Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 18, 2009, and the Amended Order of Penalty Assessment issued on April 7, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
The Issue Whether Respondent timely filed a written request for an administrative hearing, and, if not, whether the doctrine of equitable tolling provides a defense to the applicable deadline for filing a petition for hearing.
Findings Of Fact The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Following an investigation to determine whether Respondent had secured sufficient workers’ compensation insurance coverage, the Department served a Stop-Work Order and Order of Penalty Assessment on Respondent on September 10, 2015. The Department served an Amended Order of Penalty Assessment on Respondent on October 15, 2015. The Department served a 2nd Amended Order of Penalty Assessment (the “Penalty Assessment”) on Respondent on December 14, 2015. With the Penalty Assessment, the Department also provided Respondent a document entitled “Notice of Rights.” The Notice of Rights advised, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. * * * You must file the petition for hearing so that it is received by the Department within twenty- one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, FL 32399-0390. FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. Dale Russell, Compliance Investigator with the Department, personally served the Penalty Assessment along with the Notice of Rights on Respondent. As established by the Certificate of Service on the Penalty Assessment, as well as Mr. Russell’s testimony, Mr. Russell hand-delivered the documents to Respondent on December 14, 2015. Mr. Russell personally served the documents on Jose Fuentes, Respondent’s owner and general manager. Mr. Russell also reviewed with Mr. Fuentes the Notice of Rights. Mr. Russell discussed the import of the 21-day deadline to request a hearing to dispute the Penalty Assessment. Twenty-one days after December 14, 2015, is January 4, 2016. Respondent submitted to the Department a letter requesting review of the Penalty Assessment. Respondent’s letter is dated January 11, 2016. The Department received Respondent’s letter on January 12, 2016. At the final hearing, Mr. Fuentes testified regarding his handling of the Penalty Assessment and request for a hearing on behalf of Respondent. Mr. Fuentes acknowledged that he personally received the Penalty Assessment from Mr. Russell on December 14, 2015. Mr. Fuentes explained that his delay in submitting his letter to the Department was based on difficulties his family was experiencing at that time. His wife was facing surgery. Consequently, he was focused on her medical concerns, as well as caring for their three children. Unfortunately, he lost track of the time in which to file the petition. Based on the evidence set forth at the final hearing, the Department established that Respondent did not file its petition requesting administrative review with the Department within 21 days of Respondent’s receipt of the Penalty Assessment. Therefore, the legal issue to determine is whether Respondent’s petition should be dismissed as untimely filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Financial Services, Division of Workers’ Compensation, enter a final order dismissing Respondent’s request for an administrative hearing as untimely filed. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 16th day of June, 2016.
Findings Of Fact 1, On August 4, 2011, 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. 11-269-D5 to ARTEZANOS, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein ARTEZANOS, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop- Work Order and Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On February 3, 2012, the Stop- Work Order and Order of Penalty Assessment was served by certified mail on ARTEZANOS, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit 1” and incorporated herein by reference. 3, On February 13, 2012, ARTEZANOS, INC. filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings (hereinafter “DOAH”) on February 24, 2012, and the matter was assigned DOAH Case No. 12-0757. A copy of the petition is attached hereto as “Exhibit 2” and incorporated herein by reference. 4. On February 29, 2012, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-269-D5 to ARTEZANOS, INC. assessing a total penalty in the amount of $209,107.32. The Amended Order of Penalty Assessment included a Notice of Rights wherein ARTEZANOS, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 5. On March 9, 2012, the Petitioner served on Respondent the Department’s First Interlocking Discovery Requests via overnight mail. 6. On March 15, 2012, the Amended Order of Penalty Assessment was served via DOAH on ARTEZANOS, INC. A copy of the Motion to Amended Order of Penalty Assessment, Penalty Assessment Worksheet and the Order Granting Motion to Amend Order of Penalty Assessment is attached hereto as “Exhibit 3” and incorporated herein by reference. 