Findings Of Fact 13. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 11, 2009, the Amended Order of Penalty Assessment issued on March 5, 2009, the 2"4 Amended Order of Penalty Assessment issued on March 11, 2009 and the 3 Amended Order of Penalty Assessment issued on October 30, 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 F inancial 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 Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-036-D1, and being otherwise fully advised in the premises, hereby finds that: 1. On February 11, 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. 09-036-D1 to BEST WELDING AND FABRICATION, INC. 2. On February 11, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on BEST WELDING AND FABRICATION, 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 5, 2009, the Department issued an Amended Order of Penalty Assessment in Case No. 09-036-D1 to BEST WELDING AND FABRICATION, INC. The Amended Order of Penalty Assessment assessed a total penalty of $196,980.30 against BEST WELDING AND FABRICATION, INC. 4. On March 16, 2009, the Amended Order of Penalty Assessment was served by certified mail on BEST WELDING AND FABRICATION, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 11, 2009, the Department issued a 2°4 Amended Order of Penalty Assessment in Case No. 09-036-D1 to BEST WELDING AND FABRICATION, INC. The an Amended Order of Penalty Assessment assessed a total penalty of $50,968.94 against BEST WELDING AND FABRICATION, INC. . 6. On March 26, 2009, the 2°4 Amended Order of Penalty Assessment was served by certified mail on BEST WELDING AND FABRICATION, INC. A copy of the 2"! Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. The Employer requested a formal hearing on April 6, 2009. A copy of the Request for Hearing is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On April 21, 2009, the request for formal hearing was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge. The matter was assigned to Administrative Law Judge Barbara Staros and given case number 09-2138. 9. On October 30, 2009, the Department issued a 3rd Amended Order of Penalty Assessment in Case No. 09-036-D1 to BEST WELDING AND FABRICATION, INC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $10,179.61 against BEST WELDING AND FABRICATION, INC. 10. On October 30, 2009, the 3™ Amended Order of Penalty Assessment was served on legal counsel for BEST WELDING AND FABRICATION, INC. A copy of the 3" Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 11. On November 9, 2009, BEST WELDING AND FABRICATION, INC. filed a Notice of Voluntary Dismissal. A copy of the Notice of Voluntary Dismissal is attached hereto as “Exhibit F” and incorporated herein by reference. 12. On November 12, 2009, an Order Closing File was entered. The Order Closing File relinquished jurisdiction to the Department. A copy of the Order Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 26, 2010, and the Amended Order of Penalty Assessment issued on April 15, 2010, 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 request for administrative hearing received from CHANARON ENTERPRISES, INC., D/B/A FRASCATI’S ITALIAN RESTAURANT, 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: 1. On March 26, 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. 10-081-D7 to CHANARON ENTERPRISES, INC., D/B/A FRASCATI’S ITALIAN RESTAURANT. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein CHANARON ENTERPRISES, INC., D/B/A FRASCATI’S ITALIAN RESTAURANT 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 26, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on CHANARON ENTERPRISES, INC., D/B/A FRASCATIS ITALIAN RESTAURANT. 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 15, 2010, the Department issued an Amended Order of Penalty Assessment to CHANARON ENTERPRISES, INC., D/B/A FRASCATIS ITALIAN RESTAURANT. The Amended Order of Penalty Assessment assessed a total penalty of $9,580.76 against) CHANARON ENTERPRISES, INC., D/B/A FRASCATI’S ITALIAN RESTAURANT. The Amended Order of Penalty Assessment included a Notice of Rights wherein CHANARON ENTERPRISES, INC., D/B/A FRASCATI’S ITALIAN RESTAURANT 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. 4. On April 21, 2010, the Amended Order of Penalty Assessment was served by certified mail on CHANARON ENTERPRISES, INC., D/B/A FRASCATIS ITALIAN RESTAURANT. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On May 3, 2010, CHANARON ENTERPRISES, INC., D/B/A FRASCATIS ITALIAN RESTAURANT filed a request for administrative hearing with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on May 13, 2010, and the matter was assigned DOAH Case No. 10-2568. A copy of the petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On May 24, 2010, the Department served its First Interlocking Discovery Request (“discovery requests”) on Respondent by overnight courier, to which Respondent was required to serve its answers upon the Department within 30 days of service, pursuant to Rules 1.340(a), 1.350(b), and 1.370(a), Florida Rules of Civil Procedure. The discovery request included requests for admissions, interrogatories, and requests for production. 7. On June 30, 2010, the Department filed a Motion to Compel Discovery after having not received any answer from Respondent to the Department’s discovery requests. 8. On July 15, 2010, the Administrative Law Judge issued an Order Granting the Department’s Motion to Compel Discovery, ordering Respondent to serve responses to all of the Department’s discovery requests within 15 days of the date of the Order. The Order further stated that the Respondent’s failure to furnish responses to the Department’s discovery request would “be deemed to indicate that the Respondent has withdrawn the request for administrative hearing and will result in entry of an order relinquishing jurisdiction to the Petitioner ...”. 9. On August 3, 2010, the Department filed a Unilateral Status Report informing the Administrative Law Judge that Respondent had not responded to discovery. 10. On August 10, 2010, the Administrative Law Judge issued an Order Closing File, relinquishing jurisdiction of the matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue The issue is whether a delay of 706 days between the date Respondent entered a stop work order against Petitioner's former business and the date Respondent referred Petitioner's request for hearing to a hearing officer to conduct an informal proceeding pursuant to Subsection 120.57(2), Florida Statutes (2005)(an informal hearing),1 is harmless error within the meaning of Section 120.68.
