The Issue Whether Cindy Cammarota and Quail Oaks Apartments violated the Hillsborough County Human Rights Ordinance (Ord. 88-9 as amended) by discriminating on grounds of race and religion against Petitioners, Reverends William and Jacqueline Caractor with respect to an attempted eviction action.
Findings Of Fact Respondent Cammarota is the resident manager of Quail Oak Apartments. Respondent Quail Oak is an apartment complex in Hillsborough County which is subject to the Hillsborough County Human Rights Ordinance. Petitioners, who are black, are husband and wife. They are ordained ministers, who reside in Quail Oaks. They have used the community center at the apartment complex for services and frequently pray with other residents. They wear clerical garb and read their Bible in common areas at the complex. At all times material to these proceedings, Respondent Cammarota knew Petitioners were ministers at Mt. Carmel African Methodist Espiscopal Church. On July 30, 1990, a written rental agreement was entered into between Quail Oaks, lessor, and Petitioners, lessees, for an apartment at the complex. The term of the lease was from September 1, 1990 through August 31, 1991. At the option of Quail Oaks, payment of rent could be accepted conditionally by means of a personal check from the lessees. If the check was rejected for insufficient funds, Quail Oaks could require rent plus late charges to be paid by cashier's check, certified check or money order. In addition, Quail Oaks could terminate the lease for nonpayment of rent. Prior to leaving for vacation in November 1990, Petitioner Jacqueline Caractor issued a check in the amount of $645.00 for the November rent. The check was drawn upon the personal checking account belonging to her and her husband at Citizens and Southern National Bank (C & S). It was payable upon demand to Quail Oaks. Although a C & S counter check was used, all of the information on the check was correct. This check was accepted by Respondent Cammarota on behalf of Quail Oaks. It was presented to Barnett Bank of Tampa (Barnett) for collection and the bank was instructed to deposit the funds in Quail Oaks' account at the bank. Barnett Bank did not exercise ordinary care in regard to the check as required by the Uniform Commercial Code. Instead of collecting the funds from the payor bank, Barnett returned the check unpaid to Quail Oaks on November 5, 1990. Notice of the bank's dishonor was sent to Quail Oaks in a notice of debit with respect to the instrument together with the check itself. No reason was given by the bank for the dishonor. The provisional settlement of the check made by Barnett with Quail Oaks was revoked and the amount of credit given was charged back to Quail Oaks' account. Respondent Cammarota, who managed the Quail Oaks account with Barnett, misinterpreted this activity in the account as nonpayment of rent. A "three day notice" was issued by Quail Oaks to Petitioners for payment of rent or possession of the premises on November 7, 1990. The deadline for payment was November 13, 1990. Petitioners received actual notice on November 16, 1990, when they returned from vacation and found the notice posted on the front door of their apartment. A message concerning the matter was also on their answering machine. The message advised them that their check had been returned for insufficient funds. Petitioners went to their bank to determine why their check had not been honored. They had always paid their rent on time and they were concerned about the current state of affairs. The C & S Bank investigated the matter and discovered the check had never been submitted to it for payment. While Petitioners were present, a representative of the bank telephoned Respondent Cammarota and told her a bank error must have occurred as sufficient funds had always been available in Petitioners' account to cover the check, which had never been submitted to C & S for collection. Once Petitioners established that insufficient funds was not the basis for a dishonor of their personal check, they went to Respondent Cammarota to discuss the resolution of the problem. Respondent Cammarota was asked to resubmit the personal check for payment. She refused and requested a money order that included additional charges for the costs Quail Oaks incurred as a result of Barnett Bank's dishonor of the check. Respondent did not believe Petitioners' claim that the original check was a good check. Petitioners advised that they would not pay additional charges because they had complied with all of their responsibilities. They asked for the return of the original check and offered to pay the rent only by money order. Respondent Cammarota refused this potential solution of the problem. Respondent Cammarota did not believe Petitioners were at the office in order to make the check good. She did not believe that Petitioners were merely asserting their legal rights under the lease and negotiable instruments law. As a result, she was suspicious and unyielding during the discussion. She wanted them to pay late fees in order to remain in possession of their apartment. Petitioners, who were tired from their journey and surprised by Respondent Cammarota's lack of receptiveness to very reasonable requests, became somewhat excited by the fact that the process to remove them from their home had begun and they were being told to pay more money than they legally owed to remain in possession. In their response to the situation, Petitioners reminded Respondent