7. On April 11, 2012, the Petitioner filed with DOAH a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(), Florida Statutes. A copy of the Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes (without Exhibits) is attached hereto as “Exhibit 4” and incorporated herein by reference. 8. On April 26, 2012, the Administrative Law Judge entered an Order granting the Department’s Motion in part and denying in part. The Administrative Law Judge granted the Department’s request to deem matters admitted as a result of the Respondent’s failure to object or otherwise respond to such requests. Additionally, the Respondent was given until May 8, 2012, to filea motion to withdraw or amend the technical admissions and to provide responses to the Department’s requests for admissions. The Order stated that the Department could renew their Motion to Relinquish Jurisdiction if the Respondent had not responded to the Order by May 8, 2012. A copy of the Order Regarding Motion to Deem Matters Admitted is attached hereto as “Exhibit 5” and incorporated herein by reference. 9. On May 9, 2012, the Department filed a Renewed Motion to Relinquish Jurisdiction as a result of the Respondent failing to file a motion to withdraw or amend the technical admissions or to provide responses to the Department’s requests for admissions. A copy of the Renewed Motion to Relinquish Jurisdiction is attached hereto as “Exhibit 6” and incorporated herein by reference. 10. On May 10, 2012, the Administrative Law Judge entered an Order granting the Department’s Renewed Motion to Relinquish Jurisdiction and the Department received a copy of an Order Closing File and Relinquishing Jurisdiction. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit 7” and incorporated herein by reference. 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, issued on August 4, 2011, and the Amended Order of Penalty Assessment, issued on February 29, 2012, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
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 Petition received from ARTEZANOS, INC., as well as the Stop- Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment and being otherwise fully advised in the premises, hereby finds that:
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 Whether Gio & Sons, Inc. (Respondent) violated Sections and 440.38, Florida Statutes, and if so, what penalty should be imposed. References to sections are to the Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440, Florida Statutes, which require that employers secure workers’ compensation coverage for their employees. Respondent, whose principal is Giovanny Martinez, Jr. (Mr. Martinez), is in the business of providing drywall installation services. At all times material to this case, Respondent is an employer within the meaning of Section 440.02(16)(a), Florida Statutes. At all times material to this case, Respondent was legally obligated to provide workers' compensation insurance in accordance with the provisions of Chapter 440, Florida Statutes, for all persons employed by Respondent to provide drywall installation services within Florida. In particular, Chapter 440 requires that the premium rates for such coverage be set pursuant to Florida law. At all times material to this case, Respondent failed to obtain workers' compensation coverage on behalf of over 150 employees. It is undisputed that Respondent had not furnished the required coverage, and that there was no valid exemption from this requirement. Accordingly, on February 26, 2004, the Stop Work Order was properly entered. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that Respondent employed the individuals referred to in paragraph 5, whose identities are not in dispute, under circumstances which obliged Respondent to provide workers' compensation coverage for their benefit. Based upon Respondent’s payroll records, Petitioner correctly calculated the penalty amount imposed by law under all the circumstances of the case, and issued the Amended Order imposing a penalty assessment in the amount of $107,885.71. Mr. Martinez does not dispute the factual or legal merits of Petitioner's case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order that affirms the Amended Order in the amount of $107,885.71. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2004. COPIES FURNISHED: Joe Thompson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Giovanny Martinez, Jr. Gio & Sons, Inc. 6910 Southwest 18th Court Pompano Beach, Florida 33068 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florid a 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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.