Findings Of Fact Respondent is the state agency responsible for enforcing the Florida Workers' Compensation Law enacted in Chapter 440. On May 7, 2004, Petitioner was a closely held Florida corporation wholly owned by Mr. Martin Valka. Petitioner was engaged in the construction business as a tile setter. The principal place of business was 5327 Mayfair Court, Cape Coral, Florida. On May 7, 2004, an investigator for Respondent determined that Petitioner was in violation of applicable law and issued a stop work order in accordance with the requirements of Subsection 440.107(1). The stop work order precluded Petitioner from conducting business until the matter was resolved. The stop work order also imposed a penalty equal to 1.5 times the premium Petitioner would have paid for workers' compensation insurance coverage. On May 10, 2004, Respondent issued an Amended Order of Penalty Assessment Number 04-166-D7-1 (Amended Order). The Amended Order assessed Petitioner with a penalty of $4,039.76. Respondent more recently amended the penalty assessment to $3,779.89, which is the assessment at issue in this proceeding. On May 27, 2004, Petitioner filed a written petition requesting an informal hearing. The next day, the investigator's supervisor reviewed the petition, determined it was procedurally deficient, and denied the petition. The investigator informed Petitioner by telephone of the supervisor's determination. However, Respondent did not inform Petitioner that the denial of the petition was without prejudice to file an amended petition correcting the procedural inadequacies, which, of course, were unknown to Petitioner because the denial did not state with particularity the reasons for the denial and did not state a deadline for filing an amended petition. Petitioner requested a written notice of Respondent's determination that the request for hearing was inadequate and the grounds for the determination. Respondent did not respond. Respondent took no further action for approximately 706 days. The stop work order remained in effect. On June 30, 2004, the investigator recorded a note in the investigative file that Petitioner had not paid the fine. The investigator referred the matter to "collections." On May 4, 2006, Respondent referred Petitioner's request for hearing to the director of the Division of Workers' Compensation for assignment of a hearing officer to conduct an informal hearing. Petitioner filed an amended petition in the informal hearing. Respondent moved to dismiss the amended petition, in relevant part, on the ground that the amended petition raised disputed issues of fact not raised in the original petition. The hearing officer conducted an informal hearing based on written submissions. He concluded he had no jurisdiction because of the presence of disputed issues of fact and recommended referral to DOAH. Respondent committed several procedural errors under Chapter 120 (the APA). Respondent failed to issue a written denial of the request for hearing, failed to issue a written denial within 15 days of the date of the request, failed to state with particularity the reasons for the denial, and failed to deny the request for hearing without prejudice, stating a deadline for filing an amended petition to correct any procedural deficiencies.2 The procedural violations were not harmless error. They prejudiced Petitioner and may have affected the fairness of the proceeding. The procedural violations prejudiced Petitioner in several ways. The resulting delays prevented Petitioner from conducting its business for approximately 706 days. Petitioner ceased to exist. The delays denied Petitioner the financial ability to pay the fine at issue in this proceeding. The 706- day stop work order deprived Petitioner of the financial means to retain counsel to represent Petitioner. Mr. Valka obtained employment in a different occupation, but that was inadequate and did not last. Mr. Valka became a "stay-home dad." The delays caused by procedural errors may have impaired the fairness of the proceeding. The delays operated to enforce a stop work order for 706 days with no recourse to Petitioner that complied with relevant due process requirements in the APA. Petitioner's request for hearing, unlike the normal penal proceeding under the APA, did not toll the imposition of an administrative penalty in the form of a stop work order. The request for hearing tolled only that part of the penalty proposed as an assessment of money. The procedural errors resulted in delays that may have impaired Petitioner's ability to cross examine witnesses for Respondent and Respondent's exhibits. The delays may have resulted in the unavailability of witnesses, or at least their ability to recall facts, as well as the unavailability of exhibits Petitioner needed to support a defense. The delay may have impaired discovery.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing the stop work order and proposed assessment against Petitioner. DONE AND ENTERED this 23rd day of May, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2008.