Cammarota that they were Reverends. A suggestion that Respondent Cammarota should listen to God was construed by her as "preaching". The excited utterances from Petitioners caused the leasing agent in the office to ask them to leave, which they refused to do until they had read the notice of debit Respondent had received from Barnett Bank about their check. After the notice of debit was read and returned to Quail Oaks, Petitioners began to take their leave. At this point, Respondent Cammarota said something like, "And you people call yourself ministers". On November 20, 1990, Petitioner Jacqueline Caractor gave Quail Oaks a second November 1990 rent payment in the form of a money order. A letter dated the same day from Quail Oaks advised Petitioners that the money order could not be accepted because their account had already been turned over to Quail Oaks' attorney for eviction proceedings. On November 21, 1990, eviction proceedings were filed against Petitioners by Respondent Quail Oaks for nonpayment of rent. On November 28, 1990, Petitioners filed a housing discrimination complaint against Respondents. Attempts to resolve the housing discrimination complaint through conciliation was unsuccessful. Respondent Cammarota uses the term "you people" in conversation whenever she refers to two or more people in her presence. Ordinarily, it is not used to differentiate blacks from whites. In her conversation with the Petitioners, however, the term referred to their race or religion or both. It is Respondent Cammarota's opinion that ministers should behave differently than the Petitioners were behaving when they were asserting their legal rights in her office on November 16, 1990. Respondents did not articulate some legitimate, non-discriminatory reason for the eviction action for non-payment of rent.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of County Commissioners enter a Final Order finding that an unlawful discriminatory housing practice occurred when Respondent Cammarota, agent for Respondent Quail Oaks, unlawfully discriminated against Petitioners because of race or color and religion. That Respondents be required to pay a $500 fine to Hillsborough County. DONE and ENTERED this 23rd day of September, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. See See HO HO #2. #11. 4. Accepted. See HO #3. 5. Accepted. See HO #5. 6. Accepted. See HO #10. 7. Accepted. See HO #11. 8. Accepted. See HO #12. 9. Accepted. See HO #13. 10. Accepted. See HO #14. 11. Accepted. See HO #14. 12. Accepted. See HO #14. 13. Accepted. See HO #18. 14. Accepted. See HO #20. 15. Accepted. See HO #21. 16. Accepted. 17. Accepted. Rejected. Irrelevant. Docket speaks for itself. See HO #22. Rejected. Irrelevant. Accepted. See HO #22. Accepted. Rejected. Contrary to fact and loose agreements. Rejected. Inconclusive evidence. Accepted. See HO #7. Accepted. See HO #13. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. Accepted. See HO #16. Rejected. Argumentative. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. See HO #2. Accepted. See HO #2. Accepted. Accepted. #17. Accepted. See HO #2. Accepted. See HO #2. Rejected. Redundant. 49.-57. Rejected. Irrelevant. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #5, #7 and #8. Accepted. See HO #9. Accepted. See HO #11. Accepted. See HO #12. Accepted. See HO #13-#14. Rejected. Self serving. Accepted. See HO #21. Accepted. See HO #22. Rejected. Irrelevant. Rejected. Contrary to lease. Accepted. Accepted. See HO #2. Accepted. Accepted. Rejected. Contrary to fact and legal test for unlawful discrimination. COPIES FURNISHED: Cretta Johnson, Director Hillsborough County Equal Opportunity and Human Relations Department P.O. Box 1110 Tampa, FL 33601 John McMillan, Esquire Levin & McMillan 9385 N. 56th Street, #200 Temple Terrace, FL 33617-5594 Catherine P. Teti, Esquire Assistant County Attorney P.O. Box 1110 Tampa, FL 33601 Reverend William Caractor Qualified Representative 4747 W. Waters Avenue #3807 Tampa, FL 33614
The Issue Whether the Respondent, public lodging establishment, violated the provisions of Chapter 509, Florida Statutes, as alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is, and has been at all times material hereto, a public lodging establishment licensed by the State of Florida, having been issued license number 15-00043-H for apartment units located at 14 Carmalt Street, Cocoa Beach, Florida. The Petitioner received a consumer complaint on October 10, 2001, that one of the tenants in the Respondent public lodging establishment had been without electrical power and hot water for at least three days. On October 11, 2001, Ed Weimer, Safety and Sanitation Specialist with Petitioner ("inspector") conducted an inspection of the Respondent public lodging establishment. The inspector observed that Units 5 and 16 were occupied but had no electrical power. The inspector observed that when other tenants operated light switches in Unit 5 and 16 the lights did not come on. Extensions cords had been run through the windows of units without power from units with power. In addition, a common area hallway was also without electrical power. On October 11, 2001, the inspector provided notice of the observed violations by posting a copy of the Lodging Inspection Report at the site, sending a copy of the Report by certified U.S. mail to the Respondent, and by orally communicating the contents of the Report by telephone to the Respondent's principal Rudolph Hardick, Alice Hill, the manager of the apartment