Findings Of Fact 11. — The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 3, 2009, and the Fourth Amended Order of Penalty Assessment issued on February 5, 2010, 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 Fourth Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-014-D2, and being otherwise fully advised in the premises, hereby finds that: 1. On February 3, 2009, 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. 09-014-D2 to ASSOCIATED WINDOW AND DOOR, INC. (ASSOCIATED). The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein ASSOCIATED 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 February 3, 2009, the Stop-Work Order and Order of Penalty Assessment was served via personal service on ASSOCIATED. 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 10, 2009, the Department issued an Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Amended Order of Penalty Assessment assessed a total penalty of $99,761.78 against ASSOCIATED. The Amended Order of Penalty Assessment included a Notice of Rights wherein ASSOCIATED 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 ASSOCIATED by personal service on April 13, 2009. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 30, 2009, the Department issued a Second Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Second Amended Order of Penalty Assessment assessed a total penalty of $76,081.13 against ASSOCIATED. The Second Amended Order of Penalty Assessment contained a Notice of Rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 6. The Second Amended Order of Penalty Assessment was served on ASSOCIATED by personal service on May 1, 2009. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On May 22, 2009, ASSOCIATED filed a timely Petition for a 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. 09- 3044. . 8. On February 5, 2010, the Department issued a Fourth Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Fourth Amended Order of Penalty Assessment assessed a total penalty of $1,256.24 against ASSOCIATED. The Fourth Amended Order of Penalty Assessment was served on ASSOCIATED through the Division of Administrative Hearings. A copy of the Fourth Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and is incorporated herein by reference. 9. ‘On February 10, 2010, ASSOCIATED filed a Motion to Close File Due to Settlement in DOAH Case No. 09-3044. A copy of the Motion to Close File Due to Settlement filed by ASSOCIATED. is attached hereto as “Exhibit E.” 10. On February 10, 2010, Administrative Law Judge Errol H. Powell entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the February 10, 2010 Order Closing File is attached hereto as “Exhibit F.”
Findings Of Fact 7. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on April 9, 2010, the Amended Order of Penalty Assessment issued on April 26, 2010, and the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction issued on January 6, 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, the Amended Order of Penalty Assessment, the Petition for Review, and the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction served in Division of Workers’ Compensation Case No. 10-152-1A, and being otherwise fully advised Order in the premises, hereby finds that: 1. On April 9, 2010, the Department issued a Stop-Work Order and Order of Penalty Assessment to MIKE CANADY, in case no. 10-152-1A. 2. On April 9, 2010, the Stop-Work Order and Order of Penalty Assessment was personally served on MIKE CANADY. 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 26, 2010, the Department issued an Amended Order of Penalty Assessment to MIKE CANADY. The Amended Order of Penalty Assessment assessed a total penalty of $137,562.68 against MIKE CANADY. 4. On May 27, 2010, the Amended Order of Penalty Assessment was served via Process Server on MIKE CANADY. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On June 17, 2010, MIKE CANADY filed a request for Administrative Review (“Petition”), requesting review of the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment. The petition for administrative review was forwarded to the Division of Administrative Hearings on July 16, 2010, and the matter was assigned DOAH Case No. 10-5819. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On January 6, 2011, the Administrative Law Judge issued an Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction ruling that, “Accordingly, the facts stated in Petitioner’s First Request for Admissions are deemed to be true and the documents which are attached to the discovery requests are deemed to be genuine. That being the case, a dispute of material fact no longer exists.” A copy of the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was operating its restaurant business in violation of Chapter 440, Florida Statutes, the Florida Workers' Compensation Law, by failing to have required workers' compensation coverage. The related issues are whether the Department should therefore issue a Stop Work Order, whether a penalty should be imposed for so operating and what the correct penalty should be.
