The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order for Specific Worksite Only (“SWO”) and Amended Order of Penalty Assessment (“AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Allstate is a corporation engaged in business in the State of Florida. Allstate was organized on May 23, 2005. Edgar A. Ezelle is the president and registered owner of Allstate. The address of record for Allstate is 8217 Firetower Road, Jacksonville, Florida 32210. In March 2017, Respondent was hired as the general contractor to renovate a hotel at a jobsite located at 3050 Reedy Creek Boulevard. When Respondent accepted the project, Prestige Handyworkers, LLC (“Prestige”), a subcontractor, was working on the jobsite. Although Prestige was hired by the previous general contractor, Respondent continued to work with Prestige. On June 15, 2017, the Department’s investigator, Kirk Glover, conducted a routine visit to the jobsite to conduct a compliance investigation. Mr. Glover observed six individuals performing construction-related work at the site. Mr. Glover conducted an interview of the individuals and took notes during the course of his interviews. Mr. Glover identified the individuals as: Luis Miguel Paz; Joseph A. Pizzuli; Roger Penley, Jr.; Georgios Rapanakis; Stavros Georgios Rapanakis; and Joseph Youngs. The six individuals were employed by subcontractor Prestige to perform work on behalf of Allstate. Luis Miguel Paz, Joseph A. Pizzuli, and Roger Penley, Jr., were engaged in painting work; Georgios Rapanakis and Stavros Georgios Rapanakis were supervising the other workers; and Joseph Youngs was engaged in cleanup of the construction site. The workers did not testify at the final hearing. Mr. Glover then contacted Allstate president, Edward Ezelle, who confirmed he was the general contractor for the jobsite and that he retained Prestige as the subcontractor for the site. Mr. Glover conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Prestige or its employees. Prestige did not have workers’ compensation coverage for its employees. The search of CCAS revealed that Mr. Ezelle had an active workers’ compensation coverage exemption, effective July 27, 2015, through July 26, 2017. Based on the results of his investigation, on June 16, 2017, Mr. Glover issued an SWO to Allstate for failure to maintain workers’ compensation coverage for its employees. On June 19, 2017, Mr. Glover hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”). The Records Request directed Respondent to produce business records for the time period of June 16, 2015, through June 15, 2017. Respondent did not provide any business records to the Department. Mr. Ezelle testified that Allstate did not conduct business in Florida for the period of September 2016 through March 2017. While the undersigned has no reason to doubt Mr. Ezelle’s testimony that his business was not active during that time period, Respondent failed to produce records in response to the Records Request to support his testimony. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, June 16, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses the imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Glover’s observations at the jobsite on June 16, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5474 to calculate the penalty. Classification code 5474 applies to work involving painting. Ms. Jackson applied the approved manual rates for classification 5474 for each of the six individuals working on the jobsite. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $11.05 for the period of June 16, 2015, through December 31, 2015; and $11.02 for the period of January 1, 2016, through June 15, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Georgios Rapanakis and Starvos Georgios Rapanakis had a workers’ compensation exemption for the period of June 16, 2015, through June 10, 2016. However, they were not covered by an exemption from June 11, 2016, through June 15, 2017. Although Mr. Ezelle has an exemption, his exemption was not in effect for a short period of July 19, 2015, through July 26, 2015. None of the other employees had an exemption. Based upon the Department’s calculation, the penalty assessment for the imputed payroll would be $153,908.20. On November 17, 2017, the Department filed a Motion for Leave to Amend Order of Penalty Assessment (“Motion for Leave to Amend”). The Department sought leave from the undersigned to amend the penalty assessment. The Department, as a party, is not authorized to amend a penalty without leave from the undersigned after the matter was filed with the Division. See § 120.569(2)(a) and Fla. Admin. Code R. 28-106.202. Despite the AOPA reflecting an issued date of July 14, 2017, the record supports a finding that the AOPA was issued November 17, 2017, the date the undersigned granted the Department’s Motion for Leave to Amend. Thus, the Department issued the AOPA for the imputed payroll 105 business days after Respondent received the Records Request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order as follows: finding that Respondent failed to secure and maintain workers’ compensation coverage for its subcontractors; and dismissing the Amended Order of Penalty Assessment against Respondent. DONE AND ENTERED this 26th day of January, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2018. COPIES FURNISHED: Christina Pumphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Edgar Ezelle Allstate Custom Contracting, Inc. 8217 Firetower Road Jacksonville, Florida 32210 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact 12. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 3, 2009, and the Third Amended Order of Penalty Assessment issued on November 4, 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. 09-042-D4, 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. 09-042-D4 to GILLION ENTERPRISES, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein GILLION ENTERPRISES, INC. 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 GILLION ENTERPRISES, 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 March 10, 2009, the Department issued a Second Amended Order of Penalty Assessment to GILLION ENTERPRISES, INC. in Case No. 09-042-D4. The Second Amended Order of Penalty Assessment assessed a total penalty of $24,732.08 against GILLION ENTERPRISES, INC. The Second Amended Order of Penalty Assessment included a Notice of Rights wherein GILLION ENTERPRISES, INC. 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 Second Amended Order of Penalty Assessment was served on GILLION ENTERPRISES, INC. by certified mail on March 19, 2009. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. | 5. On March 3, 2009, GILLION ENTERPRISES, INC. 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. 09-1389. 6. On November 4, 2009, the Department issued a Third Amended Order of Penalty Assessment to GILLION ENTERPRISES, INC. in Case No. 09-042-D4. The Third Amended Order of Penalty Assessment assessed a total penalty of $21,729.49 against GILLION ENTERPRISES, INC. The Third Amended Order of Penalty Assessment was served on GILLION ENTERPRISES, INC. through the Division of Administrative Hearings. A copy of the Third Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On November 5, 2009, GILLION ENTERPRISES, INC. filed a Notice of Voluntary Dismissal in DOAH Case No. 09-1389. A copy of the Notice of Voluntary Dismissal . filed by ROYMO, INC. is attached hereto as “Exhibit D.” 8. On November 9, 2009 Administrative Law Judge Susan B. Harrell entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the November 9, 2009 Order Closing File is attached hereto as “Exhibit E.”