complex, and an unidentified secretary in the Respondent's office. Since the violations were observed after 12:00 p.m. on October 11, 2001, the Respondent was give notice that remedial action was required to be taken by 10:00 a.m. the following day rather than that same day. On October 12, 2001, at approximately 10:10 a.m., the inspector conducted a follow-up inspection of the licensed premises and observed that the violations noted in the Lodging Inspection Report dated October 11, 2001, had not been corrected. On October 12, 2001, the inspector completed a Call Back/Re-Inspection Report and provided notice that same day of said follow-up inspection and report by personally delivering a copy of the Call Back/Re-Inspection Report to Respondent's manager, Alice Hill. The mechanism by which proper lighting, heating, cooling, and/or ventilation is terminated or interrupted is not relevant to the statutory obligation of each licensed public lodging establishment to maintain such lighting, heating, cooling, and ventilation with strict regard to the health, comfort, and safety of guests. Without electrical power, none of the requirements stated in Section 509.221(3), Florida Statutes, can be satisfied, to wit, maintenance of proper lighting, heating, cooling, and/or ventilation and the operation of the licensed premises with strict regard to health, comfort, and safety of the guests. The Respondent had adequate time, notice, and opportunity to correct the observed violations but failed to do so. The Respondent has not offered any explanation or mitigation for its failure to comply with its statutory obligation under Section 509.221(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be enter finding the Respondent guilty of violating Section 509.221(3), Florida Statutes, and that an administrative fine of $1,000 be imposed. DONE AND ENTERED this 11th day of April, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 11th day of April, 2002. COPIES FURNISHED: Rudolph Hardick Fourteen Carmalt, Inc. Post Office Box 320615 Cocoa Beach, Florida 32932 Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether A-Z Roofing, Inc. (“Respondent”), failed to secure the payment of 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 The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent is a Florida for-profit corporation engaged in the construction industry with headquarters in Jacksonville, Florida. Ethelyn Roseboro is Respondent’s President. On September 23, 2016, the Department’s Compliance Investigator, Ann Johnson, inspected a jobsite at 1229 Blue Eagle Drive in Jacksonville, Florida. Ms. Johnson observed three men at the jobsite performing roofing work on a home undergoing renovations. Two of the men were on the roof stripping off old shingles and tarpaper, while a third was on the ground retrieving the discarded materials. Ms. Johnson interviewed the men she observed working at the jobsite. The man working on the ground originally identified himself as Tony Brown, but later admitted that his name was actually Allen Roberts. In response to Ms. Johnson’s inquiry as to who was Mr. Roberts’ employer, Mr. Roberts stated that he did not know and directed Ms. Johnson to his co-worker Donald Purdy. Mr. Purdy disclosed, after initially misleading Ms. Johnson, that he was a friend of the homeowner, Jessica Longo. A third worker at the site identified himself as Marvin Gainer. Initial Investigation and Stop-Work Order Ms. Johnson reviewed the local building department’s permit records and determined that Bracy Building Contractors, Inc. (“Bracy Builders”),1/ had pulled a permit to replace the siding on the structure for the owner, Ms. Longo. No permit was pulled for a re-roof. Ms. Johnson contacted Brad Bracey at Bracy Builders, who indicated that he had subcontracted the roofing work to Respondent, A-Z Roofing, Inc. Ms. Johnson next contacted Ms. Roseboro at A-Z Roofing, Inc. Ms. Roseboro informed Ms. Johnson that Respondent had, in turn, subcontracted the roofing job to JR Home Repairs, Inc. (“JR Home”) and directed Ms. Johnson to Cary Spires as the contact. Prior to contacting Mr. Spires, Ms. Johnson reviewed information in the Coverage and Compliance Automated System, or CCAS, the Department’s internal database, for JR Home. Ms. Johnson determined that JR Home did not have workers’ compensation insurance coverage for its employees. Ms. Johnson then contacted Cary Spires, who indicated he provided workers’ compensation insurance through a contract with Staff Force. Ms. Johnson spoke with Brent Abdula at Staff Force, who confirmed that JR Home was not a client, and thus does not have workers’ compensation insurance coverage through Staff Force. However, Mr. Abdula confirmed that Respondent is a client with workers’ compensation insurance coverage through Staff Force. Unfortunately, the employee roster maintained by Staff Force did not include Mr. Roberts, Mr. Purdy, or Mr. Gainer. Ms. Johnson followed up with Mr. Spires and informed him that JR Home was not a client of record with Staff Force, and further that none of the three workers at the jobsite in question were covered under Respondent’s contract with Staff Force. At that time, Mr. Spires admitted that he did not have workers’ compensation insurance coverage for his employees. Ms. Johnson next reviewed the Department of State, Division of Corporations’ information on A-Z Roofing, Inc., and determined it was an active Florida corporation with Ms. Roseboro listed as its President. Ms. Johnson