Findings Of Fact The Department is an Agency of the State of Florida charged with enforcing the statutory requirement, specifically Section 440.107, Florida Statutes, which mandates that employers in Florida secure the payment of workers' compensation insurance coverage for the benefit of employees. The Petitioner is a restaurant operating in the vicinity of Crystal River, Florida, which opened for business sometime in the year 2005. At certain times during its operation, which are those times relevant to this proceeding, the restaurant had four or more employees, and was thus subject to the requirement to secure payment of workers' compensation for those employees. Wanda Rivera is an investigator for the Division's Bureau of Compliance. On January 12, 2007, she was referred to investigate a restaurant in Crystal River, Florida. There was another restaurant nearby, the La Paz Mexican Grill, the Petitioner's business. Because she was in the area she made a routine visit to that restaurant as well. When Ms. Rivera entered the restaurant she saw two waitresses as well as another employee and the owner of the restaurant. She made a report of her visit as well as other events and observed facts from her investigation and included them as part of a narrative in her initial investigative report. Ms. Rivera checked the Department's Coverage and Compliance Automated System (CCAS) data base by first looking up the name La Paz Mexican Grill. She spoke to the restaurant's owner, Aswaldo Vazquez, and learned that the actual corporate name was 2 Friends, Inc. She researched that name in the Division's data base and found no indication of workers' compensation coverage for that corporation. She also interviewed workers present at the restaurant. Mr. Vazquez told Ms. Rivera that there were five employees and that the restaurant did not have workers' compensation coverage. Ms. Rivera also checked the CCAS data base, as well as the Department of State, Division of Corporation's data base. She thereby discovered that Mr. Vazquez was an officer of the corporation, but that he did not have an exemption from workers' compensation coverage which corporate officers may apply for and obtain. Ms. Rivera presented her investigative findings to her supervisor and after having done so issued a Stop Work Order, Number 07-012-D3, and served it upon Mr. Vazquez. She hand wrote the Stop Work Order Number on that form, having received that number from her supervisor. She served it on Mr. Vazquez personally on that same day, January 12, 2007. Part of her training as an investigator had emphasized serving documents personally on employers. The Stop Work Order was a three part form; she gave the yellow carbon copy of the Stop Work Order to Mr. Vazquez by hand delivery and, in checking her official file in the case in preparation for hearing, she found that her file contained no yellow copy of the Stop Work Order Form, corroborating her testimony that she had personally served the yellow copy of the Stop Work Order on Mr. Vazquez on January 12, 2007. The Stop Work Order specifically stated that all business operations had to cease immediately and could not resume until the Department issued an order releasing the Stop Work Order. The Order also stated that a penalty of $1,000.00 a day would be assessed the employer who conducted business operations in violation of the Stop Work Order. Ms. Rivera and Mr. Vazquez are fluent Spanish speakers. Ms. Rivera therefore conducted her interview with Mr. Vazquez in Spanish to assure that he understood all facets of the Division's position in his situation. She answered his questions and explained to him that the Stop Work Order was to take effect immediately and that there would be a $1,000.00 dollar per day fine for working in violation of the Stop Work Order. She also issued and served a Request for Production of Business Records for Penalty Assessment Calculation. The records were to be produced within five business days. Two types of records were requested: those that would show how much payroll the establishment had paid over the previous three years and those that would show exemptions. The request for records allows the employer five days to provide the documents; if no records were received within 15 days of the request, the Department could impute the gross payroll. Three weeks after serving the request on Mr. Vazquez, Ms. Rivera received some records by mail on February 2, 2007. They were insufficient for her investigation. Thus, not having received records from which she could calculate payroll and determine when the restaurant had four or more employees, Ms. Rivera, in accordance with statute, imputed the payroll and thereupon calculated a penalty of $34,240.30 based upon the imputed amount. She issued an Amended Order of Penalty Assessment to that effect on February 5, 2007, and it was served by certified mail on Mr. Vazquez on February 7, 2007. It was also served by a process server on February 13, 2007. That Amended Order of Penalty Assessment did not reference the Stop Work Order Number nor did it reflect the date it was issued. Ms. Rivera forgot to include this information when she filled out the Order. The Amended Order of Penalty Assessment did, however, have the following language: The Stop Work Order issued in this case shall remain in effect until either (a) the Division issues an order releasing the Stop Work Order upon finding that the employer has come into compliance with the coverage requirements of the workers' compensation law and pays the total penalty in full, or (b) the Division issues