The Issue The basic issues in this case are whether the Respondent committed the violations alleged in the Petitioner’s Notice of Specific Charges and, if so, whether such violations warrant a ten-day suspension from work.
Findings Of Fact The Respondent, Rafael M. Mejia, is presently employed as a police officer by the School Board. He has been so employed at all times material to this case, having been first employed in that position on or about January 27, 1999. As a general matter, the Respondent is regarded by his immediate supervisors (his supervising sergeant, lieutenant, and captain) as being a good policeman. During the course of his present employment he has received a number of commendations. On at least one occasion, he was selected as “officer-of-the- month.” Even though the Respondent generally does good police work, his disciplinary record is not without blemish. On June 5, 2001, a conference-for-the-record (CFR) was held to address the Respondent’s non-compliance with School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, School Police Departmental policies, the Respondent’s failure to attend scheduled court dates, and the Respondent’s pattern of sick leave abuse. As a result of the June 5, 2001, CFR referenced above, the Respondent was issued a verbal warning and a written reprimand, and was directed as follows: You are directed to adhere to all departmental rules and directives. You are directed to follow all lawful orders given to you by one with proper authority. The Respondent was further advised in writing as follows: You were directed to follow the proper procedures by notifying the clerk of the court when unable to attend court. You were also verbally warned concerning your abuse of sick leave. You are expected to conduct yourself professionally with a positive demeanor that is consistent with the position of police officer. On July 11, 2002, the Respondent was involved in a motor vehicle accident while on duty. He was injured in the accident and was treated at the scene of the accident by fire rescue personnel who then took him to the emergency room at Baptist Hospital. At Baptist Hospital the Respondent was examined, evaluated, and treated by a physician’s assistant named Christopher Pecori. Mr. Pecori concluded that the Respondent had contusions to his chest and to his right forefinger. Mr. Pecori also concluded that the Respondent was experiencing mild to moderate pain at that time. Mr. Pecori wrote prescriptions for small amounts of several pain medicines, enough to control pain for four or five days. Mr. Pecori advised the Respondent that the Respondent did not require hospitalization, but that the Respondent should seek follow-up care by a physician the next day. Mr. Pecori also arranged for a note entitled “Return to Work Instructions” to be prepared. That note included the opinion that the Respondent “should be able to return to work in 4-5 days.” That note was supposed to be included in the paperwork that was given to the Respondent when he was discharged from the emergency room.3 Mr. Pecori's opinion that the Respondent “should be able to return to work in 4-5 days," was an estimate, perhaps best described as an experience-based approximation. Mr. Pecori could not state with any certainty that it would take at least four days for the Respondent to be able to return to work. Similarly, he could not state with any certainty that by the fifth day the Respondent would surely be able to return to work. Two of the Respondent’s supervisors, Acting Lieutenant Juan Seabolt and Acting Sergeant Howard Giraldo, responded to the scene of the Respondent’s accident on July 11, 2002, and saw the Respondent lying on the ground being attended by fire rescue personnel. Seabolt then went to the hospital for a few minutes while the Respondent was being treated in the emergency department. Giraldo also went to the emergency department at Baptist Hospital and stayed there for a couple of hours. Later that evening Giraldo called the Respondent at home to see how he was doing. Based on their observations of the Respondent at the scene of the accident and at the emergency room, Acting Lieutenant Seabolt and Acting Sergeant Giraldo both knew that the Respondent had been injured in the line of duty and they both expected the Respondent would miss several days of work while recuperating from his injuries. As far as these two supervisors were concerned, it was not necessary for the Respondent to call in each day to remind them that he was still recuperating from his injuries, because they already had a pretty good idea of what his circumstances were, and it was primarily just a matter of waiting until the Respondent felt good enough to return to work. On more than one occasion after the accident, Acting Sergeant Giraldo called the Respondent’s house by telephone to inquire as to how the Respondent was doing. On those occasions Acting Sergeant Giraldo spoke to the Respondent’s wife and was advised by her of the Respondent’s condition. From July 11, 2002, until July 22, 2002, the Respondent recuperated at home from his injuries. During that time period he did not call his supervisors to advise them of his condition because they were aware of his basic condition and Acting Sergeant Giraldo was calling the Respondent from time-to- time. The Respondent did not think he needed to call in each day. Similarly, his immediate supervisors saw no need for daily calls and his immediate supervisors were not concerned about the Respondent’s failure to call in daily.4 About ten days after the Respondent’s accident, top management in the police department began to make inquiries about the Respondent’s status. Major Claudia Milton called Lieutenant Leon Sczepanski, who at that time was Acting Captain for Stations 5 and 6, and asked him to advise her of the Respondent’s current status. After some difficulty locating the Respondent’s residence, on July 22, 2002, a note was left at the Respondent’s residence asking him to contact Lieutenant Leon Sczepanski. Later that same day, the Respondent contacted Sczepanski and asked what Sczepanski needed to see him about. Acting Captain Sczepanski asked the Respondent what his status was. The Respondent stated that he was out on workers’ compensation. However, when Sczepanski asked the Respondent if he had consulted with the workers’ compensation