researched A-Z Roofing, Inc., in the CCAS database and determined that Respondent did not have independent workers’ compensation insurance coverage. Finally, Ms. Johnson issued the Site Specific Stop- Work Order which is the subject of the case at hand. Unable to reach Ms. Roseboro, Ms. Johnson initially served the Stop-Work Order by posting it at the jobsite on September 23, 2016. After several failed attempts to reach Ms. Roseboro, Ms. Johnson hand-delivered the Stop-Work Order to Ms. Roseboro at her office on September 29, 2016. Along with the Stop-Work Order, Petitioner served Respondent with a Request for Production of Business Records (“BRR”) to facilitate calculating the penalty for the failure to secure workers’ compensation insurance. In response to the BRR, Respondent provided to the Department some bank statements and its 2014 and 2015 federal income tax returns. Respondent’s Responsibility for the Job Ms. Roseboro testified that, although the work at the jobsite had been “brought to her” by Mr. Spires, her company did not perform the work, and did not subcontract with JR Home to perform the work. Ms. Roseboro testified that she was in the process of getting “everything in place for the job to start,” but was not aware that work had begun when Ms. Johnson contacted her about the work being performed at the jobsite. Ms. Roseboro first testified that she had not pulled a permit for the job, and had not activated the permit for the job. Later she testified that once she found out the “job was being worked on without my knowledge, I voided the permit and the guys were not paid and they did not go back to the job site.” Her testimony was confusing and unreliable. In Respondent’s defense, Ms. Roseboro offered into evidence a copy of the building permit and certificate of completion issued by the Jacksonville Building Department to Justin Larsen Construction, Inc., for a re-roof of the dwelling at 1229 Blue Eagle Trail in Jacksonville. The permit was pulled on September 28, 2016, and the certificate of completion was issued on October 12, 2016. Ms. Roseboro offered the documents to prove that Respondent “did not complete the roofing job.” Those documents only prove that on a date subsequent to Ms. Johnson’s investigation of the jobsite, another roofing company pulled a permit and completed a re-roof of the subject property. It does not establish that Respondent was not responsible for the job on the date of the inspection, or that Respondent did not subcontract the job to JR Home, which did not have workers’ compensation insurance coverage for its employees (and which may have begun the work without a permit). Ms. Roseboro maintained at hearing that JR Home subcontracted the re-roofing job at the subject property to Respondent, not vice-versa. Ms. Roseboro’s testimony conflicted with Ms. Johnson’s testimony that Mr. Roseboro informed her via telephone on September 23, 2016, that Respondent had hired JR Home to perform the work. Ms. Johnson’s testimony on this point was more credible and is accepted as true. The Department proved that Respondent subcontracted the re-roof job to JR Home, which did not provide workers’ compensation insurance coverage for its employees. Penalty Calculation Department Penalty Auditor, Phillip Sley, was assigned to calculate the penalty to be assessed against Respondent. Pursuant to section 440.107(7)(d), Florida Statutes, the Department’s audit period is the two-year period preceding the date of the Stop-Work Order. The audit period in this case is from September 24, 2014 through September 23, 2016. Based upon Ms. Johnson’s observations of the work being performed at the jobsite, as well as review of records submitted by Respondent, Mr. Sley determined that the type of construction work performed was roofing. Mr. Sley consulted the Scopes Manual published by the National Council on Compensation Insurance (NCCI) and assigned classification code 5551 (Roofing - All Kinds & Drivers) for purposes of calculating the penalty. Mr. Sley then applied the corresponding approved manual rates for classification code 5551 for the related periods of non-compliance. Mr. Sley applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to determine the penalty to be imposed. Because Respondent did not provide records sufficient to determine its payroll during the audit period, Mr. Sley correctly assigned the statewide average weekly wage (AWW) to those employees identified on the jobsite on the date in question. § 440.107(7)(e), Fla. Stat. Mr. Sley likewise correctly utilized the AWW multiplied by two when applying the statutory formula for calculating the penalty to be assessed. See § 440.107(7)(d)1., Fla. Stat. On January 18, 2016, the Department served Respondent with an Amended Order of Penalty Assessment assessing a penalty of $267,278.36, which was fully imputed. Respondent provided additional records subsequent to issuance of the Amended Order of Penalty Assessment which allowed the Department to determine Respondent’s actual payroll for 2014 and 2015, rather than relying on imputed numbers. Based on this additional information, the Department issued a Second Amended Order of Penalty Assessment on April 3, 2016, in the amount of $82,094.68.
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 A-Z Roofing, Inc., violated the workers’ compensation insurance law and assessing a penalty of $82,094.68. DONE AND ENTERED this 26th day of May, 2017, 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 26th day of May, 2017.