an Order of Conditional Release from Stop Work Order pursuant to the employer coming into compliance with the coverage requirements of the workers' compensation law and entering into a payment agreement schedule for periodic payment of penalty. On February 7, 2007, Mr. Vazquez phoned Ms. Rivera asking why his penalty was that high, stating that his accountant could provide additional records. Ms. Rivera had telephone contact at least twice with Mr. Vazquez between February 7, and March 29, 2007. When she contacted him at the restaurant, a voice would answer, "La Paz Mexican Restaurant, how may I help you?" She asked Mr. Vazquez if the restaurant was actually operating, and told him that he could not open for business while a Stop Work Order was in effect. She was assured that the restaurant was not working. Mr. Vazquez also told her that more records would be produced. On March 29, 2007, however, Ms. Rivera had not received any new records, so she visited the restaurant and found that it was open for business in violation of the Stop Work Order. Because the restaurant is open seven days a week, Ms. Rivera assessed an additional penalty of $1,000.00 per day since the Stop Work Order had been issued. She thus issued a Second Amended Order of Penalty Assessment for the sum of $110,240.30. The Second Amended Order of Penalty Assessment referred to Stop Work Order Number 07-012-D3, stating that the Stop Work Order had been filed on January 12, 2007, and noting that the Amended Order of Penalty Assessment was dated February 5, 2007, and the Order showed an issuance date of March 29, 2007. On the next day, March 30, 2007, Ms. Rivera received more business records, from which she could calculate a penalty without imputing the payroll. Ms. Rivera calculated the new penalty at $79,690.36. Before she could issue a new penalty order, however, Mr. Vazquez contacted her and said that his restaurant had been closed for several days while he was traveling. He subsequently provided documents to Ms. Rivera that showed that he was out of the country for nine days. While 76 days had elapsed between the date the Stop Work Order was issued and the date Ms. Rivera found the restaurant had been open, Ms. Rivera determined that she would assess the penalty for only 67 days of that period. This decision was based upon Mr. Vazquez's documentation and her giving him the benefit of the doubt in accepting his representation that he had been out of the country for nine days and not operating. She then re-calculated the penalty as being $70,060.36 and issued a Third Amended Order of Penalty Assessment to that effect. The Third Amended Order of Penalty Assessment made reference to Stop Work Order Number 07-012-D3, and notes that the Stop Work Order was issued on January 12, 2007. The Third Amended Order has "February 5, 2007," in the line on the order for "issuance date." The entry for "issuance date" on the Third Amended Order of Penalty Assessment is incorrect and it should have been April 3, 2007, the date the Amended Order of Penalty Assessment was issued. The penalty worksheet for the Third Amended Order of Penalty Assessment shows that there was $25,793.55 in payroll for the relevant portions of 2005; $8,635.30 for relevant portions of 2006 during which times the restaurant had four employees. There was $1,370.21 in payroll for the relevant first 12 days of 2007, which was up until the time the Stop Work Order was issued. Ms. Rivera did not include the payroll for periods of time when the record showed the restaurant did not have four employees and her work papers so reflect. The payroll was calculated from 2005 forward because the business opened that year. On April 4, 2007, Mr. Vazquez brought his restaurant into compliance by reducing his staff to less than four employees and he entered into an agreement with the Department whereby he would pay down 10 percent of the penalty and agree to pay the remainder in 60 interest free monthly payments. Mr. Vazquez, in effect, does not contest the Division's position that he was required to carry workers' compensation coverage during the pertinent time periods and that he did not have such coverage. In actuality he disputes the amount of the penalty because he maintains that he did not receive the Stop Work Order until March 29, 2007. Mr. Vazquez is the president of the 2 Friends, Inc., Corporation. He speaks English and opined during his testimony that he reads 60 to 70 percent of English text. He knows people who are fluent in English and has people to whom he can show documents written in English if he does not understand any part of such.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services finding that the Petitioner, 2 Friends Inc., d/b/a/ La Paz Mexican Grill, has failed to secure required workers' compensation coverage for its employees in violation of Sections 440.10(1)(a) and 440.38(1), Florida Statutes (2007), and that a penalty against that entity be accessed in the amount of $70,060.36, and that said final order provide for an acceptable installment payment arrangement whereby the amount may be paid over a period of at least 60 months at no interest. DONE AND ENTERED this 30th day of July, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 30th day of July, 2008. COPIES FURNISHED: Leon M. Boyajan, II, Esquire Leon M. Boyajan, II, P.A. 2303 West Highway 44 Inverness, Florida 34453-3809 Thomas H. Duffy, Esquire Department of Financial Services 200 East Gaines Street, 6th Floor Tallahassee, Florida 32399 Honorable Alex Sinks Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