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:
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on September 29, 2004, the Amended Order of Penalty Assessment issued on October 14, 2004, the second Amended Order of Penalty Assessment issued on January 20, 2005, and the 3rd Amended Order of Penalty Assessment issued on August 25, 2010, attached as “Exhibit A”, “Exhibit B”, “Exhibit C“, and “Exhibit F”, 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 request for administrative hearing received from Bill Veczko, d/b/a Bill’s Painting, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the second Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On September 29, 2004, 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. 04-590-D1 to Bill Veczko, d/b/a Bill’s Painting. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting 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 September 29, 2004, the Stop-Work Order and Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 14, 2004, the Department issued an Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment assessed a total penalty of $30,844.10 against Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting 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. 4. On May 27, 2010, the Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On January 20, 2005, the Department issued a second Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment assessed a total penalty of $104,044.10 against Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting 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, and must conform to Rule 28- 106.2015, Florida Administrative Code. 6. On May 27, 2010, the second Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On June 8, 2010, Bill Veczko, d/b/a Bill’s Painting filed a petition for administrative review (“Petition”) with the Department. Pursuant to Sections 120.54(5)(b) and 120.569(2), Florida Statutes, the Department carefully reviewed the Petition to determine if it was in substantial compliance with Rule 28-106.2015, Florida Administrative Code. A copy of the Petition is attached hereto as “Exhibit D”. 8. After reviewing the Petition, the Department determined that the Petition was not in substantial compliance with the requirements of 28-106.2015, Florida Administrative Code, in that the Petition did not contain a statement identifying the material facts in dispute, or a statement indicating that there were no material facts in dispute. Accordingly, on June 24, 2010, the Department issued an Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice. In the Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice, Bill Veczko, d/b/a Bill’s Painting was given an opportunity to file, within 21 days, an amended petition curing the defects in the original Petition. 9. On August 9, 2010, Bill Veczko, d/b/a Bill’s Painting filed an amended petition for administrative review (“Amended Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-7312. A copy of the Amended Petition is attached hereto as “Exhibit E”. 10. On August 25, 2010, the Department filed with the Division of Administrative Hearings a Motion to Amend Order of Penalty Assessment with an attached 3rd Amended Order of Penalty Assessment. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $103,958.56 against Bill Veczko, d/b/a Bill’s Painting. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 11. On August 25, 2010, Administrative Law Judge W. D. Watkins entered an Order Granting Motion to Amend Order of Penalty Assessment. 12. On October 12, 2010, Bill Veczko informed the Department that Bill Veczko, d/b/a Bill’s Painting did not wish to proceed to an administrative hearing in DOAH Case No. 10- 7312. 13. On October 12, 2010, the Department filed a Joint Motion to Relinquish Jurisdiction with the Division of Administrative Hearings. As a result, Administrative Law Judge W. D. Watkins entered an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit G”.