doctor, the Respondent stated that he had not. Sczepanski told the Respondent that it was the Respondent’s responsibility to contact the Office of Risk Management in order to get an appointment to see a workers’ compensation doctor. During the morning of the next day the Respondent was seen by an approved workers' compensation doctor and sometime near noon on July 23, 2002, the Respondent reported to Acting Captain Sczepanski and gave Sczepanski a note from the workers’ compensation doctor stating that the Respondent was fit to return to duty with some work limitations. On or about July 24, 2002, the Respondent failed to report to work. Sczepanski telephoned the Respondent to inquire why he had failed to report to work. The Respondent indicated that since the workers’ compensation doctor’s note stated that the Respondent was not to lift anything over ten pounds, the Respondent could not return to work. Sczepanski informed the Respondent that the workers’ compensation note cleared the Respondent to return to work on light-duty status, and instructed the Respondent to promptly report to work. In the meantime, Major Milton had asked Acting Captain Sczepanski to arrange for a CFR. The purpose of the CFR was to address the fact that the Respondent had been out on leave and had failed to follow the workers' compensation rules. The CFR was scheduled for August 8, 2002. On or about July 24, 2002, after a twelve-day absence, the Respondent returned to work. Upon his return, Acting Captain Sczepanski requested that the Respondent provide medical documentation to support his twelve-day absence. The Respondent stated that he would provide the medical documentation requested.5 The School Board's Rule 6Gx13-4E-1.13 addresses the subject of illness or injury that occur in the line of duty. The rule provides that employees injured while on duty are entitled to leave. With regard to the duration of that leave, subsection I.A. of that rule provides, in pertinent part: A medical evaluation conducted by a physician approved by the Office of Risk and Benefits Management will be the determining factor as to when the employee is able to return to duty. If the physician indicates that the employee is not able to assume his/her regular duties, but is able to return to a less strenuous work assignment, the employee may be directly appointed to the Workers' Education and Rehabilitation Compensation Program (W.E.R.C.) or to a job commensurate with his/her medical and educational capabilities. Consistent with the above-quoted language of Rule 6Gx13-4E-1.13, as well as with the emergency room discharge instructions that he follow-up with a physician the next day, it would have been in the Respondent's best interests (in more ways than one) for him to have been seen promptly by "a physician approved by the Office of Risk and Benefits Management." Yet, for reasons not adequately explained in the record in this case, the Respondent did not go to an approved physician until July 23, 2002.6 On August 8, 2002, in an effort to comply with the instructions that he provide medical documentation to support his twelve-day absence from work, the Respondent returned to the emergency room at Baptist Hospital to request another return-to- work note from Christopher Pecori, the physician assistant who had attended the Respondent when the Respondent was seen in the emergency room on July 11, 2002. The Respondent told Mr. Pecori that he had lost the original return-to-work note that had been issued to him and that he needed another one for work. Mr. Pecori instructed a nurse, Carl Krome, to issue Respondent a copy of the original return-to-work note. Instead of simply locating and copying the original return-to-work note, Mr. Krome embarked upon the process of preparing a new return-to-work note for the Respondent, because the Respondent explained to Mr. Krome that it had taken him twelve days to recover from the injuries resulting from the July 11, 2002, motor vehicle accident, and the Respondent needed to have some sort of documentation to support the time he was unable to report to work. Mr. Krome took the Respondent at his word and, against his better judgment, agreed to prepare a return-to-work note reflecting twelve days of recuperation, because the Respondent was insisting that he needed a note that covered all twelve of the days he was absent from work. The Respondent conducted himself in a pleasant manner while communicating with Mr. Krome. Mr. Krome prepared the substitute return-to-work note on a hospital computer. What he prepared on the computer reads as follows: Patient: RAFAEL MEJIA, Date 08/08/2002 Time: 15:02 Baptist Hospital of Miami 8900 N. Kendall Drive Miami, FL 33176 (305) 596-6556 RETURN TO WORK INSTRUCTIONS We saw RAFAEL MEJIA in our Emergency Department on 08/08/2002. RAFAEL should be able to return to work in 1 days [sic]. RAFAEL needs the following work limitations: OUT OF WOR [sic] FROM 7/12/02-7/23/02 DUE TO INJURIES FROM MVA. Thank you for allowing us to care for your employee. CHRISTOPHER PECORI, PA-C After Mr. Krome had printed the document, the Respondent pointed out that the first sentence had an incorrect date and a number of days that was inconsistent with the second sentence. Rather than correct the document in the computer and re-print it, Mr. Krome made the corrections by hand. He crossed out the date 08/08/2002, handwrote above it “07/11/02,” and placed initials next to the handwritten date. Near the end of the sentence, Mr. Krome added a “2” after the 1 and again placed initials next to the change. As corrected by hand by Mr. Krome, the first sentence of the substitute return-to-work note read as follows: “We saw RAFAEL MEJIA in our Emergency Department on 07/11/02. RAFAEL should be able to return to work in 12 days.” The Respondent took the substitute return-to-work note provided to him by Mr. Krome and presented it at the CFR that was held later on August 8, 2002. Representatives of the School Board management became concerned about whether the Respondent had modified the substitute return-to-work note and they were also concerned about the fact that the substitute note mentioned twelve days, but the original note mentioned only four or five days. Because of those concerns an investigation was conducted to determine the circumstances under which the Respondent obtained the substitute note. The results of that investigation revealed that the circumstances were essentially as described above. A suspension of the Respondent on the basis of the conduct described in the foregoing findings of fact would be inconsistent with prior disciplinary practices of the Miami-Dade School Police Department. In the past, conduct of the type described in the foregoing findings of fact has not resulted in the suspension of the officer who performed the acts. The Respondent's failure to call in during the twelve days following the July 11, 2002, accident and the Respondent's conduct while requesting a substitute return-to-work note do not constitute misconduct that warrants disciplinary action.7