The Issue The purpose of the hearing in this case was to provide Petitioner an opportunity to present evidence as to the relief to which she is entitled in a housing discrimination case.2
Findings Of Fact As a result of the admitted facts alleged in the Petition for Relief, Petitioner has suffered both tangible and intangible harm. As a result of the admitted facts, when Petitioner and her family were evicted from the apartment they had been subletting, they were locked out of the apartment and were unable to retrieve most of the personal property that was in the apartment. The reasonable value of the personal property that was lost as a result of the acts alleged in the Petition for Relief is $5,281.00.6 Petitioner also suffered intangible harm as a result of the admitted facts. The most serious aspects of the intangible harm were humiliation and loss of personal pride and self-esteem as a result of, in her words, “being treated like a dog.” Petitioner also suffered a substantial amount of personal inconvenience and indignity, because for a period of time after the eviction from the apartment she was truly homeless and was forced to live in her automobile. The harm to Petitioner described in this paragraph cannot be quantified. There is no evidence in this case that Petitioner incurred any attorney’s fees or costs. Alina Portuono is no longer employed at the apartment complex where the events giving rise to this proceeding occurred. Whoever owned the apartment complex at the time of the events giving rise to this proceeding is no longer the owner. The subject apartment complex no longer rents apartments as all the units are now condominiums.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order awarding quantified damages in the amount of $5,281.00 to Petitioner, if the FCHR believes it has provided adequate notice to Respondent(s) in this case and has jurisdiction arising from such notice.8 DONE AND ENTERED this 29th day of April, 2004, 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 29th day of April, 2004.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to electrical contractors. Petitioner is also responsible for regulating the practice of electrical contracting on behalf of the state. Respondent is licensed as an electrical contractor. Respondent holds license number ER 0011299. On February 11, 1992, Respondent obtained permit number E92-001706 to perform electrical services in a residence located at 2349 Tinian Avenue, Orlando, Florida 32812 (the "project"). The permit expired on August 12, 1992. On February 11, 1992, Respondent completed the project, telephoned the Orange County Building Department, and requested a "final" inspection for the project. The inspector performed a "rough-in" inspection on February 12, 1992. The project passed the "rough-in" inspection. The inspector did not perform a "final inspection." The inspector determined that the project would not have passed a "final inspection." The inspector did not inform Respondent that he did not perform a "final inspection." The inspector followed routine practice for residential inspections. Respondent did not follow up to make sure that the project passed final inspection. Respondent does not routinely follow up on residential projects to make sure that the final inspection is completed. The project was not a large residential or commercial project. It was a small residential project. Respondent was leaving the state permanently. This was the last project he worked on before leaving the state. No final inspection was completed on the project. It is Respondent's responsibility to make sure that a project passes final inspection. When Respondent completed the project on February 11, 1992, Respondent connected a distributing system to wiring, an apparatus, or fixture without obtaining written permission from an electrical inspector. Respondent left the state, did not perform any other work on the project for 90 days and longer, and did not complete the project by obtaining a final inspection. The owners of the property hired another electrical contractor to obtain the final inspection. The second contractor did not perform any significant work on the project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 489.533(1)(i) and (p), guilty of violating Section 489.533(1)(r), and imposing no penalty except a letter of guidance. RECOMMENDED this 14th day of August, 1996, in Tallahassee, Florida. DANIEL MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1996.
The Issue Whether the Respondent, Bill Schnell (Respondent), committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was the state entity charged with the responsibility of regulating the practice of unlicensed construction and contracting within the State of Florida pursuant to Chapters 455 and 489, Florida Statutes (2005). At all times material to the allegations of this case, the Respondent was not licensed as a contractor nor has he ever been certified or licensed to engage in contracting in the State of Florida. Hurricane Wilma struck Florida in the fall of 2005. Many residential structures were damaged by the storm in Boca Raton, Florida. Ms. Jean Pflaum resided in Boca Raton and the roof to her home was one of the structures damaged. Ms. Pflaum met the Respondent when he came through her neighborhood offering to repair damaged homes. On or about December 7, 2005, Ms. Pflaum contracted with the Respondent to repair her roof. In accordance with their agreement, Ms. Pflaum tendered the sum of $1990.00 to the Respondent, who did not competently complete the repair. Instead, the Respondent caused greater damage to the Pflaum residence. In short, Ms. Pflaum ended up hiring another contractor to correctly repair her roof and the damages caused by the Respondent. Ms. Pflaum expended an additional $2,300.00 to have the work completed. Ms. Pflaum had believed the Respondent to be a licensed person. He had represented his Florida license to be #CBC 1251460. That number corresponds to the license held by F. Devine Construction, a company unrelated to the Respondent. In fact, the Petitioner received a complaint from E. Devine Construction, Inc. The complaint alleged, among other things, that someone who represented himself to be "Bill Schnell" was using their license number without their consent or agreement. Upon receipt of this complaint, the Petitioner issued a cease and desist order against the Respondent. The Respondent never repaired Ms. Pfaum's roof, never refunded her money for the repair, and never resolved the Petitioner's complaint against him. In fact, the Respondent represented to the Petitioner that he would be moving to the Dominican Republic. The Petitioner incurred expenses and costs associated with the investigation of this case against the Respondent. Those costs, as of the date of the hearing, totaled $429.24. Those costs do not include any legal or attorneys fees associated with the prosecution of the case. The Respondent made no restitution in this cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order that imposes an administrative fine in an amount not less than $5000.00 against the Respondent and assesses costs of the investigation in an amount not less than $429.24. S DONE AND ENTERED this 6th day of November, 2007, in Tallahassee, Leon County, Florida. ___________________________________ J. D. 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 6th day of November, 2007. COPIES FURNISHED: W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bill Schnell c/o Elington Hernandes Acesor Legal Calle Restauracion, No. 125 Alto Santiago, Dominican Republic Bill Schnell 1432 Northeast 27th Avenue Pompano Beach, Florida 33064 Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent, Sunshine Rental of Citrus, LLC (“Sunshine”), should have a penalty assessed against it by Petitioner, Department of Financial Services, Division of Workers’ Compensation (the “Department”), and, if so, the amount of such penalty or assessment.