Findings Of Fact 10. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on September 24, 2010, and the 2nd Amended Order of Penalty Assessment issued on May 5, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 10-423-D3, and being otherwise fully advised in the premises, hereby finds that: 1. On September 24, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-423-D3 to Hal’s Floor Covering, Inc. (hereinafter Hal’s). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Hal’s was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On September 24, 2010, the Stop-Work Order and Order of Penalty Assessment was served on Hal’s by personal service. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 25, 2010, the Department issued an Amended Order of Penalty Assessment to Hal’s in Case No. 10-423-D3. The Amended Order of Penalty Assessment assessed a total penalty of $9,049.83 against Hal’s. The Amended Order of Penalty Assessment included a Notice of Rights wherein Hal’s was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. The Amended Order of Penalty Assessment was served on Hal’s by personal service on February 18, 2011. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On November 12, 2010, Hal’s filed a timely Petition for formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 10-10613. 6. On May 5, 2011, the Department issued a 2nd Amended Order of Penalty Assessment to Hal’s in Case No. 10-423-D3. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $1,502.86 against Hal’s. The 2nd Amended Order of Penalty Assessment was served on Hal’s on May 12, 2011 through the Division of Administrative Hearings. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On May 16, 2011, the Department filed a Notice of Settlement in DOAH Case No. 10-10613. A copy of the Notice of Settlement filed by the Department is attached hereto as “Exhibit D.” 8. On May 16, 2011, Administrative Law Judge Elizabeth W. McArthur entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the May 16, 2011 Order Closing File is attached hereto as “Exhibit E.”
The Issue The issues are whether Respondent materially understated payroll in violation of Section 440.107, Florida Statutes (2003), and, if so, what penalty, if any, should be imposed against Respondent; and whether Respondent's workers are not employees defined in Section 440.02, Florida Statutes.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. (2002). Respondent is a corporation domiciled in Florida and engaged in the business of stucco and plastering. On March 2, 2004, Petitioner's compliance officer conducted a random site inspection of a single-family residence under construction at 12061 Cypress Links Drive, Fort Myers, Florida. Two work crews were present on the construction site. One crew was finishing drywall seams inside the house. The other crew was applying stucco to the outside of the house. The compliance officer is the only employee for Petitioner who investigated and developed the substantive information that forms the basis of Petitioner's proposed agency action. Other employees calculated the actual amounts of the proposed penalties. On March 3, 2004, the compliance officer conducted a conference in his office with Ms. Sandra Gomez and Mr. Francesco Zuniga; and Mr. Juan Rivera and Ms. Licia Rivera. Mr. and Mrs. Rivera are the principal officers for Respondent. The compliance officer determined that the crew working inside the house worked for Mr. Zuniga and that the crew working outside the house worked for Ms. Gomez. The compliance officer further determined that Ms. Gomez and Mr. Zuniga were subcontractors for Respondent and that neither Ms. Gomez nor Mr. Zuniga had workers compensation insurance. The compliance officer issued stop work orders against Ms. Gomez and Mr. Zuniga that are not within the purview of this proceeding. The compliance officer determined that Respondent maintained workers' compensation insurance through the Hartford Insurance Company (Hartford) and took no action against Respondent except to issue an order for Respondent to produce its business records for the preceding three years (the business records) for audit by Petitioner. The compliance officer reported to Hartford that Respondent had uninsured subcontractors working for Respondent. The compliance officer also requested and received from Hartford a copy of the last premium audit report for Respondent (the audit report). On March 10, 2004, Respondent produced the business records previously requested by the compliance officer. The production of records fully satisfied the request issued by the compliance officer. The compliance officer determined there was a discrepancy between the audit report's description of employee duties and related information in the business records. The compliance officer determined that Respondent had materially understated or concealed payroll and had materially misrepresented or concealed employee duties by representing that Respondent was in the drywall business and not in the stucco business. On March 10, 2004, Petitioner issued Stop Work and Penalty Assessment Order Number 04-94-D6 (the Initial Order). The Initial Order alleged that Respondent violated Subsection 440.107(2), Florida Statutes (2003), by materially understating or concealing payroll and proposed a penalty equal to the greater of 1.5 times the premiums Respondent would have paid over the preceding three years or $1,000. Petitioner subsequently amended the Initial Order to charge Respondent with materially misrepresenting or concealing employee duties. Petitioner issued the Initial Order without conducting any further review of Respondent or its principals. The compliance officer told Mr. Rivera that it would