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges in the Notice of Specific Charges be dismissed and that the Respondent not be suspended. If the Respondent has already served the suspension, it is RECOMMENDED that the School Board take appropriate action to restore the Respondent to the status he would have been in but for the suspension. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 1st day of April, 2005.
The Issue Whether Royal Roofing and Restoration, Inc. (Respondent or Royal Roofing), failed to secure workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (Petitioner or Department), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact Petitioner is the state agency charged with enforcing the requirement of chapter 440, that Florida employers secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent is a Florida for-profit corporation organized on July 28, 2015, and engaged in the business of roofing and storm damage restoration. The company was formed, and initially conducted business, in Tallahassee, Florida, but expanded to the Panama City area in 2016. Traci Fisher is Respondent’s President and Registered Agent, with a mailing address of 1004 Kenilworth, Tallahassee, Florida 32312. DOAH Case No. 17-0879 On May 4, 2016, Department Compliance Investigator Jesse Holman, conducted a routine workers’ compensation compliance inspection at 374 Brown Place in Crestview, Florida. Mr. Holman observed four men removing shingles from the roof of a residential structure at that address. Mr. Holman first interviewed a worker who identified himself as Dustin Hansel and reported that he and the other three workers on site were a new crew for Respondent, the permit for the job had not yet been pulled, and the workers were not aware of the rate of pay for the job. Mr. Hansel telephoned Respondent’s sales manager, Dillon Robinson, who then spoke directly with Mr. Holman via telephone. Mr. Robinson informed Mr. Holman that Respondent obtained workers’ compensation coverage through Payroll Management Inc. (PMI), an employee-leasing company. Mr. Holman identified the three remaining workers at the jobsite as Milton Trice, Winston Perrotta, and Kerrigan Ireland. Mr. Holman contacted PMI and secured a copy of Respondent’s then-active employee roster. None of the workers at the jobsite, including Mr. Hansel, were included on Respondent’s employee roster. Upon inquiry, Mr. Holman was informed that PMI had no pending employee applications for Respondent. Mr. Holman consulted the Department’s Coverage Compliance Automated System (CCAS) and found Respondent had no workers’ compensation insurance policy and no active exemptions. During Mr. Holman’s onsite investigation, the workers left the jobsite. Mr. Holman could not immediately reach Ms. Fisher, but did speak with her husband, Tim Fisher. Mr. Fisher informed Mr. Holman that the crew was on their way to the PMI Fort Walton office to be enrolled on Respondent’s employee roster. On May 5, 2016, based on his investigation, and after consultation with his supervisor, Mr. Holman issued Respondent Stop-Work Order (SWO) 16-148-1A, along with a Business Records Request (BRR) for records covering the audit period of July 27, 2015 through May 4, 2016. Later that day, Mr. Holman spoke to Ms. Fisher, who informed him the crew did not have permission to begin the work on that date, as she had not yet pulled the permit for the reroof. Ms. Fisher further explained that the crewmembers had been instructed to complete applications with PMI prior to departing Tallahassee for Crestview. Ms. Fisher confirmed the crewmembers were completing applications at PMI Fort Walton that same day. Mr. Holman met with Ms. Fisher the following day and personally served SWO 16-148-1A. Ms. Fisher delivered to Mr. Holman an updated employee roster from PMI which included Mr. Hansel, Mr. Perrotta, and Mr. Ireland; a letter documenting Mr. Trice was not employed by Respondent; and a $1000 check as downpayment on the penalty. Respondent initially submitted business records in response to the BRR on May 23 and 25, 2017. DOAH Case No. 17-1558 On June 8, 2016, Mr. Holman conducted a random workers’ compensation compliance inspection at 532 Rising Star Drive in Crestview. The single-family home at that address was undergoing renovations and Mr. Holman observed three men on the roof removing shingles. None of the men on the roof spoke English, but a fourth man, who identified himself as Jose Manuel Mejia, appeared and stated he worked for Respondent, and that all the workers onsite were paid through PMI at a rate of $10.00 per hour. Mr. Mejia admitted that one of the worker’s onsite, Emelio Lopez, was not enrolled with PMI and explained that Mr. Mejia brought him to the worksite that day because he knew Mr. Lopez to be a good worker. The remaining workers onsite were identified as Juan Mencho and Ramon Gonzalez, both from Atlanta, Georgia. Mr. Mejia produced some PMI paystubs for himself and Mr. Mencho. Mr. Mejia stated that he and his crews also received reimbursement checks directly from Respondent for gas, rentals, materials, and the like. Mr. Holman contacted PMI, who produced Respondent’s then-active employee roster. Mr. Mejia and Mr. Mencho were on the roster, but neither Mr. Gonzalez nor Mr. Lopez was included. Mr. Holman next contacted Ms. Fisher, who identified Mr. Mejia as a subcontractor, but was not familiar with any of the other men Mr. Holman encountered at the worksite. Mr. Holman consulted via telephone with his supervisor, who instructed him to issue an SWO to Respondent for failing to secure workers’ compensation coverage for its employees. Mr. Holman issued SWO 16-198-1A by posting the worksite on June 8, 2016. Department Facilitator Don Hurst, personally served Ms. Fisher with SWO 16-198-1A in Tallahassee that same day. SWO 16-148-1A Penalty Calculation1/ Department Penalty Auditor Eunika Jackson, was assigned to calculate the penalties associated with the SWOs issued to Respondent. On June 8, 2016, Ms. Jackson began calculating the penalty associated with SWO 16-148-1A. Ms. Jackson reviewed the documents submitted by Respondent in response to the BRR. The documents included Respondent’s Wells Fargo bank statements, check images, and PMI payroll register for the audit period.2/ Based on a review of the records, Ms. Jackson identified the following individuals as Respondent’s employees because they received direct payment from Respondent at times during the audit period: David Rosinsky, Dylan Robinson, Jarod Bell, Tommy Miller, and David Shields. Ms. Jackson determined periods of non-compliance for these employees based on the dates they received payments from Respondent and were not covered for workers’ compensation via PMI employment roster, separate policy, or corporate officer exemption. Ms. Jackson deemed payments to each of the individuals as gross payroll for purposes of calculating the penalty. Based upon Ms. Fisher’s