Findings Of Fact The Department is the State agency responsible for, inter alia, ensuring that all businesses operating in this State have workers’ compensation insurance coverage. Sunshine is a validly-existing limited liability company in the State of Florida. It was formed on April 18, 2007, for the purpose of conducting any and all lawful business. The company is primarily engaged in the business described in its website as “a family-owned nursery, rock yard, stone yard and landscaping company.” The principal address of the company is listed in the Florida Division of Corporations’ records as 6658 West Sunripe Loop, Crystal River, Florida. On January 26, 2016, Dale Russell, a compliance investigator with the Department, conducted an investigation at 7045 North Walden Woods Drive, Homosassa, Florida. Upon arrival at the site, Mr. Russell observed two men installing driveway paver stones at a residence. Mr. Russell identified himself as an investigator for the Department and asked the men for whom they were working, i.e., by whom were they employed. The men allegedly advised Mr. Russell that they were employed by Sunshine. Mr. Russell asked their names and was told they were Mike Stevens and Carlos Esptri. Inexplicably, Mr. Russell did not obtain any further information from the men such as phone numbers, addresses, or driver’s license numbers. The men then gave Mr. Russell the telephone number for Sunshine. Mr. Russell checked the Department’s compliance and coverage automated system (CCAS) to verify workers’ compensation insurance coverage for the men under Sunshine’s name. According to CCAS, there was no coverage for the two men. Mr. Russell called the number the men had provided, but there was no answer even though he called during normal business hours. So, Mr. Russell drove from Homosassa to Crystal River and went to Sunshine’s business location, 6658 Gulf to Lake Highway. When he went inside the business premises, Mr. Russell spoke with Joseph and Margaret Melchiore, who identified themselves as the owners of Sunshine. The Melchiores initially told Mr. Russell that they did not have workers’ compensation insurance because they did not need it. According to Mr. Russell, Mrs. Melchiore told him that the two workers he had identified were actually subcontractors, ostensibly operating under their own insurance. Mr. Russell explained that since the two workers were not working under any particular company of their own but were installing pavers for Sunshine, they were deemed employees of Sunshine and needed to be covered by Sunshine’s insurance. Based upon this discussion, Mr. Russell issued a SWO and made a formal request for production of business records upon Sunshine. The SWO and records request were hand-delivered to the Melchiores at the business location on the same day Mr. Russell first talked with them. The day after Mr. Russell served the SWO on Sunshine, Mr. and Mrs. Melchiore went to the workers’ compensation compliance office in Tampa and applied for exemptions from workers’ compensation insurance coverage for themselves. In the applications for exemption, applicants were given the option of selecting construction industry or non-construction industry as their area of employment. The Melchiores both checked the construction industry boxes and identified themselves as members of a limited liability company. At final hearing, they could not explain why they made that selection when seeking an exemption. They indicated on the exemption request forms that the scope of work to be done as “nursery, stone, pavers” without further explanation. The Melchiores also entered into an Agreed Order for the purpose of lifting the SWO so they could continue to make a living. They made an initial payment of $1,000 with the agreement to enter into a “Payment Agreement Schedule for Periodic Payment of Penalty.” No such agreement was entered into between Sunshine and the Department and no further payments were made. At final hearing the Melchiores stated the company does not provide any physical labor or other construction work; they only sell materials. This testimony is contradicted by the pictures and statements in their website, including: “We deliver and install at a reasonable price,” and “[W]e can provide you with our installation services.” Likewise, the signage at their business location said at one point in time, “PAVERS INSTALLED.” The fact that the Melchiores applied for an exemption and entered into an Agreed Order is strongly suggestive that they were aware of their need for and failure to maintain workers’ compensation insurance. However, the Department could not prove by clear and convincing evidence that the Melchiores were engaged in physical labor in the construction industry. They were only observed (by Mr. Russell) performing clerical or retail sales-type work. The Department calculated the amount of the penalty based on the Melchiores apparent and seemingly admitted involvement in the construction industry. An Amended Order of Penalty Assessment – in the amount of $91,211.04 – was served on Sunshine. Sunshine did not timely provide the Department with complete business records, so the penalty amount had been established by way of imputing income for Sunshine’s employees. Sunshine eventually provided the Department with most, but not all, of the requested records. Inasmuch as the records were not complete, the Department auditors were not able to make an absolute determination of Sunshine’s payments to employees. For example, there were numerous checks missing from the records; the October 2014 records are missing in their entirety; and the 2016 records – from the period of time around the disputed construction in Homosassa – are missing a page. The Department had asked for the financial records immediately upon issuing the SWO, but Sunshine did not do so because they were “looking for an attorney.” As a result, the records were not timely received by the Department and were not complete when ultimately