressly exclude from the definition of an employee those subcontractors who executed a valid exemption election or otherwise secured payment of compensation coverage as a subcontractor. Rather, former Subsection 440.02(15)(c), Florida Statutes (2003), required a subcontractor to be an independent contractor to escape the definition of an employee. Former Subsection 440.02(15)(c), Florida Statutes (2003), required a subcontractor to satisfy all of the following requirements in former Subsection 440.02(15)(d)1, Florida Statutes (2003), in order for the subcontractor to be classified as an independent contractor: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. There is insufficient evidence to find that the workers included in that part of the penalty assessment attributable to the relevant period were independent contractors within the meaning of former Subsection 440.02(15)(d)1.a.-i., Florida Statutes (2003). Petitioner did not exceed its statutory authority by proposing a penalty of $66,920.26 in accordance with the Fourth Amended Order and Fifth Amended Order. Respondent previously paid a fine in excess of that proposed by Petitioner and is entitled to a refund of the excess penalty that Respondent paid.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order sustaining the allegations and penalties in the Fourth Amended Order and the Fifth Amended Order. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2004. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Susan McLaughlin, Esquire Law Offices of Michael F. Tew Building 800, Suite 2 6150 Diamond Center Court Fort Myers, Florida 33912 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