deposition testimony, Ms. Jackson assigned National Council on Compensation Insurance (NCCI) class code 5551, Roofing, to Mr. Miller; NCCI class code 5474, Painting, to Mr. Rosinsky; NCCI class code 8742, Sales, to Mr. Bell and Mr. Robinson; and NCCI class code 8810, clerical office employee, to Mr. Shields. Utilizing the statutory formula for penalty calculation, Ms. Jackson calculated a total penalty of $191.28 associated with these five “employees.” Ms. Jackson next calculated the penalty for Dustin Hansel, Kerrigan Ireland, Milton Trice, and Winston Perrotta, the workers identified at the jobsite as employees on May 4, 2016. The Department maintains that the business records submitted by Respondent were insufficient to determine Respondent’s payroll to these “employees,” thus, Ms. Jackson used the statutory formula to impute payroll to these workers. Ms. Jackson calculated a penalty of $14,970.12 against Respondent for failure to secure payment of workers’ compensation insurance for each of these four “employees” during the audit period. The total penalty associated with these four “employees” is $59,880.48. Ms. Jackson calculated a total penalty of $60,072.96 to be imposed against Respondent in connection with SWO 16-148- 1A. Business Records In compliance with the Department’s BRR, Respondent submitted additional business records on several occasions-- March 21, May 3 and 31, June 7, and August 15 and 24, 2017--in order to establish its complete payroll for the audit period. While the Department admits that the final documents submitted do establish Respondent’s complete payroll, the Department did not issue amended penalty assessment based on those records in either case. The Department maintains Respondent did not timely submit records, pursuant to Florida Administrative Code Rule 69L-6.028(4), which allows an employer 20 business days after service of the first amended order of penalty assessment to submit sufficient records to establish payroll. All business records submitted by Respondent were admitted in evidence and included as part of the record. The undersigned is not limited to the record before the Department at the time the amended penalty assessments were imposed, but must determine a recommendation in a de novo proceeding. The undersigned has relied upon the complete record in arriving at the decision in this case. Penalty Calculation for Ireland, Trice, and Perrotta For purposes of workers’ compensation insurance coverage, an “employee” is “any person who receives remuneration from an employer” for work or services performed under a contract. § 440.02(15)(a), Fla. Stat. Respondent did not issue a single check to Mr. Ireland, Mr. Trice, or Mr. Perrotta during the audit period. Mr. Ireland, Mr. Trice, and Mr. Perrotta are not included on any PMI leasing roster included in the record for the audit period. The uncontroverted evidence, including the credible and unrefuted testimony of each person with knowledge, established that Mr. Ireland, Mr. Trice, and Mr. Perrotta were newly hired for the job in Crestview on May 4, 2016, and began working that day prior to submitting applications at PMI, despite Ms. Fisher’s directions otherwise. Petitioner did not prove that either Mr. Ireland, Mr. Trice, or Mr. Perrotta was Respondent’s employee at any time during the audit period. Petitioner did not correctly calculate the penalty of $44,911.26 against Respondent for failure to secure workers’ compensation insurance for Mr. Ireland, Mr. Trice, and Mr. Perrotta during the audit period. Penalty Calculation for Hansel Ms. Fisher testified that Mr. Hansel has owned several businesses with which Respondent has conducted business over the years. Originally, Mr. Hansel owned a dumpster rental business, now owned by his father. Mr. Hansel also owned an independent landscaping company with which Respondent occasionally transacted business. When Respondent expanded business into the Panama City area, Ms. Fisher hired Mr. Hansel as a crew chief to supervise new crews in the area. The job on May 4, 2016, was his first roofing job. A review of Respondent’s records reveals Respondent issued the following checks to Mr. Hansel during the audit period: December 4, 2015, in the amount of $360, $300 of which was for “dumpster rental” and the remaining $60 for “sod”; May 4, 2016, in the amount of $200 for “sod repair”; May 6, 2016, in the amount of $925 as reimbursement for travel expenses; May 9, 2016, in the amount of $1,011.50 (with no memo); and May 21, 2016, in the amount of $100 for “7845 Preservation.” Mr. Hansel was included on Respondent’s PMI leasing roster beginning on May 13, 2016. Petitioner proved that Mr. Hansel was Respondent’s employee at times during the audit period. Petitioner did not prove that Respondent’s records were insufficient to determine payroll to Mr. Hansel during the audit period, which would have required an imputed penalty. Petitioner did not correctly calculate the penalty of $14,970.42 against Respondent for failure to secure workers’ compensation insurance coverage for Mr. Hansel during the audit period. Sod repair by Mr. Hansel is a service performed for Respondent during the audit period. Reimbursement of travel expenses is specifically included in the definition of payroll for purposes of calculating the penalty. See Fla. Admin. Code R. 69L- 6.035(1)(f) (“Expense reimbursements, including reimbursements for travel” are included as remuneration to employees “to the extent that the employer’s business records and receipts do not confirm that the expense incurred as a valid business expense.”). Dumpster rental is neither work performed on behalf of, nor service provided to, Respondent during the audit period. The correct uninsured payroll amount attributable to Mr. Hansel is $2,296.50. Petitioner correctly applied NCCI class code 5551, Roofing, to work performed by Mr. Hansel based on the observation of Mr. Holman at the worksite on May 4, 2016. With respect to Mr. Hansel’s services for sod and sod repair, Petitioner did not correctly apply NCCI class code 5551. Petitioner did not introduce competent substantial evidence of the applicable NCCI class code and premium amount for landscaping services performed during the audit period.3/ Uninsured payroll attributable to Mr. Hansel for roofing services during the audit period is $2,036.50. The approved manual rate for workers’ compensation insurance for NCCI class code 5551 during the period of non- compliance--May 9 and 21, 2016--is $18.60. The premium amount Respondent would have paid to provide workers’ compensation insurance for Mr. Hansel is $378.79 (One percent of Mr. Hansel’s gross payroll during the non-compliance period--$20.36--multiplied by $18.60). The penalty for Respondent’s failure to secure worker’s compensation coverage insurance for Mr. Hansel during the period of non-compliance is calculated as two times the amount Respondent would have paid in premium for the non- compliance period. The correct penalty for Respondent’s failure to