provided (and were never totally complete, even at final hearing). Mr. Russell never spoke to the two workers from the Homosassa site again and they did not appear at the final hearing in this matter. Their hearsay statements (i.e., that they were employed by Sunshine) were never completely confirmed by other competent and substantial evidence. However, Mrs. Melchiore’s claim that she did not know the two men was not entirely believable. Based on the fact that the men gave Sunshine’s number to Mr. Russell, and that Mrs. Melchiore initially admitted knowing them but stated they were subcontractors, it is more likely than not that the men were at least known to Sunshine. Mrs. Melchiore testified at final hearing that when she and Mr. Russell talked, she disavowed knowing of the two workers at all. Mr. Russell’s testimony was more credible, but there remains a legitimate question as to what was actually said. The one instance of paver installation addressed by the Department (other than the Homosassa site discussed above) allegedly occurred at a business known as First Fruit Markets, also located in Homosassa. It is undisputed that Mr. Melchiore installed pavers in front of that business establishment. He did so, however, reputedly as a gift to the young couple who had recently opened the business. Mr. Melchiore claimed that he was not paid for the work he performed, that it was done on a Sunday afternoon when he was not working for Sunshine, and it was a gift. The owners of the business were not called as witnesses to substantiate Mr. Melchiore’s claim. The evidence shows that there is a sign at the fruit market identifying the pavers as being from Sunshine. Whether that sign indicates the work was done by Sunshine or was just appreciation shown by the owners of the business was not established by the evidence. Sunshine introduced into evidence several 1099-MISC forms showing payments by the company to John Gray, the Melchiores son. The purpose of those 1099s was to show that Sunshine used independent contractors to do work for them. Further, the 1099s were meant to suggest that the Melchiores did not pay anyone, including their son, in cash. Again, Mr. Gray did not testify to substantiate that suggestion. The evidence established that Sunshine owned trucks used in the business. There was, unfortunately, no evidence presented as for what purpose the trucks were used by the business. One picture on the Sunshine website shows a front-end loader putting materials into the back of a truck with a Sunshine decal on the door, but whether the truck was used for delivery only (and whether such work required workers’ compensation coverage) was not established by evidence in the record. Sunshine’s failure to timely provide its business records resulted in the imputed method being employed to determine the amount of the penalty to be assessed. First, the payroll was calculated by using the average weekly wage in effect at the time of the issuance of the SWO and, per statute, multiplying by two. Class Code 5221 – under the construction umbrella – was assigned to the work being done by Sunshine. The period of non-compliance was set at January 27, 2014 through December 31, 2014; January 1, 2015 through December 31, 2015; and January 1, 2016 through January 26, 2016. Those are the dates within the Department’s two-year audit period that Sunshine was deemed to be out of compliance. The imputed gross payroll amount was $334,161.00 for the first period of non-compliance, $359,789.88 for the second period, and $12,814.44 for the third. By comparison, the gross payroll relating to the Melchiores only was: $167,080.05 for the first period; $89,947.47 for the second period; and $12,814.44 for the third period (the “Melchiore payroll”). The total payroll figures, divided by 100, resulted in the amounts of $3,341.61, $3,597.89 and $1,281.44, respectively. Comparatively, the Melchiore payroll figures, divided by 100, equals $1,670.80, $8,994.74, and $128.14, respectively. The approved manual rates set for the three periods were 6.38, 6.25, and 7.02, reflecting the rates for Class Code 5221. The premium owed by the employer on the total payroll for the first period was calculated at $21,315.58; $22,486.81 for the second; and $1,799.08 for the third. For the Melchiore payroll only, the calculated amounts would be $10,659.70, $5,621.68, and $899.54, respectively. The premium amounts, multiplied by two, resulted in assessed penalties for the total payroll of $42,631.16; $44,973.62 for the second; and $3,598.16 for the third, for a total penalty of $91,211.04. For the Melchiores-only payroll, the penalty amounts would be $21,319.40; $11,243.36; and $1,799.08, for a total penalty of $34,362.56. There was not sufficient evidence presented at final hearing to establish what the total penalty would have been had a non-construction Class Code been assigned to the Melchiores.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation enter a Final Order assessing a penalty against Respondent, Sunshine Rental of Citrus, LLC, based upon the imputed income amounts for Joseph and Margaret Melchiore and applying the appropriate Class Code. DONE AND ENTERED this 7th day of July, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 7th day of July, 2016. COPIES FURNISHED: Kristian Eiler Dunn, Esquire Dunn and Miller, P.A. 215 East Tharpe Street Tallahassee, Florida 32303 (eServed) Thomas Nemecek, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Joaquin Alvarez, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Bennett M. Miller, Esquire Dunn and Miller, P.A. 215 East Tharpe Street Tallahassee, Florida 32303 (eServed) 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 to be resolved in this proceeding is the amount of replacement housing payment that the Petitioners should receive as a result of their being displaced by a highway construction project. The parties agree that Petitioners are entitled to benefits, but disagree as to the appropriate amount.