not be helpful for Respondent to retain counsel and that counsel would only further delay release of the stop work order. The compliance officer did not provide Respondent with any information concerning methods of avoiding the penalty except for Respondent to provide proof of an exemption or proof of insurance for Respondent's subcontractors. The compliance officer did not advise Respondent that proving independent contractor status for some or all of Respondent's subcontractors before the effective date of statutory amendments on October 1, 2003, would reduce the proposed penalty against Respondent. The compliance officer did not interview the Hartford employee who prepared the audit report. The audit report was limited to the period from December 17, 2002, through December 17, 2003. The audit report stated that Hartford had not provided a copy to Respondent and had not audited Respondent's general ledger. The compliance officer did not identify or interview the Hartford employee who had responsibility for Respondent's account, the Hartford agent responsible for Respondent, or the Hartford underwriter. The compliance officer did not request Hartford's complete file for Respondent. The audit report included a copy of an exemption for a person identified in the record as Mr. Stinnett who was included in Petitioner's penalty calculation. The audit report and penalty calculation each identified Mr. Stinnett by the same social security number. On March 16, 2003, Petitioner amended the amount of the proposed fine to $526,593.44 pursuant to Amended Order of Penalty Assessment Number 04-094-D7-2 (the Amended Order). Petitioner issued a Second Amended Order of Penalty Assessment Number 04-094-D7-3 (the Second Amended Order) on March 23, 2004. The Second Amended Order reduced the proposed penalty to $90,131.51. Petitioner reduced the $526,593.44 fine proposed in the Amended Order by $426,461.91. The latter sum pertained to penalties assessed for the period preceding October 1, 2003, and for the period following December 31, 2003. The parties agree that statutory amendments authorizing Petitioner to issue a stop work order to an employer that materially misrepresents employee duties or materially understates or conceals payroll became effective on October 1, 2003, and cannot be applied to Petitioner retroactively. In addition, the parties agree that Hartford's audit report for Petitioner did not cover the period after December 31, 2003. Respondent paid the proposed fine of $90,131.51. On March 23, 2004, Petitioner issued a Release of Stop Work Order (the Release) that removed the Stop Work Order issued on March 10, 2004. In a Third Amended Order of Penalty Assessment Number 04-094-D7-4 (the Third Amended Order) dated May 26, 2004, Petitioner reduced the proposed penalty by $21,679.28 to $68,432.23. Petitioner discovered errors totaling $16,261.42 that occurred when employees input numbers to calculate the proposed penalties against Respondent. The remaining portion of the reduction in the amount of $5,417.86 was attributable to the deletion of Mr. Sinnett from the penalty calculation. In a Fourth Amended Order of Penalty Assessment Number 04-094-D7-5 (the Fourth Amended Order) dated June 1, 2004, Petitioner further reduced the proposed penalty by $1,531.97 to $66,926.00. Respondent provided additional information concerning exemptions for a few workers. On June 7, 2004, Petitioner issued a Fifth Amended Order of Penalty Assessment Number 04-094-D7-5 (the Fifth Amended Order) deleting the charge that Respondent materially misrepresented or concealed employee duties. Petitioner admits that Hartford committed errors in the audit report and in recording the description of duties that Respondent reported to Hartford. Mr. Rivera personally reported to the appropriate Hartford employee that Respondent's primary business was stucco and that Respondent hired subcontractors to perform drywall plastering. The Fourth Amended Order dated June 1, 2004, as amended by the Fifth Amended Order, remain at issue in this proceeding. The Fourth Amended Order proposes a penalty in the amount of $66,920.26. The Fifth Amended Order limits the grounds for the proposed penalty to the charge that Respondent materially understated or concealed payroll by excluding subcontractors from Respondent's payroll from October 1 through December 31, 2003 (the relevant period), and by excluding either subcontractors or independent contractors thereafter. If a worker included in the penalty calculation were an independent contractor, within the meaning of former Subsection 440.02(15)(d)1, Florida Statutes (2003), the worker should be excluded from the penalty calculation during the relevant period. Effective January 1, 2004, however, Subsection 440.02(15)(d)1, Florida Statutes (2003), no longer excluded independent contractors in the construction industry from the definition of an employee. Thus, a determination of whether a worker was an independent contractor is not probative of that portion of the proposed penalty covering any period after December 31, 2003. Prior to January 1, 2004, former Subsection 440.02(15), Florida Statues (2003), did not except subcontractors from the definition of an employee unless the subcontractor satisfied the definition of an independent contractor. Effective January 1, 2004, Subsection 440.02(15)(c)2, Florida Statutes (2003), excluded from the definition of an employee those subcontractors that did not satisfy the definition of an independent contractor if a subcontractor either executed a valid exemption election or otherwise secured payment of compensation coverage as a subcontractor. There is insufficient evidence to support a finding that subcontractors