maintain workers’ compensation coverage for Mr. Hansel during the period of non-compliance is $757.58. Penalty Calculation for Salesmen Independent contractors not engaged in the construction industry are not employees for purposes of enforcing workers’ compensation insurance requirements. See § 440.02(15)(d)1., Fla. Stat. Sales is a non-construction industry occupation. The Department calculated a penalty associated with payroll attributable to the following persons identified by Ms. Fisher as independent salesmen: Dylan Robinson, Kevin Miller, Marc Medley, Mike Rucker, Colby Fisher, David Jones, Jarod Bell, Matt Flynn, and Todd Zulauf. Section 440.02(15)(d)1. provides that an individual may be an independent contractor, rather than an employee, as follows: In order to meet the definition of independent contractor, at least four of the following criteria must be met: 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 regulations; The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual; The independent contractor holds one or more bank accounts in the name of the business entity for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation; The independent contractor performs work or is able to perform work for any entity in addition to or besides the employer at his or her own election without the necessity of completing an employment application or process; or The independent contractor receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists. If four of the criteria listed in sub- subparagraph a. do not exist, an individual may still be presumed to be an independent contractor and not an employee based on full consideration of the nature of the individual situation with regard to satisfying any of the following conditions: The independent contractor performs or agrees to perform specific services or work for a specific amount 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 the work or services that he or she performs or agrees to perform. The independent contractor receives compensation for work or services performed for a commission or on a per-job 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. The success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures. Ms. Fisher testified that each of the above-named salesmen sold roofing jobs for her at various times during the audit period on a commission-only basis. The contractors inspect homeowner roofs, draft schematics, use their own equipment (e.g., drones), incur all of their own expenses, and handle the insurance filing for the homeowner’s insurance to pay on the claim. Ms. Fisher further testified that each of the salesmen also sells for other roofing contractors in the Tallahassee area. She pays the salesmen on a per-job basis. Ms. Fisher does not compensate the salesmen for the time involved in inspecting a roof, preparing schematics, or making the sale. Nor does Ms. Fisher reimburse the salesmen for travel to sales jobsites. Ms. Fisher’s testimony was credible, persuasive, and uncontroverted. Respondent introduced in evidence four “Independent Contractor Checklists” allegedly completed by Mr. Robinson, Mr. Medley, Mr. Fisher, and Mr. Flynn. Each form checklist follows the format of section 440.02(15)(d)1., listing the criteria set forth in subparagraphs a. and b. The forms indicate that they each meet all the criteria listed in subparagraph b.: they perform, or agree to perform services for a specific amount of money and control the means of performing the service; they incur the principal expenses related to the service performed; they are responsible for satisfactory completion of the services performed; they receive compensation for the services performed on a per-job or commission basis; they may realize a profit or suffer a loss in connection with performing the services; they have continuing and recurring business liabilities or obligations; and the success or failure of their business depends on the relationship of business receipts to expenditures.4/ In its Proposed Recommended Order, Petitioner conceded the nine men identified by Respondent as independent sales contractors “would not be considered employees of Respondent” because the “salesmen would seem to meet the majority of [the] requirements [of section 440.02(15)(d)1.b.].” Respondent issued Dylan Robinson, Mark Medley, Colby Fisher, Matt Flynn, Kevin Miller, Mike Rucker, Jarod Bell, David Jones, and Todd Zulauf an IRS FORM 1099-MISC for income paid during the 2016 tax year. Respondent did not prove by clear and convincing evidence that the above-named salesmen were Respondent’s employees during the audit period. For SWO 16-148-1A, Respondent did not correctly calculate the penalty because Respondent included a penalty associated with Petitioner’s failure to provide workers’ compensation insurance coverage for Dylan Robinson and Jarod Bell. Penalty in the amount of $20.70 associated with Dylan Robinson and Jarod Bell should not be included in the total penalty. The correct penalty amount for SWO 16-148-1A, based on records submitted by Respondent on or before March 20, 2016, is $929.16. Draft Revised Second Amended Order of Penalty Assessment The additional records submitted by Respondent revealed payments made to persons during the audit period who were not included in the Department’s Second Amended Order of Penalty Assessment. The Department and Respondent disagreed at hearing whether the payments qualified as payroll. At hearing, Petitioner submitted a draft revised second amended penalty calculation for SWO 16-148-1A based on all records received from Respondent. The revised penalty is in the amount of $61,453.50. Ms. Jackson populated the spreadsheet with the name of every individual to whom a check was written on Respondent’s business bank account during the audit period, removing only those payments to individuals and entities which, to Petitioner’s knowledge, were not Respondent’s employees. Respondent’s calculations in the revised penalty suffer from some of the same errors as in the second amended penalty calculation--they include individuals Petitioner did not prove were Respondent’s employees, as well as payments which were not uninsured payroll. For the reasons explained herein, Petitioner did not prove that salesmen David Jones, Dylan Robinson, Jarod Bell, Kevin Miller, Mark Medley, Matt Flynn, Mike Rucker, Tim Fischer, and Colby Fisher were Respondent’s employees during the audit period. Respondent did not accurately calculate the penalty associated with those persons. Respondent made payments to David Shields during the audit period, which the Department argues should be included as payroll. The Department included payments to Mr. Shields in its draft revised second amended order of penalty assessment and assigned NCCI class code “8810” for clerical work. Mr. Shields is a licensed professional roofing contractor who acts as “qualifier” for Respondent’s business. A qualifier is a licensed professional who certifies plans for permit applications