Findings Of Fact In 1979, Petitioners owned and lived on property located in Hillsborough County, Florida. The property included slightly more than two acres of land and a one-story frame dwelling. The dwelling contained three bedrooms, a living-dining room, a kitchen, and two open porches. Petitioners' property was condemned by the Florida Department of Transportation in order to obtain right-of-way for Interstate Highway 75. The value of the land and dwelling structure was $60,950, and Petitioners were awarded this amount through a Final Judgment entered in a condemnation proceeding. The value of the Petitioners' dwelling structure was approximately $33,794, and the value of their property was approximately $27,206. The fact that these amounts do not coincide with the condemnation award is not material. Department of Transportation personnel located a comparable piece of property that included a dwelling structure. This dwelling structure was slightly larger and included some amenities that the Petitioners' condemned dwelling structure did not include. The structure was on three acres of land, more than the land included in the condemned parcel. The selling price of this comparable property and structure was $70,500. Petitioners decided against purchasing the comparable property and structure located by the Department. Instead, Petitioners decided to purchase property located near to Live Oak, Florida, and to build a new dwelling structure on the property. The parcel that Petitioners purchased is 41 acres in size and includes frontage on the Suwannee River. The Petitioner Mrs. Fred Anderson has contracted to construct a dwelling structure on a portion of the purchased property. The price of the dwelling is $35,000. The structure which Mrs. Anderson has contracted to build contains some amenities beyond those that were included in the condemned dwelling structure. Nonetheless, the Department has conceded that the structure, now under construction, is comparable to the condemned structure. The Department has conceded that Petitioners are entitled to receive the difference between the value placed on the condemned structure and the cost of building the new, comparable structure as a part of their replacement housing payment. This amounts to $1,206 ($35,000 minus $33,794) In making a determination as to the amount of replacement housing payment that Petitioners are entitled to receive in connection with their property acquisition, the Department determined to place a value on three acres of the 41-acre tract that Petitioners purchased. Three acres were chosen because the comparable property located by the Department included three acres. The Department's personnel concluded that the three acres surrounding the dwelling structure site had a value of $8,597 per acre. The total value of the three-acre homesite was thus placed at $25,791. This amount is less than the $27,206 that was determined to be the fair value of the Petitioners' condemned land. The Department's personnel therefore concluded that Petitioners were entitled to no relocation assistance benefits for the property acquisition since they had received more money in the condemnation proceeding than the value of the three-acre homesite. In determining a fair value to be placed on the property purchased by Petitioners near Live Oak, it is not appropriate to consider the price of the entire 41-acre tract. The 41-acre tract cannot fairly be compared to the condemned tract that was less than three acres in size. Petitioners should receive compensation only for a comparable tract. Petitioners paid a total of $58,000 for the 41-acre tract. It would not be appropriate to place a value on the three acres surrounding the Petitioners' dwelling under construction by simply dividing 41 into the total purchase price. The three acres surrounding the homesite includes river frontage. It is the most valuable portion of the 41-acre tract. While the three acres surrounding the dwelling structure under construction include amenities that the Petitioners' condemned land did not include, it is fairly comparable. The fair value of the three acres is $10,782 per acre, or a total of $32,346. It thus cost the Petitioners more than the amount they received for their condemned land ($27,206) to obtain a comparable homesite. The Department's calculations which led to a value of $8,597 per acre were erroneous. During the course of negotiations between the Petitioner Mrs. Anderson and personnel of the Department of Transportation, Mrs. Anderson came to an understanding that she would receive $9,550 (the difference between the price of the comparable property located by the Department and the Petitioners' condemned property) in replacement housing payments. She relied on this understanding in contracting to have a dwelling structure constructed on her newly acquired property. The new dwelling structure has not been completed because Mrs. Anderson was relying upon receipt of the replacement housing payments to pay for construction. While it is clear that Mrs. Anderson had this understanding, it does not appear that the Department misrepresented any facts so as to lead her to that conclusion. Communications forwarded by the Department to Petitioners advised them that the maximum benefits they could receive would be determined by subtracting the value of their property as determined in a condemnation proceeding from the cost of comparable property. Petitioners concede that that amount is $9,550. The Department's communications clearly indicated that if Petitioners decided to purchase other property or to build a new dwelling structure, other compensation formulas would be utilized, but that the maximum possible benefit would remain $9,550. While Mrs. Anderson's new dwelling structure was being constructed, she had difficulty contacting the Department's officials, who were located in Tampa and Bartow. The difficulty in communication was in part the fault of Mrs. Anderson and in part the fault of the Department's officials. Mrs. Anderson went to a Department office near Live Oak and discussed the matter. The Live Oak officials, of course, had no knowledge of the details of the matter, but helped to communicate with officials in Tampa and Bartow. During these discussions, the officials in Live Oak assumed that Mrs. Anderson was entitled to receive the amount that she related to them ($9,550). No representations were made to her, however, that would properly lead her to a conclusion that she was entitled to receive that amount. The contractor who was building Mrs. Anderson's dwelling structure also contacted Department personnel. He, too, came to the conclusion that Mrs. Anderson would be receiving $9,550. Based on that understanding, he engaged in construction activities that Mrs. Anderson could not afford. While it is apparent that the contractor reached this understanding, it does not appear that anyone at the Department directly represented to him that Mrs. Anderson would be receiving $9,550 in replacement housing payments.