included in that part of the penalty assessment attributable to the period after December 31, 2003, either elected a valid exemption or otherwise secured payment for compensation coverage. These subcontractors would not be excluded from the definition of an employee after December 31, 2004, even if they were independent contractors. Except for constitutional arguments raised by Respondent over which DOAH has no jurisdiction, Respondent owes that part of the penalty attributable to any period after December 31, 2003. It is undisputed that the workers included in that part of the penalty assessment attributable to the relevant period were subcontractors. Respondent's ledger clearly treated those workers as subcontractors and reported their earnings on Form 1099 for purposes of the federal income tax. Petitioner treated those workers as subcontractors in the penalty calculation. The Workers' Compensation Law in effect during the relevant period did not expressly exclude from the definition of an employee those subcontractors who executed a valid exemption election or otherwise secured payment of compensation coverage as a subcontractor. Rather, former Subsection 440.02(15)(c), Florida Statutes (2003), required a subcontractor to be an independent contractor to escape the definition of an employee. Former Subsection 440.02(15)(c), Florida Statutes (2003), required a subcontractor to satisfy all of the following requirements in former Subsection 440.02(15)(d)1, Florida Statutes (2003), in order for the subcontractor to be classified as an independent contractor: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. There is insufficient evidence to find that the workers included in that part of the penalty assessment attributable to the relevant period were independent contractors within the meaning of former Subsection 440.02(15)(d)1.a.-i., Florida Statutes (2003). Petitioner did not exceed its statutory authority by proposing a penalty of $66,920.26 in accordance with the Fourth Amended Order and Fifth Amended Order. Respondent previously paid a fine in excess of that proposed by Petitioner and is entitled to a refund of the excess penalty that Respondent paid.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order sustaining the allegations and penalties in the Fourth Amended Order and the Fifth Amended Order. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2004. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Susan McLaughlin, Esquire Law Offices of Michael F. Tew Building 800, Suite 2 6150 Diamond Center Court Fort Myers, Florida 33912 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent has committed the acts alleged in the Stop Work Order and Order of Penalty Assessment and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers' compensation insurance for the benefit of their employees. § 440.107, Fla. Stat. On August 11, 2006, Robert Lambert, the Jacksonville District Supervisor for the Division of Workers' Compensation, Bureau of Compliance, was contacted by Katina Johnson, an investigator for the Division.1/ Based on the information provided to him by Ms. Johnson, Mr. Lambert approved the issuance of a Stop Work Order against Capella Ventures, Inc. The investigator served a Stop Work Order and Order of Penalty Assessment, both by posting at the worksite and by hand delivery, on Capella Ventures. The Department investigator also issued a Request for Production of Business Records for Penalty Assessment, requesting records for a period of three years, from July 31, 2003. These records were requested in order to calculate the penalty required pursuant to Section 440.107, Florida Statutes, for not having workers' compensation insurance. The records were to be used in conjunction with the classification codes contained in the Basic Manual (Scopes Manual) published by the National Council on Compensation Insurance. Records were provided by Capella Ventures' counsel. Based on the records provided, an Amended Order of Penalty Assessment was prepared, assessing a penalty of $8,769.16. Mr. Peter King was, at all times material to this case, an officer of Capella Ventures, along with his father. His father is now deceased. Mr. King admitted that workers from Capella Ventures were assisting his father with a construction project on a home next to the home where they lived. He did not dispute that the workers were performing construction work and that the company had no workers' compensation coverage for them at the time. Nor did he dispute the amount of the penalty reflected in the Amended Order of Penalty Assessment. He contended that while his father performed the framing on the property, one of the two other employees did not have the skill to actually perform framing. The class code used by the Department to determine the appropriate penalty was 5645, which is used for carpentry operations on residential structures. Use of this code was appropriate. Capella Ventures filed for an address change in August of 2006, and voluntarily dissolved in January of 2008. No evidence was presented regarding what actions were taken by Capella Ventures with respect to the dissolution of the corporation. No evidence was presented regarding what, if any, distribution of assets was undertaken at the time of dissolution. No evidence was presented to indicate that any successor corporation or entity was formed upon the dissolution of Capella Ventures.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent, Capella Ventures, Inc., violated Section 440.107, Florida Statutes, by failing to secure workers' compensation for its employees, and assessing a penalty of $8,769.16. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of September, 2008.