submitted by another business. Respondent pays Mr. Shields a flat fee per permit application qualified by him. The record evidence does not support a finding that Mr. Shields provides clerical services to Respondent. Mr. Shields provides some sort of professional services to Respondent, and is likely an independent contractor providing his own materials and supplies, maintaining his own business accounts, and liable for his own business success. Assuming Mr. Shields were Respondent’s employee, the Department introduced no evidence of an appropriate NCCI class code for Mr. Shields’ services. The Department did not prove that payments to Mr. Shields should be included as Respondent’s uninsured payroll during the audit period. Respondent paid Susan Swain a total of $258 during the audit period for clerical work. Ms. Fisher maintained Ms. Swain’s work was casual at first, and the payments reflect a time when she worked on-again, off-again, handling the paperwork for restoration insurance claims. Later, Ms. Swain came to work for Respondent full-time and was added to the PMI leasing roster. Section 440.02(15)(d)5. provides that a person “whose employment is both casual and not in the course of the trade, business, profession or occupation of the employer” is not an employee. The statute defines “casual” employment as work that is anticipated to be completed in 10 working days or less and at a total labor cost of less than $500. See § 440.02(5), Fla. Stat. In its Proposed Recommended Order, the Department argues Ms. Swain’s wages should be included as payroll because the “testimony regarding Ms. Swain does not suggest that she was employed for less than 10 days[.]” However, it was the Department’s burden to prove that Ms. Swain was a statutory employee. The Department did not prove that Ms. Swain’s wages should be included within Respondent’s uninsured payroll. The largest portion of the penalty assessed by the Department, as well as in the draft revised second amended penalty assessment, against Respondent is in connection with various roofers who were employed by Respondent at times during the audit period. Each of the roofers was included on Respondent’s PMI leasing roster, but received checks directly from Respondent in addition to PMI payroll checks. The Department included all the direct payments to those roofers as payroll for purposes of calculating a penalty in this case. As Ms. Fisher explained, the company bids a reroof on a per job basis--usually a per square foot price. Ms. Fisher adds each roofing contractor’s name to the PMI leasing roster to ensure that each roofer is covered by workers’ compensation insurance for the duration of the job. When the job is completed (which is a matter of just a few days), the contractor reports to Ms. Fisher what amount of the contract price was spent on materials, supplies, or other non-labor costs. Ms. Fisher cuts a check to the contractor for that amount and authorizes PMI to issue payroll checks for the “labor cost” (the difference between the contract price and the non-labor costs). Ms. Fisher refers to this process as “back-charging” the contractors for their materials, maintenance, tools, and other non-labor costs. The Department is correct that the direct payments are payroll to the roofing contractors. See Fla. Admin. Code R. 69L-6.035(1)(b) and (h) (remuneration includes “payments, including cash payments, made to employees by or on behalf of the employer” and “payments or allowances made by or on behalf of the employer for tools or equipment used by employees in their work or operations for the employer.”). The Department would be correct to include these payments in the penalty calculation if they represented uninsured payroll. However, the evidence supports a finding that the direct payments to the roofing contractors were made for the same jobs on which Respondent secured workers’ compensation coverage through PMI. The roofing contractors were covered for workers’ compensation throughout the job, even though they may have received partial payment for the job outside of the PMI payroll checks.5/ The direct payments were not for separate reroofs on which the roofers were not otherwise insured. The Department did not correctly calculate penalties associated with the following roofing contractors: Donald Tontigh, Joseph Howard, Keith Mills, Aaron Kilpatrick, Gustavo Tobias, Jose Mejia, and Tommy Miller. Ms. Fisher also received cash payments from Respondent during the audit period. These payments were made in addition to her payroll through PMI. Ms. Fisher described these payments as “cash tickets,” which were paid outside of her PMI payroll to reimburse her for investments made in the company. For purposes of calculating the penalty in this case, these “cash tickets” are clearly payroll, as that term is to be calculated pursuant to rule 69L-6.035. Similar to the issue with the roofing contractors, the question is whether the payments represent uninsured payroll. Ms. Fisher did not hold a corporate officer exemption at any time relevant hereto. Ms. Fisher testified that she was covered through PMI payroll leasing. In contrast to the roofing contractors, Ms. Fisher’s direct payments do not directly coincide with any particular job or specific time frame during which Ms. Fisher was covered for workers’ compensation insurance through PMI. The evidence was insufficient to determine that the amounts were insured payroll. The Department properly calculated a penalty associated with payroll attributable to Ms. Fisher. Respondent made one payment of $75 to Donald Martin during the audit period. The Department calculated a penalty of $27.90 associated with this payment to Mr. Martin. Ms. Fisher explained that Mr. Martin was a down-on-his-luck guy who came by the office one day complaining that Mr. Hansel owed him some money. Ms. Fisher offered to put him on a roofing crew and wrote him the $75 check to help him out. Ms. Fisher’s testimony was both credible and unrefuted. Mr. Martin was never hired by Respondent, put on any roofing crew, or added to the PMI leasing roster. Mr. Martin was not Respondent’s employee because he did not receive remuneration for the “performance of any work or service while engaged in any employment under any appointment or contract for hire” with Respondent. § 440.02(15)(a), Fla. Stat. Cale Dierking works for Respondent full-time in a clerical position. During the audit period, Respondent paid Mr. Dierking directly by check for $1,306.14. This payment was made outside of Mr. Dierking’s PMI payroll checks. Ms. Fisher testified that she paid Mr. Dierking directly on one occasion when “PMI’s payroll got stuck in Memphis, I believe it was a snow-in situation where payroll checks didn’t come.” Rather than ask her employee to go without a timely paycheck, she advanced his payroll. Ms. Fisher’s testimony was both credible and unrefuted. The payment to Mr. Dierking is clearly payroll. However, Mr. Dierking was covered for workers’ compensation through PMI for the period during which the check was issued. Thus, there is no evidence that it was uninsured payroll. The Department did not correctly calculate a penalty associated with payments to Mr. Dierking. The correct penalty to be assessed against Respondent for failure to secure workers’ compensation coverage for its employees during the audit period in connection with SWO 16-148- 1A is $770.60. Penalty Calculation for SWO 16-198-1A Ms. Jackson calculated a total penalty against Respondent in connection with SWO 16-198-1A in the amount of $19,115.84, as reflected in the Second Amended Order of Penalty Assessment. The Department correctly imputed penalty against Respondent in the amount of $91.68 each for uninsured payroll to Mr. Gonzalez and Mr. Lopez. The evidence supported a finding that these workers were Respondent’s statutory employees on June 8, 2016, and were not enrolled on the PMI leasing roster. The Department did not correctly calculate the penalty associated with salesmen Dylan Robinson, Jarod Bell, Kevin Miller, Mark Medley, Matt Flynn, and Todd Zulauf. The Department did not correctly calculate the penalty associated with roofing contractors Abraham Martinez- Antonio, Edwin Kinsey, Dustin Hansel, Efrian Molina-Agustin, Jose Mejia, Joseph Howard, Keith Mills, Samuel Pedro, and Tommy Miller. The Department did not correctly calculate the penalty against Respondent associated with Mr. Shields, Respondent’s qualifier. Based on a review of Respondent’s complete “untimely” records, the Department discovered direct payments made to additional employees not included on the Second Amended Order of Penalty Assessment. Respondent made a direct payment to Ethan Burch in the amount of $602.50 during the audit period. Ethan Burch is one of Respondent’s full-time clerical employees. The evidence is insufficient to determine whether the payment of $602.50 was insured or uninsured payroll. As such, the Department did not prove it correctly calculated the penalty associated with Mr. Burch. Respondent also made a direct payment to Chelsea Hansel in the amount of $965 during the audit period. Ms. Hansel is another clerical employee. Ms. Hansel’s PMI enrollment was delayed due to some background investigation. Respondent paid Ms. Hansel for work she completed prior to enrollment. The direct payment to Ms. Hansel constitutes uninsured payroll. The Department correctly calculated the penalty associated with the payment to Chelsea Hansel. The correct penalty amount to be imposed against Respondent for failure to secure payment of workers’ compensation coverage for its employees (Gonzalez, Lopez, and Chelsea Hansel) during the audit period in connection with SWO 16-198-1A is $187.80.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that Royal Roofing and Restoration, Inc., violated the workers’ compensation insurance law and, in DOAH Case No. 17-0879, assessing a penalty of $770.60; and in DOAH Case No. 17-1558, assessing a penalty of $187.80. DONE AND ENTERED this 24th day of January, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2018.
Conclusions THIS CAUSE came on for consideration of and final agency action on the Written Report and Recommended Order entered on November 17, 2010, attached hereto as Exhibit A. Pursuant to Section 120.57(2), Florida Statutes an informal hearing was conducted on September 14, 2010, heard before Hearing Officer Alan J. Leifer via telephone conference call. After review of the record, including testimony and admitted exhibits, and being otherwise fully apprised in all material premises: {T 1S HEREBY ORDERED that the Findings of Fact of the Hearing Officer are adopted in full as the Department's Findings of Fact, and the Conclusions of Law reached by the Hearing Officer are adopted as the Department’s Conclusions of Law. IT IS HEREBY FURTHER ORDERED that the Fourth Amended Order of Penalty Assessment (Penalty Only) is affirmed and that Cronin Porch & Patio, Inc. shall pay to the Department the assessed penaity of $10,084.00, within 30 days from the date hereof or enter into a Payment Agreement schedule. IT IS HEREBY FURTHER ORDERED that as long as Cronin Porch & Patio, Inc. is not in default of its payments, it may continue all business operations provided it demonstrates to the satisfaction of the Division of Workers’ Compensation of having now complied with the workers’ compensation law by securing the necessary workers’ compensation insurance coverage for covered employees. Ca DONE and ORDERED this day of Dg ¢ ew ben, 2010. bain Dion Ben Diamond, General Counsel Office of Chief of Staff
Findings Of Fact 8. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 16, 2010 and the Amended Order of Penalty Assessment issued on May 6, 2010, which are attached as “Exhibit A” and “Exhibit B,” 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 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 Amended Order. of Penalty Assessment served’ in Division of Workers’ Compensation Case No. 10-060-D3, and being otherwise fully advised in the premises, hereby finds that: 1. On February 16, 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. 10-060-D3 to INITECH RESTORATION, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein INITECH RESTORATION, INC.. 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 March 29, 2010, the Stop-Work Order and Order of Penalty Assessment was served by certified mail on INITECH RESTORATION, 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 April 2, 2010, INITECH RESTORATION, INC. filed a petition requesting an administrative hearing with the Department. The petition was forwarded to the Division of Administrative Hearings on May 10, 2010, and the matter was assigned DOAH Case No. 10- 2484. 4. On May 6, 2010, the Department issued an Amended Order of Penalty Assessment to INITECH RESTORATION, INC. in Case No. 10-060-D3. The Amended Order ‘of Penalty Assessment assessed a total penalty of $50,756.24 against INITECH RESTORATION, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein INITECH RESTORATION, INC. 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, and must conform to Rule 28- 106.2015, Florida Administrative Code. 5. On May 10, 2010, the Amended Order of Penalty Assessment was served through the Division of Administrative Hearings in Case No. 10-2484. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 6. On June 4, 2010, an Order Canceling Hearing and Placing Case in Abeyance was entered by the Administrative Law Judge, sua sponte. The Order directed the parties to advise of the status of the case by August 9, 2010. 7. On August 5, 2010, the Department filed its Response to the Order, however INITECH RESTORATION, INC. failed to comply with the Order. After receiving no response to the Order, the Administrative Law Judge entered an Order Closing File which relinquished jurisdiction of the matter to the Department for final disposition. A copy of the Order Closing File is attached hereto as “Exhibit C” and incorporated herein by reference.