The Issue The issue is whether Respondent’s request for an administrative hearing was timely filed by virtue of the doctrine of equitable tolling.
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. Respondent is a Florida limited liability company engaged in the construction business. Its offices are located at 2474 Ambassador Avenue, Spring Hill, Florida. To enforce this requirement, the Division performs random inspections of job sites and investigates complaints concerning potential violations of workers’ compensation rules. On June 6, 2018, James Acaba, a Division compliance inspector, conducted a compliance investigation at a job site in Lutz, Florida. Mr. Acaba observed two individuals working at the job site: Respondent’s owner, Mr. Smith; and Mr. Smith’s step- son. Mr. Smith claimed he had an exemption for himself. Mr. Acaba ascertained that Mr. Smith’s exemption expired on January 19, 2017. Mr. Acaba determined that: Mr. Smith’s step-son was working for $12.00 an hour; had been working for Respondent for about a week; and did not have workers compensation coverage. On June 6, 2018, a Stop-Work Order and a Request for Production of Business Records for Penalty Assessment Calculation purposes were hand-served on Mr. Smith at the job site. The Stop-Work Order contained an Order of Penalty Assessment, which explained how a penalty is calculated, but gave no specific amount pending a review of Respondent’s financial records. Mr. Smith was advised to provide the requested business records within 10 business days or by June 16, 2019. Mr. Smith requested information on how to have the Stop- Work Order removed. Mr. Acaba explained to Mr. Smith several options available to him to have the Stop-Work Order released: obtain a workers’ compensation policy; engage an employee leasing company; or terminate the step-son’s employment. On June 14, 2018, Mr. Smith provided Mr. Acaba a letter reflecting Respondent’s “reduction in (its) workforce.” On June 15, 2018, Mr. Smith secured the reinstatement of his exemption to work for Respondent. However, Mr. Smith did not provide the requested business records. On November 10, 2018, the Division served an Amended Order of Penalty Assessment (Amended Order) at the address Mr. Smith provided during the June 6, 2018, job site encounter. This Amended Order provided the total penalty amount of $35,769.16. According to Mr. Smith, his girlfriend, Samantha Nigh, signed for the Amended Order on November 10, 2018, saw the large amount of the penalty assessment, and “decided not to show” it to Mr. Smith. Ms. Nigh did not testify during the hearing. The Amended Order contained a Notice of Rights, which stated that, if Respondent wished to contest the penalty, a petition seeking a hearing had to be filed with the Division within twenty-one calendar days of the Amended Order. It also stated that the petition “must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399- 0300.” The Amended Order included the following: FAILURE TO FILE A PETITION WIHTIN TWENTY-ONE(21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THIS AGENCY ACTION. This meant that a petition had to be filed, and in the hands of the Agency Clerk no later than December 3, 2018. Although the actual due date was Saturday, December 1, 2018, Respondent could have filed the petition by the close of business on Monday, December 3, 2018. Florida Administrative Code Rule 18.106.103. Mr. Smith did not provide the date on which he became aware of the Amended Order. However, once he was aware of it, Mr. Smith knew the 21-day period to file a petition had expired, and admitted at hearing “it was already too late.” On December 14, 2018, 33 days after the Division served the Amended Order, and 11 days after the actual due date, the Division received Respondent’s hearing request. As a result of the late filing, the Division issued an Order to Show Cause (OTSC) on January 10, 2019. The OTSC required Respondent to show cause why the December 14, 2018, hearing request should not be dismissed as untimely. In the written response to the OTSC, Mr. Smith asserted that his brother, Edward Unger, “was only on the job site for the one day,” and Mr. Unger could “provide proof of employment elsewhere further (sic) showing he was not of our employment at the time.” Additionally, the response provided that “due to [an] emergency family situation where Byron Smith, owner, had to take a minor leave of absence to be with a close family member who had emergency open heart coronary bypass surgery. . ., the days and dates got scrambled with emotions clouding what needed to be done promptly.” The Division construed this conversation as possibly excusing the late filing and forwarded the matter to DOAH to resolve that narrow issue. During the hearing, Mr. Smith testified that his girlfriend, Ms. Nigh, prepared the OTSC response, but that his signature was on the document. Mr. Smith never clarified or corrected that Mr. Unger was his brother or step-son, and he merely reiterated the family problem and personal issues, without further detail or explanations, as his excuse. Lastly, Mr. Smith admitted that at the time Mr. Acaba observed the two working on June 6, 2018, he was breaking the rules, but “it was a huge penalty.” There is no credible evidence that Mr. Acaba gave Respondent’s owner, Mr. Smith any information that would cause him to miss the deadline for filing the petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Financial Services, Division of Workers’ Compensation, enter a final order dismissing Respondent’s request for a hearing as untimely. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2019. COPIES FURNISHED: Mattie Birster, Esquire Department of Financial Services Office of the General Counsel 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Byron K. Smith, Jr. Smith's Interior Finishes, LLC 17829 Laura Lee Drive Shadyhills, Florida 34610 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue The issue is whether Respondent is subject to assessed penalties as set forth in the Amended Stop Work and Penalty Assessment Order dated March 11, 2003.
Findings Of Fact Petitioner is the agency charged with enforcing statutory requirements that employers secure the payment of workers' compensation for their employees. Respondent is a Florida corporation, Federal Employer Identification No. 592489849, located in Ocala, Florida, that provides livestock transportation services. Henry Hayes Hudson, III, is Respondent's president. Martha Hudson is Respondent's vice president. Henry and Martha Hudson are Respondent's only officers and shareholders. On or about March 3, 2003, Petitioner received a complaint alleging that Respondent did not carry workers' compensation coverage. That same day, Petitioner's investigator, William Pangrass, conducted a compliance inspection at Respondent's principal place of business, 5879 West County Road 326, Ocala, Florida. During the investigation, Mr. Pangrass interviewed Martha Hudson and Respondent's bookkeeper, Kelly Hadsock. The investigation revealed that Respondent had no proof of workers' compensation for the prior three years. Petitioner personally served Respondent with a Stop Work and Penalty Assessment Order, No. 03-191-D1, on March 3, 2003. The Order required Respondent to cease all business activities. The Order also assessed the minimum statutory penalty in the amount of $100.00 under Section 440.107(5) and $1,000.00 under Section 440.107(7)(b). Martha Hudson refused to sign the Order. Next, Petitioner personally served a Request for Business Owner Affidavit and Production of Business Records on March 3, 2003. Martha Hudson also refused to sign this document. Respondent subsequently provided Petitioner with copies of its payroll records. The records included Respondent's payroll from March 3, 2000, through March 3, 2003. For all or part of that period, Respondent employed 52 individuals. Petitioner used the payroll records to calculate the penalty assessment for the three-year period of time that Respondent did not provide its employees with workers' compensation. On March 11, 2003, Petitioner issued the Amended Stop Work and Penalty Assessment Order, No. 03-191-D1-2. The Amended Order required Respondent to cease all business operations and to pay a penalty in the amount of $109,500.00, pursuant to Section 440.107(5), and a penalty in the amount of $325,045.57, pursuant to Section 440.107(7)(a). The total assessed penalty was $434,545.57. In a telephone conference on July 11, 2003, the parties stipulated that Respondent had no workers' compensation coverage for the period of time at issue here. They also stipulated that the only remaining issue involved the accuracy of the assessed penalty. During the hearing, Petitioner presented competent evidence to support the accuracy of the assessed penalty. More importantly, Respondent stipulated to the accuracy of the assessed penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order affirming the Amended Stop Work Penalty Assessment Order and directing Respondent to pay a penalty in the amount of $434,545.57. DONE AND ENTERED this 10th day of November, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 10th day of November, 2003. COPIES FURNISHED: Larry Collins, Esquire 202 South Magnolia, Suite 3 Ocala, Florida 34474 Eric Lloyd, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
